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Red Cross and Internet Governance with Cause

Jovan Kurbalija

Protection of Red Cross/Red Crescent Emblem and Name on the Internet

One of many controversies surrounding the introduction of new domain names is the special protection given, though a moratorium, to the Red Cross and Red Crescent Movement (RCRC) and International Olympic Committee (IOC).1 Although the RCRC and the IOC are discussed together, they are very different. Substantively speaking, ICANN's decision to protect the RCRC brand has a solid legal and humanitarian basis. Here, I won't discuss the procedural aspect of ICANN's decision to give the RCRC special status, which has been criticised by many as a procedural exception that may inspire similar requests by other international entities.

The RCRC brand is one of the most important global brands, usually compared in its worldwide value to Coca Cola. It consists of emblems (a red cross, a red crescent and a diamond-shaped red crystal) and the names 'red cross' and 'red crescent' which are protected by international law. The protection of the RCRC emblems and names is an international obligation of all states party to the First Geneva Convention (articles 53 and 54).2 In accordance with the Convention, both the emblems and their names are protected everywhere in the world by national law and in most countries it is an offence to use them without permission. If this is not the case, the States must 'take measures necessary for the prevention and repression, at all times'.3

The rules of protecting the RCRC brand, drafted a long time before the Internet, apply to the Internet as well. Internet fraud regarding the Red Cross name is real and directly affects people in need of help. Almost every newsworthy disaster is now followed quickly by Internet fraud. There are many examples. Recent ones include the tsunamis of 2004, Hurricane Katrina in the USA,4 the Sichuan earthquake in China, the Haiti earthquake,5 bushfires in Australia in 2010, and the Christchurch earthquake in New Zealand.

No clear figures are available on the amount of money collected fraudulently based on humanitarian needs, but statistics from the USA on other sectors indicate that the amount could be as high as 10% of the overall amount contributed. In other words, tens of millions of dollars are stolen every year, with accompanying damage to reputations.

These fraudulent actions have the twin effect of taking money from innocent and generous members of the public and damaging the reputation of the humanitarian organisation whose name is misrepresented.

The main question is what can be done to prevent the misuse of emblems/names on the Internet. The situation of RCRC emblems and names is relatively easy to address because of the requirements of both international and national law.

ICANN's decision introduced preventive measures. It also protects the global public interest of the most vulnerable. Practically speaking, ICANN's decision can spare registrars, ISPs and domain name companies a difficult legal situation. Namely, RCRC national societies have the right to request national authorities to close down a website or remove a domain from the registration if it, for example, misuses the name 'red cross'. One can also argue that all necessary measures would include demotion of such websites from search engines. Such measures have to be taken very quickly since most of the fraud usually aims to take money from gullible but well-intentioned people in the first few days after the humanitarian catastrophe. This makes it very virtually impossible to use a lengthy procedure to take down a fraud, and preventive action is what is required.

The good news is that RCRC national societies prefer to take preventive measures instead of using costly and time-consuming legal action; they have the right to do so. They also know that a legal route could be very complicated — the frauds are seldom based in the country where the main target audience resides. A very good example was the action taken by the New Zealand Red Cross after the 2010 earthquake that made public the campaign against Internet fraud, alerting their own public and others around the world through internet reporting of their information.

The discussion now under way around ICANN's decision on the RCRC brand could galvanise the global Internet community, including civil society and the business sector, to contribute towards alleviating this problem, a problem that directly affects people in need. New social media tools will introduce new possibilities for misuse of RCRC emblems and require more innovative responses, which go beyond the capacity of humanitarian organisations. ICANN's decision opens the possibility for introducing Internet governance 'with cause'.

1 ICANN's decision to open a domain space for the new registration triggered much controversy, including the opposition of many governments and trademark lobbies. With hundreds or thousands of new domains, the protection of publicly important names (names of countries, cities) and trademarks is a huge challenge.

2 Exact title of the convention is UN Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Full text is available at: http://www.hrweb.org/legal/geneva1.html.

Article 53. The use by individuals, societies, firms or companies either public or private, other than those entitled thereto under the present Convention, of the emblem or the designation 'Red Cross' or 'Geneva Cross' or any sign or designation constituting an imitation thereof, whatever the object of such use, and irrespective of the date of its adoption, shall be prohibited at all times.

Article 54. The High Contracting Parties shall, if their legislation is not already adequate, take measures necessary for the prevention and repression, at all times, of the abuses referred to under Article 53.

3 Article 54 (Geneva Convention)

4 Hundreds of domains were registered immediately after Hurricane Katrina (2005) without authorisation of the American Red Cross including: www.katrinaredcross.com, www.donateredcross.com, www.red-cross-help.com, www.americaredcross.org

5 For example, these fraudulent domains were registered after the Haiti earthquake: Haitiredcross.com, Haiti-redcross.org, Redcrosshaiti-com

This article originally published in Diplo.

