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Re: [gtld-council] Update on new TLDs discussion: small group work on "morality and public order"

  • To: gtld-council@xxxxxxxxxxxxxx
  • Subject: Re: [gtld-council] Update on new TLDs discussion: small group work on "morality and public order"
  • From: Robin Gross <robin@xxxxxxxxxxxxx>
  • Date: Mon, 09 Jul 2007 07:01:57 -0700

I sent the email below very quickly during a fast flight connection and I'd like to explain what I meant - since its not entirely clear below.

Article 13 of the convention explicitly forbids prior restraints on speech - even in cases of immoral or disorderly expression (as defined in the convention). A "prior restraint on speech" is legalese for when a public authority prevents expression from happening because it believes harm will result. Banning a domain name is a prior restraint on speech. In other words, under this convention, a public authority can't just assume that limiting speech will prevent harm and censor accordingly.

According to this convention, the allowable path under law is to allow the domain name to be registered but let someone take it to court if they have suffered real harm that can be shown and then let the independent courts decide if there can be liability imposed.

So while I sympathize with the desire to find definitions for "moral" and "public order" in international conventions, I am concerned that we will use these definitions to do precisely what the convention says we cannot do - create a prior restraint on speech based on these terms.

I hope that is more clear.


Robin Gross wrote:

I understand the desire to find definitions for these terms.

But we need to keep in mind their context.
We may be using these terms to define what expression can be prevented.
/Sub-para 2 says that expression "shall not be subject to prior censorship/".

Article 13 (cited) expressly forbids prior censorship -- so we could using the definitions, in order to achieve what the Article explicitly prohibits: prior restraints on speech.


Liz Williams wrote:


In light of yesterday's discussion about the inclusion of the phrases "morality and public order" in the text, I have excerpted below a footnote from Wolfgang Sakhalin's paper (submitted by the NCUC as expert advice) which is available at http://www.ipjustice.org/ICANN/Sakulin_Legal_Briefing.pdf.

You'll see in Section 2 Paragraph 2 that the wording about public order and morals is included (as a limiting test on how to apply the Convention). /American Convention on Human Rights, 1144 U.N.T.S. 123, Article 13 states:/
/“Freedom of Thought and Expression/
/1.Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all/ /kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice./ /2.The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent/ /imposition of liability, which shall be expressly established by law to the extent necessary to ensure:/
/1.respect for the rights or reputations of others; or/
/2.the protection of national security, public order, or public health or morals./ /3.The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint,/ /radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the/
/communication and circulation of ideas and opinions./
/4.Notwithstanding the provisions of paragraph 2 above, public entertainments may be subject by law to prior censorship for the sole purpose of/ /regulating access to them for the moral protection of childhood and adolescence./ /5.Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other/ /similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be/
/considered as offenses punishable by law.”/
If the small group that is discussing this particular issue could refer to this as an example and to other examples in different jurisdictions it would be very helpful.

Kind regards.



Liz Williams
Senior Policy Counselor
ICANN - Brussels
+32 2 234 7874 tel
+32 2 234 7848 fax
+32 497 07 4243 mob

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