[CCWG-ACCT] Human Rights

Nigel Roberts nigel at channelisles.net
Fri Mar 4 08:33:16 UTC 2016


Kavouss

You cannot use a legal term-of0-art in a legal document, such as a 
contract, or the By-Laws, without defining it, unless it is so commonly 
understood as to make definition trite and otiose.

On 03/03/16 21:20, Kavouss Arasteh wrote:
> Dear All,
> Thanks to all of you.
> I am not in favour to define nor interpret " Applicable Law"
> We would be opening a very complex discussion and almost inconclusive
> results
> Kavouss
>
>
> Sent from my iPhone
>
> On 3 Mar 2016, at 20:12, 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
>>
>>
>> Sent from my iPhone
>>
>> cid:image001.jpg at 01D0FCF7.DEE0F1F0
>>
>> *nominet.uk* <http://nominet.uk/>**DD: +44 (0)1865 332251
>> <tel:+44%20(0)1865%20332251>
>>
>> Minerva House, Edmund Halley Road, Oxford, OX4 4DQ, United Kingdom
>>
>>
>>
>> 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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