RE: [gnso-reg-sgc] Commercial vs. Non-commercial

["Christopher Gibson" <cgibson@xxxxxxxxxxx>]

As requested during last week's call by the Sub-Group C leaders, Lynn
Goodendorf and I have provided criteria to address the distinction between
commercial vs. non-commercial activities.  Lynn and I reviewed a number of
relevant documents including the EU Directive on Data Protection and the
APEC Privacy Framework in order to develop the following draft formulation.
We hope this submission assists the work of Sub-Group C.

 

Chris Gibson

_____________________________________

 

Commercial vs. Non-Commercial Activity

 

For purposes of considering issues related to access to, and disclosure of,
WHOIS data:

 

(1) Step One - the registered name holder is a: 

 

(a) legal person (e.g., companies, businesses, partnerships, non-profit
entities, etc.,), or

 

(b) natural person.  

 

(We assume the distinction between legal vs. natural persons would apply, so
that the commercial vs. non-commercial distinction needs to be considered
only in relation to natural persons).

 

(2) Step Two 

 

(a) commercial activity means only those activities carried out by natural
persons which involve:

 

(i) the offer or sale of goods or services;

 

(ii) the solicitation or collection of money or payments-in-kind for goods
or services;

 

(iii) marketing activities including advertising or sale of advertising
(e.g., these categories would include websites containing paid hypertext
links); 

 

(iv) all activities carried out by natural persons on behalf of legal
persons; or

 

(v) the collection, holding or processing of personal data (or instructing
another legal or natural person to collect, hold, process, use, transfer or
disclose such data), except in the exercise of activities which relate
exclusively to personal, family, domestic or household affairs, such as
correspondence or the holding of address books containing family, friends
and professional contacts.

 

(b) non-commercial activity means activities by natural persons which do not
fall within paragraph (2)(a) above.

 

___________________________________

 

  _____  

From: owner-gnso-reg-sgc@xxxxxxxxx [mailto:owner-gnso-reg-sgc@xxxxxxxxx] On
Behalf Of Maria Farrell
Sent: Wednesday, May 16, 2007 11:14 AM
To: 'Chris Gibson'; gnso-reg-sgc@xxxxxxxxx; jon.bing@xxxxxxxxxx
Cc: 'Goodendorf, Lynn (IHG)'
Subject: RE: [gnso-reg-sgc] Commercial vs Non-commercial

 

Dear Chris,

 

Many thanks to you and Lynn for this. I think the group will really benefit
from your work - thank you for being so flexible when I put you on the spot
on our call today! 

 

I hope that other members of the sub group will look at your language and
add to it as well, using this mailing list. 

 

It would very much help the group if you could have this work to the list by
next Monday, 21 May. 

 

All the best, Maria

 

  _____  

From: owner-gnso-reg-sgc@xxxxxxxxx [mailto:owner-gnso-reg-sgc@xxxxxxxxx] On
Behalf Of Chris Gibson
Sent: Wednesday, May 16, 2007 4:08 PM
To: gnso-reg-sgc@xxxxxxxxx; jon.bing@xxxxxxxxxx; 'Maria Farrell'
Cc: 'Goodendorf, Lynn (IHG)'
Subject: [gnso-reg-sgc] Commercial vs Non-commercial

Dear Jon and Maria,

 

Thanks again for the sub-group C call this morning.  I want to confirm that
I spoke briefly with Lynn Goodendorf (copied) after our call and we will
work to put together some language (hopefully helpful) suggesting criteria
(describing/characterizing) commercial activity.

 

Chris Gibson

 

  _____  

From: Christopher Gibson [mailto:cgibson@xxxxxxxxxxx] 
Sent: Tuesday, May 15, 2007 8:40 PM
To: gnso-reg-sgc@xxxxxxxxx; jon.bing@xxxxxxxxxx
Cc: 'Maria Farrell'; philip.sheppard@xxxxxx
Subject: Working Proposal for Sub-Group C

 

Dear Jon and sub-group C members,

 

I am attaching a working proposal (in Word) for consideration of sub-group
C.  It is based on the matrix of WHOIS Options that has been circulated.
There's no pride of authorship to this document.  Hopefully, some of the
ideas or language will prove helpful, and it also makes clearer the
implications of sub-group C's work.

 

Chris Gibson

 

  _____  

From: owner-gnso-reg-sgc@xxxxxxxxx [mailto:owner-gnso-reg-sgc@xxxxxxxxx] On
Behalf Of Maria Farrell
Sent: Monday, May 14, 2007 6:06 PM
To: gnso-reg-sgc@xxxxxxxxx
Subject: [gnso-reg-sgc] Summary of last week's call + initial remarks on
this sub group's oucomes

Dear Sub Group C members,

 

Instead of the usual call summary by staff, Jon Bing has pulled together
some initial remarks on this group's outcomes. I include it below for your
information and discussion.

 

Can you please review this and give some thought to how we can develop this
into a summary of this group's conclusions on this week's call?

 

As a reminder, in the Working Group proper, we will use the conventions set
out in the Charter to capture consensus and positions with varying levels of
agreement: 

 

" 

-            Agreement -  there is broad agreement within the Working Group
(largely equivalent to "rough consensus" as used in the IETF)

-           Support -  there is some gathering of positive opinion, but
competing positions may exist and broad agreement has not been reached

-           Alternative view - a differing opinion that has been expressed,
without garnering enough following within the WG to merit the notion of
either Support or Agreement."

