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

[Robin Gross <robin@xxxxxxxxxxxxx>]

Chuck,

You raise an important point upon which we should be clear, particularly 
in the implementation guidelines.
Trademarks rights, freedom of expression rights, etc. are all protected 
under international law, but the particular implementation of these 
international legal regimes often differ slightly, depending on how a 
particular nation applies and enforces those internationally protected 
rights.
So you are right that we will have to look to the national law of the 
applicant registry to determine which nation's interpretation of 
internationally recognized legal rights to consider.
Robin


Gomes, Chuck wrote:

> I am not the right one to answer this question but I will ask it: In
> what circumstances would U.S. law prevail?  My understanding is that we
> were basing our recommendations on enforceable principles of
> international law, not national law, except that an individual registry
> would have to comply with its own national laws.  Am I incorrect about
> this?
>
> Chuck Gomes
>
> "This message is intended for the use of the individual or entity to
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>
>  
>
> > -----Original Message-----
> > From: owner-gtld-council@xxxxxxxxxxxxxx 
> > [mailto:owner-gtld-council@xxxxxxxxxxxxxx] On Behalf Of Robin Gross
> > Sent: Tuesday, July 10, 2007 5:32 PM
> > To: Liz Williams
> > Cc: gtld-council@xxxxxxxxxxxxxx
> > Subject: Re: [gtld-council] Update on new TLDs discussion: 
> > small group work on "morality and public order"
> > Liz,
> >
> > It seems you are comparing apples with oranges and risk 
> > serious legal liability for ICANN.  There is an entirely 
> > different standard of permissible expression for television 
> > than there is for the Internet.  
> >
> > Based on pressure from the "Religious Right" in the US in 
> > 1996, US Congress passed the Communications Decency Act in an 
> > attempt to regulate 
> > morality on the Internet to protect the children.   The Americans for 
> > Civil Liberties Union (ACLU), EPIC, and the Electronic 
> > Frontier Foundation (EFF) in addition to 17 other groups 
> > brought an immediate challenge to the act.  In the most 
> > important US court decision addressing free expression on the 
> > Internet, the US Supreme Court struck down the CDA as an 
> > unconstitutional violation of Americans' freedom of expression rights.
> > In the CDA case, the government asserted the same argument 
> > that you make
> > here: "TV is regulated to protect children, so we can 
> > regulate the Internet too".  The US Supreme Court explained 
> > why the Internet is different than TV and held that there is 
> > no basis for lowering the level of protection for free 
> > expression to the lower standard applied to television. 
> >
> > In the CDA decision, /ACLU v. Reno/, the US Supreme Court 
> > affirmed the lower court's ruling and held:
> > "we have made it perfectly clear that "[s]exual expression 
> > which is indecent but not obscene is protected by the First 
> > Amendment." /Sable,/
> > 492 U. S., at 126. See also /Carey/ v. /Population Services 
> > Int'l,/ 431 U. S. 678, 701 (1977) ("[W]here obscenity is not 
> > involved, we have consistently held that the fact that 
> > protected speech may be offensive to some does not justify 
> > its suppression"). Indeed, /Pacifica/ itself admonished that 
> > "the fact that society may find speech offensive is not a 
> > sufficient reason for suppressing it." 438 U. S., at 745. It 
> > is true that we have repeatedly recognized the governmental 
> > interest in protecting children from harmful materials. See 
> > /Ginsberg,/ 390 U. S., at 639; /Pacifica,/ 438 U. S., at 749. 
> > But that interest does not justify an unnecessarily broad 
> > suppression of speech addressed to adults. As we have 
> > explained, the Government may not "reduc[e] the adult 
> > population . . . to . . . only what is fit for children."
> > PLEASE read /ACLU v. Reno/, the '97 US Supreme Court decision 
> > (THE law in the US dealing with free expression on the Internet):
> >  http://www2.epic.org/cda/cda_decision.html
> >
> > If ICANN were to adopt your suggested policy that it can 
> > regulate protected speech on the Internet, no doubt groups 
> > like ACLU and EFF will challenge such an illegal restriction 
> > in US courts and US judges will be obliged to follow the US 
> > Supreme Court precedent on the matter.
> > No one here is suggesting that obscenity cannot be regulated 
> > to protect children, but the kind of overly-broad "TV 
> > standard" of regulation that you suggest ICANN undertake 'to 
> > protect the children' will also be struck down by US courts 
> > upon its attempted implementation.  I don't 
> > think that is the kind of 'policy' you want to make for ICANN.   It 
> > would be far wiser to follow the US Supreme Court's clear 
> > ruling, obey the law and respect free expression rights.
> > There is no getting around the fact that ICANN is a US 
> > corporation and operates under the authority of the US 
> > Government and it will not be allowed to infringe the free 
> > expression rights of US citizens that are guaranteed by the 
> > First Amendment to the US Constitution.
> > Robin
> >
> >
> > Liz Williams wrote:
> >
> >    
> >
> > > Robin
> > >
> > > Just to be clear about "prior censorship".
> > >
> > > If one reads all the way through the provisions there is specific 
> > > provision for "prior censorship" particularly as it relates to 
> > > childhood and adolescence.
> > > "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."
> > > In the Australian context, this would be very similar to the 
> > > regulation of content which prohibits the screening of content 
> > > (including advertising) which is deemed inappropriate for children 
> > > during prime viewing hours.
> > > Kind regards.
> > >
> > > Liz
> > > .....................................................
> > >
> > > Liz Williams
> > > Senior Policy Counselor
> > > ICANN - Brussels
> > > +32 2 234 7874 tel
> > > +32 2 234 7848 fax
> > > +32 497 07 4243 mob
> > >
> > >
> > >
> > >
> > > On 09 Jul 2007, at 16:01, Robin Gross wrote:
> > >
> > >      
> > >
> > > > 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.
> > > >
> > > > Thanks,
> > > > Robin
> > > >
> > > >
> > > > 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.
> > > > > Robin
> > > > >
> > > > >
> > > > >
> > > > > Liz Williams wrote:
> > > > >
> > > > >          
> > > > >
> > > > > > Colleagues
> > > > > >
> > > > > > 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
> > > > > >
> > > > > >
> > > > > > .....................................................
> > > > > >
> > > > > > Liz Williams
> > > > > > Senior Policy Counselor
> > > > > > ICANN - Brussels
> > > > > > +32 2 234 7874 tel
> > > > > > +32 2 234 7848 fax
> > > > > > +32 497 07 4243 mob
> > > > > >
> > > > > >
> > > > > >
> > > > > >
> > > > > >            
> > > > >          
> > >      
> >    
>