Comments on the ICANN Proposed Final Version of the Applicant Guidebook

The FoE Dynamic Coalition has just published comments on the Proposed Final Applicant Guidebook for new gTLDs. The statement which was drafted by Milton Mueller and reads as follows:

Comments on the ICANN Proposed Final Version of the Applicant Guidebook

As the multistakeholder Dynamic Coalition for Freedom of Expression , developed from the Internet Governance Forum, we wish to comment on Section 3.4.3 of the Proposed Final Version of the Applicant Guidebook.

Domain names are a form of expression on the Internet and have been recognized as such by various court jurisdictions.[1] Moreover, censorship or suspension of domain names is often triggered by the content on websites, therefore we anticipate a risk that objections to new top level domains may often be motivated by an attempt to suppress or restrict certain forms of controversial or diverse expression.

Freedom of expression is well recognized as a fundamental human right. The leading instruments are the 1948 UN Declaration of Human Rights and the International Covenant on Civil and Political Rights(ICCRP). Article 19 of the UDHR, which is considered customary international laws and applies to all countries states:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Under international standards as set by the UN Human Rights Committee, any limitations on freedom of expression must satisfy that the interference is provided in law and is clear and accessible, the interference must pursue a legitimate aim as set out under Article 19(3) of the ICCPR, and the restrictions must be necessary and proportionate.[2]

Objecting to a TLD string on the grounds of its meaning, or the content that one expects to be associated with the domain, constitutes a form of prior restraint on expression. Because the scope of ICANN’s jurisdiction over the domain name system is global, ICANN’s TLD objection processes constitute a precedent-setting form of global content regulation. Given a well-recognized international right to freedom of expression, the criteria used to suppress TLDs must be very narrowly circumscribed and the authority must be used sparingly. Only those TLD strings that clearly violate well-established international laws should be blocked under this provision.

Section 3.4.3, currently titled “Limited Public Interest Objection,” allow various parties to object to the creation of a new top level domain because “the applied-for gTLD string is contrary to general principles of international law for morality and public order.”

We believe that the current version of the AG does not sufficiently respect legitimate free expression rights. We encourage ICANN’s board and staff to make appropriate modifications in the final applicant guidebook. We have the following concerns and propose a number of specific modifications.

1.    The title should be changed to “Objections based on general principles of international law.” The term “public interest” is too broad and ill-defined, and lacks any firm basis in international law. Labeling the class of objection “public interest” encourages parties to object to forms of expression that they dislike or disapprove of, regardless of their status under defined international law. We note that a cross-community working group that included governments (GAC), business/civil society domain name users and suppliers (GNSO) and internet users (ALAC) decisively rejected the term “public interest” as a label for this category of objection precisely for this reason. We ask ICANN staff to re-label this class of objection.

2.    We note that numerous governments objected to inclusion of the terms “morality and public order” as the basis for these objections. They noted, correctly, that there is no global standard for morality and public order, as different cultures and communities have radically different standards. Here again, established international legal agreements are the more appropriate standard to cite rather than “morality and public order.” We ask that the term “morality and public order” be stricken from the text. E.g., on p. 3-18 staff should replace “contrary to generally accepted legal norms relating to morality and public order that are recognized under principles of international law” with “contrary to generally accepted principles of international law.”

3.    The decision to censor a top level domain should not be outsourced to a private “dispute resolution service provider” as proposed in the Module 3 attachment. While we recognize the need for expert advice, we believe that there should be clear lines of accountability for any decision to suppress expression and that the ICANN board should make the decision directly. We are concerned about the long term implications of outsourcing such decisions to private DRSPs, who will tend to view dispute resolution as a revenue stream and thus develop an incentive to encourage and facilitate objections. We are also concerned about the lack of accountability inherent in the use of a revolving panel of experts selected by a subcontractor of ICANN. If the decisions are consistently wrong, what recourse do applicants or free speech advocates have?

4.    Should there be a DRSP, we believe that it is entirely inappropriate for the International Chamber of Commerce (ICC) to serve as the authority selecting experts for disputes involving basic human rights such as freedom of expression. The ICC’s International Centre for Expertise is a money-making service offered by a business advocacy group. It has no specific expertise or track record on freedom of expression issues. We object strongly to the prospect of the human right to communicate being adjudicated by this group. Various alternatives to the ICC were suggested during the cross-community working group deliberations.

5.    We are also deeply concerned about the “Independent Objector” proposal. The Independent Objector seems to allow objections to be made on an anonymous and unaccountable basis. We believe that the burden of proof should always be on objectors to prove that a proposed top level domain name is illegal; the default should be to allow diverse and even controversial forms of expression. The existence of an Independent Objector seems to encourage parties to make objections secretly and at no cost, which reverses the proper burden of proof.

[1]  In the U.S., see The Taubman Company v. Webfeats, et al. 319 F.3d 770 (6th Cir., February 7, 2003), which stated “The rooftops of our past have evolved into the internet domain names of our present.  We find that the domain name is a type of public expression, no different in scope than a billboard or a pulpit, and Mishkoff has a First Amendment right to express his opinion about Taubman, and as long as his speech is not commercially misleading, the Lanham Act cannot be summoned to prevent it.” In Canada, (January 2001), a British Columbia court stated that “when a Web site is used for expression in a labour relations dispute, as opposed to commercial competition, there is… a reasonable balance that must be struck between the legitimate protection of a party’s intellectual property and… [freedom] of expression.” See also Article 19’s analysis of the relationship between domain name regulations and the International Covenant on Civil and Political Rights. http://www.article19.org/pdfs/analysis/kazakhstan-s-domain-names.pdf

[2] Para.3 of General comment 10 on Article 19 of the ICCPR., Human Rights Committee, (Nineteenth session, 1983), Compilation of General Comments and General Recommendations, Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 11 (1994).

The Dynamic Coalition on Freedom of Expression and Freedom of the Media on the Internet, Internet Governance Forum.

http://www.intgovforum.org/cms/dynamic-coalitions/75-foeonline

Signatories

– Dynamic Coalition on Freedom of Expression and Freedom of the Media on the Internet
– Internews International
– Article 19
– Electronic Frontier Foundation (EFF)
– Foundation for Media Alternatives (Philippines)
– Milton Mueller, Syracuse University
– Ben Wagner, European University Institute
– Dixie Hawtin, Global Partners
– Walid Al-Saqaf, alkasir.org
– Rebecca MacKinnon, New America Foundation
– Lisa Horner, Global Partners
– Kim Pham, Co-Founder AccessNow.org
– Wolfgang Benedek, University of Graz
– Karmen Turk, University of Tartu
– Pranesh Prakash, Centre for Internet and Society

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