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

  • To: "'Tim Ruiz'" <tim@xxxxxxxxxxx>, "'Goodendorf,Lynn \(IHG\)'" <Lynn.Goodendorf@xxxxxxx>
  • Subject: RE: [gnso-reg-sgc] Commercial vs. Non-commercial
  • From: "Christopher Gibson" <cgibson@xxxxxxxxxxx>
  • Date: Tue, 22 May 2007 10:03:27 -0400

If the distinction between commercial vs. non-commercial is applied for
registrations by natural persons, then each registrant could be required to
self-declare whether they intend to engage in commercial or non-commercial
activities.  This would be a relatively simple step, with the relevant
choice captured at the time of registration.  The potential registrant would
review a list of criteria (with helpful examples), such as that provided in
our email below, in order to help them determine whether they will be
engaging in commercial or non-commercial activities.  


As Lynn indicated, this is well within the EU data protection principles, as
well as the APEC Privacy Framework and US law.  It has nothing to do with
distinctions concerning "use in commerce" under trademark law.  For example,
the German ccTLD (.de) has even taken a much more aggressive approach, yet
still considered to be within EU data protection principles:


>From http://www.denic.de/en/faqs/detail_75.html 

This data has been rendered public in the whois query for some very good

In registering a domain and using it, for instance as the address for a
website, you as a rule become the provider of a media service which rescinds
your usual privacy considerations. There are special laws that apply here
and they require all providers of such services to provide a masthead
disclosing their name and address. So, since everyone can see who you are
here anyway, there would be no point in DENIC keeping your data

Against this background, incidentally, the German data-protection
authorities have expressly approved of the publication of personal data in
the whois query. 





From: Tim Ruiz [mailto:tim@xxxxxxxxxxx] 
Sent: Tuesday, May 22, 2007 9:10 AM
To: Goodendorf,Lynn (IHG)
Cc: Maria Farrell; gnso-reg-sgc@xxxxxxxxx; jon.bing@xxxxxxxxxx; Wendy
Seltzer; Christopher Gibson
Subject: RE: [gnso-reg-sgc] Commercial vs. Non-commercial


Of course, we can't base policy on the view of a single geographic region.
That's exactly what ICANN has been accused of doing thus far.


There is already a policy that will soon be in place that allows registrars
to apply for a waiver from its obligations if local laws conflict with its
ICANN Whois requirements. The more complicated we make Whois policy, the
more likely ICANN will be involved numerous such waiver decisions, and the
more we will all pay to support the ever growing ICANN budget.


That said, even if a viable distinction could be made between commercial and
non-commercial activity, describing it and enforcing it are two completly
different issues. It seems pointless to have policy that cannot be
reasonably enforced.



-------- Original Message --------
Subject: RE: [gnso-reg-sgc] Commercial vs. Non-commercial
From: "Goodendorf, Lynn (IHG)" <Lynn.Goodendorf@xxxxxxx>
Date: Tue, May 22, 2007 7:07 am
To: "Wendy Seltzer" <wendy@xxxxxxxxxxx>,  "Christopher Gibson"
Cc: "Maria Farrell" <maria.farrell@xxxxxxxxx>, 
<gnso-reg-sgc@xxxxxxxxx>,  <jon.bing@xxxxxxxxxx>

There are two references from the EU Privacy Directive that I
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
=INBOX&uid=97495#Compose> ] 
Sent: Tuesday, May 22, 2007 1:29 AM
To: Christopher Gibson
Cc: 'Maria Farrell'; gnso-reg-sgc@xxxxxxxxx
=INBOX&uid=97495#Compose> ; jon.bing@xxxxxxxxxx
=INBOX&uid=97495#Compose> ;
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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