The Council of Europe (COE), an intergovernmental organization that focuses on human rights, published a report entitled ICANN’s procedures and policies in the light of of human rights, fundamental freedoms and democratic values (COE-gTLD). The human rights implications of ICANN’s procedures is an important topic that is just beginning to be discussed in ICANN. This report is a major admonition to ICANN to fully consider the human rights implications of ICANN discussions. Its introduction at ICANN 50 in London was a significant event.
This report is relevant to the gay community, not only because of the centrality of the human rights discussion, but because the report uses the dotgay LLC community application as a case study. This case study shows how ICANN and the Economic Intelligence Unit (EIU) it hired to evaluate community status as part of the Community Priority Evaluation (CPE) may be violating the rights of the gay community. The report has been put on the table for future Government Advisory Committee (GAC) and other ICANN discussions and can be sure to figure into all discussions of community rights going forward. As such, the report represents a milestone for ICANN.
While this report is written from the perspective of European law and norms, it has general applicability to any discussion of ICANN and the human rights implications for domain names, as defined in the Universal Declaration of Human Rights and related international covenants and treaties including “The promotion, protection and enjoyment of human rights on the Internet” from the Human Rights Council.
But before getting to the case study on dotgay’s community application, some of the introductory content from the report is worth quoting:
As ICANN expands and its mechanisms and procedures affect more and more individuals, the living instrument doctrine might suggest, for example, that vulnerable groups that did not merit special protection in the past may now deserve specific protection under, for example, the national regulation of hate speech online. This might be the case for homophobic hate speech which has recently been examined by the European Court of Human Rights (ECtHR). Finally, the positive obligations doctrine implies that states have a duty to take reasonable steps to ensure that the rights of, for example, Roma, homosexuals and other vulnerable groups are in fact protected. Indirectly, this implies a commitment of the governments to also defend this in the ICANN and GAC context. The ICANN expansion process means that more multi-stakeholder dialogue is necessary to ensure that it operates in the public interest. With this expansion comes increasing responsibility and accountability. (COE-gTLD para 14)
The quote feeds into a general discussion that is building in ICANN of the importance and relevance of human rights. While the Non Commercial Stakeholder Group (NCSG) has worked for years to have human rights impact analyses added to the policy development processes for gTLDs, this takes the discussion to a new level. In a general sense, this report feeds into a proposal to create a permanent ICANN Human Rights Advisory Committee to work along side other ICANN Supporting Organizations and Advisory Committees (SOAC) to ensure that human rights considerations are always front and center when ICANN develops policy or makes decisions.
It is also material that these introductory remarks make specific reference to the plight of the gay community worldwide.
… the concept of ‘pluralism’ plays a prominent part in the case-law of the European Court of Human Rights (ECtHR). That is to say that pluralism is an important factor determining the scope and impact of a number of fundamental rights, such as the right to freedom of expression, freedom of association and freedom of religion. The ECtHR decided that, in the context of granting broadcasting licenses, states may have to be guided by the importance of pluralism. It also expressed the view that the exercise of power by mighty financial groupings may form a threat to media pluralism as well as far-reaching monopolization in the press and media sector. By using the concept of pluralism, the Court adds to the importance of individual and associational fundamental rights. Council of Europe states and the GAC thus should, in the same line of thinking, take care in ensuring that ICANN’s mechanisms includes and embrace a diversity of values, opinions, and social groups and avoids the predominance of particular deep-pocketed organizations that function as gatekeepers for online content. (COE-gTLD para 20)
This quote perfectly express some of the concerns of the dotgay community for the community application for .gay that has been under constant attack by deep-pocketed organizations. .lgbt is already lost to the LGBT community; its domain names will be offered to the general domain profiteering community, known as domainers, who seek to profit by first capturing and then reselling desired names at a high profit margin. If dotgay LLC does not prevail in its Community Priority Evaluation, the community may lose its opportunity to ensure that some part of the Internet domain remains safe and hospitable for the global gay community; that is, if the dotgay community application does not get a community rating from the CPE, it will be forced to compete in an auction with those deep pocketed organizations – and even if it prevails in an auction, it will do so at a cost to the community.
After its discussion of the general human rights principles at play in ICANN discussions in general, the report digs into the specific human rights issues related to the new gTLD program in section 2. Sections 2.1 and 2.2 of the COE-gTLD report give a very good high level synopsis of the ICANN application and are worth reading for this reason alone.
