THE INTERNATIONAL CENTRE FOR EXPERTISE OF THE
INTERNATIONAL CHAMBER OF COMMERCE

CASE No. EXP/416/ICANN/33

PROF. ALAIN PELLET, INDEPENDENT OBJECTOR(FRANCE)vs/DOTHEALTH, LLC(USA)(Consolidated with case No. EXP/417/ICANN/34
PROF. ALAIN PELLET, INDEPENDENT OBJECTOR (FRANCE) vs/ GOOSE FEST,
LLC (USA))This document is an original of the Expert Determination rendered in conformity with the
New gTLD Dispute Resolution Procedure as provided in Module 3 of the gTLD Applicant
Guidebook from ICANN and the ICC Rules for Expertise.

EXPERTISE PROCEEDINGS UNDER THE
NEW gTLD DISPUTE RESOLUTION PROCEDURE
INTERNATIONAL CENTRE FOR EXPERTISE
OF THE INTERNATIONAL CHAMBER OF COMMERCE
Consolidated Cases EXP/416/ICANN/33 (c. EXP/417/ICANN/34)
Expert Determination for Case EXP/416/ICANN/33

PROF. ALAIN PELLET, INDEPENDENT OBJECTOR(Objector)
vs.
DOTHEALTH, LLC(Applicant)___________________________________________
Expert Determination___________________________________________
Members of the Panel:
Dr. Stanimir A. Alexandrov (Chair)Dr. Maxi C. Scherer (Co-Expert)
Prof. Frédéric Bachand (Co-Expert)

Independent Objector:

Applicant DotHealth, LLC:

Prof. Alain Pellet
16, Avenue Alphonse de Neuville92380 Garches
FranceMr. Andrew Ryan Weissberg
354 Walthery Avenue
Ridgewood, NJ 07450
USATable of Contents
I.

Introduction ........................................................................................................................4

II.

Procedural History.............................................................................................................6

III.

Applicable Procedural and Substantive Rules ..............................................................11

IV.

V.

A.

Quick Look Procedure ........................................................................................11B.

The Applicable Standards ...................................................................................13

Summary of the Parties’ Positions .................................................................................15A.

The IO’s LPI Objection .......................................................................................15

B.

DotHealth’s Response ..........................................................................................20

C.

Additional Written Statements by the Parties ..................................................27

Findings of the Panel .......................................................................................................31
A.

The Merits of the IO’s LPI Objection ................................................................33i.
The .health string is not in itself contrary to general principles ofinternational law for morality and public order...............................................33ii.
The manner in which DotHealth proposes to operate a .health gTLD
registry does not conflict with general principles of international law for
morality and public order...................................................................................36

VI.

B.

The Alternative Remedy Sought by the IO .......................................................40

C.

Fees and Costs ......................................................................................................42

Determination of the Panel .............................................................................................432

Definitions of Abbreviations and Terms Used:
Abbreviation

Term

ADR

Amicable Dispute Resolution

AGB

ICANN gTLD Applicant Guidebook, June 4, 2012 version

ALAC

ICANN At-Large Advisory Committee

Applicant

DotHealth, LLC

CentreInternational Centre for Expertise of the International Chamber of Commerce

DRSP

Dispute Resolution Service Provider

GAC

Government Advisory Committee

gTLD

Generic Top-Level Domain

ICANN

Internet Corporation for Assigned Names and Numbers

ICC

International Chamber of Commerce

ICCPRInternational Covenant on Civil and Political Rights

IO

Independent Objector

LPI Objection

Limited Public Interest Objection

Panel

Dr. Stanimir A. Alexandrov, Dr. Maxi C. Scherer, Prof. Frédéric Bachand

Procedure

Attachment to Module 3 of the AGB

Rules

ICC Expertise Rules

TLD

Top-Level Domain

UN

United Nations

WHO

World Health Organization

3

Expert Determination
I.

Introduction
1.

The dispute before the Panel involves a Limited Public Interest Objection(generally, an “LPI Objection” and, specifically, the “Objection”) filed in connection with the
new generic top-level domain (“gTLD”) application process administered by the Internet
Corporation for Assigned Names and Numbers (“ICANN”). The Objection was filed by the
ICANN Independent Objector (“IO”), Professor Alain Pellet. It is directed at DotHealth, LLC(“DotHealth” or the “Applicant”), who filed an application to operate a new .health gTLD
registry (the “Application”).
2.

Professor Pellet has served as the IO for ICANN’s new gTLD application processsince 14 May 2012.1 The contact information provided by Professor Pellet for the purpose of
these proceedings is 16, Avenue Alphonse de Neuville, 92380 Garches, France. His email
address is: contact@independent-objector-newgtlds.org. Professor Pellet is represented in theseproceedings by: Ms. Héloïse Bajer-Pellet (bajer.avocat@gmail.com),2 15, Rue de la Banque,75002 Paris, France; Mr. Daniel Müller (mail@muellerdaniel.eu), 20, Avenue du Général de
Gaulle, 78290 Croissy sur Seine, France; Mr. Phon van den Biesen(phonvandenbiesen@vdbkadvocaten.eu), Van den Biesen Kloostra Advocaten, De Groene
Bocht, Keizersgracht 253, 1016 EB Amsterdam, The Netherlands; and Mr. Sam Wordsworth(SWordsworth@essexcourt.net), Essex Court, 24 Lincoln’s Inn Fields, London WC2A 3EG,
United Kingdom.

1

See ICANN, The Independent Objector, http://newgtlds.icann.org/en/program-status/odr/independent (last visited
24 Sept. 2013).
2

Ms. Bajer-Pellet also provided an email address of avocat@bajer.fr.

4

3.

Under the ICANN Applicant Guidebook (“AGB”), the IO has broad standing to

object to proposed new gTLDs. The IO is tasked with “[a]cting solely in the best interests ofglobal Internet users” and “can lodge objections in cases where no other objection has been
filed.”3 These objections are limited to LPI Objections and Community Objections,4 and the “IO
cannot object to an application unless there is at least one comment in opposition to theapplication made in the public sphere.”5 The IO has standing in this matter because there havebeen public comments made in opposition to the .health gTLD applications.6 Finally, the AGB
requires that the IO “be and remain independent and unaffiliated with any of the gTLD
applicants.”7
4.

DotHealth, LLC is a company incorporated and organized under the laws ofDelaware, USA, with its principal place of business at 354 Walthery Avenue, Ridgewood, New
Jersey 07450, USA. Mr. Andrew Ryan Weissberg (weissberga@gmail.com), Chief Executive
Officer of DotHealth, represented DotHealth before the Panel.
5.

