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

["Gomes, Chuck" <cgomes@xxxxxxxxxxxx>]

Robin,

Please note that I was not specifically advocating that we should look
at national law; in fact, my understanding was that we would not but
instead rely on international law.  Of course, the registry involved
would be responsible for following their national laws, but I believe
that is separate from the new gTLD process and associated challenge
processes.

Chuck Gomes
 
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> -----Original Message-----
> From: Robin Gross [mailto:robin@xxxxxxxxxxxxx] 
> Sent: Thursday, July 12, 2007 2:53 PM
> To: Gomes, Chuck
> Cc: Liz Williams; gtld-council@xxxxxxxxxxxxxx
> Subject: Re: [gtld-council] Update on new TLDs discussion: 
> small group work on "morality and public order"
> 
> 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 
> >which it is addressed, and may contain information that is 
> privileged, 
> >confidential and exempt from disclosure under applicable law. Any 
> >unauthorized use, distribution, or disclosure is strictly 
> prohibited. 
> >If you have received this message in error, please notify sender 
> >immediately and destroy/delete the original transmission."
> > 
> >
> >  
> >
> >>-----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
> >>>>>>
> >>>>>>
> >>>>>>
> >>>>>>
> >>>>>>            
> >>>>>>
> >>>>>          
> >>>>>
> >>>      
> >>>
> >>    
> >>
> >
> >  
> >
> 
>