[CCWG-ACCT] Human Rights

Fri Mar 4 08:37:31 UTC 2016

The Convention is a living instrument.  It is legally binding (in 
international law) on 47 countries.

It influences and is influenced by the EU Charter, and the UN Declaration.

But this is a red herring, since NONE of it applies to ICANN's work 
(with the sole exception of the GAC, and then only to GACREPS from those 
47 countries).

On 03/03/16 21:58, Kavouss Arasteh wrote:
> Dear All
> European decision in this regard could only be applied by 28 countries
> Member of EU
> Extraterritoriality Law can not be applied elsewhere
> Regards
> Kavouss
>
> Sent from my iPhone
>
> On 3 Mar 2016, at 21:49, Erika Mann <erika at erikamann.com
> <mailto:erika at erikamann.com>> wrote:
>
>> 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____
>>
>>
>>     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
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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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>>>>>
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