The present case, EXP/416/ICANN/33, is consolidated with another caseinvolving an LPI Objection asserted by the IO against an application for the .health gTLD string,
EXP/417/ICANN/34. The Applicant in that matter, Goose Fest, LLC (“Goose Fest”), is acompany incorporated and organized under the laws of Delaware, USA, with its principal place

3

AGB, Section 3.2.5.

4

Id.

5

Id.

6

See ICANN, Public Comments, https://gtldcomment.icann.org/commentsfeedback/applicationcomment/viewcomments (last visited 9 Sept. 2013).
7

AGB, Section 3.2.5.

5

of business at 155 108th Avenue NE, Suite 510, Bellevue, Washington 98004, USA. The Panelis rendering a separate determination in the consolidated case EXP/417/ICANN/34.
II.

Procedural History
6.

On 13 June 2012, DotHealth submitted its Application to operate a new .healthgTLD registry. ICANN reviewed DotHealth’s Application during the Initial Evaluation stage
provided for under Section 2 of the AGB and determined that it met all requirements applicableat that stage of the evaluation process.8
7.

The International Centre for Expertise (“Centre”) of the International Chamber ofCommerce (“ICC”) received the IO’s LPI Objection to DotHealth’s Application on 12 March
2013. This was conveyed to the IO in a letter dated 15 March 2013 in which the Centre alsoannounced to the IO that the present proceedings would be handled by a Case Management
Team.98.

In a letter dated 2 April 2013, the Centre informed the IO that, further to an

administrative review of the Objection conducted pursuant to Article 9 of the New gTLD
Dispute Resolution Procedure (“Procedure”) attached to Module 3 of the AGB, it had found that
the Objection complied with Articles 5-8 of the Procedure.10 As a result, the Objection was
registered for processing in accordance with Article 9(b) of the Procedure. The Centre also
informed the IO that it would publish the required information regarding the proceedings, andinvite DotHealth to file a Response under Article 11(b) of the Procedure. The Centre reminded

8

See ICANN, New gTLD Program: Initial Evaluation Report: DotHealth, 7 June 2013, available at
http://newgtlds.icann.org/sites/default/files/ier/0riusp5e5hoes40ji6vlayi6/ie-1-1684-6394-en.pdf.
9

See the Centre’s letter to Prof. Alain Pellet, Independent Objector (15 March 2013).

10

See the Centre’s letter to Prof. Alain Pellet, Independent Objector (2 April 2013).

6

the IO that the Parties could seek a settlement or amicable dispute resolution under the ICC
Amicable Dispute Resolution (“ADR”) Rules.11
9.

The Centre first raised the issue of consolidation in its letter to the parties dated 2

April 2013.12 On 12 April 2013, it informed the IO and DotHealth that it was contemplating
consolidating four cases relating to the applied-for .health gTLD string: No.
EXP/416/ICANN/33; No. EXP/417/ICANN/34; No. EXP/418/ICANN/35; and No.
EXP/409/ICANN/26. Each of the Parties in Case No. EXP/416/ICANN/33 was invited toprovide the Centre with comments regarding the potential consolidation on or before 15 April
2013.1310.

On 19 April 2013, the Centre wrote to the IO and to DotHealth to acknowledge

receipt of the e-mail Andrew Weissberg sent the Centre on behalf of DotHealth regarding theCentre’s consolidation proposal. The Centre further informed the Parties that it had decided not
to proceed with the consolidation “on its initiative at this stage of the proceeding,” while notingthat the Parties themselves may propose consolidation of the objections across the four cases
involving the .health gTLD within seven (7) days of their receipt of the 19 April letter.14
11.

On 30 April 2013, the Centre wrote to the Parties to inform them that, on 25 April

2013, the representative of an applicant in another .health gTLD case (EXP/418/ICANN/35), Dot
Health Ltd., requested consolidation of the .health gTLD cases in accordance with Article 12 of

11

See id.

12

See id.

13

See the Centre’s letter to Prof. Alain Pellet, Independent Objector & Andrew Ryan Weissberg, DotHealth, LLC(12 April 2013).

14

See the Centre’s letter to Prof. Alain Pellet, Independent Objector & Andrew Ryan Weissberg, DotHealth, LLC(19 April 2013).

7

the Procedure. Each of the Parties in Case No. EXP/416/ICANN/33 was invited to provide theCentre with comments regarding the potential consolidation on or before 3 May 2013.15
12.

DotHealth filed a letter expressing its opinion on consolidation with the Centre on

3 May 2013.16
13.

On 3 May 2013, the Centre informed the Parties that the following cases wereconsolidated pursuant to Article 12 of the Procedure: EXP/416/ICANN/33 (DotHealth);
EXP/417/ICANN/34 (Goose Fest); and EXP/418/ICANN/35 (Dot Health Ltd. (Gibraltar)). As aconsequence of the consolidation, the Centre explained that the above-referenced cases werejoined in one administrative procedure, but that the “Applicants shall file a separate Response toeach specific Objection.”17 Beyond this, the Centre explained that “if one of the parties in the
consolidated proceeding defaults, this will affect the defaulting party only and will have no
incidence on the other parties to the consolidated proceeding,” while reminding the Parties that asingle panel would be appointed for the consolidated proceeding to “examine each Objection on
its own merits and . . . decide whether, based on the specificities of each case, to issue one or
separate Expert Determinations in [the] consolidated cases.”18
14.

On 2 June 2013, DotHealth delivered its response to the Objection to the IO, tothe other .health gTLD applicants, and to the Centre (the “Response”).
15.

On 3 July 2013, the Centre acknowledged receipt of the Applicant’s Response

and informed the Parties that, pursuant to Article 13 of the Procedure and Article 9(5)(d) of the15

See the Centre’s letter to Prof. Alain Pellet, Independent Objector & Andrew Ryan Weissberg, DotHealth, LLC(30 April 2013).

16

See DotHealth, LLC’s letter to the ICC International Centre for Expertise et al. (3 May 2013). (Agenda)

17

Id.

18

Id.

8

ICC Expertise Rules (“Rules”), the Vice-Chairman of the Standing Committee had, on 28 June
2013, appointed the Panel as experts in this matter in accordance with Article 3(3) of Appendix Iof the Rules. The Centre requested that any comments by the Parties be received on or before 8
July 2013. The comments were invited due to the Qualified Declaration of Acceptance andAvailability, Statement of Impartiality and Independence of Dr. Scherer. The Centre received nocomments.
16.

