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Remove MAPO Objections; Allow Nations to deal with MAPO and ICANN to get on with new gtlds + protect free speech as a bonus

  • To: 4gtld-guide@xxxxxxxxx
  • Subject: Remove MAPO Objections; Allow Nations to deal with MAPO and ICANN to get on with new gtlds + protect free speech as a bonus
  • From: Robin Gross <robin@xxxxxxxxxxxxx>
  • Date: Wed, 21 Jul 2010 16:24:29 -0700

The DAG4 so-called Morality and Public Order (MAPO) objections to new gtlds should be removed as illegitimate, outside ICANN's scope, likely to expose ICANN to constant litigation, and chilling to freedom of expression on the Internet.

As explained in Brussels by the US Representative to GAC: there simply are no internationally recognized standards to legislate "morality and public order". For ICANN to attempt to create any MAPO standards is clearly outside of ICANN's mandate and its authority. ICANN risks getting tangled-up in ugly political battles by trying to legislate MAPO standards and it undermines ICANN's legitimacy to govern at all by trying to legislate MAPO.

The proposal in DAGv4 for dealing with morality and public order is "one-size-fits-all" in which anyone can block a new gltd because their subjective sense of morality is offended. Obviously this is practically unworkable and terribly over-restrictive. It does not make sense for ICANN to block the creation of a top-level domain because some countries chose not to access the content. Issues of morality and public order are matters of national law. National legislatures and national courts are the appropriate place to adjudicate what ideas may be expressed and by whom. Neither ICANN, nor out-sourced dispute resolution businesses (such as the International Chamber of Commerce) have any right to prevent people and countries from making their own choices about what information they wish to access. If a registration violates a law that applies to that registration, it is easily prohibited on legal grounds. Creating an additional level of MAPO-based objections only invites arbitrariness, subjectivity and global censorship.

The GNSO Recommendation F provides guidance on the GNSO's mandate for new gtlds: "The string evaluation process must not infringe the applicant's freedom of expression rights that are protected under internationally recognized principles of law."

ICANN has an obligation to respect the free expression rights of Internet users, which are nearly universally guaranteed through various national constitutions and international treaties. In particular, Article 19 of the Universal Declaration of Human Rights speaks directly to ICANN on this issue: "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."

Surely ICANN does not contend that the free expression guarantees provided to individuals from national constitutions and international treaties does not apply to ICANN. Surely ICANN would not suggest its governance model exempts it from providing previously guaranteed protections for civil liberties. Yet that is exactly what is proposed in DAG4 and must be removed for the next version.

It also worth reminding that ICANN's Non-Commercial Users Constituency (NCUC) and its At-Large Advisory Community have both lodged objections to the MAPO policy since it was first proposed. NCUC did not vote in favor of the MAPO measures when they were before the GNSO Council (see NCUC's dissenting opinion below) and the opposition from the non-commercial stakeholders to MAPO-based objections continues to remain strong.

ICANN should uphold freedom of expression values and remove the illegitimate MAPO-based objections to new gtlds so these concerns can be adjudicated in the appropriate legitimate fora at the national level. The sooner ICANN realizes its only practical course of action is throw MAPO out, the sooner it can get on with introducing new gtlds.

Respectfully submitted,
Robin Gross
IP Justice


See also:

20 July 2007
(.pdf file)

NCUC supports most of the recommendations in the GNSO’s Final Report, but Recommendation #6 is one we cannot support.

We oppose Recommendation #6 for the following reasons:
1) It will completely undermine ICANN’s efforts to make the gTLD application process predictable, and instead make the evaluation process arbitrary, subjective and political; 2) It will have the effect of suppressing free and diverse expression;
3)    It exposes ICANN to litigation risks;
4) It takes ICANN too far away from its technical coordination mission and into areas of legislating morality and public order.

We also believe that the objective of Recommendation #6 is unclear, in that much of its desirable substance is already covered by Recommendation #3. At a minimum, we believe that the words “relating to morality and public order” must be struck from the recommendation.

1)  Predictability, Transparency and Objectivity

Recommendation #6 poses severe implementation problems. It makes it impossible to achieve the GNSO’s goals of predictable and transparent evaluation criteria for new gTLDs.

Principle 1 of the New gTLD Report states that the evaluation process must be “predictable,” and Recommendation #1 states that the evaluation criteria must be transparent, predictable, and fully available to applicants prior to their application.

NCUC strongly supports those guidelines. But no gTLD applicant can possibly know in advance what people or governments in a far away land will object to as “immoral” or contrary to “public order.” When applications are challenged on these grounds, applicants cannot possibly know what decision an expert panel – which will be assembled on an ad hoc basis with no precedent to draw on – will make about it.

Decisions by expert panels on “morality and public order” must be subjective and arbitrary, because there is no settled and well- established international law regarding the relationship between TLD strings and morality and public order. There is no single “community standard” of morality that ICANN can apply to all applicants in every corner of the globe. What is considered “immoral” in Teheran may be easily accepted in Los Angeles or Stockholm; what is considered a threat to “public order” in China and Russia may not be in Brazil and Qatar.

2)  Suppression of expression of controversial views

gTLD applicants will respond to the uncertainty inherent in a vague “morality and public order” standard and lack of clear standards by suppressing and avoiding any ideas that might generate controversy. Applicants will have to invest sizable sums of money to develop a gTLD application and see it through the ICANN process. Most of them will avoid risking a challenge under Recommendation #6. In other words, the presence of Recommendation #6 will result in self- censorship by most applicants.

That policy would strip citizens everywhere of their rights to express controversial ideas because someone else finds them offensive. This policy recommendation ignores international and national laws, in particular freedom of expression guarantees that permit the expression of “immoral” or otherwise controversial speech on the Internet.

