APC comment on freeom of expression & association

[Willie Currie <wcurrie@xxxxxxx>]

The issue of a morality and public order objection requires further 
attention. As can be seen from the entry in Draft Applicant Guidebook v3 
below, this section is the most under-developed compared to procedures 
for other forms of objection or contention:
*/ 3.1.2.3 Morality and Public Order Objection/*

Anyone may file a Morality and Public Order Objection.
Due to the inclusive standing base, however, objectors are
subject to a "quick look" procedure designed to identify
and eliminate frivolous and/or abusive objections. An
objection found to be manifestly unfounded and/or an
abuse of the right to object may be dismissed at any time.

As gTLD applications which have a controversial content, particularly of 
a political, religious or sexual nature, are likely to receive 
objections under this procedure, it is important that cognisance be 
given to the criteria for assessing the validity of a morality and 
public order objection. Mention would need to be made to appropriate 
legal and constitutional instruments that govern freedom of expression 
and association as important elements of such criteria. With regard to 
domestic US law and constitutionality, the relevant instrument would be 
the First Amendment of the US Constitution:
Congress shall make no law respecting an establishment of religion, or 
prohibiting the free exercise thereof; or abridging the freedom of 
speech, or of the press; or the right of the people peaceably to 
assemble, and to petition the Government for a redress of grievances.
With regard to international law and rights instruments, the relevant 
freedom of expression instrument would be Article 19 of the Universal 
Declaration of Human Rights which reads:  

*Article 19.*

   * 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.

With regard to freedom of association, Article 20 would apply:

*Article 20.*

   * (1) Everyone has the right to freedom of peaceful assembly and
     association.
   * (2) No one may be compelled to belong to an association.

APC recommends that this section be redrafted to include reference to 
these instruments as constituting part of the domestic and international 
criteria for assessing the validity of a morality and public order 
objection. The rights instruments should explicitly constitute one of 
the tests  of validity of any morality or public order objection to a 
gTLD application. We make this recommendation because the name of a gTLD 
is an issue at the content layer of the internet and not simply a matter 
for the logical layer.  In other words, it is not a purely technical 
matter and hence needs to be addressed within the legal and 
constitutional frameworks that protect speech and association. Such 
frameworks exist within domestic US and international law and should be 
drawn on to enable ICANN to make reasonable judgments in relation to any 
morality and public order objection, precisely to protect the rights of 
applicants, communities and ICANN itself.
Willie Currie

Communications and Information Policy Programme Manager, Association for 
Progressive Communications (APC)