The contact information for the three members of the Panel are as follows:
Mr. Stanimir A. Alexandrov
Sidley Austin LLP
1501 K Street NW
Washington, D.C. 20005
USA
salexandrov@sidley.com
Dr. Maxi C. Scherer
Wilmer Cutler Pickering Hale and Dorr LLP
49 Park Lane
W1K1PS London
United Kingdom
maxi.scherer@wilmerhale.com
Prof. Frédéric Bachand
Faculty of Law, McGill University
3644 PeelMontreal (Qc) H3A 1W9
Canadafrederic.bachand@mcgill.ca

17.

On 18 July 2013, the Centre wrote the Parties and the Panel to convey that

ICANN had informed the Centre that the application in case EXP/418/ICANN/35 (Dot HealthLtd. (Gibraltar)) had been withdrawn and the case was terminated.
18.

On 2 August 2013, the Centre acknowledged receipt of the advance payment ofcosts from each party and confirmed the full constitution of the Panel. On the same date, theCentre transmitted the case files for the consolidated cases to the Panel.

9

19.

In a letter dated 2 August 2013, the IO requested the Panel’s authorization to fileadditional written statements in both consolidated cases.19
20.

On 5 August 2013, the Panel invited DotHealth to comment on the IO’s request to

file an additional written statement.20
21.

In its response dated 5 August 2013, DotHealth objected “in the strongest possible

terms” to the IO’s request.
22.

On 7 August 2013, the Panel wrote to the Parties in both consolidated cases toinform them that they would be allowed to submit additional written statements of no more thanten (10) pages. The Panel set 14 August 2013 as the deadline for the IO to file an additional
written statement; DotHealth was allowed to file a responsive additional written statement within
one week of receipt of the IO’s additional written statement.
23.

On 14 August 2013, the IO filed its additional written statement, including

annexes in support (“IO’s Additional Written Statement”).
24.

On 21 August 2013, DotHealth filed its additional written statement, including

annexes in support (“DotHealth’s Additional Written Statement”).
25.

On 23 August 2013, the Panel informed the Parties that the IO’s Objection would

not be dismissed under the “Quick Look” review provided for in AGB, Section 3.2.2.3.
26.

On 12 September 2013, the Panel requested that the Centre grant the Panel anextension until 10 October 2013 for rendering the Expert Determination. The Centre granted thisrequest on 13 September 2013. A draft of this Expert Determination was submitted for scrutiny

19

See Letter from Prof. Alain Pellet, Independent Objector, to Stanimir Alexandrov, et al. (2 August 2013).

20

See Letter from Stanimir A. Alexandrov to Andrew Ryan Weissberg, DotHealth LLC, et al. (5 August 2013).

10

to the Centre within the extended time limit in accordance with Article 21(a) and (b) of theProcedure.
27.

All communications by the Parties, the Panel, and the Centre were submitted

electronically, in accordance with Article 6(a) of the Procedure.
28.

Neither party requested that a hearing be held. In the absence of “extraordinary

circumstances” within the meaning of Article 19(b) of the Procedure, the Panel decided not tohold a hearing in this matter.
III.

Applicable Procedural and Substantive Rules
29.

It is common ground between the Parties that, pursuant to Articles 4(a) and4(b)(iii) of the Procedure and Module 3 of the AGB, Section 3.3, the present proceedings aregoverned by the AGB, the Procedure, the Rules and the ICC Practice Note on the Administrationof Cases (the “ICC Practice Note”).
30.

As is clearly set out in Article 20(c) of the Procedure, “the Objector bears theburden of proving that its Objection should be sustained in accordance with the applicablestandards.”21
31.

The language of all submissions and proceedings in this matter is English.22 No

other language was used in any submissions, supporting evidence, or proceedings.
A.

Quick Look Procedure

32.

Under AGB Section 3.2.2.3, “[a]nyone may file a Limited Public Interest

Objection.”23 Due to the open standing provided under the AGB, LPI Objections are subject to a

21

See also AGB, Section 3.5.

22

Art. 5(a) of the Procedure.

23

AGB, Section 3.2.2.3.

11

“Quick Look” procedure “designed to identify and eliminate frivolous and/or abusive
objections.”24 Thus, “[a]n objection found to be manifestly unfounded and/or an abuse of theright to object may be dismissed at any time.”25
33.

While the Quick Look procedure requires an assessment of “the merits of theobjection[s],” the Panel’s role at the Quick Look review stage is limited to considering whether
the objections are “manifestly unfounded” or constitute “an abuse of the right to object.”26
DotHealth contends that the Objection is “manifestly unfounded.”27
34.

An objection is “manifestly unfounded” if it does “not fall within one of thecategories” defined as grounds for an LPI Objection in AGB Section 3.5.3. Under AGB Section
3.5.3, the grounds for a limited public interest objection are limited to objections that an appliedfor gTLD string may be contrary to generally accepted legal norms relating to morality andpublic order on the basis of: (i) incitement to or promotion of violent lawless action; (ii)incitement to or promotion of discrimination based upon race, color, gender, ethnicity, religion
or national origin, or other similar types of discrimination that violate generally accepted legal
norms recognized under principles of international law; (iii) incitement to or promotion of childpornography or other sexual abuse of children; or (iv) a determination that an applied-for gTLD
string would be contrary to specific principles of international law as reflected in relevantinternational instruments of law.

24

Id..

25

Id.

26

Id.

27

DotHealth Response, ¶ 45.

12

35.

In response to the Applicant’s request that the Panel dismiss the Objection underthe Quick Look procedure,28 the Panel ruled on the matter in its letter to the Parties dated
23 August 2013. The Panel did not find that the IO’s Objection was manifestly unfoundedbecause the IO expressly invoked “specific principles of international law as reflected in relevantinternational instruments of law,” which is a ground for an objection contemplated under the
AGB, Section 3.5.3.29
36.

The Panel further reviewed the Objection to consider whether they constituted an“abuse of the right to object.”30 Pursuant to Section 3.2.2.3 of the AGB, “multiple objections
filed by the same or related parties against a single applicant may constitute harassment of theapplicant, rather than a legitimate defense of legal norms that are recognized under generalprinciples of international law,” and “[a]n objection that attacks the applicant, rather than theapplied-for string” may amount to an “abuse of the right to object.”37.

The Panel also did not find that the IO’s Objection constituted an abuse of theright to object as contemplated in the AGB.31
38.

