[CCWG-ACCT] Human Rights

Erika Mann erika at erikamann.com
Fri Mar 4 09:45:49 UTC 2016


Dear Kavouss - I wish you would be right but unfortunately the most recent
European Court of Justice rulings point in a different direction. Happy to
talk about this,
Erika

On Thu, Mar 3, 2016 at 10:58 PM, Kavouss Arasteh <kavouss.arasteh at gmail.com>
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> 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>
> 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
>>
>>
>>
>> [image: cid:image001.jpg at 01D0FCF7.DEE0F1F0]
>>
>>
>>
>> *nominet.uk* <http://nominet.uk/>    DD: +44 (0)1865 332251
>> <+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> 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> 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?
>>
>> _______________________________________________
>>
>> Accountability-Cross-Community mailing list
>>
>> Accountability-Cross-Community at icann.org
>>
>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>
>>
>> _______________________________________________
>>
>> Accountability-Cross-Community mailing list
>>
>> Accountability-Cross-Community at icann.org
>>
>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>
>>
>> _______________________________________________
>> Accountability-Cross-Community mailing list
>> Accountability-Cross-Community at icann.org
>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>
>>
>> _______________________________________________
>> Accountability-Cross-Community mailing list
>> Accountability-Cross-Community at icann.org
>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>
>>
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20160304/330d6ee6/attachment.html>


More information about the Accountability-Cross-Community mailing list