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

[Jeff Williams <jwkckid1@xxxxxxxxxxxxx>]

Tim and all sgc members,

  I agree that enforcement of Whois policy is difficult and ICANN is
certainly not able to fulfill such a task, nor should it do so if
unwilling
and unable.  I also indeed agree the more waviers/exemptions the
higher the cost to enforce becomes.

Tim Ruiz wrote:

>  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.
> Tim
>
>
>
>      -------- 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"
>      <cgibson@xxxxxxxxxxx>
>      Cc: "Maria Farrell" <maria.farrell@xxxxxxxxx>,
>      <gnso-reg-sgc@xxxxxxxxx>,  <jon.bing@xxxxxxxxxx>
>
>
>      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!)
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