[IOT] Discussion thread #2

[Greg Shatan]

 >The clock on time-barring their Dispute ought not to start until they are
threatened with enforcement action under the policy.

I think that is an inappropriate interpretation of "affected by the
action".  If that were the case, there would be no bar at all.

I'm not necessarily accepting the "Affected by the action" standard at all.

But if we use it, it should only mean that the claimant is within the class
of people to whom the action applies.  In the example supplied, the
Registrant would be affected by the action as soon as the action was taken,
since they would be subject to the policy from the time it was adopted.

Greg

On Tue, Aug 23, 2016 at 6:10 AM, Malcolm Hutty <malcolm at linx.net> wrote:

> On 22/08/2016 22:13, Burr, Becky wrote:
>
>>
>> The draft Updated Supplementary Rules just circulated contains the
>> following:
>>
>>     A CLAIMANT shall file a written statement of a DISPUTE with the ICDR
>>     no more than 45 days after a CLAIMANT becomes aware or reasonably
>>     should have been aware of the action or inaction giving rise to the
>>     DISPUTE or, where a CLAIMANT demonstrates to the satisfaction of the
>>     Panel that it was not aware of the action or inaction prior to the
>>     end of that 45 day period, no more than [X] months from the date of
>>     such action or inaction.
>>
>>
>>
>>  The CCWG’s Final Report does not contemplate a “constructive knowledge”
>> standard, so it has been removed.
>>
>
> Becky,
>
> Is this intended as responsive to the issue I raised in the thread "Time
> Bar", or as a separate issue?
>
> If it is intended to address that problem, I'm afraid I don't believe this
> deletion resolves the issue. It would remain entirely possible that the
> Claimant was aware of the *action* giving rise to the dispute immediately,
> but was not affected by the action until much later.
>
> A Claimant who becomes affected by an action should be able to challenge
> that action, provided they do so reasonably promptly on being affected by
> it, regardless of how much time has passed since the action.
>
> For example, a Registrant should be able to challenge a policy that
> purported to regulate the content they could publish on servers they
> operate with an allegation that the policy is ultra vires. The clock on
> time-barring their Dispute ought not to start until they are threatened
> with enforcement action under the policy.
>
> Malcolm.
>
> --
>             Malcolm Hutty | tel: +44 20 7645 3523
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