We know from life: There is no rule without exception. The problem is, exceptions create space for interpretations and have the risk to undermine the rule.
Take Article 19 of the International Covenant on Political and Civil Rights from 1966. Article 19, paragraphs 1 and 2 define the individual right to freedom of expression. Paragraph 3 adds some exceptions where this right can be restricted to protect, inter alia, national security and public order. This is an understandable justification for a restriction, but it opens the door for misuse, in particular if there is no due process and no independent third party for controversial cases in place. If a blogger in China discusses Tianmen Square or Tibet, the Chinese government restricts the blogger's freedom by referring to its right to protect national security and public order. In other words: The Chinese government is in line with the language of the International Covenant but it undermines its spirit. Slippery territory.
The authors of ICANN's Applicant Guidebook for the new gTLD program have very carefully incorporated safeguards against the misuse of the right to apply for a new gTLDs by Cybersquatters or people with bad intentions. It remains to be seen how this mechanisms will work, but so far it is purely speculative to expect that the proposed system is so weak that it will be unable to stop the bad guys and that therefore additional extra safeguards are needed.
The case under controversial discussion is now the proposed additional protection for the IOC and the International Red Cross/Red Crescend. The Governmental Advisory Committee (GAC) has advised the Board to give those two organizations extra protection. The Board has accepted the advice and has asked the the Generic Names Supporting Organization (GNSO) Council to propose language. The GNSO Council and the GAC have formed a joint drafting team (DT) which produced a text. However the text is still under public comment and it is controversial among various constituencies within the GNSO Council. There is an urgency now. The window for the first round of the new gTLD program is closing.
No doubt, the language and the logo of both organizations need strong protection. But the question is whether the proposed exception is the right thing to do. The risk is high that if you start with exceptions you open the door for a lot of more requests.
The argument in favor of extra protection, used by the GAC, is that the two organizations are unique because they are protected both in international AND national law and this justifies to get the extra protection also in the DNS.
This argument is questionable. First of all, this "uniqueness" is not proofed by a neutral legal analysis. Is the status of the two organizations — compared with the 10,000s international and hundreds of intergovernmental organizations, which exist today — indeed "exceptional" which would justify a preferential treatment?
In the discussions within the joint GAC/GNSO DT, GAC members argued that the two organizations will remain the only one which get extra protection and that the call for a similar extra protection by 28 intergovernmental organizations, which have asked for a similar status in a letter to the ICANN Board, will be rejected. Members of the GAC are member states of those organizations and they will stop such special requests. It remains to be seen whether this will work.
Take only the example of UNESCO, one of the signatories of the letter of the 28 IGOs. UNESCOs language and logo is well protected both in international law and in national law. There are more than 190 national UNESCO Commissions, which are not part of UNESCO as a UN Specialized Agency but operate independently under national legislation. The titles "UNESCO World Cultural Heritage" and "UNESCO World Natural Heritage" are well protected both in international and national law. Each national jurisdiction includes clearly regulated procedures for national sites which want to apply for such a title. It has to be first accepted by the national UNESCO Commission which brings the proposal to the International Committees of the two UNESCO Conventions and those committees decide which sites get the title. If a national cultural or natural site misuses this title, it will be punished by national courts. Why UNESCO should accept an argument by ICANN that it does not deserve a similar extra protection as the IOC and the Red Cross/Red Crescend?
To start with exceptions is a slippery slope, risks to open a box of Pandora and can trigger an endless stream of calls for extra protection by any institution or unit which does not feel protected enough under the existing safeguards in ICANNs new gTLD Applicant Guidebook. In a worst case scenario the whole new gTLD process could be compromised.
I understand fully that the famous names and logos of international and intergovernmental organizations as IOC, RedCross/Red Crescend, UNESCO, OECD and others could became a target for Cybersquatters and individuals with bad intentions. A secure protection mechanism for those organizations — as for trademarks, brandnames and names of cities and regions etc. — is needed. To develop such a mechanism is one reason why the Applicant Guidebook needed so many years to become completed. The authors wanted to be sure that there are no gaps in the system. Now the safeguards have to be tested.
To introduce on top of this a mechanism for extra protection is — in my opinion — overdone. The beauty of the multistakeholder governance model is that it is able to correct errors in its bottom up transparent and open policy development process. In ICANN, there is no commander at the top. Sustainable decisions come as the result of a broad involvement of all stakeholders and constituencies, in their respective roles, which have to put aside their special interests and have to work towards the best interest for the community as a whole.
However, if IOs and IGOs mistrust the not yet tested protection system in the new gTLD program, one could consider a unique extra-exception for the first round of the new gTLD program. But in such a case there has to be also safeguards to avoid such an exception from being misused. Just to single out the names of two organizations and to give them more than others would be a mistake.
A compromise could be to define some specific criteria in general language — as the protection of an IO or IGO both under international AND national law — which would constitute a basis for extra protection in the first round and for the top level only. There is no doubt that on the second level it needs much more specified safeguards. And this work has still to be done. But this has nothing to do with the first round for the new gTLD program. So let's move forward.
By Wolfgang Kleinwächter, Professor Emeritus at the University of Aarhus. He serves as Special Ambassador for the NetMundial Initiative and was a member of the ICANN Board of Directors from 2013 - 2015. He expresses his personal views in this blog.
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