Your comments are most welcome

[William Drake]

Hi Alex,

Looks interesting. Perhaps something similar with Kenyan CS plus
international colleagues could be organized for before the ICANN
meeting?

Cheers,

Bill



On Nov 8, 2009, at 7:24 PM, Alex Gakuru wrote:

> 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
>>
>>
>>

***********************************************************
William J. Drake
Senior Associate
Centre for International Governance
Graduate Institute of International and
  Development Studies
Geneva, Switzerland
william.drake at graduateinstitute.ch
www.graduateinstitute.ch/cig/drake.html
***********************************************************