Your comments are most welcome

[Alex Gakuru]

Dear Konstantinos,

Your below comments were very useful. Our team of lawyers have taken
note of them.

thanks much.

Dear all,

As I mentioned to some colleagues at Seoul, next week we are hosting
http://ict4all.or.ke/

Para. 2 home page - content being collaboratively developed by the
Civil Society organizing committee accuses absent broad stakeholders
(especially Rights) organisations on local and international ICT
agenda-setting. .

While the thrust of the convening is a focus on draft regulations, we
shall have other topics, such as, IPv6, community networks,   and
Civil Society participation at ICANN and IGF are on our agenda. We'd
appreciate the Chair's Constituency message that can be publish at our
brand new webpage (just got published this morning).

Wish us well?

best wishes,


Alex

On Tue, Oct 13, 2009 at 12:36 PM, Konstantinos Komaitis
<k.komaitis at strath.ac.uk> wrote:
> Dear Alex,
>
> You have certainly every reason to be worrying about paragraph 20 of the
> Regulations - but I would extend this worry to the whole section. According
> to its wording, Registrars are legitimized to proceed to content-related and
> apply any other subjective criteria until they manage to 'satisfy themselves
> that the name so submitted". This is very dangerous. It gives an
> unprecedented level of discretion to registrars to proceed to evaluations
> that fall completely outside their scope. the system can be gamed and abused
> easily, mainly by trademark owners but not only. Registrars are not
> authorized legal agents and they should not act accordingly. Especially
> since the regulation imposes such harsh penalties, leaving such wide
> discretion to registrars endangers the whole idea behind registering domain
> names (innovation, entrepreneurship, etc). In what capacity will registrars
> operate and what criteria will they apply in determining "contrary to the
> law" and " does not infringe the rights of third parties"?
>
> Finally, the registrar is given too much power being able to revoke the name
> at any time and I also find a, b, c, and d highly vague and problematic.
> Only courts or an ADR is system - if is applicable and legitimate - can
> determine these issues. Not registrars, which they only perform technical
> management of the domain names. imagine for instance what would happen if
> NSI were to determine whether a domain name is contrary to the law or
> infringes the rights of third parties. it would be dangerous and would
> create legal upheaval.
>
> Hope this helps.
>
> KK
>
>
> On 12/10/2009 20:09, "Alex Gakuru" <gakuru at GMAIL.COM> wrote:
>
>> Colleagues,
>>
>> Below is an excerpt from our draft regulations. I am uncomfortable
>> with 20 (1) c. "does not infringe the rights of third parties;"  which
>> I find very generic and prone to abuse by Intellectual Property
>> 'domain name rights' holders compared to "first come first served
>> domain name registrations tradition.  Furthermore this would imply
>> imprisonments for such registrars in view of 25 (1) and (2).
>>
>> Would you kindly care to comment for our legal team to take note on
>> our comments to be submitted soon?
>>
>> regards,
>>
>> Alex
>>
>> ----snip---
>>
>>                       20.   1) Registrars shall, before registering
>> any domain name,
>> Obligations of              satisfy themselves that the name so submitted:
>> Registrars                   a. complies with the guidelines issued pursuant
>> to
>>                                        regulation 18;
>>                                    b. is not contrary to the law;
>>                                    c. does not infringe the rights of
>> third parties;
>>                                    d. does not improperly give the impression
>> of
>>                                        pertaining to public
>> administration or the exercise
>>                                        of public powers
>>                            2) The Registrant shall be the holder of
>> the registered
>>                                domain name; provided that the
>> Registrar reserves the
>>                                right to recall the registered domain
>> name if it is
>>                                established that the registration was
>> contrary to these
>>                                Regulations.
>>
>>                    21. Liability for the infringement of third party
>> rights and interest
>> Limitation of       arising from holding or using a domain name shall
>> be borne by
>> Liability              the Registrant.
>>
>>                   PART IV:MISCELLANEOUS PROVISIONS
>>
>>                    25.
>> Offences and           (1) Any licensee who contravenes the provisions of this
>> Penalties              Regulation commits an offence.
>>
>>                        (2) Any person who commits an offence under these
>>                        Regulations shall be liable on conviction to a
>> fine not exceeding
>>                        three hundred thousand shillings or to
>> imprisonment for a term
>>                        not exceeding three years or both.
>> <http://www.cck.go.ke/UserFiles/File/E-transactions%20draft%202%20fair%20draft
>> .pdf>
>
> --
> Dr. Konstantinos Komaitis,
> Lecturer in Law,
> GigaNet Membership Chair,
> University of Strathclyde,
> The Lord Hope Building,
> 141 St. James Road,
> Glasgow, G4 0LT,
> UK
> tel: +44 (0)141 548 4306
> email: k.komaitis at strath.ac.uk
>
>
>