The Panel concluded, in its letter to the Parties dated 23 August 2013, that the

IO’s Objection was neither manifestly unfounded nor abuses of the right to object. The Panelthus declined to dismiss the Objection through the Quick Look procedure.
B.

The Applicable Standards

39.

The standards by which the merits of the IO’s LPI Objection are to be assessed

are set out in Section 3.5.3 of the AGB. To succeed, the IO must establish that “the applied-for
28

Id.

29

See Letter from Stanimir A. Alexandrov to Prof. Alain Pellet, Independent Objector, et al. (23 August 2013).

30

AGB, Section 3.2.2.3.

31

See Letter from Stanimir A. Alexandrov to Prof. Alain Pellet, Independent Objector, et al. (23 August 2013).

13

gTLD string is contrary to general principles of international law for morality and publicorder.”32 The AGB further states that “[t]he panel will conduct its analysis on the basis of theapplied-for gTLD string itself,” and that “[t]he panel may, if needed, use as additional context
the intended purpose of the TLD as stated in the application.”33
40.

ICANN provides in the AGB examples of instruments containing such “generalprinciples of international law for morality and public order” and upon which a panel may rely
while assessing the merits of an LPI Objection.34 The instruments listed in Section 3.5.3 of the
AGB are: the Universal Declaration of Human Rights (UDHR); the International Covenant on
Civil and Political Rights (ICCPR); the Convention on the Elimination of All Forms ofDiscrimination Against Women (CEDAW); the International Convention on the Elimination of
All Forms of Racial Discrimination; the Declaration on the Elimination of Violence against
Women; the International Covenant on Economic, Social, and Cultural Rights; the Convention
against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment; theInternational Convention on the Protection of the Rights of all Migrant Workers and Members of
their Families; the Slavery Convention; the Convention on the Prevention and Punishment of the
Crime of Genocide; and the Convention on the Rights of the Child.35

32

AGB, Section 3.5.3.

33

Id.

34

Id.

35

Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810(Dec. 12, 1948); International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp.
(No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976; Convention on the
Elimination of All Forms of Discrimination against Women, G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at
193, U.N. Doc. A/34/46, entered into force Sept. 3, 1981; International Convention on the Elimination of All Formsof Racial Discrimination, 660 U.N.T.S. 195, entered into force Jan. 4, 1969; Declaration on the Elimination ofViolence Against Women, G.A. res. 48/104, 48 U.N. GAOR Supp. (No. 49) at 217, U.N. Doc. A/48/49 (1993);
International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 21 UN G.A.O.R. Supp.
(No. 16) at 49, U.N. Doc. A/6316 (1966); 993 UNTS 3; 6 ILM 368 (1967); Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at

14

41.

The AGB further states at Section 3.5.3 the grounds upon which an applied-for

gTLD string may be considered contrary to generally accepted legal norms relating to morality
and public order that are recognized under principles of public international law. The first threegrounds are: incitement to or promotion of violent lawless action; incitement to or promotion of
discrimination based upon race, color, gender, ethnicity, religion or national origin, or othersimilar types of discrimination that violate generally accepted legal norms recognized underprinciples of international law; and incitement to or promotion of child pornography or othersexual abuse of children. The AGB adds that an LPI Objection may also be sustained upon adetermination that the “applied-for gTLD string would be contrary to specific principles ofinternational law as reflected in relevant international instruments of law.”36
42.

The IO objected to DotHealth’s Application to operate a new .health gTLD

registry on that latter ground, namely that the proposed gTLD string is “contrary to specificprinciples of international law as reflected in relevant international instruments of law.”37
IV.

Summary of the Parties’ PositionsA.

The IO’s LPI Objection

43.

The IO’s LPI Objection to the DotHealth Application is based on the IO’s

“determination that an applied-for gTLD string would be contrary to specific principles of

197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987; International Convention on the Protection of theRights of All Migrant Workers and Members of Their Families, G.A. res. 45/158, annex, 45 U.N. GAOR Supp. (No.
49A) at 262, U.N. Doc. A/45/49 (1990), entered into force July 1, 2003; Slavery, Servitude, Forced Labour andSimilar Institutions and Practices Convention of 1926 (Slavery Convention of 1926), 60 L.N.T.S. 253, entered into
force March 9, 1927; Convention on the Prevention and Punishment of the Crime of Genocide,78 U.N.T.S.
277, entered into force Jan. 12, 1951; Convention on the Rights of the Child, G.A. res. 44/25, annex, 44 U.N.
GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force Sept. 2, 1990.
36

AGB, Section 3.5.3.

37

Objection at ¶ 6 (citing AGB, Section 3.5.3)

15

international law as reflected in relevant international instruments of law.”38 The IO notes in his
Objection that “the objections raised are based on the applied-for gTLD string itself in context
with the appreciation of the stated intended purpose as it may be derived from the description of
its position the Applicant has provided.”39
44.

The IO filed LPI objections to four .health gTLD applications, including the

DotHealth Application, predicated on the IO’s view that “health is not just another commodity”
and that, “under international law, ‘health’ is recognized as a fundamental human right with acorresponding obligation to respect, protect and fulfil [sic] this human right, which is primarily
entrusted to States and to intergovernmental organizations such as the United Nations.”40
45.

In support of his Objection to the DotHealth Application, the IO devotes

considerable effort to explicating the ways in which the concept of “health” has been recognized
as a right under public international law.
46.

In particular, the IO cites Article 25 of the Universal Declaration of Human

Rights, which provides that “[e]veryone has the right to a standard of living adequate for thehealth and well being of himself and of his family . . .”41 to highlight that health is a fundamental
human right.42

38

Id.

39

Id. at ¶ 7 (citing to AGB Section 3.5.3, stating “[t]he panel will conduct its analysis on the basis of the applied-for
gTLD string itself. The panel may, if needed, use as additional context the intended purpose of the TLD as stated in
the application.”).

40

Id. at ¶ 9. At the same time, the IO does note that “this responsibility is no exclusively reserved for these public
entities.” Id.

41

Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810(Dec. 12, 1948).

42

Objection. at ¶ 10.

16

47.

The IO also cites the International Covenant on Economic, Social and Cultural

Rights, which states “the right of everyone to the enjoyment of the highest attainable standard ofphysical and mental health,”43 to buttress his conclusion that “numerous instruments ofinternational law confirm[ ] the human rights-status of ‘health.’”44
48.

