This article maps the substantive international human rights implications of the influential Uniform Domain Names Disputes Resolution Policy ("UDRP"). The UDRP is an international legal framework for resolving disputes between trademark owners and domain name holders, created by Internet Corporation for Domain Names and Numbers ("ICANN")--a multi-stakeholder non-profit corporation, responsible for managing domain names and addresses globally. I sketch out the human rights implications of the substantial aspects of the UDRP from an international perspective because ICANN has recently added a Core Value of respecting "internationally recognized human rights " to its Bylaws, and the UDRP review is underway in 2020. In this article. I analyze the dominant interpretive approaches of UDRP panelists to illustrate how, from an international human rights perspective, the substantive UDRP elements are currently too broad and lead to problematic outcomes. While international human rights analysis does not automatically generate pinpoint policy prescription, it provides an additional framework to evaluate ICANN's policies, expanding the focus and range of responses. I argue that a more precise articulation and reflection of the narrow scope and objectives of the UDRP within its substantial elements (including as they are interpreted and applied) is needed if ICANN is to uphold its human rights Core Value and to ensure that the UDRP is interpreted by the panelists as consistently as possible with international human rights principles. I propose several concrete ways to address the problematic substantive aspects of the UDRP from an international human rights perspective. In particular, the upcoming UDRP reform should include: 1) an explicit reaffirmation of the narrow scope and limited objectives of the UDRP; 2) a clear articulation of the relationship between the UDRP objectives and substantive policy elements; 3) a reaffirmation of the cumulative nature of the bad faith requirement; 4) a revision of affirmative defences available to the respondent; 4) an introduction of an additional defence of an unreasonable delay; 5) an introduction of a choice-of-law provision; and 6) a development of "Uniform Consensus View " at ICANN level to increase consistency and reduce the risk of rogue interpretations of the UDRP by panelists. Ultimately, 1 propose "returning" the UDRP to its original, narrower objectives to reduce the UDRP decisions' potential to encroach upon fundamental human rights.
INTRODUCTION A. Changing Institutional Context of ICANN B. Contribution of this Article C. International Human Rights Analysis to Supplement Earlier U.S.-Focused Literature D. Importance of the Human Rights Analysis of the UDRP E. Limits and Scope of the Analysis F. Structure of the Article II. Domain Names and the Creation of the UDRP A. Enduring Importance of Domain Names in the Age of Platformization B. Early Cybersquatting and The Creation of the UDRP C. Controversy over the UDRP and Calls for Reform 1. Conflicting Views over UDRP Success 2. Calls for Reform and Upcoming Review in 2020 III. ICANN AND INTERNATIONAL HUMAN RIGHTS LAW A. Respect for Human Rights under "Applicable Law" B. ICANN's Self-imposed Quasi-Constitutional Limits C. Relevant International Human Rights Framework for the UDRP IV. Human Rights Analysis of the Substance of the UDRP: Implications for Freedom of Expression, Equality and Non-Discrimination A. "Identical or Confusingly Similar to a Trademark or Service Mark" 1. Loosening of Trademark or Service Mark Requirements 2. Confusing Similarity with Pejorative Terms 3. Will .sucks Make a Difference? 4. Informational Websites B. "No Rights or Legitimate Interests" 1. No Legitimate Interests if Using the Mark in the Domain Name? 2. Special Consideration for U.S. Citizens and Residents? C. "Bad Faith" 1. Cumulative Language: Registration and Use 2. Lack of Active Use / Non-Use 3. "Retroactive" Bad Faith Registrations and "Renewals" in Bad Faith 4. Relaxation of the Bad Faith Requirement for Criticism Websites D. Three Elements in Action, Three Elements Together V. Fixing the Substance of the UDRP: What Should be Done from a Human Rights Perspective? A. Explicit Clarification and Reaffirmation of the Narrow Scope and Limited Objectives of the UDRP 1. "Confusing Similarity" 2. "No Rights or Legitimate Interest" 3. "Bad Faith" B. Affirmative Defences & Burden of Proof in Practice C. Inclusion of "Unreasonable Delay Defence" D. Introduction of a Clear Choice-of-Law Clause E. Development of a Uniform "Consensus View" VI. Conclusion I. INTRODUCTION
Domain names are easy to remember alphanumeric codes, such as, www.apple.com or amnesty.org. Because they contain text--which itself is a form expression--domain names directly affect the human right to freedom of expression, (1) and indirectly the right to freedom of association and assembly. (2) Sometimes domain names also incorporate elements that might be considered proprietary, such as trademarks. Think about the generic word "Apple," which is also a trademark of a famous U.S. technology company, Apple Inc., or the name of the "Amazon" rainforest, which is also a trademark of the U.S. technology giant Amazon Inc. This expressive nature of domain names can easily lead to tensions between trademark owners and domain name registrants who might have registered a domain containing the trademarked name or parts of it (e.g., applesucks.com; amazonbelongstocommunity.org).
