Beyond the Governance Gap in International Domain Name Law: Bringing the UDRP in Line with Internationally Recognized Human Rights
44 Pages Posted: 7 Feb 2020 Last revised: 26 Jun 2020
Date Written: October 1, 2019
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; 5) an introduction of an additional defence of an unreasonable delay; 6) an introduction of a choice-of-law provision; and 7) 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, I propose “returning” the UDRP to its original, narrower objectives to reduce the UDRP decisions’ potential to encroach upon fundamental human rights.
Keywords: International human rights law, Internet Governance, global governance, Internet regulation, UDRP, trademarks, trademark law, human rights law, corporate and social responsibility, freedom of expression, domain names, internet law, business and human rights, intellectual property
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