ICANN should uphold freedom of expression in new web domains, says Council of Europe

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The rights of freedom of expression and association should be given priority by the Internet Corporation for Assigned Names and Numbers when deciding which new generic top level domains to introduce, says the Council of Europe, parent organization of the European Court of Human Rights.

The council stakes out its position in a paper (.pdf) dated Oct. 12 as the process for establishing new gTLDs now turns to ICANN's governmental advisory committee, which in April will deliver a position paper of its own. (Officially under the ICANN process, the committee will deliver what's termed "advice.") ICANN unveiled an extensive list of proposed new gTLDs in June; the period for public comment closed Sept. 26.

Some of the proposed new top level domains have been controversial based on various criteria. The government of Saudi Arabia, for example, has objected several proposals including  .gay and .wine, the former on the grounds that "many societies and cultures consider homosexuality to be contrary to their culture, morality or religion," and the latter on the grounds that it would promote "substances detrimental to public order and morals and prohibited in a number of religions and cultures."

The council says it recognizes limits on freedom of expression, such as prohibitions on incitements to racial hatred and support for terrorism, but that from a human rights perspective, global access to politically sensitive new top level domains shouldn't be proscribed by national, cultural, geographic or religious sensitivities. Across the 47 member nations of the council, concepts such as morals and the significance of religion lack uniformity, the paper notes.

International human rights standards "prohibit generic bans on content and information," it adds.    

Were ICANN to veto proposed domains on that basis, it could open itself up to strong legal challenges, the paper says. States "have positive obligations to ensure that the right to freedom of expression is guaranteed even in the context of activities carried out by private entities (such as ICANN), inter alia, by ensuring that no unreasonable limitations on freedom of expression or censorship are imposed," the paper says.

The paper was timed for releases just before a mid-October a meeting of ICANN and the government advisory committee in Toronto. Milton Mueller, a Syracuse University professor specializing in Internet governance issues, says in a blog post the council's report has taken on added importance since the committee "is increasingly functioning as if it were in a law-free zone, as if the policy preferences of a few dominant members can be given the status of binding international law."

Wolfgang Kleinwächter, another professor of Internet governance, at the University of Aarhus in Denmark,  similarly says the committee is increasingly assertive and believes it "reserves its right to have the last word in ICANNs decision making process."

For more:
- download the Council of Europe paper from its website (.pdf)

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