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

  • To: "Wendy Seltzer" <wendy@xxxxxxxxxxx>, "Christopher Gibson" <cgibson@xxxxxxxxxxx>
  • Subject: RE: [gnso-reg-sgc] Commercial vs. Non-commercial
  • From: "Goodendorf, Lynn (IHG)" <Lynn.Goodendorf@xxxxxxx>
  • Date: Tue, 22 May 2007 08:07:26 -0400

There are two references from the EU Privacy Directive that I believe
provide guidance on how to interpret these activities on the Internet.
And I respectfully submit that the distinction of commercial vs.
non-commercial is indeed workable and consistent with EU Data Protection

Paragraph (12)of the EU Privacy Directive states:
"Whereas the protection principles must apply to all processing of
personal data by any person whose activities are governed by Community
law; whereas there should be excluded the processing of data carried out
by a natural person in the exercise of activities which are exclusively
personal or domestic, such as correspondence and the holding of records
of addresses." 

Paragraph (37)of the EU Privacy Directive states:
"Whereas the processing of personal data for purposes of journalism or
for purposes of literary or artistic expression, in particular in the
audiovisual field, should qualify for exemption from the requirements of
certain provisions of this Directive in so far as this is necessary to
reconcile the fundamental rights of individuals with freedom of
information and notably the right to receive and impart information, as
guaranteed in particular in Article 10 of the European Convention for
the Protection of Human Rights....

Based on these concepts, I believe that privacy protection is for
natural persons engaged in purely private activities.
It is not intended for natural persons who choose to engage in public

I would see a blogger who is purely blogging would be a form of
journalism and their Whois data should have the option to be private.
An activist group that sells t-shirts would not be a natural person
engaged in private activities.

-Lynn Goodendorf

-----Original Message-----
From: Wendy Seltzer [mailto:wendy@xxxxxxxxxxx] 
Sent: Tuesday, May 22, 2007 1:29 AM
To: Christopher Gibson
Cc: 'Maria Farrell'; gnso-reg-sgc@xxxxxxxxx; jon.bing@xxxxxxxxxx;
Goodendorf, Lynn (IHG)
Subject: Re: [gnso-reg-sgc] Commercial vs. Non-commercial

To clarify my concerns with the commercial vs. non-commercial

Where does blogger fit who's not selling goods but uses Adwords to
defray the site's hosting costs?  An activist group that sells t-shirts
with its message on them? An author or programmer who provides text or
code online for free and offers printed material or CDs at cost?

They are among the reasons why I think a distinction between commercial
and non-commercial is unworkable.  This debate has been going on in
trademark law for a lot longer than in ICANN, and is far from solved
there.  I don't think we can solve anything by hinging our work on this
murky distinction.


Christopher Gibson wrote:
> 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
> (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.

Wendy Seltzer -- wendy@xxxxxxxxxxx
phone: +1.617.418.3456 / +44 (0)1865 287203 // cell: 07785 550361
Visiting Fellow, Oxford Internet Institute Fellow, Berkman Center for
Internet & Society http://cyber.law.harvard.edu/seltzer.html

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