3)  Risk of litigation

Some people in the ICANN community are under the mistaken impression that suppressing controversial gTLDs will protect it from litigation. Nothing could be further from the truth. By introducing subjective and culturally divisive standards into the evaluation process Recommendation #6 will increase the likelihood of litigation.

ICANN operates under authority from the US Commerce Department. It is undisputed that the US Commerce Department is prohibited from censoring the expression of US citizens in the manner proposed by Recommendation #6. The US Government cannot “contract away” the constitutional protections of its citizens to ICANN any more than it can engage in the censorship itself.

Adoption of Recommendation #6 invites litigation against ICANN to determine whether its censorship policy is compatible with the US First Amendment. An ICANN decision to suppress a gTLD string that would be permitted under US law could and probably would lead to legal challenges to the decision as a form of US Government action.

If ICANN left the adjudication of legal rights up to courts, it could avoid the legal risk and legal liability that this policy of censorship brings upon it.

4)  ICANN’s mission and core values

Recommendation #6 exceeds the scope of ICANN’s technical mission. It asks ICANN to create rules and adjudicate disputes about what is permissible expression. It enables it to censor expression in domain names that would be lawful in some countries. It would require ICANN and “expert panels” to make decisions about permitting top-level domain names based on arbitrary “morality” judgments and other subjective criteria. Under Recommendation #6, ICANN will evaluate domain names based on ideas about “morality and public order” -- concepts for which there are varying interpretations, in both law and culture, in various parts of the world. Recommendation #6 risks turning ICANN into the arbiter of “morality” and “appropriate” public policy through global rules.

This new role for ICANN conflicts with its intended narrow technical mission, as embodied in its mission and core values. ICANN holds no legitimate authority to regulate in this entirely non-technical area and adjudicate the legal rights of others. This recommendation takes the adjudication of people’s rights to use domain names out of the hands of democratically elected representatives and into the hands of “expert panels” or ICANN staff and board with no public accountability.

Besides exceeding the scope of ICANN’s authority, Recommendation #6 seems unsure of its objective. It mandates “morality and public order” in domain names, but then lists, as examples of the type of rights to protect, the WTO TRIPS Agreement and all 24 World Intellectual Property (WIPO) Treaties, which deal with economic and trade rights, and have little to do with “morality and public order”. Protection for intellectual property rights was fully covered in Recommendation #3, and no explanation has been provided as to why intellectual property rights would be listed again in a recommendation on “morality and public order”, an entirely separate concept.

In conclusion Recommendation #6 exceeds ICANN’s authority, ignores Internet users’ free expression rights, and its adoption would impose an enormous burden on and liability for ICANN. It should not be adopted by the Board of Directors in the final policy decision for new gtlds.

http://ipjustice.org/ICANN/drafts/PDP-Dec05-NCUC-CONST-STMT- JUNE2007.htm

NCUC Impact Statement on New GTLD Recommendations 12 June 2007


Recommendation 6

Again, we welcome the amendment to include recognition of rights to Freedom of Expression.[22] It is quite clear that this applies to single words and to strings, see Taubman v. Webfeats 319 F.3d 770 (6th Circuit 2003) ("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 [defendant] has a First Amendment right to express his opinion about [plaintiff], as long as his speech is not commercially misleading, the Lanham Act cannot be summoned to prevent it).

We welcome the deletion of GAC Public Policy principle 2.1 from the GNSO’s recommendations. We objected in the strongest possible terms to the vague standard of “sensitivities,” which would subject all to the most restrictive views and had no place in the international legal order. GAC quoted selectively from the preamble to the 1948 Universal Declaration of Human Rights (UDHR) without reference to the enumerated specific right to Freedom of Expression in Article 19.[23] The UDHR Art. 29(2) provides the only permitted limits.[24] Similarly, the European Convention on Human Rights (ECHR) mandates Freedom of Expression should only be subject to limits prescribed by law[25] and necessary in a democratic society for one of the enumerated purposes, see Article 10[26] which also applies to commercial expression.[27] Strict scrutiny is applied to any attempt to limit the free expression of an idea.[28]

This Recommendation is borrowed from trade mark law[29] and the French concept of ‘ordre public.’[30] This is now subject to Article 10 ECHR[31] and Freedom of Expression and the modern standard is high. [32] While a few nations limit Free Expression by laws preventing hate speech, and incitement to violence, lowering the threshold to ‘sensitivities’ is tantamount to mandating political correctness,[33] forced hegemony, and is dangerous and to be resisted in every context. It does not matter how laudable the public policy objective, ICANN should remain content neutral.[34]

We oppose any string criteria based on morality and public order. The context is not exclusively commercial speech so trade mark law is not an analogy as registration of marks on government Registers involves an element of state sanction[35] that is not true of the DNS (though many seek it).[36] There is no consensus on the regulation of morality in non-commercial speech in international law. We refer to the quote from Taubman (above)—the TLDs are billboards. Democracies do not have laws requiring people to speak or behave morally. Some nations do have such rules – undemocratic theocracies mainly.

ICANN should stick to its technical remit, which it risks grossly exceeding here. It should defer to applicable national laws on matters of public order and morality. Applicants should comply with the content laws in the countries in which they operate.[37] The only real issue is, in any event, public order which is already served by nations’ own laws on obscenity, fighting words, hate speech and incitement.

Please be aware that criticism, satire, parody of others and their beliefs are a fundamental tenant of Freedom of Expression[38] which includes the right to offend. ICANN must ensure this in practice and mere references to Treaties and Conventions do not go far enough.

Robin Gross, Executive Director
1192 Haight Street, San Francisco, CA  94117  USA
p: +1-415-553-6261    f: +1-415-462-6451
w: http://www.ipjustice.org     e: robin@xxxxxxxxxxxxx

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