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

  • To: "Avri Doria" <avri@xxxxxxx>, <gnso-reg-sgc@xxxxxxxxx>, "Lynn Goodendorf" <Lynn.Goodendorf@xxxxxxx>
  • Subject: RE: [gnso-reg-sgc] Commercial vs. Non-commercial
  • From: "Milton Mueller" <Mueller@xxxxxxx>
  • Date: Tue, 22 May 2007 18:04:39 -0400

Insofar as your approach is valid, I see no need for a
"commercial/noncommercial" distinction, only a need for a legal
person/natural person distinction. 

I feel that your approach may not recognize the multi-functional nature
of an internet presence. An online identity such as a domain name,
particularly for natural persons, may be the basis for both private and
fundraising-related activities. 

Many nonprofit activities are informal and never achieve the status of
a tax-exempt, formally recognized charity. To treat advocacy groups of
this sort as "commercial" because they run a garage sale or solicit
financial support seems self-evidently absurd, and represents the kind
of overreach we need to avoid. 

Likewise, a person may indeed be engaged in commercial activity but
still be an individual, legal natural person working at home, and thus
have a legitimate reason not to want to expose the contact information.

People on your side of the fence on this issue are fond of pointing out
that no one "is forced to" register a domain name. I would also point
out that no one "is forced to" do business with or donate money to
someone who they can't identify using Whois. 

I'd suggest that you discard the commercial/noncommercial distinction
as a basis for defining the status of whois exposure and rely instead on
legal vs. natural persons. 

>>> "Goodendorf, Lynn (IHG)" <Lynn.Goodendorf@xxxxxxx> 5/22/2007 8:14
AM >>>
Based on concepts in the EU Privacy Directive, data protection is
applied to natural persons engaged in private activities.

Yes, the person advertising a local garage sale would be commercial
I would expect they would advertise their address.

A person putting their resume online would be independent from domain
name registration.

And yes, trading on ebay is commercial and is collecting and
personal data of others.

Raising funds for a charity is part of a legal entity, not a natural
person.  As such, the legal entity is not covered under data

Someone keeping records for their club or sports team would be private
and not commercial.

My sorting above is based on the following sections of the EU Privacy

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
by a natural person in the exercise of activities which are
personal or domestic, such as correspondence and the holding of
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
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,
guaranteed in particular in Article 10 of the European Convention for
the Protection of Human Rights.... 

-----Original Message-----
From: owner-gnso-reg-sgc@xxxxxxxxx
On Behalf Of Avri Doria
Sent: Tuesday, May 22, 2007 1:59 AM
To: gnso-reg-sgc@xxxxxxxxx 
Subject: Re: [gnso-reg-sgc] Commercial vs. Non-commercial


i am having some trouble understanding the implications of the
A couple of test questions that might help me;

- would the person advertising a local garage sale be commercial?
- would  a person advertising an online 'garage sale' be commercial?
- would a person putting their resume on line saying they were looking
for work be commercial?
- does engaging in ebay make you commercial?
- does raising funds for a charity on line make one commercial?
- if someone keeps the records for the local futbol team, their wine
society, or the local theatre group, are they commercial?


On 21 maj 2007, at 18.56, Christopher Gibson wrote:

> _____________________________________
> 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.
> ___________________________________

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