Debate In Beijing: ICANN As Online Content Regulator?

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The publication by governments of additional safeguards for new top-level domains at this week‘s 46th meeting of the Internet Corporation for Assigned Names and Numbers (ICANN) sparked warnings that the private net management body should avoid becoming a content regulator.

With ICANN getting close to the start of new TLDs (like .web, .hiv, .berlin) last minute additions to the application procedure made by the ICANN management recently to answer complaints by stakeholders – for example, governments or the Intellectual Property Community – led to harsh questions about the circumvention of the routine procedures of the self-regulatory ICANN bodies during the meeting.

The support of governments for the .africa-application of the Commission of the African Union was not a big surprise. Governments advised the ICANN Board to stop the competing application, and also the application of the Bahrain-based Internet Exchange Point GCCIX application for .gcc.

GAC asked that applications from online retailers Amazon, Patagonia, Vin and Vine, several Chinese City applications and a number of others seeking geo-TLDs not proceed after the initial evaluation. What came be as a bigger surprise to the community was the long list of additional safeguards the governments want to implement via “GAC advice,” a statement by governments that ICANN has either to follow or further discuss with the governments.

Governments in their Beijing Communique advised the ICANN Board that new TLDs applicants had to verify and check Whois data, data listing the domain name owner. They should mitigate abusive activity, including the “distribution of malware, operation of botnets, phishing, piracy, trademark or copyright infringement.”

ICANN is not “the proper forum for combating other sorts of content-based violations of the law, because the law varies from jurisdiction to jurisdiction, and one person’s copyright infringement is another person’s fair use criticism and one person’s trademark infringement is another person’s criticism using a trademark to call out a brand that is abusive toward consumers.” – Wendy Seltzer

With regard to sensitive Web address strings and protected markets the governments wanted registries to oblige registrants to comply with all applicable laws including laws on “privacy, data collection, consumer protection, fair lending, organic farming, disclosure of data and financial disclosures.” Registrants of these sensitive addresses have to have an abuse point of contact, normally reserved for network operators. The list of categories in which the GAC wants to see stronger safeguards includes domains potentially addressing minors (such as .kids, .toys, .games), environmental (.earth, .eco, .organic), health (.doctor, .hiv, .diet), but also what the GAC describes as “intellectual property” related TLDs (.audio, music, .movie, .fans, .software and many others).

“The new GAC … advice is really a complete redesign of the underlying policies for approving new top level domains,” warned US academic Milton Mueller, speaking at the ICANN’s public forum in Beijing yesterday. “The categories it has created were not part of the Applicant Guidebook (AG) and the criteria for acceptability that they intend to apply to those categories were not part of the AG or any GNSO policy,” Mueller said. The GNSO (Generic Names Supporting Organization) is the self-regulatory body in charge of policymaking.

Privacy expert Wendy Seltzer, like Mueller active in the Non-Commercial Stakeholder Group, warned that ICANN is not “the proper forum for combating other sorts of content-based violations of the law, because the law varies from jurisdiction to jurisdiction, and one person’s copyright infringement is another person’s fair use criticism and one person’s trademark infringement is another person’s criticism using a trademark to call out a brand that is abusive toward consumers.”

A former US representative in the GAC, US lawyer Becky Burr, also appealed to the ICANN Board, it should “think carefully about allowing ICANN to be used to achieve regulatory regimes that governments have tried to achieve over years and years of debates in international regulatory organisations, particularly when they have not even been implemented those regulatory regimes in their own sovereign territories. ICANN should not permit itself to be an end run around WIPO, WTO, competition authorities and other expert agencies.“

Jeff Neuman from Neustar asked to allow the GAC advice, which normally goes directly to the Board, to be put out for public consultation. “ICANN must stick to its limited coordination mission and not venture down the endless spiral of content regulation,” he said.

Only Andrea Glorioso, member of the GAC for the European Commission, reacted to the harsh words by referring to the reference to human rights, international and applicable local law in the preamble clause of the GAC advice. Glorioso, who said he could only speak in his personal capacity in the situation, welcomed a broad consultation on the GAC safeguard advice which he said he expects to be surprisingly welcome to the broader public.

Monika Ermert may be reached at info@ip-watch.ch.

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