RrSG Position Regarding RAA 3.7.7.3
July 9, 2010
Registrar Stakeholder Group Position Regarding
Registrar Accreditation Agreement Subsection 3.7.7.3
BACKGROUND
The Registrar Stakeholder Group ("RrSG") has been asked to provide feedback
regarding the draft advisory concerning subsection 3.7.7.3 of the Registrar
Accreditation Agreement ("Advisory"). This position paper captures the overall
sentiment expressed by the RrSG Executive Committee members who provided
feedback about this matter. Due to time constraints, however, no formal vote
regarding this position paper was taken.
RrSG POSITION
The RrSG is seriously troubled by the §3.7.7.3 Advisory. In particular, the
RrSG is very concerned about ICANN's interpretations of what constitutes
"reasonable evidence of actionable harm" or "prompt" identification of a domain
name licensee. These are legal terms that are subject to interpretation by a
court of law, within a proper jurisdiction, and on a case-by-case basis. There
is no universal definition of these terms that is applicable to all
circumstances and court systems. As such, ICANN should not undertake the
impossible task of rendering advisory opinions regarding their definitions.
Furthermore, the Advisory addresses issues beyond the scope of ICANN's mission.
The Advisory is not an interpretation of the Registrar Accreditation Agreement
("RAA"), and not adhering to the Advisory would not raise an ICANN compliance
issue. §3.7.7.3 of the RAA only requires that registrars place in their
registration agreements an obligation that Registered Name Holders provide
accurate WHOIS data, and that if a domain name is licensed to a third party
then the Registered Name Holder accepts liability if it does not reveal the
name of the third party in certain circumstances. ICANN is only responsible
for ensuring that these provisions are contained in a registrar's service
agreements. As long as a registrar has these provisions in its service
agreements, there is no breach of the RAA.
The Advisory inappropriately stretches beyond the RAA and attempts to define
terms contained in the service agreements that registrars have with their
customers. Interpreting provisions of registrar service agreements is outside
the scope of ICANN's responsibilities and is not an appropriate ICANN function.
This particular divergence from ICANN's charged responsibilities is especially
alarming to the RrSG because the Advisory may increase liability for a
registrar's customers. The Advisory is another example of ICANN mission creep
that harms innocent registrants.
As a practical matter, the Advisory does not help registrars or Registered Name
Holders appropriately define the terms "reasonable evidence of actionable harm"
or "prompt" identification. This is due, in part, to the global nature of the
Internet and the myriad of diverse legal systems worldwide.
For example, RrSG members note that while publishing critical commentary about
a particular country's politicians on a domain name such as
[politician]sucks.com may be permissible in some countries, it may be illegal
in others. Clearly, in cases such as these, the evidence required to
demonstrate actionable harm will vary depending on the jurisdiction where the
dispute arises. Similar problems also extend to intellectual property related
domain name disputes, where the law varies from country to country.
With respect to the definition of "prompt" identification, a bright-line
definition of what constitutes "prompt" identification is inappropriate.
Individual circumstances should dictate whether identification is "prompt." In
some cases, it may take more than five business days to make a good faith
determination about whether reasonable evidence of actionable harm exists.
ICANN's publication of a formal advisory regarding the definitions of these
terms is inappropriate. Attempting to define these terms is simply not a
responsibility that ICANN should assume and the RrSG urges ICANN to refrain
from rendering an advisory opinion regarding their definition. If ICANN
insists on formally publishing the Advisory then ICANN should include a
disclaimer that it is not legal advice and that a court of law may make a
completely different determination or interpretation.
CONCLUSION
The opinions expressed by the RrSG in this position paper should not be
interpreted to reflect the individual opinion of any particular RrSG member.
Attachment:
RSG Position - RAA Section 3 7 7 3 FINAL.pdf |