Re: [soac-mapo] Clarifying Draft Rec for "Incitement"

[Konstantinos Komaitis <k.komaitis@xxxxxxxxxxxx>]

Apologies for this, that was my mistaken reading of Mary's recommendation. For 
me, the term 'incitement' is more problematic than that of promotion. As I have 
repeatedly said in this group (as well as in Brussels) I can't see how a single 
gTLD - in and by itself - can 'incite' anyone to do anything. Aside the 
criteria that I have already mentioned, under criminal law (and in all criminal 
law cases) incitement is determined after an attempt has been made or the 
action has taken place. Of course, that doesn't really help us much, but this 
is criminal law. Our aim here should be not to re-write law or stretch it to 
accommodate new gTLDs.

My recommendation therefore would be to remove the 'term' incitement (and this 
is just me) - I would compromise however if we were to come up with a better 
term to replace it. Lacking any insightful suggestions, I would put the to the 
table the recommendation to replace it with 'instigating', which has a negative 
meaning, thus falling within what we are discussing here. So, to be more 
precise, <.killkonstantinoskomaitis> would be allowed, but 
<.letskillkonstantinoskomaitis> would be seen as instigating a violent action.

Hope this makes sense - and I am not even certain as to whether this term is a 
better replacement for our needs, but this is the best I could get this early 
in the morning :)

KK


On 10/09/2010 01:08, "Mary Wong" <Mary.Wong@xxxxxxxxxxx> wrote:

Hi,

Since I don't have a big issue with the word "incite", I'll let others respond 
specifically on that. On "promote", OTOH, I can say with some measure of 
certainty that it is not used, other than in the positive sense (e.g. to 
promote understanding) in the major human rights treaties (e.g. the Universal 
Declaration and the International Covenant for Civil and Political Rights), 
whereas "incite" is (e.g. advocating hatred that incites discrimination, 
hostility or violence).
The exception - where both terms are used - is in the International Convention 
to Eliminate All Forms of Racial Discrimination, which is the treaty Carroll 
referred to when discussing this question. Even there, Article 4 uses two 
different phrases: "promote AND incite" as well as "promote OR incite".

I therefore argue that we have a firm basis in international law to restrict 
ordre publique objections only to "incitement" (or whatever it may be replaced 
with), and remove the word "promote" since it is not commonly used in 
international treaties.

That said, I would be amenable to adding language to include taking expert 
legal advice on this issue (though I'd ask that the suggestion to remove the 
word "promote" remain, even if it's attributed only to me).

Cheers
Mary

Mary W S Wong
Professor of Law
Chair, Graduate IP Programs
UNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAW Two White Street Concord, NH 03301 
USA Email: mary.wong@xxxxxxxxxxx Phone: 1-603-513-5143 Webpage: 
http://www.law.unh.edu/marywong/index.php Selected writings available on the 
Social Science Research Network (SSRN) at: http://ssrn.com/author=437584

>>>
From: Richard Tindal <richardtindal@xxxxxx>
To: soac-mapo <soac-mapo@xxxxxxxxx>
Date: 9/9/2010 7:23 PM
Subject: Re: [soac-mapo] Clarifying Draft Rec for "Incitement" (for    Summary 
of Issues/Recommendations)Thx.

In that case,  the problem I have (and I suspect a problem of others in the 
Group who aren't law professors)  is that I don't know who's right.  I know 
ICANN has employed
high powered legal talent to come up with the current language.    I don't know 
if you're right or they're right.

Also, as a lay person,  I think a TLD string could, on its own, result in 
violence -- but that's just my opinion.

Is this an acceptable compromise  ---  Instead of recommending specific changes 
we offer our views (per your note) and ask for the current language to be 
re-assessed in light of those views?

RT


On Sep 9, 2010, at 3:54 PM, Mary Wong wrote:

Sure - the proposal for "incitement" was to replace, that for "promotion" was 
to remove.

Hope that helps!

Mary W S Wong
Professor of Law
Chair, Graduate IP Programs
UNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAW Two White Street Concord, NH 03301 
USA Email: mary.wong@xxxxxxxxxxx Phone: 1-603-513-5143 Webpage: 
http://www.law.unh.edu/marywong/index.php Selected writings available on the 
Social Science Research Network (SSRN) at: http://ssrn.com/author=437584

>>>
From: Richard Tindal <richardtindal@xxxxxx>
To: soac-mapo <soac-mapo@xxxxxxxxx>
Date: 9/9/2010 6:50 PM
Subject: Re: [soac-mapo] Draft Rec for "Incitement" (for Summary of 
Issues/Recommendations)
OK,  maybe it didn't read as well as I thought.

I saw it simply a statement of various views - and not as a hard recommendation.

Mary - could you clarify?

