[CCWG-ACCT] Human Rights
kavouss.arasteh at gmail.com
Thu Mar 3 21:27:45 UTC 2016
For these reasons and many other reasons, it is not productive to make any attempt to define nor interpret "Applicable Law"
This term was intentionally selected to calm down the people
Sent from my iPhone
> On 2 Mar 2016, at 13:42, Nigel Roberts <nigel at channelisles.net> 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,
>>> El 29/02/2016, a las 8:26 p.m., Nigel Roberts <nigel at channelisles.net> escribió:
>>> 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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