Next week (May 19, 2022, see agenda item #5), the ICANN GNSO Council intends to vote on the new IGO Working Group’s Final Report. However, that report fails at the most basic level, as per the instructions from GNSO Council that initiated that new working group.
I’ve written about this topic extensively, including posts last Thursday and Friday. My most detailed comments were submitted to ICANN in its public comment period. But, let’s go to the most basic problem with the report.
Page 4 noted that the work was initiated to see:
“whether an appropriate policy solution can be developed that is generally consistent with [the first four recommendations from the GNSO’s IGO-INGO Access to Curative Rights PDP] and:
a.accounts for the possibility that an IGO may enjoy jurisdictional immunity in certain circumstances;
b. does not affect the right and ability of registrants to file judicial proceedings in a court of competent jurisdiction;
c.preserves registrants’ rights to judicial review of an initial [Uniform Domain Name Dispute Resolution Policy or Uniform Rapid Suspension decision; and
d. recognizes that the existence and scope of IGO jurisdictional immunity in any particular situation is a legal issue to be determined by a court of competent jurisdiction.”
Note in particular “c” that they must PRESERVE registrants’ rights to judicial review. But, their recommendations do NOT do this, when they exempt IGOs from the mutual jurisdiction clause. That was their “Recommendation #2: Exemption from Submission to “Mutual Jurisdiction”” on page 12 of the report.
A careful reading of the report shows that they actually sneaked in the word “seek” in the summary of that recommendation, i.e. they wrote:
“2.1.2. Recommendations to Address IGO Immunities While Preserving a Registrant’s Right to Seek Review of a UDRP or URS Decision Issued Against It” [emphasis added]
It’s not enough to simply “seek” that review – one must actually have the review itself in the courts! And they removed the word “judicial” — it’s not just a “review” that matters, it’s a judicial review that must be allowed (in the courts).
Notice that their “explanatory text” on page 13 actually OMITS the above section (c) wording! They wrote:
“…recommended policy solution must [account] for the possibility that an IGO may enjoy jurisdictional immunity in certain circumstances; … not affect the right and ability of registrants to file judicial proceedings in a court of competent jurisdiction whether following a UDRP/URS case or otherwise; and … [recognize] that the existence and scope of IGO jurisdictional immunity in any particular situation is a legal issue to be determined by a court of competent jurisdiction”.
i.e. they took the wording of point “b” above, but didn’t quote “c”, namely:
c.preserves registrants’ rights to judicial review of an initial [Uniform Domain Name Dispute Resolution Policy or Uniform Rapid Suspension decision
This is the dishonesty I’ve spoken about repeatedly about this working group. The final report literally hides the most important standard of any recommendation, a standard that this working group did not meet.
As I noted in Friday’s post, the working group members themselves acknowledged during their deliberations that registrants’ rights are not being preserved!
For example, Jay Chapman said:
So really what the problem is as I see it, the current proposal as written today, it doesn’t provide for due process. It’s a forced process. And at best, it seems to me to be somewhat intellectually dishonest. And I think everyone kind of knows it on the call.
With the mutual jurisdiction requirement also currently sought to be disposed of, it seems to be kind of a wink-wink on the registrant being able to find relief or at least a decision on the merits I suppose by going to court. It’s kind of like the group wants to say, well, good luck with that, Mrs./Mr. Business Registrant. There won’t be any jurisdiction in the court and thus no remedy for you.
Without giving every example (I encourage folks to read my full comment submission), Paul McGrady noted:
Thanks, Chris. It was just the nerdy thing that I put into the chat that a waiver of the right to go to court, those rights that are being given up could really never fully be captured in an arbitration mechanism because the rights in Poland are different than the rights in South Africa, which are different than the rights in the U.S. or whatever. So what we would be doing is creating some sort of amalgam of protections for registrants in the arbitration process that we, I guess, think best blend all the various rights around the world. Then we would be offering that to registrants in lieu of their local protections. And as I said before, I think in the chat, the optics of that, they’re hard to get your arms around that. We don’t want ICANN be accused of overreach, for what it’s worth. Thanks.
The final report tries to dance around this deficiency through misdirection! They “emphasize” on page 9 that:
The inclusion of an arbitration option in the UDRP and URS does not replace, limit, or otherwise affect the availability of court proceedings to either party, or, in respect of the URS, the ability to file an appeal within the URS framework. Either party continues to have the right to file proceedings in a court, up to the point in time when an arbitration proceeding is commenced (if any).
