IP Justice Advises ICANN Board to Protect Freedom of Expression Rights and Respect Community-Developed Policy in ICANN Top-Level Domain Policy

IP Justice sent a letter this week to ICANN’s Board Governance Committee to express concern for ICANN’s treatment of Internet user’s freedom of expression rights in the organization’s policy for new Generic Top-Level Domains (GTLDs).  The letter, which urged the committee to reconsider it’s recent decision to restrict numerous lawful of the word “doctor” in the Internet’s domain name system, stated:

ICANN serves as a global governance institution that purports to act in the public interest.  There can be no question that upholding free expression principles is acting in the public interest.  ICANN’s Articles of Incorporation require the organization to carry out its activities in conformity with principles of international law and international conventions.  Thus ICANN is legally bound under California law to protect free expression in its policies in accordance with relevant treaties such as the Universal Declaration of Human Rights, which guarantees freedom of expression “in any media and regardless of frontiers”.  It would be odd for ICANN to claim this promise did not apply to it or the Internet (although it would demonstrate ICANN’s lack of fitness to govern).  Public governance duties should be contracted to private companies like ICANN in order to avoid complying with free expression guarantees.

In addition to ICANN’s obligation as a public governance institution to protect free speech, and its legal requirement to uphold international principles of law in its Articles of Incorporation, ICANN is further required to protect free expression in new GTLD policy because the bottom-up community baked free speech protections into its final policy.

The GNSO community and its elected Council sought to protect freedom of expression rights in ICANN’s new gTLD program by including free speech principles and recommendations in its final policy, which was approved by a super-majority of the GNSO Council in 2007.  ICANN’s Board of Directors subsequently approved all of the GNSO’s final principles and recommendations for new GTLD policy in June 2008.

As someone who served on ICANN’s GNSO Council which approved the new GTLD recommendations and principles in 2007 and worked with other stakeholders to include the free expression protections into the GNSO’s final policy, I was disappointed to see ICANN’s subsequent violation of this policy and every protection for users’ free speech rights that had been built into the community’s policy in 2007.  IP Justice’s complete letter to ICANN’s BGC can be found here.