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

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

This is very helpful Robin.  Thanks.

Chuck Gomes
 
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which it is addressed, and may contain information that is privileged,
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unauthorized use, distribution, or disclosure is strictly prohibited. If
you have received this message in error, please notify sender
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> -----Original Message-----
> From: Robin Gross [mailto:robin@xxxxxxxxxxxxx] 
> Sent: Saturday, July 14, 2007 4:51 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 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 
> >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 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
> >>>>>>>>>>
> >>>>>>>>>>
> >>>>>>>>>>
> >>>>>>>>>>
> >>>>>>>>>>          
> >>>>>>>>>>
> >>>>>>>>>>               
> >>>>>>>>>>
> >>>>>>>>>>                    
> >>>>>>>>>>
> >>>>>>>>>        
> >>>>>>>>>
> >>>>>>>>>             
> >>>>>>>>>
> >>>>>>>>>                  
> >>>>>>>>>
> >>>>>>>    
> >>>>>>>
> >>>>>>>         
> >>>>>>>
> >>>>>>>              
> >>>>>>>
> >>>>>>  
> >>>>>>
> >>>>>>       
> >>>>>>
> >>>>>>            
> >>>>>>
> >>>>>     
> >>>>>
> >>>>>          
> >>>>>
> >>> 
> >>>
> >>>      
> >>>
> >>    
> >>
> >
> >  
> >
> 
>