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Re: [gtld-council] Update on new TLDs discussion: small group work on "morality and public order"
- To: "Gomes, Chuck" <cgomes@xxxxxxxxxxxx>
- Subject: Re: [gtld-council] Update on new TLDs discussion: small group work on "morality and public order"
- From: Robin Gross <robin@xxxxxxxxxxxxx>
- Date: Sat, 14 Jul 2007 13:50:39 -0700
Chuck,
The part you are missing is that international law requires looking at
national law.
International laws tend to be broad concepts and then national
legislatures work out their own versions of the general treaty right, so
the rights actually vary somewhat from nation to nation under
international law. The types of rights in Rec 3 and 6 include
trademark and free speech rights, which are in international treaties,
but enforced through a particular nation's implementation of that right.
I would be happy to provide legal briefing papers from international law
professors who can help to better explain this aspect of international
law if it remains a sticking point of misunderstanding on the committee.
Here is an International Law Treatise to explain the issues we are
grappling with:
http://www.ali.org/doc/2007_intellectualproperty.pdf
The American Law Institutes's 2007 "Intellectual Property: Principles
Governing Jurisdiction, Choice of Law, and Judgments in Transnational
Disputes". WIPO participated as an Advisor to ALI's Principles of
International Law.
The ALI treatise describes international dispute resolution and goes
into depth on the concept of applicable national law and how to
ascertain which country's interpretation to apply regarding a right in
an international agreement such as the Paris Convention (in particular
see p. 193).
Section 301 of the ALI's "Model Laws" explains the basic principle of
"Territoriality" in international law. Territoriality means that
generally, "the law applicable to determine the existence, validity,
duration, attributes, and infringement of intellectual property rights
and the remedies for their infringement is: (a) for registered rights,
the law of each State of registration. (b) for other intellectual
property rights,the law of each State for which protection is sought.
..." (Sect. 301)
So, for example, if ICANN's dispute panels were to decide on matters of
trademark rights over a string, the principle of territoriality in
international law requires them to apply the national law called by
those facts, which means starting by looking at the law in the country
where the trademark is registered to decide the scope of rights, the
limitations and exceptions to those rights, and other details that vary
from nation to nation.
I understand this may be more complex than we would like, but panels of
experts are supposed to be those with the requisite knowledge and skill
to find the answer that follows the law.
ICANN cannot get around the fact that it will have to follow National
laws in its evaluation of competing rights to a string. There is no
"international law" that is not evaluated from a particular nation's
point of view, and we shouldn't base policy on the false understanding
that there is such a thing under international law.
Robin
Gomes, Chuck wrote:
Robin,
I fully understand that all of us including ICANN have to follow
applicable national laws. But it doesn't seem to me that the criteria
for dispute resolution for recommendations 3 and 6 would involve
national laws. Unless I am missing something, and I could be, the
criteria that expert panels would apply would be based on applicable
interational law.
Also, if I am understanding you correctly, it sounds like you are saying
that the expert panels would have to take into consideration national
law of the applicant in every dispute. That seems unfeasible to me and
I don't think that was what the committee intended in referring to
international law.
Chuck Gomes
"This message is intended for the use of the individual or entity to
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-----Original Message-----
From: Robin Gross [mailto:robin@xxxxxxxxxxxxx]
Sent: Thursday, July 12, 2007 5:08 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,
The term "international law" can be analogized with the
concept of "the time". One must also answer the question
"where?" to get an accurate picture.
Different nations interpret and enforce international laws
differently, so there isn't a "one-size-fits-all" global
interpretation of 'international law' that can be imposed on
all nations. Obviously ICANN should follow the national
interpretation in question, which is not difficult to
determine and done all the time in the international legal arena.
And, it is not only the applicant registry who must follow
the national law in question, but also ICANN and the expert
panels must also follow the national law of the applicant in
making their determinations.
Certainly ICANN is not exempt from following national laws.
Thanks,
Robin
Gomes, Chuck wrote:
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
"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: 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
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