New UK rules over domain name disputes, which came into effect on Monday, show that Internet regulators can, if they put their mind to it, be capable of making good decisions.
The changes to Nominet's domain resolution service (DRS) - which affect all domains ending .co.uk - are the first major overhaul since 1997 of the resolution process at the UK root registrar, and have taken into account past cases as well as respondents' views to a public consultation.
The most important changes are the introduction of independent judges, improved transparency and a rewording of the rules to step away from issues of confusion over domains and towards abusive registrations.
While many of the changes - including the addition of personal and geographical names into the system - appear to be a case of catch-up, the most important difference between Nominet's approach to domain resolution and that of ICANN-approved arbitrators such as the World Intellectual Property Organisation (WIPO) and National Arbitration Forum (NAF) is one of philosophy. While they tend to view the Internet as little more than a corporate marketplace, Nominet has always made it plain that it supports free speech on the Internet.
Case By Case
Two other important differences between Nominet and other arbitrators are: that Nominet does not view previous decisions as forming a domain resolution case law. "No decisions carry a precedent," Nominet's main lawyer Emily Taylor told us.
The case law approach has led to an unfortunate increase in the number of poor or flawed judgments based on previous flawed judgments at other arbitrators. The system also adds an air of legitimacy of these new judgments.
On top of that, Nominet views its role as an arbitrator and not as a court of law. For this reason, it will act as intermediary for both parties and only step in when both sides have failed to reach an agreement. Only then does it charge an arbitration fee. The opposite is true for arbitrators following ICANN rules - pulled together under the Uniform Dispute Resolution Policy (UDRP).
Let me be the Judge of that
In the introduction of independent judges and the decision to post all judgments on its Web site, Nominet is simply matching the transparency of other arbitrators. However, while the NAF in particular has been heavily criticised for continually using trademark lawyers, Nominet is to choose an initial selection of 30 judges from a range of professions, including IT directors and magistrates (over 700 applied for the job, which comes with a £750 per-case fee).
More importantly than that, it has gone with a "cab rank" system, meaning that the judge chosen for a particular case will simply be the next one in line. This is a vast improvement over other approaches, which often have a secretive and biased system for judge selection. A recent study showed that the judges working for the NAF are at least ten times more likely to be picked for a case if they regularly choose for the complainant.
In line with a general movement away from solely trademarks to incorporate personal names and geographical areas as legitimate claims to ownership of a domain, Nominet has included them under the new rules. However, while this has been widely seen as opening the floodgates to hundreds more corporate cases at other arbitrators, Nominet has a balancing clause.
"We have a specific provision that says if a domain is providing criticism or a tribute then that may come under fair use," Ms Taylor told us. "That is our free-speech carve-out." Basically, company X will never win companyXsucks.co.uk, and Pop Star will never get her mits on popstarfan.co.uk. "The idea is to support the free speech element of the Internet by not branding activities as being in 'bad faith'," Nominet's main lawyer Emily Taylor told us. "Bad faith" is one of the three damning tests for UDRP resolution.
The new rules - we have been written in plain English, we are assured, and posted on Nominet's site - will also provide individuals ignorant of domain dispute resolution enough information to help them decide how to tackle the problem if a company approaches them demanding a particular domain.
But what about fsa.co.uk?
Which brings us to a very recent case in which we believe Nominet made the wrong decision. Last Friday - just before the new rules came into effect - Nominet ruled in favour of the FSA over Findlay Steele Associates for the domain fsa.co.uk.
The decision was made over the issue of confusion and was clearly nonsensical. Ms Taylor refused to discuss any cases in particular but did remark that under the old rules "the demand for confusion [between the domain in question and a company's trademark] may hit people that are co-existing and using other domains on the Net".
Under the new rules, it seems unlikely that the decision over fsa.co.uk would go the same way. The case is still under review following an appeal by Findlay Steele but that appeal will be run under the old rules Elaine Findlay told us. The company looks certain to request its case is heard under the new rules.
That case aside, we find it refreshing that an Internet organisation has managed to retain some of the initial revolutionary fervour that made the Internet possible. Perhaps ICANN should look towards the UK when it finally allows UDRP to be debated. ®
Nominet rules against Findlay Steele for FSA.co.uk
Software firm takes on mighty financial watchdog
Why ICANN's domain dispute rules are flawed: Part I
Why ICANN's domain dispute rules are flawed: Part II