The IO supplements the above with further citations to statements by the United

Nations Committee on Economic, Social and Cultural Rights, the World Health Organization,and regional Human Rights Courts to support the IO’s position that access to health—and, byextension, health-related information—is a fundamental human right.45
49.

Having noted the degree to which “health” is recognized in international law as aright, the IO then declares that any entity seeking to operate a .health gTLD registry must:
Demonstrate awareness of its duty to see to it that this TLD is organized, set up andmanaged in such a way that the right to health . . . is fully respected and, consequently,
should demonstrate that this duty will be effectively and continuously implemented. In
addition, the Applicant should demonstrate how, given the public interest at stake, thepolicies and decision-making of the Applicant will be properly connected to the publicauthorities, national as well as international, that are under a legal obligation to respect,
protect and fulfil [sic] the right to health.46
50.

The IO explains in the Objection the “crucial role that governments are to play” inthis area and that “the promotion and protection of international health is inherent to the due
respect for generally accepted legal norms of public order that are recognized under fundamental
principles of international law.”47 Consequently, the IO avers, DotHealth—or any entity

43

G.A. res. 2200A (XXI), 21 UN G.A.O.R. Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966); 993 UNTS 3; 6 ILM
368 (1967).

44

Objection. at ¶ 11.

45

Id. at ¶¶ 9-20.

46

Id. at ¶ 25.

47

Id. at ¶ 15.

17

applying to operate a .health gTLD registry for that matter—must demonstrate how its operationof the registry will be “properly connected to the public authorities, national as well asinternational, that are under a legal obligation to respect, protect and fulfil the right to health.”48
In the IO’s view, DotHealth’s Application lacks appropriate safeguards to explain “to what
extent and how the public interest at stake will be honoured in the way the TLD is managed . . .
[or] how it expects to be able to effectively take into account the obligations of publicauthorities, national as well as international, to protect, promote and respect health as a humanright.”49
51.

Another central element to the IO’s argument is that “access to health-related

information is an essential element of the right to health,”50 and “the right to health may becompromised in case any entity would launch a .health TLD without having given due
consideration to the fundamental rights and related obligations that are at stake and without
having considered how to include mechanisms that at all times would rather strengthen thanhinder these obligations and fundamental rights.”51
52.

In stating this view, the IO refers to the position taken by the Committee on

Economic, Social and Cultural Rights that “States [have a duty] to ensure that privatization of thehealth sector does not constitute a threat to the availability, accessibility, acceptability andquality of health facilities, goods and services.”52

48

Id. at ¶ 25.

49

Id. at ¶ 30.

50

Id. at ¶ 17.

51

Id. at ¶ 21.

52

Id. at ¶ 20.

18

53.

The IO refers to concerns found in public comments and GAC early warnings by

France and Mali to the .health gTLD applications regarding “the reliability and trustworthinessof a .Health TLD that is run by a private enterprise.”53 As a result, “[the IO] is of the view that
any Applicant applying for a .Health TLD should demonstrate awareness of its duty to see to itthat this TLD is organized, set up and managed in such a way that the right to health with all of
the implications discussed above . . . is fully respected and, consequently, should demonstratethat this duty will be effectively and continuously implemented.”54 The IO adds that “theApplicant should demonstrate how, given the public interest at stake, the policies and decisionmaking of the Applicant will be properly connected to the public authorities . . . that are under alegal obligation to respect, protect and fulfil [sic] the right to health.”55
54.

The IO further asserts that in its Application, DotHealth failed to demonstrate any“awareness of the fact that ‘health’ . . . represents a fundamental right.”56 The IO adds that, in
his communication with DotHealth, the Applicant “did not provide any additional informationthat could demonstrate how the Applicant has sought the effective involvement of private andpublic actors that have responsibilities for and within the health system let alone what level ofglobal involvement the Applicant deems necessary in order to realize the reliability andtrustworthiness needed for this TLD.”57
55.

Furthermore, the IO relies on a letter from the World Health Organization(“WHO”) to ICANN, dated 11 April 2011, expressing the views of some WHO representatives
53

Id. at ¶ 22.

54

Id. at ¶ 25.

55

Id.

56

Id. at ¶ 28.

57

Id. at ¶ 30.

19

that ICANN should postpone decisions on .health applications to allow for consultation with theglobal health community. The IO asserts that “the Applicant . . . does not explain why thereasons for such a postponement would not be valid” and indicates that, at a minimum, the Panelshould consider postponing DotHealth’s Application.58
56.

With respect to remedies, the IO first requests that the Panel uphold his Objection

against the .health gTLD string. Second, and alternatively, the IO asks that the Panelconditionally uphold his Objection until the Applicant adopts the necessary safeguards to ensure
the proper use of the .health gTLD.
B.

DotHealth’s Response

57.

DotHealth’s Response makes an affirmative case in support of a .health gTLD,

noting that DotHealth’s Application, DotHealth’s response to the IO’s initial notice regarding thestrings, and DotHealth’s website all provide
detailed information about the team that will execute on the DotHealth Mission, whichevidences our collective, international expertise in the Internet, health, life sciences,
information services, and government and public policy sectors. We have public andprivate sector experience with regulators, patient groups, drug and device companies,
academic, corporate and government libraries, doctor and nursing organizations, healthplans, standards bodies, and professional medical societies and possess the tools andexperiences to execute on that vision.59
58.

DotHealth refers in its Response to the statements in its Application relating to its

intended use and safeguards for a DotHealth-managed .health registry.60
59.

For instance, in its Application, DotHealth explained its view that:“Health” is the general condition of the body or mind with reference to soundness andvigor. As a global society, health is a measure of soundness of body, mind or being.
58

Id. at ¶ 32.

59

DotHealth Response at ¶ 6.

60

See id. at ¶¶ 38-39.

20

Health can mean freedom from disease or ailment. Virtually everywhere in the world,
and across many stakeholder segments, health is a major contributor to the economy andserves as a leading and influential indicator for measuring any one country or territory’s
economic and societal strengths and weaknesses against others. Throughout the world,
people rate health one of their highest priorities and concerns. Whether these are mental,
physical, economic or social, these concerns are commonly linked to education andliteracy, food and nutrition, fitness and exercise, medicines and therapies, environment
and nature, technology and innovation, insurance and employment, for professional
research and others.61
60.

