As we’ve noted in our recent blog posts, here, here, here and here, the ICANN GNSO Council intends to vote (on Thursday May 19, 2022, tomorow!) on a controversial Final Report which would severely harm the rights of domain name registrants to judicial review of an adverse UDRP decision. This is in sharp contrast to the charter of that working group, which required that the rights to judicial review be preserved.
In my review of the call transcripts, it’s clear that the Chair of the Working Group, Chris Disspain, knew and understood that they had to preserve those rights to judicial review. In fact, on the January 10, 2022 working group call, here’s what he had to say:
And the bottom line is, irrespective of all of that, that our charter, our instructions from the GNSO Council very clearly states that our solutions should not affect the rights and ability of registrants to quality judicial proceedings, a court of competent jurisdiction, whether following a UDRP or URS case or otherwise. [pp.38-39]
Boom! Yet, as discussed in prior blog posts, that very standard that they were entrusted to meet was simply not met. Rights to judicial review are severely harmed, and not preserved. “Quality judicial proceedings” and a “court of competent jurisdiction” are sacred – yet this final report, if adopted, would effectively be taking those rights away from registrants.
Chris Disspain went on! On page 39, he continued:
So I would argue that we would be significantly challenged on scope, I suspect, if we were to make a recommendation that required an IGO to go to court and to not have a substantive hearing on the merits, which of course is what would happen if IGOs were successful in claiming their immunities.
That is why yesterday’s “friendly amendment” is a sham and an obscene document.
By exempting IGOs from the mutual jurisdiction clause, they enhanced the ability of IGOs to successfully assert immunity (as the mutual jurisdiction clause would usually be interpreted as a waiver of immunity). They are in violation of their charter. They would and should be “significantly challenged on scope.” There would be no “substantive hearing on the merits” at courts. As the Final Report itself concedes:
Conversely, the EPDP team acknowledged that removing this requirement for IGO Complainants could prejudice a registrant’s right and ability to have an initial UDRP or URS determination reviewed judicially, in that a successful assertion of immunity by an IGO means that the court in question will decline to proceed with the case. [pp. 23-24]
They “prejudiced” the rights to judicial review – the working group failed to preserve them.
As the Internet Commerce Association argued in their own comment submission:
Preliminary Recommendation #3 – exempting IGOs from the usual requirement of agreeing to a Mutual Jurisdiction for a challenge to a UDRP transfer without guaranteeing the right of a registrant to have its case heard on the merits – is unjustified and should not be
accepted by the GNSO. By exempting IGOs from agreeing to the Mutual Jurisdiction requirement, registrants are left with the very real possibility that a national court will refuse to assume jurisdiction in a post-UDRP action to overturn a UDRP transfer order; leaving the registrant without any meaningful redress or ability to have its case heard on the merits.
The proposal (Option 1 under Recommendation #4) to eliminate all substantive recourse for errant UDRP and URS decisions in the event that an IGO successfully avoids a court proceeding by asserting immunity after ICANN has stripped away the Mutual Jurisdiction requirement, is unconscionable and effectively repudiates the GNSO’s mandate to the EPDP which inter alia, requires that any policy option preserve registrants’ rights to judicial review. Such right to judicial review can only entail a substantive review, not merely an opportunity to receive a dismissal. [page 1] [NB: the recommendations were renumbered in the final report]
By ignoring this, not only did the working group fail to listen to the affected stakeholders. They also, by Chris Disspain’s own words, violated their charter.
I had planned to write other blog posts in advance of tomorrow’s GNSO Council, about how the review of public comments was a sham, looking at how the Public Comment Review Tool paid mere lip service to serious comments. [e.g. look at how people would submit very lengthy comments, but instead of actually digesting and considering the very valid points, the working group would simply label them “CONCERNS” and “DIVERGENCE”! They pretended to review the public comments thoroughly, but would actually simply skim over them, with no debate, analysis or discussion most of the time, even to novel arguments. No attempt to actually refute the valid points raised by people. If I had more time, I would give numerous examples, but here are some points I wish to note.
I gave 20 reasons against arbitration, and they were ignored. (see pages 43-48 of my comments) Contrast those with pages 35-38 of the final report’s recommendations, or anywhere else they mentioned arbitration. Basics like open justice (the open court principle) are ignored, as they propose hiding the arbitration filings, and only making the decision public.
Furthermore, I addressed the “Policy Impact Analysis” on page 51 of my comments. On page 17 of their February 14, 2022 call transcript, they claimed that those were important comments, and that they’d go back to them!
“CHRIS DISSPAIN: ….One, can you make sure that you refer us back to this particular comment when we deal with that section?”
I went through all the transcripts (and Zoom calls) and did not find any evidence that they ever went back to it. None of their proposed metrics would ever find that this policy had failed! (this was also a major concern of mine with the New gTLD program) In other words, by failing to provide any metrics which could show that their proposals had a negative impact on registrants, there’d be no way to challenge this policy in the future.
They could have limited the initial impact of a proposed policy change by grandfathering existing domain name registrations, or limiting it to new gTLDs, as per pages 49-50 of my public comments. This was ignored. Opt-out was ignored. The “Notice of Objection” system was mistakenly rejected, because the group was captured. It was a fair solution that really should have had a serious look by fair-minded individuals (not allowing the IGOs to simply veto it, because they thought they could get away with exempting themselves from mutual jurisdiction).
Instead of seriously analyzing feedback, they made jokes. E.g. in response to a serious analysis of unbalanced participation (pages 27-30 of my comments), which showed that Chris Disspain spoke 49.8% of the words on calls (excluding staff), as well as an entire history of the UDRP (and explanation of why the mutual jurisdiction clause was added) the Chair’s only remark was:
CHRIS DISSPAIN: I’m very disappointed. I was going for 50%
(see page 16 of February 14, 2022 transcript) This illustrates the lack of maturity and lack of seriousness with which the working group conducted its review of the public comments. If you were not agreeing with the initial report, your concerns were laughed off.
In conclusion, I wish to emphasize again that the working group failed to deliver what it was supposed to deliver, namely a set of recommendations that preserved the rights of registrants to judicial review. As such, this report should be entirely rejected. I can give ample evidence of all the process flaws that made them lose their way. But, in the end, it’s the actual recommendations that are the deliverables, and those deliverables simply fail to deliver what was promised.