On 6 November 2013, The Paris International Chamber of Commerce published an important decision in the development process of new strings: the designated experts rejected the Limited Public Interest objection filed by the Independent Objector against the application made by the Afilias ltd Company for the delegation of the string .HEALTH (for more details on this decision go to: http://newgtlds.icann.org/sites/default/files/drsp/15nov13/determination-1-1-868-3442-en.pdf).
This decision sets a precedent: it is the first decision to be made following a Limited Public Interest objection.
As a reminder, 4 types of objections were available to oppose an application for one of the new strings: the String Confusion Objections, Legal Rights Objections, Community Objections and finally the Limited Public Interest Objection (http://newgtlds.icann.org/en/program-status/odr).
Limited Public Interest objections can only be filed by the Independent Objector when he considers that the tld was “in breach of morality and public order as defined in the general principles of international law” (Applicant’s Guide, art 3.5.3). This clause covers unjustified violent actions, racism, child pornography and anything that would be contrary to the principles of international law in accordance with international conventions (specified in the Applicant’s Guide, 11 in total, from the Universal Declaration of Human Rights to the Convention on the Rights of the Child).
The Independent Objector has the task of defending the interests of Internet users and must be represented in the International Chamber of Commerce in Paris (CCIP). Nominated by ICANN in May 2012, the Independent Objector is currently Professor Alain Pellet (official website http://www.independent-objector-newgtlds.org).
Accordingly, the Independent Objector, considering that the granting of .HEALTH to the Afilias ltd Company would be against the interests of Internet users, filed an objection against their application. For the Independent Objector, the term “health” does not designate something anodyne but rather “a crucial, existential need for every human being” recognized as a fundamental right in several International Conventions such as the Universal Declaration of Human Rights in 1948.
Based on this observation, the Independent Objector stated that the way that Afilias ltd intended to use the word “health” would not respect the fundamental right of access to healthcare, would not ensure the promotion of this right in the public interest and would be used in the same way as the other strings for which the Afilias ltd Company had applied, such as “.wine” or “.casino”. Moreover, he stated that several NGOs as well as the French and Malian governments had expressed their concern as to the reliability and loyalty of the .HEALTH string in the event of it being granted to a private Company.
In its defense, Afilias ltd pointed out that the tld .HEALTH could in no way be considered to be “in breach of morality and public order as defined in the general principles of international law” and that an evaluation of this nature concerning the potential future use of the string, and not the string itself, went beyond the mandate of the Objector.
In addition, Afilias ltd highlighted the different rights protection mechanisms that it has voluntarily set up, in particular a hotline for non-conformity breaches of <.HEALTH> and specific communication channels with national authorities and international organizations in order to ensure that .HEALTH functions in accordance with current legislation.
The CCIP experts rejected this interpretation by Afilias ltd. They confirmed that it was not possible to evaluate the compatibility of a string with public order and morality without taking into account the context of the application, including the probable effects on Internet users once the string was functioning. They also recognized that the .HEALTH string would operate in a sensitive domain in which the risks of negligence or abuse, as with fraud, are particularly high. All sides agree on this point, considering that the word « health », linked to the health sector, inspires a high degree of consumer confidence by persuading them that information available under a certain domain name has been scientifically proved.
Nevertheless, the experts do not share the suspicions of the Independent Objector concerning the management of the .HEALTH tld by a private Company. The experts stated that without proof to the contrary, they could not support the assertion made by the Objector that a private Company cannot, in a serious and responsible way, manage this string. Furthermore, the experts reminded the Objector that even if several NGOs and two countries (France and Mali) support this view, the World Health Organization, holding a unique position in the context of public health at international level, has implicitly rejected this position.
Based on these factors, the CCIP experts rejected the objection.
The importance of this decision is not limited to its novelty: it provides vital keys to the evaluation of Limited Public Interest objections. Accordingly, it is now recognized that Limited Public Interest objections will not only be assessed on how they are formulated but also on their potential use.