This discussion in the report references Article 20 of the Universal Declaration of Human Rights and, Article 21 of the International Covenant on Civil and Political Rights in support of rights related to the gay community within the context of new gTLD applications. The rights discussed extend to rights of a community to special treatment in order to overcome previous discrimination by virtue of various court decisions. The report also explains how the rights of redress for discrimination become applicable to the gay community:
while treaties and conventions do not specifically reference sexual orientation the reports discusses ECtHR case-law that determines that discrimination on the grounds of sexual orientation or gender identity is prohibited and must be prevented. (COE-gTLD Para 42)
The case-study on the string contention procedures referencing .gay as an example begins with section 2.4.4 of the COE-gTLD report. It lays out the ICANN Community Priority Evaluations CPE procedures with a focus on the scope of the definition of “community” and the “responsibility of states under international human rights law to take positive measures to protect certain vulnerable groups.” (COE-gTLD Para. 62)
The scope of a ‘community’ determines to what extent specific groups deserve protected status. (COE-gTLD para 64). The COE report takes the interpretation of the term ‘community’ back to the broad definition that was included in the GNSO recommendations, which are, or should be, the touchstone for all evaluations. It points to the manner that following on from the Applicant Guide Book (AGB), the standard appears to have been tightened even more against community interests than the AGB had already done. The report shows how the association and assembly rights associated with communities are parallel to those granted by the courts to associations. The report goes on to discuss the impact on human rights a narrow definition of community might have. For example, a narrow definiton might exclude the LGBT+ community from the community’s rights, while human rights based criteria would include it. The article shows how the AGB and the EIU interpretation of the GNSO’s recommendations, interfere with the ability of the community to uphold international human rights norms and laws.
Community-based TLD’s could take appropriate measures to ensure that the right to freedom of expression of their community can be effectively enjoyed without discrimination, including with respect to the freedom to receive and impart information on subjects dealing with their community. They could also take additional measures to ensure that the right to freedom of peaceful assembly can be effectively enjoyed, without discrimination. (COE-gTLD Para. 63)
The report discusses how the results of the judgement of the International Center of Expertise of the International Chamber of Commerce decision on the ILGA objections to the non community applications may be prejudicial against the gay community. As a special action may be required to protect the rights of association for this endangered community, it further states:
Specific action might be required in order to ensure the full enjoyment of the human rights of the LGBT community. The starting point for such measures is the need to combat a high level of discrimination based on sexual orientation or gender identity. Lesbian, gay, bisexual and transgender individuals have been discriminated against for centuries and are still subjected to homophobia, transphobia and other forms of widespread and enduring intolerance. This leads to hostile acts ranging from social exclusion to discrimination – all over Europe and in all areas of life, on grounds of sexual orientation or gender identity. (COE-gTLD para 72)
While the original obligations of human rights are incumbent on states, and thus on the GAC, the report explains that these obligation are become requirements for non state actors such as ICANN and the organizations that are responsible for the reviews.
The content related decisions made by ICANN may result in decisions made on the availability of information on the Internet, and can be regarded as similar to editorial judgements made by the media. (COE-gTLD para 74)
In other words, denying a domain of its own to the gay community may be seen as an act of editorial censorship.
The COE report recommends that anyone that runs a top level domain for a vulnerable community should have have a plan for how it will protect and assist the community. No one expects such protection for the gay community from the standard non community applicants of .gay as they have not included any such plans in their application. Only a community run .gay registry can be expected to do its best to protect and assist the gay community.
Finally the report discusses the consequence of failing the CPE, that is the need to compete with the standard applications in an auction for the community’s domain name. The COE-gTLD report explains that auctions are an inappropriate means for serving the public interest in delegating a community directed gTLD. As the delegation of .gay is a public interest issue, any auction pitting the gay community against the deep-pocketed organizations of the domain name industry is an inappropriate means of delegating .gay.
The COE-gTLD report’s discussion on new gTLD contention ends with:
In conclusion, gTLDs may include expression or be used as spaces for online association and therefore, entail a human rights and fundamental freedoms dimension which should be considered together with other technical matters. The evaluation of applied-for new gTLDs may involve content-related considerations that need to have the general interest in sight. While ICANN’s judgement should not be interfered with unjustifiably, ICANN should exercise its role with due regard for fundamental rights and freedoms and in full compliance with international standards. In particular, any interference with the exercise of the right to freedom of expression and the right to freedom of association should be more systematically tested against the requirements of international human rights law and the global public interest. (COE-gTLD para 80)
ICANN is a corporation in the public benefit, it needs to live up to its obligations to protect the public interest.
In ending this blog entry, I want to point out that one of the standard applicants for gay has again taken to attacking dotgay LLC at the CoE website, instead of taking responsibility for the human rights issues of what the report had to say. In reference to dotgay LLC procedures for restricting the .gay TLD to the LGBTQIA+ community, one of the specific statements that this standard applicant offers in his comment: “Their barriers to entry will keep out individuals from developing countries as well as young people” cannot be substantiated. There is absolutely nothing in dotgay LLC’s application to substantiate this claim – the Authentication Partners, groups from around the world who have served and continue to serve the gay community, that provide the entry point to the community gTLD will cover all regions and will be inclusive of developing economies as well as covering all LGBTQIA+ sectors of the community. This accusation is one that has been often repeated in the dirty trick campaign waged by some of the standard applicants against the dotgay LLC community application. This dirty tricks campaign against the gay community would also make a good case-study, and represents a form of discrimination that the gay community has had to deal with in its application for .gay . It can only be hoped that the powers-that-be will seriously consider the human rights responsibilities of all actors: including but not not limited to ICANN itself, the EIU and other evaluators, and the registry applicants who compete against communities.