[CCWG-ACCT] Human Rights

Nigel Roberts nigel at channelisles.net
Wed Mar 2 13:42:48 UTC 2016

As you rightly say, I am foreshadowing WS2.

But I am also renewing my strong objection to the "applicable law" 
formulation, for the following reason.

It's quite valid to comment, in response, that ICANN *already* regulates 
the takedown of domain names in the protection of third-party rights - 
the protection of intellectual property.

That is all well and good, and is a worthy step in the protection of 
that person/organisations rights under (for example) Art. 1, Prot.1 of 
the ECHR -- provided it is balanced against the rights to free 
expression and due process.

But it's not hard to see that the "applicable law" scenarion could be 
misused to impose controls on content.

For example, the right to privacy and the right to free expression 
intersect in different places in different countries.

This is the well-known "margin of appreciation" in Human Rights 

So, ICANN, by binding itself to 'applicable law' would potentially bind 
itself to breaching the First Amendment, by having a by-law obligation 
to 'applicable law' in say the UK (libel), France (celebrity) or China 
(respect for authority).

On 02/03/16 13:20, León Felipe Sánchez Ambía wrote:
> Hi Nigel,
> This will be an interesting discussion on our WS2 work plan.
> I fail to see why or how ICANN would be obliged to develop such policies as ICANN is not an entity with (legal) powers to take down any kind of content. The only situation in which I see ICANN taking down a site, as opposed to a particular content within a website, is in case a Court ordered such take down which, in my mind at least, would be subject to different applicable norms in the context of international cooperation I think, and for that Court order to be escalated to ICANN level I would think it would need to be taken through the path of registrant-registrar-registry before even getting to ICANN but that is just an assumption, of course.
> Best regards,
> León
>> El 29/02/2016, a las 8:26 p.m., Nigel Roberts <nigel at channelisles.net> escribió:
>> http://www.bbc.co.uk/news/world-asia-china-35685999
>> This tells me that the right to free expression is one which ICANN should respect, and not merely 'as required by applicable law'.
>> It seems to me that 'applicable law' here would have ICANN institute policies allowing for takedown of the material that is contained in the books referred to in this article, would it not?
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