[council] Community member liability for participation in PDPs

[Marika Konings]

Ayden, the following provision of the ICANN Bylaws will hopefully address your concern:

ARTICLE 20 INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES, AND OTHER AGENTS
Section 20.1. INDEMNIFICATION GENERALLY
ICANN shall, to the maximum extent permitted by the CCC, indemnify each of its agents against expenses, judgments, fines, settlements, and other amounts actually and reasonably incurred in connection with any proceeding arising by reason of the fact that any such person is or was an agent of ICANN, provided that the indemnified person's acts were done in good faith and in a manner that the indemnified person reasonably believed to be in ICANN's best interests and not criminal. For purposes of this Article 20, an "agent" of ICANN includes any person who is or was a Director, Officer, employee, or any other agent of ICANN (including a member of the EC, the EC Administration, any Supporting Organization, any Advisory Committee, the Nominating Committee, any other ICANN committee, or the Technical Liaison Group) acting within the scope of his or her responsibility; or is or was serving at the request of ICANN as a Director, Officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise. The Board may adopt a resolution authorizing the purchase and maintenance of insurance on behalf of any agent of ICANN against any liability asserted against or incurred by the agent in such capacity or arising out of the agent's status as such, whether or not ICANN would have the power to indemnify the agent against that liability under the provisions of this Article 20.

Best regards,

Marika

On 29 Apr 2018, at 07:44, Ayden Férdeline <icann at ferdeline.com<mailto:icann at ferdeline.com>> wrote:

Thanks, Martín-

However I would like to receive a similar confirmation from ICANN's General Counsel that, in the event of civil litigation against ICANN under, say, the GDPR, ICANN will defend community members and not just directors and staff.

I am not a lawyer; I'm not sure whether this is a reassurance we should receive from ICANN org, or whether we should be obtaining this from our own, independent counsel, but I think this is something that we do need to receive advice on.

If we are about to embark, potentially, on an Expedited PDP, where the community will be under a tight time crunch to develop a policy that could well result in legal action (from potentially a wide range of unsatisfied stakeholders!), I think we in the community need assurances that we are not absorbing any personal liability in participating in the EPDP.

Best wishes,

Ayden


------- Original Message -------
On 28 April 2018 7:54 PM, Martin Pablo Silva Valent <mpsilvavalent at gmail.com<mailto:mpsilvavalent at gmail.com>> wrote:

Ayden, at least from my perspective as lawyer, there is no reason to bealive there could be such liability, ever. Not in this PDP nor any others. We the policy making members are not to worry about that.

Cheers,
Martín Silva

On Sat, Apr 28, 2018, 11:40 AM Ayden Férdeline <icann at ferdeline.com<mailto:icann at ferdeline.com>> wrote:
Dear all,

As we enter into discussions around next steps re: RDS/GDPR and entertain the possibility of an Expedited PDP, I wanted to re-raise a question that Stephanie Perrin asked in Abu Dhabi, and to ask whether or not a response to it was received. And if the answer is we did not receive a response, I think it is important we obtain one urgently. If, in order to receive a response, we must put this question on Council letterhead and submit it as a formal piece of correspondence, I would like to suggest that we do so.

In Abu Dhabi, Stephanie asked the CEO whether community members who participate in Policy Development Processes could be held liable in the event of civil litigation following on from the policies which we develop. She noted that board members, as directors, and employees, as agents of ICANN, have immunity, but wanted to know if ICANN was absorbing this liability too for the community members who participate in the activities of the multistakeholder community. She said we need protection too.

I would like to be able to pull out a transcript and to quote Stephanie directly, however I have reviewed many of them today and cannot find her question in there. However, I do distinctly remember it being asked and a follow-up question coming from another member of the Council. Maybe I missed it in the transcripts; if so, I would appreciate if someone could please link to this transcript and provide the page number. Thanks!

Best wishes,

Ayden Férdeline
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