These tensions are addressed in the Uniform Domain Names Disputes Resolution Policy ("UDRP"), (3) an international legal framework for resolving disputes between trademark owners and domain name holders. The UDRP primarily concerns economic interests; however, it also affects the exercise of fundamental human rights, such as freedom of expression, or these rights might be ingrained within the UDRP procedure itself, such as the right to fair trial (which 1 discuss in a separate piece). (4) In this article, I use an international human rights framework to argue that the substantive policy of the UDRP may not conform with international human rights of freedom of expression, equality and non-discrimination. I suggest that these are not merely technical violations but indications that the UDRP system as a whole may lack basic fairness.
Created in 1998, the UDRP is one of oldest and most controversial policies of Internet Governance, which is defined as "the development and application of shared principles, norms, rules, decision-making procedures, and programs that shape the evolution and use of the Internet." (5) The importance of domain names for commercial, political and artistic activity in the digital economy is reflected by the fact that they have been fiercely litigated, (6) legislated, (7) and discussed by scholars (8) and civil society advocates. (9) The importance of domain names in the digital ecosystem extends well beyond the UDRP (which covers ex post disagreements) and is well illustrated by recent tensions between U.S. technology giant Amazon Inc. and the Brazilian and Peruvian governments over the allocation of .amazon top-level domain names. These tensions lasted from 2012 to 2019, when the U.S. company and its commercial interests prevailed over the public and communal interests in the Amazon rainforest, which were advocated by the governments from South America. (10) In 2020, the UDRP, which could be a potential venue for Brazilian and Peruvian governments to challenge the decision, is set to undergo a comprehensive review. (11) Given the high stakes and global scope of domain name disputes, review outcomes will impact many areas of international law and governance, including international economic and intellectual property, international human rights law, cultural heritage, Internet policy and global governance more generally.
Changing Institutional Context of ICANN
The UDRP was created and adopted in 1998 by the Internet Corporation for Assigned Names and Numbers ("ICANN"), which is a private, non-profit corporation, registered in California and founded by the U.S. Department of Commerce in 1998. (12) After more than two decades under U.S. supervision, ICANN is currently undergoing profound institutional reforms, known as the "LANA transition" (I AN A standing for Internet Assigned Numbers Authority). (13) It is beyond the scope of this article to discuss the IANA transition in detail, but, in short, until 2016, ICANN's activities had been supervised by the U.S. government. The National Telecommunications and Information Administration ("NTIA") supervised ICANN under a contract with the U.S. Department of Commerce. (14) In 2016, the NTIA accepted a proposal for transition of the IANA functions to a "global multistakeholder community", (15) and the original contract of supervision expired in September 2016. It is unclear what exactly this mysterious global community entails, but ICANN operates in line with a principle of multi-stakeholderism, whereby various representatives from private companies, civil society, and governments participate in the policy development process. (16) Importantly, as part of the transition proposal, ICANN adopted a bylaw stipulating a new "Core Value":
In performing its Mission, the following "Core Values" should also guide the decisions and actions of ICANN: ... (viii) Subject to the limitations set forth in Section 27.2, (17) within the scope of its Mission and other Core Values, respecting internationally recognized human rights as required by applicable law. This Core Value does not create, and shall not be interpreted to create, any obligation on ICANN outside its Mission, or beyond obligations found in applicable law. This Core Value does not obligate ICANN to enforce its human rights obligations, or the human rights obligations of other parties, against other parties. (18) Human rights advocates, who have lobbied for human rights in ICANN, consider...