By Jovan Kurbalija, Director of DiploFoundation & Head of Geneva Internet Platform. More blog posts from Jovan Kurbalija can also be read here.

Related topics: Domain Names, ICANN, Internet Governance, Top-Level Domains

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Comments

The issue before us is not one of protection Avri Doria  –  Mar 16, 2012 5:10 PM PST

While I am one of those who finds the ICANN Board's policy creation of a new kind of reserved name to be problematic, I understand that people want to protect the RC.  The issue before ICANN at the moment, however, is not one of protection.  The ICANN Board already gave the RC and the IOC solid protection:  No one can register their name in any one of several scripts and languages. And although this was done by the ICANN Board in a way the superseded the multistakeholder processes ICANN is working hard to develop, no one is suggesting that these extraordinary protections be removed.  The Issue is that the RC and the IOC, as a pairing that cannot be undone in this issue, has come back asking for further privileges beyond protection of their name. 

Perhaps if the RC gives ICANN its name in more languages these too could be protected.  But this is not all they are asking for.

Perhaps if the RC asked for dispensation from paying for objections to cover any unforeseen circumstances, this could have been agreed to.  But this is not something they asked for, or at least it is not something in they deal they negotiated with the GNSO drafting team in the extension to the new policy on the special reserved names that is currently being rammed through the the GNCO Council without a proper AOC/ATRT based community comment period.

What they, the RC and IOC, asked for, was the ability to grant others permission to use names similar to one of their special reserve names. It is hard to know why they would want this extra privilege.  It is hard to know on what basis they would do this, but that is what they asked for.  Perhaps it is something they would do, coincidentally, on receipt of a donation, or perhaps it is just something they plan to do out of their charity.  What it is not, however, is protection.

We have been regaled with stories of how the RC will be unable to save people anymore if they don't get this special extra permission beyond protection of their names.  Personally I do not understand why the world is rushing to give them this extra privilege beyond protection.

In any case, the current story is not about protection.  The RC and IOC have protection beyond any that could be hoped for.

Thank you, Avri. It would be useful Jovan Kurbalija  –  Mar 21, 2012 1:14 AM PST

Thank you, Avri. It would be useful to have the exact wording of the GNSO decision in order to make more precise comments. In the meantime, hear are a few reflections......

ICANN should provide the same protection to the Red Cross as it already enjoys in the 'real world'. No more, no less. The level of protection of the Red Cross emblems and names in the real world is very high. At international level, there is unanimous support for humanitarian principles (including protection of names and emblems), even among countries in conflict.  It is one rare area of unanimity in the global public space, confirmed historically by more than 100 years of consistent practice. At national level, RC names and emblems are protected in public law and, in many countries in private law, too, as a special trademark (Canada is an example). If the RC enjoys such a high level of protection, I wonder how one can justify the Internet to be different from the real world.  In this context, ICANN's decision is not generosity towards the Red Cross; it is the recognition of a well-established legal and policy reality.

You are concerned about the request from the RC to grant others permission to use 'names similar to one of their special reserve names'… a few comments.

The Geneva Convention entitles the Red Cross Movement to use the Red Cross emblem and name; more specifically: International Committee of the Red Cross, International Federation of Red Cross and Red Crescent Societies, National Societies of the Red Cross and Red Crescent, the medical branch of the armed forces of countries signatory to the Conventions.

They have both the 'negative' right to prevent others from using RC emblems/names and the 'positive' right to allow other organisations to use RC emblems/names.  I suppose that this is what they asked ICANN for (to grant others permission to use names similar to one of their special reserve names). If it is the case, it is part of the emblem/name protection. The RC is extremely careful in "delegating" the right to use of emblem/name. One example of the RC's strict policy on the us of emblem/name is the 1991 RC Emblem Regulations does not allow display of the RC emblem on item sold or distributed by partners (in particular corporate sector) because ‘items are often designed to last and the RC National Society has no control over their use’.

Practically speaking, there are two possibilities to address the RC question:

- If ICANN does not provide the same level of protection RC enjoys in "real world", the Red Cross movement can use wide set of legal protection mechanisms. For example in Canada, they can use both national public and private (trademark) law. it is one possibility, which has quite a few week aspects including putting pressure on both the Red Cross and the Internet registrars (monitoring domain name space, legal action). It also introduce policy and legal instability by not synchronising online with real world.

- if ICANN provides full protection for the Red Cross (equal to real word), as it started doing, it makes both a pragmatically and an ethically sound policy.  It is pragmatic because it relieves the burden from the Red Cross Movement and Internet registrars, and 'reduces' the income of lawyers. Ethically speaking, ICANN's decision supports the humanitarian protection principle, which is one of the cornerstones of international public order codified in the Geneva Conventions and widely supported by all countries (194 signatories).

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