 

For now, let's focus on seeing what we tentative options and conclusions
have emerged in this sub group. 

 

All the best, Maria

 

Sub Group C

10 May 2007

 

 

Participants:

Glen De SaintGery

  Lynn Goodendorf

  John Bing

  Philip Sheppard

  Avri Doria

  Kristina Rosette

  Bertrand De La Chapelle

  Mawaki Chango

  Paul Stahura

  Lane Mortensen

  Neil Schwartzman

  Maria Farrell

  Jay Westerdal

  Chris Gibson 

 

 

A false declaration, should be grounds for challenge, directed in the first
instance to the OPOC


Matrix of Whois options and outcomes: legal/natural and
commercial/non-commercial


The original matrix as supplied by Maria Farrell looked as below:


 

 





 

 

Commercial 

Non-commercial


Legal

Legal person + commercial objective

 

e.g. a legal partnership (law firm) or limited liability company 

 

 

 

 

Whois output: OPEN 

 

Criteria for establishing this status:

-          company or legal registration?

-          Self-declaration? 

Legal person + non-commercial objective

 

e.g. a not for profit organisation such as ICANN, or Medecins san
Frontieres, or - in some jurisdictions - a sports club, trade association or
faith-based organisation. 

 

Whois output:  ?

 

Criteria for establishing this status:

-          Legal registration?

-          Self-declaration?

-          Membership of recognised non-profit list, e.g. WIPO interlocutor?



Natural

Natural person + commercial objective

 

e.g. a sole trader such as an eBay merchant or small business owner, or a
chartered accountant or solicitor in solo practice

 

Whois output: OPEN

 

Criteria for establishing this status:

-          Self-declaration?

 

Natural person + non-commercial objective

 

e.g. a blogger, operator of email list(s), family website, hobby site/email
use

 

Whois output: CLOSED

 

Criteria for establishing this status:

-          Legal registration?

-          Self-declaration?

 

 

There is broad agreement that the matrix was a useful tool for thinking
about the options, and that the term 'activity' might be preferred to the
term 'objective', which is used in the matrix.


Commercial - non commercial


There seems to be broad consensus of two aspects. Support for idea that
distinction natural between a legal and physical person can be practically
made, but distinctions between commercial and non-commercial activities are
complex and differ within and between jurisdictions - and also that the
distinction is gradual: an activity may slip from being non-commercial to
becoming commercial along a slope. If one may expect several borderline
registrants, the distinction may not be operative and perhaps generate more
problems that it solves.

 

The tentative conclusion is suggested that one abandons the distinction
between commercial and non-commercial activities, basing the rules for the
registration only on the distinction between legal and natural persons. 

 

However, there prevails the aalternative view that work should still be done
on distinguishing between commercial and non-commercial activities. If this
is to be explored, one should also explore how to make it operational.


Legal persons - individuals (natural persons)


There seems to be support for the distinction between natural and legal
persons, a distinction which is based on the corresponding distinction
common to data protection regulation, both national and international. An
assumption is made that legal persons or their OPoC would have full contact
data published in Whois, while natural persons would have a smaller set of
data published, both sets of data not specified beyond this assumption.

 


Legal persons

Natural persons


Full contact data published

Smaller set of contact data published

 

1.      How to define which registrants belong to which category? The major
distinction would seem to be whether one would require or not some sort of
authentication procedure. A minimum would be a requirement for the registrar
to ensure that the data was not fabricated; a next step would be to ensure
that the data was correct; a further step would be to ensure that there is
no misrepresentation, for instance a natural person fronting for a legal
person. 

 

Any authentication procedure will incur costs, and must therefore be
justified in the advantages it brings. The advantages sought for are
reduction in misrepresentations and a corresponding increase in the quality
of Whois data.

 

The tentative conclusion is that the suggested procedures for authentication
do not seem to ensure the reduction of misrepresentation unless rather major
resources are required by the registrar. The conclusion is then to base
registration only on self-declaration or existing routines already
implemented by the registrars.

 

2.      Authentication procedure. If basing the distinction on
self-declaration, there will be no need for authentication procedures. This
has the positive effect of costs not being required, the negative effect
that it does not contribute to ensure that data are correct. In a way, the
problem is pushed further into a next stage.

 

There are concerns that self-declaration creates an incentive for bad faith
actors to wrongly claim they are natural persons in order to avoid greater
immediate disclosure of Whois data. There is also a concern that someone
making a bad faith declaration may also have supplied false OPoC
information. 

 

3.      Bad faith declarations. If declaration is made in bad faith, a
challenge mechanism could be used (work on this is under item 4a of the
charter, so currently the task of sub group A). A false declaration, should
be grounds for challenge, directed in the first instance to the OPoC

 

One suggestion was that a bad faith registration should trigger access to
the full set of information, notwithstanding that this issue would be for
sub group B. 

 

The tentative conclusion is that there is a need to coordinate with sub
group A on enforcement issues (e.g. is it an issue if a registrant says they
are a legal entity when they are not?) in the case of bad-faith
declarations,