Milton Mueller criticises the second European Commission non-paper, which is on ICANN’s proposed introduction of new gTLDs, here.
I can’t remember a time when Milton wasn’t involved in ICANN. Indeed it’s very likely there was never such a time. I may be wrong, but I suspect I first ran into Dr Mueller during the International Forum on the White Paper in 1998, before ICANN’s very creation. (If it wasn’t then, it was at one of the very first ICANN meetings, in 1999).
So Milton’s served his time. He’s not a newbie. But just like one shouldn’t criticise Mr De Graaf for being a newbie, one shouldn’t automatically accord Dr Mueller excessive deference to his experience, undeniable expertise and undoubted knowledge.
Fortunately, it appears that Milton is mostly right in his take on Paper 2. But Milton’s critique is pretty densely packed and I wonder how many people will read down to the explosive conclusion. Which is strong stuff indeed.
Emily Taylor is also right when she points out, also in response to the .nxt leaks, that human rights are at the forefont of the revolution the Internet has wrought and that the Commission appears to be “playing into the hands of governments whose values it should not share.”
What strikes me as odd in the whole GAC – ICANN interaction is that no-one, seems to be prepared to look at this from the point of view of fundamental principles. For example, to me ICANN seems at pains to close its eyes to any discussion issue of human rights. And it seems to me that the civil society people have an overwhelming US take on things.
All this is beginning to convince me that the absolutism of the First Amendment is not superior to its Council of Europe equivalent, which seems to take a slightly different along approach on the path to the same goal.
Now, it seems to me that the most important sentence in the Commission’s Paper 2 seems to be this:-
‘They also present GAC members with the unwelcome possibility of having to determine the merits of very politically sensitive or divisive issues related to national identity, freedom of speech, human rights and ethnic diversity’.
Again, how true!
And not only extremely unwelcome, probably extremely difficult and inconvenient for the GAC to undertake too. One need only look at the situation in Syria and Libya at the moment to realise that some sovereign nation-states cannot be trusted to protect the most fundmental of rights, such as the right to life.
What chance then that a body such as the GAC can reach a consensus on the balancing act between freedom of expression and the right to privacy, or between the right to (intellectual) property and freedom of expression? Such are the exercises that the Strasbourg Court (and also, less frequently, the Luxembourg Court) are called upon to make.
Now the interesting thing is that to me, it is clear that the paper’s author is wholly cognisant of the obligation of the Commission (as with all the agencies of the Union) to respect fundamental rights as human rights are mentioned within the paper. Indeed, if the Strasbourg case law is regarded as binding upon the Union1 then the Commission is bound in law by the positive obligation to promote the fundamental rights. It cannot abrogate that obligation by declaring it to be unwelcome.
Proposals to pre-regulate content that owe much of their heritage to the army of IP interests and their legal advisers must be tested in the balancing exercise before they can be found to be legitimate. (An interesting case to examine on another occasion might that which came out of the marriage of a famous American film actor to another actor, equally famous in Britain. Their claim involved IP rights which they had sold to a tabloid magazine, privacy rights and the rights of other section of the media to engage in what would probably be, in the USA, First Amendment protected speech.)
The obligation on the Commission to see that rights of property owners (e.g. IP rights) are be protected is undeniable.
But freedom of expression rights are definitely engaged here. And in the balancing exercise, any restriction on freedom of expression in the pursuit of the protection of property must be (a) lawful, (b) necessary in a democratic society, and (c) proportionate.
To be an allowable restriction on the right to expression, all three limbs of the test must hold.
And I submit that the position of the Commission in Paper 2 fails on all three.
I seems to me that the most important facts we must bear in mind when dealing with this appears to be
1. “a top-level domain name string is in itself a form of expression”;
2. The string itself is not the content that it may be used as a route to find (think of the .XXX controversy); and
3. (as appears crystal clear from RFC1591 and its predecessors), a top-level domain name is a domain name like any other.
Lest the absence of any dots in TLD names confuse one may ask a supplementary question as follows — should the same regulations that are proposed to be imposed upon new TLD regstrites apply equally to the operators of existing or future domain name registries at the second level of the DNS, such as CentralNIC‘s UK.COM, or EU.ORG. And if not, why not?
It seems to me the real question the Commission’s legal advisers should be asking itself is this.
What might the potential consequences be of the Commission itself and its staff involved working to promote a system which apparently contravenes the EU Charter?
I would put real money on any bet that noone from Havana, Beijing nor Tehran will be there in Strasbourg or Luxembourg if the Commission ends up in a position where it has to try to defend the contents of much of Paper 2.
1 Technically, judgments of the Cour Européenne des Droits de l‘Homme are declaratory, albeit the 47 Member Countries have a solemn and binding obligation in international law to enforce them. However, one of the main purposes of the European Union’s Charter is to make fundamental rights binding on the institutions of the Union, and therefore they would be taken into account in any question before the Cour de Justice de l’Union Européenne judgments of which are binding on the Union and the Member States.