DotHealth also explains at a high level the safeguards that DotHealth would

establish to ensure that there is meaning given to the term “health” and to make the .health gTLD
a trusted online resource:
At DotHealth, LLC, in recognition of these opportunities, challenges and risks, ourmission is to establish .health as a safe, trustworthy and secure top-level domain for
global health stakeholders. Our goals and objectives are to establish .health as thepreferred online namespace for the trusted communication, dissemination, exchange andfulfillment of health-related information and resources. In support of the safety andprotection of online health consumers and rights holders, DotHealth has identified aseries of policies, safeguards and standard operating procedures for the .health gTLD thatcollectively comprise our proposed registry services and procedural framework. This
framework will be operated in enterprise collaboration with Neustar, Inc., the world’s
leading provider of essential clearinghouse services to the global communications andInternet industry.
DotHealth will leverage Neustar’s unparalleled technical infrastructure and experience inoperating the global registries for numerous top level domains, as well as its malicious
monitoring service levels as further described throughout this application submission.
We have also executed an exclusive agreement with LegitScript to provide enterprisefraud and abuse monitoring and intelligence services for the .health gTLD. LegitScript’s
continued cooperation with leading U.S. and international industry organizations,
including the National Association of Boards of Pharmacy, The International
Pharmaceutical Federation, the US Food and Drug Administration, and the International
Medical Product Anti-Counterfeiting Task Force will play an important role in thecreation and ongoing enforcement of DotHealth policies and standards for registrant
compliance.
…
DotHealth’s proposed policies and registry services have been developed with consensus
and affirmations of support from numerous global and regional health sciences industry
organizations including the National Association of Boards of Pharmacy (NABP), The
Inter-American College of Physicians and Services (ICPS), The Association of Black61

Application of DotHealth, at 18(a).

21Cardiologists and the World Federation of Chiropractic. Our continued cooperation theseorganizations and others will play an important and influential role in advocating andpromoting widespread adoption and the meaningful uses of .health domain names.62
61.

With regard to public and official use of the .health gTLD, DotHealth expresses

its intention to reserve second-level domain names for geographic designations and for otherpublic health authorities:
DotHealth is committed to initially reserving the country and territory names contained in
the internationally recognized lists described in Article 5 of Specification 5 attached to
the New gTLD Applicant Guidebook at the second level and at all other levels within the.health gTLD at which domain name registrations will be provided. Specifically,
DotHealth will reserve:-The short form (in English) of all country and territory names contained on the ISO
3166- 1 list, as updated from time to time, including the European Union, which is
exceptionally reserved on the ISO 3166-1 list, and its scope extended in August 1999 toany application needing to represent the name European Union … ;-The United Nations Group of Experts on Geographical Names, Technical Reference
Manual for the Standardization of Geographical Names, Part III Names of Countries ofthe World; and-The list of United Nations member states in six official United Nations languages
prepared by the Working Group on Country Names of the United Nations Conference on
the Standardization of Geographical Names. . . .
During its Sunrise period, DotHealth will implement an outreach campaign targeting
senior leadership representing health ministries and⁄or government agencies in each
Country or Territory to inform them about .health and to facilitate the responsible releaseof names as previously described. Ministers of Health as identified and verified by the
U.S. Food and Drug Administration (FDA) will be established as the primary point ofcontact for each Country or Territory.63
62.

DotHealth also elaborated upon the measures it anticipates taking to “eliminate orminimize social costs” associated with the operation of a .health gTLD registry:If warranted, DotHealth may take down any .health domains verified to be harboring
and⁄or supporting online threats to the .health registry and the broader Internet
62

Id.

63

Id. at 18(b).

22community of users. This action shuts down all activities associated with the domain
name, including all websites. Our philosophy in administering this procedure is thatremoving threats to the consumer outweighs any potential damage to theregistrar⁄registrant relationship. DotHealth will commit to keeping its registrars updatedof any malicious activity within the .health TLD through weekly or monthly reporting.
We will also leverage our back-end provider’s existing relationships with internationallaw enforcement agencies as necessary and in support of these procedures.
…
In support of our enterprise commitment to improving the quality of online healthinformation, we also plan to administer a Request for Information (RFI) Process forselect reserved .health names to ensure their trusted and meaningful use among
registrants and end-users, and to help promote awareness, usage and uptake of the .healthgTLD. All policies and procedures as described herein with respect to reserved names
have been developed in accordance with the ICANN New gTLD Registry Agreement andspecifically Provision 2.6 as it is currently published and available.64
63.

DotHealth also provides a number of substantive criticisms of the IO’s Objection.

64.

First, DotHealth takes the position that the term “health” “has no single

authoritative spokesperson, no monolithic representative organization, and no sole arbiter of theoftentimes-competing inputs, goals, and resource allocation priorities of its diverse
stakeholders,” adding that “the myriad products and services affecting health are not theexclusive province of any government.”65 Beyond this, DotHealth notes that different
governments apply different standards and regulations to the term health, indicating its view thatthe gTLD should be beyond the reach of national government concerns.66
65.

Thus, DotHealth explains, the IO’s Objection describes concerns that “clearly fallwithin the category of regulation that is subject to wide variation in national application and [is]64

Id. at 18(c).

65

DotHealth Response at ¶ 12.

66

Id.

23

thus specifically excluded from the scope of the Panel’s discretion” in light of ICANN
guidance.67
66.

In its Response, DotHealth also explains that, in its view, the IO’s Objection is

not within the scope ICANN intended for LPI Objections, and requested use of the Quick Look
review.68 In doing so, DotHealth suggests that the LPI Objection process was “developed toaddress ‘legitimate concerns’ about ‘offensive terms.’”69 Such legitimate objections would thus
not “infringe the applicant’s freedom of expression rights that are protected under internationallyrecognized principles of law.”70 To DotHealth, the IO’s Objection is not plainly within the clear
boundaries of the “offensive” terms that are deemed objectionable and, accordingly, the IO’s LPI
Objection constitutes an infringement of free expression.71
67.

Further, DotHealth suggests that the IO’s Objection exceeds his authority underthe ICANN rules. DotHealth indicates that, as a result, the IO effectively attempts to apply a
new standard under which certain gTLDs relating to health (or, presumptively, any alleged
fundamental human right) are evaluated, outside of the ordinary ICANN evaluative process.72
Under this standard, as DotHealth characterizes it:
An applicant for a health-related string must: (i) be aware of its duty to see to it that thisTLD is organized, set up and managed in such a way that the right to health . . . including67

Id. at ¶ 18 (citing New gTLD Program Explanatory Memorandum: Standards for Morality and Public OrderResearch (30 May 2009), available at http://archive.icann.org/en/topics/new-gtlds/morality-public-order-30may09en.pdf).
68

Id. at ¶ 45.

