The UK domain registry Nominet has released a draft ‘abuse policy’ for domain blocking. Whilst it is being developed with the best intentions, the rights-holder wolves are baying at the gate. It is more than likely that Nominet’s policy could  indeed be abused and become a trojan horse for copyright enforcement as well as other political purposes.

 Nominet has been  getting increasing demands from third parties to block web domains. Its reaction has been to consult on the matter with the ‘interested parties’ and it has just released a set of draft proposals which suggest that  domain blocking  must be a last resort, based on clear evidence, at the same time as opening the door for blocking on request.

Nominet  proposes  an ‘expedited process to suspend domain names associated with serious crime’.

In other words, it will take down domains  on request from the police or other law enforcement bodies ( which could include trading standards) without a court order.  The request should be a last resort after attempts to contact site owners or hosts, or ask the ISPs to do it. Nominet wants to  exclude domains which are the subject of private or civil disputes,

Nominet’s proposals constitute an ‘abuse policy’ for use of domains registered by it, and Nominet is a private company,  therefore its  proposals will have limited  legal  force.  In practice, law enforcement will be able to ask for blocks, and Nominet is giving itself a set of rules which it will  use as an internal guide to determine whether or not it should comply with the request.

Nominet is between a rock and a hard place on this. It is under severe pressure from law enforcement to take out domains on request and subject to a kind of moral blackmail if it refuses. But Nominet is without the wherewithal to determine whether a request is lawful. That power usually rests with the courts.

 The Nominet talks have been ongoing since the Spring. It’s understood that law enforcement representatives put Nominet under pressure and the ISPs were not keen  to comply but feel as though they have to play the game.  

 It is positive that Nominet is trying to put boundaries around what will and will not accept. A key element of its proposals is to limit domain blocking  to those which relate to criminal acts. The definition of ‘criminal’ is taken from the Serious Crime Act 2007. Nominet has drawn a clear line against domain blocking in civil disputes.

Nevertheless, Nominet is opening a Pandora’s box. And if Nominet is under the illusion that it can control the volume and type of blocking demands  by putting in a corporate process, it is kidding itself.

 In excluding  private party or civil disputes, Nominet may hope to keep the rights-holders at arm’s length.  But it might as well put up a privet hedge and expect to keep out  the baying wolves.

 Nominet has already blocked some 2500 domains, a majority of which relate to counterfeiting. A tiny minority concern the serious criminal matters such as child abuse or drugs trafficking. These statistics, which are Nominet’s own, should in themselves ring alarm bells.

 The rights-holders have told Nominet what kind of blocking measures they want. And they already have a more sympathetic ear in  Ofcom, which is drawing up new blocking proposals.

 Nominet  acknowledges that a court order is preferred,  but the UK domain registry falls short of  demanding  that a court order is produced.  Such  mere acknowledgement can  be viewed as shrugging off an important legal protection for website owners and content producers.

 Nominet is going where angels fear to tread. The risk is that it will become  part of a wider policy snowball  - re-writing the law to create a new administrative justice which runs counter to all the basic principles of British justice since the Magna Carta.

 Nominet

Draft issue group recommendations on ‘Domain names used in connection with criminal activity’

The correct attribution for this article is: Monica Horten (2011) UK domain blocking – can Nominet keep out the baying rights-holders?    http://www.iptegrity.com 9 September 2011.

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