If you are a domain name owner using a UK-based or Australian-based registrar, you should seriously consider moving your domains elsewhere, as you apparently have no legal rights to judicial review in their courts after an adverse UDRP or other domain dispute procedure. In other words, you are a second-class citizen if you’re exposed to registrars in those jurisdictions, compared to other jurisdictions in the world. I would strongly recommend that you move your domain names out, or at least get your own independent legal advice.
This issue first came to my attention when I was a member of the first IGO PDP working group at ICANN. David Maher (who was also a member of that working group) even wrote a blog post about it in 2018. Recently, another domain name dispute in Australia made the news, having the same issue as the UK courts, namely that there was lack of a “cause of action” to hear the case in those courts. In brief, even if the domain dispute panelists in a UDRP or similar alternative dispute resolution mechanism made a mistake and you wish to challenge the decision in a real court, the UK and Australian courts apparently will refuse to hear the case, because of a lack of cause of action in those jurisdictions. Without recourse to the courts, and judicial oversight, mischief can take place.
I proposed various solutions (see #18, #19 and #20 in the list of individual proposals) in the first phase of the RPM PDP at ICANN to address this, but the co-chairs manipulated the working group to eliminate those proposals from even being published for public comment. In other words, they knew the problem existed, due to a flaw in the construction of the UDRP (and URS), yet refused to address it! (this demonstrates how captured these working groups are — they are not acting in good faith, but are controlled by extremists who wish to undermine domain name owners’ rights)
My extensive submission to the new IGO working group also attempted to solve this issue, as the “Notice of Objection” system fully addressed the root cause of the problem. See for example on page 11 where I literally call it out as “Unintended Consequence #1 — lack of cause of action” and directly cite the David Maher blog post and even mentioned Australia! The “solution” (starting on page 15) directly solves that problem, and also simultaneous solves the main issue that IGOs were experiencing. However, the new IGO working group (where I’m not allowed to participate as a member) had only a sham review of the public comments. They refuse to consider in good faith the proposal that would solve both the IGO issue and “lack of cause of action” issue, while still protecting the legal rights of domain name registrants. Instead, that working group plans to trample on the rights of domain name owners.
Since ICANN isn’t listening, the time for you to act is now. Start moving your domain names to a new registrar, and tell your existing registrar why you moved them. Or ask them for their legal analysis as to your rights, if you think my analysis is not correct.
If you happen to be a UK or Australian citizen, it might even make sense to form a separate holding company in a foreign jurisdiction to hold your domain names. I encourage you to seek out legal advice. [I am not a lawyer] Maybe if enough people start to move their digital assets, registrars who lose their customers will get the issue fixed at ICANN.
Folks have known about this issue for years. I’ve tried to work within the system to get this problem fixed, but the “system” at ICANN is completely broken, and refuses to solve obvious problems that negatively impact the legal rights of domain name owners.
I understand folks are busy these days. There’s a lot of “high priority” issues to deal with, like the pandemic and war. But, your legal rights are at stake. If you’re not prepared to stand up for your rights, perhaps you don’t deserve to keep them. You can act in your self-interest, and safeguard your assets by moving them into safer jurisdictions.
I’ve sounded the alarm repeatedly when domain name owners’ rights are under attack. For example,
- Without me, you might be paying $100,000/year or more for your domain name renewals, given that ICANN nearly approved contracts that would have allowed tiered pricing. Thousands of people submitted comments against that, and we won, and aren’t at the mercy of malevolent registry operators. No one bothered to read the draft contracts or understand their implications, until I did.
- I sounded the alarm (before it even launched) and fought against VeriSign’s malicious SiteFinder program
- I successfully fought against the proposed “Expedited Transfer Reversal Policy“, which would have decimated the secondary market for domain names by allowing anyone to undo domain transfers without showing good cause. Again, this wasn’t on anyone’s radar, but I carefully analyzed the proposals of a working group that I wasn’t even a member of, and understood what its impact would be, and then explained that to other stakeholders. That working group too was extremely hostile to outsiders.
These are just a few examples. I’ve worked tirelessly for two decades to defend domain name owners’ rights. Even after my enemies unfairly banished me from participating in ICANN working groups using dubious reasoning (I called out a thin-skinned lawyer who was on the losing side of a UDRP), I’m still working tirelessly to defend your rights. When others are trying to sneak through bad policies, I’m catching on to them. Is it any wonder they’ve tried to censor and silence me?
In conclusion, act in your own best interest. If your legal rights are weak in the UK and Australia, move your domains to a safer jurisdiction. If someone wants to sell you a domain name that is at one of those registrars, buyer beware — make the seller transfer it out first. If you’re contemplating buying a .AU or .UK domain name — think twice! If enough people act, perhaps then ICANN will do the right thing and finally fix this issue.
[For .AU and .UK country-code domains based in Australia and the UK, ICANN can’t do a thing (as it doesn’t regulate country-code domains), so you’ll need to pressure your relevant authorities, auDA and Nominet, to rewrite their policies, adopting the same “Notice of Objection” solution I mentioned above.]