69

Id. at ¶ 15 (citing GAC Principles Regarding New gTLDs (March 28, 2007), available at
http://archive.icann.org/en/topics/new-gtlds/gac-principles-regarding-new-gtlds-28mar07-en.pdf).

70

Id. at ¶ 14 (citing ICANN GNSO Board Report: Introduction of New Generic Top-Level Domains (11 Sept.
2007)).

71

Id. at ¶¶ 16-18.

72

See id. at ¶¶ 27, 29-31.

24

the necessity of reliability and trustworthiness, is fully respected; (ii) explain how thisduty will be effectively and continuously implemented; and (iii) explain how the policies
and decision-making of the applicant will be properly connected to national andinternational public authorities.73
68.

In DotHealth’s view, the above test is “neither supported by fact, internationallaw, or applicable ICANN Policy, and therefore must be rejected.”74 Beyond this, in
DotHealth’s view, the IO has attempted to “reverse the burden of proof” by asserting thatapplicants must prove it meets the above requirements before an Objection may be denied.75
DotHealth further suggests that the IO has not “produc[ed] one piece of evidence” to support his
assertions that DotHealth’s Application does not reflect the requisite degree of public authority
involvement he purportedly mandates.76
69.

Additionally, DotHealth suggests that the IO was inconsistent in his use of the

LPI Objection directed at health-related gTLD applications. Specifically, DotHealth cites the
IO’s inaction on other proposed gTLDs that similarly implicate international legal principles.77
For instance, DotHealth notes that the IO submitted LPI Objections to less than twenty percent ofstrings identified by the GAC as related to “health and fitness.”78 DotHealth also points to the
IO’s inaction with respect to the applied-for “.sex” gTLD, which DotHealth considers to be
inexplicable in light the similarity between the .health and .sex strings.79

73

Id. at ¶ 27.

74

Id. at ¶ 29.

75

Id. at ¶ 30.

76

Id. at ¶ 31.

77

Id. at ¶¶ 33-36.

78

Id. at ¶ 4.

79

Id. at ¶ 36.

25

70.

DotHealth further claims that the IO ignored and mischaracterizes DotHealth’s

stated commitments to protecting the public interest in its proposed management of a .healthgTLD registry.80 This relates to DotHealth’s affirmative case, referenced above; here, DotHealthexplains that: it “ha[s] aggressively pursued engagement and collaboration of many key players
in the global health system”81; that its “Application enjoys the support of [various health-related
entities]”82; that it “has partnered with LegitScript, LLC to provide monitoring and surveillanceof the .health TLD”83; that its “strategic advisory board includes some of the most respectedthought leaders in the healthcare, regulatory, and healthcare communications community”84; andthat Neustar, which supports DotHealth, “is a founding member of The Center for Safe Internet
Pharmacies.”85 Beyond this, DotHealth reiterates many of the affirmative points regarding its
proposed administration of the .health gTLD reflected in its Application, discussed supra.86
71.

Finally, as one of its many points, DotHealth reminded the Panel that “[t]he IO

bears the burden of proving that the Objection should be sustained in accordance with theapplicable standards.”87

80

Id. at ¶¶ 37-39.

81

Id. at ¶ 38.

82

Id. at ¶ 38.1.

83

Id. at ¶ 38.2.

84

Id. at ¶ 38.3.

85

Id. at ¶ 38.4.

86

See discussion supra ¶¶ 58-62.

87

DotHealth Response at ¶ 23.

26

C.

Additional Written Statements by the Parties

72.

The IO’s Additional Written Statement. Under the limited additional statement

procedure elaborated by the Panel in its 7 August 2013 letter, the IO used his Additional Written
Statement, filed 14 August 2013, to further several points relating to his Objection.
73.

First, the IO asserts that his LPI Objection in the present dispute is not“manifestly unfounded,” as alleged in the DotHealth’s Response, and thus should not bedismissed under a Quick Look review by the Panel.88
74.

Second, the IO explains that his LPI Objection does not exceed the mandate

ICANN gave him for the filing of LPI and Community Objections. The IO notes that “thesubject-matter of this LPI Objection is not the term “health” but rather the intended use of theapplied for string and, in particular, the confiscation of “health” for purely commercial purposes
which is contrary to the general principles of international law.”89 In this argumentation, the IO
encourages the Panel, in making its decision, to “use as additional context the intended purposeof the TLD as stated in the application.”90 He reiterates that his position is “of course, not thatthe term ‘health’ would be offensive and, therefore, objectionable per se but that the Application
does not guarantee its use in full respect for these general principles.”91
75.

The IO’s Additional Written Statement thus suggests that “the term ‘health’” isnot ipso facto contrary to generally accepted principles of international law, but that the88

IO’s Additional Written Statement at ¶¶ 2-3.

89

Id. at ¶ 6.

90

Id.

91

Id.

27

“intended use of the applied for string . . . in particular, the confiscation of ‘health’ for purelycommercial purposes” was instead contrary to international law.92
76.

The IO notes, however, that the Panel has “broad discretion to consider and apply

general principles [of international law] to specific cases,”93 and that such principles clearlysupport the LPI Objection.94 He explained further that, under relevant international law, “publicauthorities, national as well as international, across the world are under a legal obligation torespect, protect and fulfil the right to health,” and that involvement of such public authorities isnecessary in the creation and operation of a .health gTLD in order to ensure that their legal
obligations are not impeded or effectively abrogated by the registry operator.95
77.

The IO concludes that the required involvement of public authorities in the

management of the .health gTLD registry cannot occur because, according to the IO, DotHealth“does not want any outside interference with its running of the .health gTLD.”96 Beyond this,the IO suggests that a recent resolution adopted by the Sixty-sixth World Health Assembly on“eHealth Standardization and Interoperability” confirms the IO’s concerns.97
78.

DotHealth’s Additional Written Statement. DotHealth uses its response to the

IO’s Additional Written Statement to reiterate its view that the IO’s assertion that the applied-for.health string was contrary to the general principles of international law for morality and public

92

Id.

93

Id. at ¶ 7.

94

Id. at ¶ 8.

95

Id.

96

Id. at ¶ 10.

97

Id. at ¶ 11.

28

order was unfounded.98 DotHealth again questions the necessity of additional written statements
and suggests that the IO’s Additional Written Statement added nothing substantive in support of
his LPI Objection.99
79.

