[CCWG-ACCT] Human Rights

[Martin Boyle]

But for ICANN to apply US interpretations on EU based organisations without some proper process that adopted the interpretation in EU legislation?  Either way, from a ccTLD point of view, I would have serious concern about ICANN leading decisions about what is the standard they apply and the legal base that they use.

This is a complicated issue and one best left for WS2 as I noted below.

From: Erika Mann [mailto:erika at erikamann.com]
Sent: 03 March 2016 21:50
To: Martin Boyle <Martin.Boyle at nominet.uk>
Cc: Dr Eberhard W Lisse <el at lisse.na>; Lisse Eberhard <directors at omadhina.net>; accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] Human Rights

Martin - just to be clear the European Court of Justice introduced the extraterritoriality concept into EU law making with regard to human rights standards. Take for example the most recent ruling about the validity of the Safe Harbor agreement.

Erika

On Thu, Mar 3, 2016 at 9:12 PM, Martin Boyle <Martin.Boyle at nominet.uk<mailto:Martin.Boyle at nominet.uk>> wrote:
Nigel, you seem to be advocating US interpretation of human rights, which in turn would imply a degree of extraterritoriality.

That should not be the case for ccTLDs as Eberhard points out, but it might be a big issue for geo-TLDs, too.

I think that "applicable law" is the best formulation for where we are and WS2 can have the joy of interpreting what are the implications of that.  Let's leave such a difficult discussion to then.

Martin



Martin Boyle
Senior Policy Advisor

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On 2 Mar 2016, at 13:58, Dr Eberhard W Lisse <el at lisse.na<mailto:el at lisse.na>> wrote:
And,

it does so for gTLDs only.

el

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<mailto: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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