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

  • To: gnso-reg-sgc@xxxxxxxxx
  • Subject: Re: [gnso-reg-sgc] Commercial vs. Non-commercial
  • From: Jeff Williams <jwkckid1@xxxxxxxxxxxxx>
  • Date: Tue, 22 May 2007 21:24:14 -0700

Lynn and all sgc members,

  These seem to be a fairly good set of principles.

Goodendorf, Lynn (IHG) wrote:

> 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
> principles.
>
> 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
> activities.
>
> 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
> distinction:
>
> 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.
>
> Thanks,
> --Wendy
>
> 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
> >
> ...
> (2)
> > (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
> http://www.chillingeffects.org/

Regards,

--
Jeffrey A. Williams
Spokesman for INEGroup LLA. - (Over 134k members/stakeholders strong!)
"Obedience of the law is the greatest freedom" -
   Abraham Lincoln

"Credit should go with the performance of duty and not with what is
very often the accident of glory" - Theodore Roosevelt

"If the probability be called P; the injury, L; and the burden, B;
liability depends upon whether B is less than L multiplied by
P: i.e., whether B is less than PL."
United States v. Carroll Towing  (159 F.2d 169 [2d Cir. 1947]
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