I am at the ICANN 29th meeting in San Juan, Puerto Rico, June 25 to 29. IP Justice is launching today the campaign “Keep The Core Neutral” addressing ICANN, and in particular, its Board. In an earlier circulation of the text for this campaign, I raised a few concerns that were not totally addressed. The argument of the campaign manifesto is double fold: ICANN is a technical coordinator and should not get involved in any considerations and regulations based on meaning and value, but only on operational and technical matters; then ICANN should adhere to the freedom of expression as expressed in Art. 19 of the Universal Declaration of Human Rights: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
The problem is there are a significant number of people that don’t read the Art.19 without reading the 29 (second paragraph: “In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society”) and are concerned with an absolutist approach to freedom of expression.
With the caveat that the possible limitations to the freedom asserted in art.19 must also be based on law, the experience shows that even a universal legal instrument such as UDHR may indeed have competing, even conflicting, interpretations and approaches. For historical, cultural and social reasons, countries have different approaches to HRs in general, and particulary to the UDHR. That’s why a country like France, and the majority of its citizens, finds it good to censor Nazi-related contents in their media, including the Internet. Although arguably, removing topics from the contents is much more, and more directly harmful to freedom of expression (from the absolutist view,) than limiting the types of label available at the top level of the DNS. And what is possible in France (a different interpretation and application of UDHR) is also possible in many other places for just as legitimate reasons in the eye of the concerned sovereigns.
Furthermore, voting is a political process where the voters ultimately express their value preferences. If I’m not mistaken, the ICANN Board takes decisions by voting. So, in the new gTLD policy, as in the other matters, the Board will eventually take decisions by having its members vote individually on the recommendations. Variables intervening in each Board’s member vote will certainly include those elements of “cultural” differences (national, historical, social, etc. experiences), which will reflect in the outcome. So we may well remove all value consideration in the ICANN policies as spelled out (including by preaching an absolute observance of the UDRH’s art.19,) and still have outcomes that are not necessarily “neutral.”
At any given time, if the majority on the Board shares experience whereby it’d be better avoid some type or level of controversy, the outcome would reflect that. The question is, is it better to have a cleaned policy that would make people believe that their gTLD application will be assessed with technical criteria only, and let them spend their resources on applying, and then have a vote with an outcome at odds with the anticipated result a purely technical assessment would’ve provided?
If this campaign were to attain its ultimate aims, there should be a reform of the way final policy decisions are made by the Board. Instead of voting (YES or NO, possibly followed by customized explanations), proceed with a checklist of the relevant/critical technical & operational (T&O) criteria for the Board members to check or uncheck, in a jury manner, depending on whether or not they think the materials submitted and information collected during the process demonstrate the capacity of the applicants to meet each and every one of the T&O criteria, and only those criteria, required for a registry to operate.
Lastly, the manifesto means to keep ICANN clear from content regulation, including at the top level of the DNS – and push any regulation back to the edges and based on national legislations. But I believe:
1) not all social issues, even those serious enough to deserve it (if we compare them to the subject of some other laws), are or need necessarily to be addressed by hard law;
2) nowadays, there is enough diversity in the public sphere within many individual jurisdictions, to the point that norms are often also diverse, and sometimes conflicting.
Could it be possible to find some mechanisms in a “soft law” fashion that could prevent possible tensions without necessary deferring to hard law at the edges, i.e. to national legislations?