But, that’s missing the point, and misleading people! It’s the exclusion of the mutual jurisdiction clause that has the effect of not preserving registrant’s rights to judicial review. ICANN has no ability to stop anyone from filing a court proceeding. What matters is what happens in the courts after the case is filed, and whether the proposed changes have an impact on things (they obviously would have a severe negative impact on registrants).
They falsely claim on page 19 that they believe they’re “preserving existing registrant rights.” This concern was raised by many in the public comment period, not just myself. But, then they misstate and misrepresent the objections of the public, on page 25:
The Public Comments demonstrated strong concerns, particularly amongst individual commentators, regarding the EPDP team’s proposal to exempt IGO Complainants from the requirement to agree to submit to a Mutual Jurisdiction, to the extent that it would result in limitations on the registrant’s ability to file court proceedings against an IGO or in compelling a registrant to go to arbitration. These commentators emphasized that the outcomes of the EPDP should not reduce or otherwise adversely affect the rights of registrants.
They emphasized that folks were concerned about the “registrant’s ability to file court proceedings” — that’s not the issue; instead, what matters is what would happen at court after the case got filed (i.e. it would be tossed out on a technicality, if IGOs asserted immunity, which they certainly would do if they were exempted from the mutual jurisdiction clause).
They added the ambiguous text “These commentators emphasized that the outcomes of the EPDP should not reduce or otherwise adversely affect the rights of registrants.”, but then didn’t address those actual concerns, i.e. the prejudicial impact of what would happen once you got to court.
To fake people out, then the final report didn’t actually CHANGE the substance of the recommendation (i.e. final report vs. initial report). On page 25, they tried to pretend that they did:
Clarify that its proposal to exempt an IGO Complainant (as defined) from the requirement to agree to submit to a Mutual Jurisdiction does not alter or limit a registrant’s ability and right to initiate court proceedings;
But, that is simply “explanatory text” that didn’t actually change the recommendation itself! And furthermore, that explanatory text is misleading, because it was never in dispute that registrants could “initiate court proceedings” — what people were concerned about was what would happen at court once you got there.
By removing the mutual jurisdiction clause for IGOs, the expected outcome at court would be vastly different, as everyone knows (that’s why the IGOs have been fighting this issue for 2 decades, as they don’t want the courts to ever be able to make a decision on the merits, even when they’ve initiated the overall dispute by filing a UDRP in the first place). Registrants’ rights would be severely prejudiced at court, not preserved. Even the working group itself acknowledge this prejudicial impact, on pages 23-24:
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.
That should have been the end of the working group’s attempt to keep the exemption from the mutual jurisdiction recommendation!
Instead, the working group tried to redirect people’s attention to the language of item (b) above, namely:
“does not affect the right and ability of registrants to file judicial proceedings in a court of competent jurisdiction;” (emphasis added)
i.e. but no really cares about just the ability to “file” a case. ICANN has no power to stop anyone from filing a case (emphasis above on “file“). What matters is item (c) above:
c.preserves registrants’ rights to judicial review of an initial [Uniform Domain Name Dispute Resolution Policy or Uniform Rapid Suspension decision; (emphasis added)
Which the working group simply ignored. There would obviously be no actual “judicial review” at all, as the case would be tossed out on a technicality, as IGOs successfully assert immunity (once they’re exempted from the mutual jurisdiction clause). Again, registrants’ rights would be severely prejudiced at court, not preserved. That’s unacceptable, and doesn’t match what GNSO Council told the working group to do.
Why is a decision in court so important? It was explained in depth in the detailed public comments, or in a much briefer and older article by Wendy Seltzer. Instead, this working group believes that it’s “enough” to allow someone who disagrees with the outcome of an ICANN-designed process (UDRP) to simply go to yet another ICANN-designed process (an “arbitration” as an alternative to the courts). ICANN’s UDRP has been criticized as being one-sided in favour of complainants for 20+ years, and now they believe they can be trusted to come up with something superior to the courts? That’s nonsense. The fact that working groups and processes have been manipulated to even get to this stage shows that ICANN doesn’t work, and that court processes are essential to ensure justice.
Remember, not a single IGO has ever had a UDRP appealed to court! Why would an actual criminal fraudster engaged in cybersquatting, who IGOs pretend to be after, ever expose themselves? IGOs truly want to prevent legitimate registrants who have faced an injustice at the UDRP (e.g. the ADO.com or IMI.com disputes) from obtaining justice through their national courts.
In conclusion, this final report is a sham, an obscene attempt to deprive domain name registrants of basic and sacred rights that they’ve had since the inception of the UDRP. It is a demonstration of what happens when policy-making is dominated by a powerful and unrepresentative “few”, at the expense of the underrepresented “many”. It must be opposed to ensure justice and due process for domain name owners.