FairWinds Partners — December 3, 2012
As we mentioned in our last post, GAC Early Warnings came out late last Tuesday night. In total, 39 GAC member countries issued 242 Early Warnings on 143 unique gTLD strings.
Then this week, certain new gTLD applicants received another notice, not from the GAC, but from Linda Corugedo Steneberg, Director at the European Commission’s Communications Networks, Content and Technology Directorate. This letter named 28 applied-for gTLD strings (some with multiple applications) that may “raise issues of compatibility with the existing legislation and/or with policy positions and objectives of the European Union.” Some of these strings had also received Early Warnings, but there were also some new faces that popped up on the list. The letter pointed out that an application’s inclusion on the list should in no way be considered a form or representation of GAC Early Warnings, but rather a signal to applicants that they should engage in further discussions with the European Commission.
The language of the letter seems benign, but in the larger context of the relationship between sovereign governments and ICANN, the European Commission’s action is actually quite significant. Essentially, by opting out of the Early Warning process and naming its own list of potentially problematic gTLD applications, the European Commission stepped outside of and completely bypassed ICANN’s prescribed process for governments to weigh in on domain name policy matters. Instead, the European Commission brought new gTLD applications into the legal realm of legislation and policy, quietly implying that ICANN has no jurisdiction in such matters. The European Commission has sent the message that it is not within ICANN’s purview to oversee issues that impact a nation’s (or in this case, a union of nations) economy, culture, freedoms of speech and expression, or industry regulations – this power rests with the sovereign governments of those nations.
The European Commission has been vocal in its criticism of aspects of the ICANN process in the past. This latest action echoes that sentiment, and also raises issues of adjudication: if other governments follow the European Commission’s lead or even take a step further by deeming whether or not a new gTLD is allowed to exist independently of ICANN’s assessment, who holds the ultimate authority to determine the fate of the gTLD, ICANN or the government? There is a chance that the European Commission’s letter could just be the tip of the iceberg if other governments decide to follow suite.
At the very least, the European Commission’s move represents a very interesting new twist in the ongoing saga of the New gTLD Program.