Archive for September, 2011

NOMINET SWITCHING OFF “CRIMINAL” DOMAINS - UPDATE

Between October 2008 and April 2011, Nominet - the body responsible for the registration of ‘.uk’ domain names - suspended 2,650 names without a court order telling them to, due to alleged criminal activity. This was the case even though Nominet doesn’t presently (nor ever has) imposed restrictions on criminal activities in its registrant terms and conditions.  

However, Nominet is currently in the midst of constructing a policy which would significantly increase the powers of the police to censor websites containing or providing illegal content or goods. Present suspensions have often been justified on the grounds that domain name owners have breached the terms of their contract with the UK domain registrar by failing to provide accurate contact details.  Many of the suspended websites have also been subject to allegations by police of being involved in counterfeiting operations and it has been suggested that the former explanation by Nominet is merely a convenient consequence of this type of activity.  But what will the repercussions of this proposed policy be, and how will offending sites be identified?

What will result in the suspension of a domain name?
As their current approach has caused controversy, Nominet has chosen to debate the matter within a specially established Issue Group to ensure that the views of its stakeholders are taken into account in the formation of the policy, which will allow for the expedited removal of certain websites which display illegal material.  The option of a parallel scheme is also being discussed, whereby websites identified as potentially illegal but not fulfilling the criteria necessary for expedited action, may be assessed and dealt with through the usual route of court proceedings.  

The Issue Group has met three times thus far to discuss the content of the policy, the most recent being 21st September 2011 in which it set out its recommendations to put to the Nominet board.  At the time of writing, no official conclusions of that meeting have been released, although publications of previous meetings suggest that a consensus has been reached, at least in some areas.

Draft recommendations prepared in the meeting of 6th July 2011 suggest that Nominet should address the issue of criminal activity in its terms and conditions of use, and put in place a formal mechanism for the suspension of offending sites, brought to their attention by Law Enforcement Agencies.

It was also recommended that a court order should be the preferred means of enforcing a suspension, and this alternative option should only be exercised as a last resort, following failed attempts at communicating with and thus resolving the issue with the registrar and the relevant Internet Service Providers. It was further proposed that this route of suspension must be the most viable option to prevent imminent or ongoing harm to consumers, and that Law Enforcement Agencies should declare such suspension as proportionate, necessary and urgent.  

Following previous uncertainty on the topic, the Group also agreed in July that Nominet should not possess the ability to suspend websites when the issues central to its argument to do so are those of freedom of speech and expression.  This has been a point of debate within both the Issue Group and the public, and one which now seems to have been agreed upon (erring on the side of caution to protect the basic rights of individuals).  

The Issue Group also considered it necessary for an appeal system and independent review panel to be established, to both ensure the appropriate suspension of suspected websites, and review the effectiveness of the policy once in force.  Although the idea of allowing private parties to request the suspension of a website was entertained, it was eventually advocated that for the time being, suspension should only be enforced following the recommendations of law enforcement agencies.  The option of only considering applications from reliable single points of contact was examined, but ultimately it was decided that this was not an appropriate route to take.  Police must have reasonable grounds to suspect the engagement of criminal activity, in line with the burden of proof required by present counterfeiting and piracy legislation, and this was thought of as adequate to ensure that false suspensions were not regularly experienced.

What will criminal activity encompass?
The Issue Group in its July meeting agreed that in most circumstances, Nominet itself should not define what constitutes criminal activity. Instead it was suggested that the activity should amount to serious consumer harm, including crimes as defined by Parliament under the Serious Crimes Act 2007, including fraud, physical harm and unlicensed distribution of controlled substances or medicines. However, in cases such as phishing and botnets, Nominet was considered the most appropriate body to decide whether action should be taken under the expedited scheme.

An interesting point is the position of copyright in this equation, as under UK law it is only actionable as a criminal offence if the defendant can be proven to have intended to infringe the relevant copyright laws.  This may prove difficult in cases of online infringement, especially if the owner of the website cannot be readily identified, as has been the case of recent suspensions. The Issue Group has also questioned whether it would be appropriate to include trademark infringement as a ‘serious crime’ and in its July meeting began discussions as to whether a tiered policy system with variable threshold levels would be appropriate.

Potential Liability
One final factor that must be assessed in this scenario is the potential liability that may face Nominet should it either wrongfully suspend a website, or fail to suspend one that has been brought to its attention by law enforcement agencies, or indeed any other third parties.

The wrongful suspension of a domain name may result in damage to the affected customer’s reputation  and/or business, and could result in claims for breach of contract, negligence, or defamation. In addition, a bereaved customer whose suspension was requested by the police may also submit a claim if their Convention rights were breached, although as a private entity Nominet is not liable directly under the Human Rights Act 1998.

The case for Nominet’s liability should it fail to suspend an illegal website if notified of its activity is at the moment rather unsure. Its knowledge of the criminality and failure to respond may lead to liability under the Accessories and Abettors Act 1861 s.8, while it could also be tried as a principal offender under the Serious Crime Act 2007 ss.45-46. These are both factors of which Nominet will need to be aware, and consider when deciding how it will proceed with both the construction of its policy, and its subsequent application.

It will be interesting to view the outcome of the Issue Group’s most recent meeting, and whether its previous recommendations have been upheld. Although criticised by many, this proposed change marks not only a dramatic increase in the powers of police to challenge criminal activity on the internet, but also the recognition by Nominet that it must take responsibility for and continue to monitor the domain names which it distributes.

ANNA STINTON

for NEW MEDIA LAW LLP

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