RT


On Sep 9, 2010, at 3:35 PM, Gomes, Chuck wrote:

>
> Did I misunderstand the statement/recommendation drafted by Mary?  I
> didn't understand that it recommended that the term 'incitement' be
> removed but rather that the term 'promotion' be removed: " The term
> "promotion" should be removed from the AGB. (Mary Wong)"
>
> If we removed both terms, wouldn't we be eliminating all three
> categories?  Is that the intent?
>
> Chuck
>
>> -----Original Message-----
>> From: owner-soac-mapo@xxxxxxxxx [mailto:owner-soac-mapo@xxxxxxxxx] On
>> Behalf Of Konstantinos Komaitis
>> Sent: Thursday, September 09, 2010 6:21 PM
>> To: Mary Wong; soac-mapo
>> Subject: Re: [soac-mapo] Draft Rec for "Incitement" (for Summary of
>> Issues/Recommendations)
>>
>>
>> Thanks Mary for this. I agree - 'incitement' is an unfit term for this
>> process and is used erroneously. I support the recommendation for the
>> term to be removed.
>>
>>
>> KK
>>
>>
>> On 09/09/2010 23:01, "Mary Wong" <Mary.Wong@xxxxxxxxxxx> wrote:
>>
>> I agree, and note that Richard used the phrase "Principles of Ordre
>> Publique" in an earlier email. I've adopted it in the attached draft
>> recommendation on the use of the term "incitement" (and thank
>> Konstantinos for starting the draft and dredging up the various emails
>> concerning the issue!)
>>
>> I've also used the same font as Margie, in the hope it will facilitate
>> editing and insertion.
>>
>> Something on Quick Look to follow, shortly .... (I hope :)
>>
>> Cheers
>> Mary
>>
>> Mary W S Wong
>> Professor of Law
>> Chair, Graduate IP Programs
>> UNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAW Two White Street Concord, NH
>> 03301 USA Email: mary.wong@xxxxxxxxxxx Phone: 1-603-513-5143 Webpage:
>> http://www.law.unh.edu/marywong/index.php Selected writings available
>> on the Social Science Research Network (SSRN) at:
>> http://ssrn.com/author=437584
>>
>>>>>
>> From: Konstantinos Komaitis <k.komaitis@xxxxxxxxxxxx>
>> To: Margie Milam <Margie.Milam@xxxxxxxxx>, soac-mapo <soac-
>> mapo@xxxxxxxxx>
>> Date: 9/9/2010 5:55 PM
>> Subject: Re: [soac-mapo] Summary of Issues/Recommendations
>> Dear Margie,
>>
>> Thanks for this, it is really helpful.
>>
>> One point - I think we decided at this point to use the term 'ordre
>> publique' and abandon the term 'public interest' when it comes to
>> objections. I think 'ordre publique' came out of our discussion with
>> Carroll and it is something that Mary also suggested (?).
>>
>> Thanks
>>
>> KK
>>
>>
>> On 09/09/2010 19:33, "Margie Milam" <Margie.Milam@xxxxxxxxx> wrote:
>>
>> Dear All,
>>
>> Please find enclosed for your review suggested language that
> summarizes
>> the topics discussed and the proposed recommendations.  Although some
>> of you are working on language to insert in this document, I thought
>> this might serve as a starting point for you.
>>
>> It is very difficult to glean all of the details from the email list,
>> so please accept my apologies if I misstated the principles or the
>> recommendations.   Also,  there are areas where I was unable to sketch
>> an outline of the issue or proposed recommendation, such as the Quick
>> Look Procedure, Timing of Rec6 Dispute, and Guidebook Criterion 4.
>> Hopefully volunteers can assist in describing the issue and proposed
>> resolution.
>>
>>
>> Thanks,
>> Margie
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> As of August 30, 2010, Franklin Pierce Law  Center has affiliated
> with
>> the University of New Hampshire and is now  known as the University of
>> New Hampshire School of Law. Please  note that all email addresses
> have
>> changed and now follow the  convention:
> firstname.lastname@xxxxxxxxxxx.
>> For more information on the University  of New Hampshire School of
> Law,
>> please  visit law.unh.edu <http://law.unh.edu>  <http://law.unh.edu 
>> <http://law.unh.edu/> >
>>
>
>



As of August 30, 2010, Franklin Pierce Law Center has affiliated with the 
University of New Hampshire and is now known as the University of New Hampshire 
School of Law. Please note that all email addresses have changed and now follow 
the convention: firstname.lastname@xxxxxxxxxxx. For more information on the 
University of New Hampshire School of Law, please visit law.unh.edu 
<http://law.unh.edu/>








 As of August 30, 2010, Franklin Pierce Law  Center has affiliated with the 
University of New Hampshire and is now  known as the University of  New 
Hampshire School of Law. Please  note that all email addresses have changed and 
now follow the  convention: firstname.lastname@xxxxxxxxxxx. For more 
information on the University  of New Hampshire School of Law, please  visit 
law.unh.edu <http://law.unh.edu>