[Gnso-epdp-legal] Fwd: contractual necessity advice [B&B-M.FID11042763]

Kurt Pritz kurt at kjpritz.com
Wed Jan 30 14:23:28 UTC 2019



> Begin forwarded message:
> 
> From: Kurt Pritz <kurt at kjpritz.com>
> Subject: [Gnso-epdp-legal] Fwd: contractual necessity advice [B&B-M.FID11042763]
> Date: January 23, 2019 at 5:53:21 AM PST
> To: gnso-epdp-legal at icann.org
> 
> Hello Legal Team:
> 
> I rep’d this overnight - I am sorry to be sending just now. 
> 
> Best regards,
> 
> Kurt
> 
> 
>> Begin forwarded message:
>> 
>> From: Ruth Boardman <Ruth.Boardman at twobirds.com <mailto:Ruth.Boardman at twobirds.com>>
>> Subject: contractual necessity advice [B&B-M.FID11042763]
>> Date: January 23, 2019 at 1:38:53 AM PST
>> To: "Kurt Pritz (kurt at kjpritz.com <mailto:kurt at kjpritz.com>)" <kurt at kjpritz.com <mailto:kurt at kjpritz.com>>
>> Cc: Daniel Halloran <daniel.halloran at icann.org <mailto:daniel.halloran at icann.org>>, Gabe Maldoff <Gabe.Maldoff at twobirds.com <mailto:Gabe.Maldoff at twobirds.com>>
>> 
>> Hello Kurt,
>>  
>> The advice on this question is attached.
>>  
>> You may find a short summary helpful. This is:
>>  
>> a) it is not clear if the contractual necessity condition can only apply where there is a contract between data controller and data subject, or whether the contract could be between another person and the data subject. (For example, so that ICANN or a registry could argue that their processing is necessary for the contract between the registrar and the RNH/data subject).  In countries where we have checked, there are no cases on point. Some data protection authorities interpret the provision narrowly. However, there is also guidance arguing for a more liberal approach. We think a more liberal approach is correct – but this is untested.
>>  
>> b) What is 'necessary' is interpreted strictly. We do not think that the EPDP could successfully argue that preventing DNS abuses is'necessary' for the contract with the RNH. There is guidance from the Article 29 Working Party on this which has examples somewhat similar to ICANN's situation. 
>>  
>> If you have questions, do let me know.
>>  
>> Best regards,
>>  
>> Ruth
>> 
>> BIRD & BIRD 
>> 
>> 
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