[CCWG-ACCT] Human Rights

Dr Eberhard W Lisse el at lisse.NA
Wed Mar 2 13:54:39 UTC 2016


it does so for gTLDs only.


On 2016-03-02 15:42 , Nigel Roberts wrote:
> 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
> jurisprudence.
> 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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