In particular, DotHealth responds to several points the IO made in his Additional

Written Statement. First, DotHealth states that the IO mischaracterizes the GAC
communications regarding the .health string, including DotHealth’s response to the GAC.
Rather than rejecting “almost each and every recommendation made by the GAC,” DotHealthexplained that it engaged in a “pro-active adoption in its application of many safeguards
addressing the GAC’s concerns, and [that it demonstrated] its willingness to implement
additional safeguards.”100 Beyond this, DotHealth notes that it has committed to many of theother safeguards advocated by the GAC, and has in fact exceeded GAC requests with respect tosome safeguards.101 In DotHealth’s view, “none of these commitments can be considered
contrary to the public interest.”102
80.

Further to this point, DotHealth reiterates its view that the GAC safeguards

referenced by the IO clearly indicate that the term “health” is not a string that is inherently
contrary to the general principles of international law.103 For instance, the GAC, in response to98

DotHealth’s Additional Written Statement at ¶ 25.

99

Id., Procedure.

100

Id. at ¶ 3.

101

Id.

102

Id. at ¶ 4.

103

Id. at ¶¶ 5-9.

29

extensive lobbying to designate .health as a non-delegable gTLD, instead merely called for theestablishment of certain safeguards for .health and a variety of other “sensitive” strings.104
81.

DotHealth argues that the IO’s Objection relates only to “operation of a .health

TLD by the private sector.”105 In DotHealth’s view, such a position adopts a content-based test
that is contrary to the requirements found in the AGB. In DotHealth’s view of the ICANN newgTLD application process, legitimate public-interest concerns are to be addressed by ICANN aspart of its Registry Agreement development, where an opportunity will arise to factor in GAC
concerns regarding the use of the gTLD.106
82.

DotHealth also addresses the IO’s statements regarding the communications of

the WHO relating to the establishment of a .health gTLD.107 It contends that the IO misinterprets
the WHO’s view on the .health gTLD by incorrectly assuming that the WHO opposescommercial oversight of the gTLD.108 DotHealth adds that the WHO Resolution109 “does not . . .
stand for the proposition that private commercial operation of a top-level domain name forhealth-related information cannot be consistent with the public interest.”110
83.

DotHealth concludes its Additional Written Statement by reiterating that the IO

has not met the burden of proof in these proceedings because he “has not made a persuasive casethat the dissemination of trusted and reliable health-related information is an inherently
104

See id. at ¶ 8; see also id. Annex 7 at 33-42; id. Annex 8 at 5; id. Annex 9.

105

Id. at ¶ 10.

106

See id. at ¶¶ 15-19.

107

Id. at ¶¶ 21-22.

108

Id. at ¶ 22.

109

66th World Health Assembly Agenda item 17.5 Resolution on eHealth Standardization and Interoperability (27May 2013).

110

DotHealth’s Additional Written Statement at ¶ 21.

30

governmental function . . . [or] that private-sector operation of a top-level domain containing
health-related information and resources violates general principles of international law for
morality and public order.”111
V.

Findings of the Panel84.

ICANN has explicitly stated that the objector bears the burden of proof in any

dispute under Module 3 of the AGB.112 Thus, there is a presumption favoring DotHealth’s
Application, and it is the IO who must demonstrate that “the applied-for gTLD string would becontrary to general principles of international law for morality and public order.”113 The Panelmust thus assess the Objection by considering whether the IO has satisfied his burden of showingthat DotHealth’s Application to operate a .health gTLD registry would breach the standards set
out in Section 3.5.3 of the AGB.
85.

By way of introduction, the Panel acknowledges the existence of legitimate public

interest concerns inherent in any application for any new gTLD related to the subject of health.
The Panel also recognizes the importance of these concerns in the new gTLD application
process.114
111

Id. at ¶ 20.

112

See Procedure, Art. 20(c). See also ICANN, New gTLD Draft Applicant Guidebook Version 3 Public Comments
Summary and Analysis, at 67, http://archive.icann.org/en/topics/new-gtlds/summary-analysis-agv3-15feb10-en.pdf(“There is a presumption generally in favor of granting new gTLDs to applicants who can satisfy the requirementsfor obtaining a gTLD—and, hence, a corresponding burden upon a party that objects to the gTLD to show why thatgTLD should not be granted to the applicant.”).
113

AGB, Section 3.5.3.

114

See, e.g., ICANN GAC, GAC Communiqué – Beijing, People’s Republic of China, 11 Apr. 2013, Annex I(attached as Annex 1 to the IO’s Additional Written Statement) (identifying health and fitness related strings as
sensitive strings, which are “likely to invoke a level of implied trust from consumers” and are deserving ofadditional safeguards); 66th World Health Assembly Agenda item 17.5 Resolution on eHealth Standardization andInteroperability (27 May 2013) (attached as Annex 10 to DotHealth’s Additional Written Statement) (urging
collaboration between national health authorities and other health officials, ICANN GAC members, and others to“coordinate . . . positions toward the delegation, governance and operation of health-related global top-level domainnames in all languages, including ‘.health,’ in the interest of public health.”).

31

86.

In particular, the Panel notes that the GAC has designated certain terms relating tohealth and fitness as “sensitive,” and thus deserving of additional safeguards beyond those
ICANN intends to apply to all new gTLDs.115 The Panel also notes that the World Health
Assembly has underscored the importance of global coordination with regard to electronic healthinformation and services, while emphasizing that “health-related global top-level domain names
in all languages, including ‘.health,’ should be operated in a way that protects public health.”116
Further, the Panel is mindful that the United Nations Committee on Economic, Social andCultural Rights has expressed the view that the obligations to protect the right to health “include,inter alia, the duties of States . . . to ensure that privatization of the health sector does notconstitute a threat to the availability, accessibility, acceptability and quality of health facilities,
goods and services.”117
87.

The Panel further notes that various stakeholders have discussed the need forsafeguarding health-related gTLDs subsequent to DotHealth’s submission of its Application. For
instance, a number of public comments were submitted with regard to DotHealth’s Application
for the .health gTLD. Representatives of DotHealth, specifically Mr. Andrew Weissberg,
participated in ICANN-sponsored forums to discuss the proposed .health gTLD.118 In addition
to these comments, the governments of France and Mali submitted Governmental Advisory

115

ICANN GAC, GAC Communiqué – Beijing, People’s Republic of China, 11 Apr. 2013, Annex I (attached as
Annex 1 to the IO’s Additional Written Statement).
116

66th World Health Assembly Agenda item 17.5 Resolution on eHealth Standardization and Interoperability (27May 2013) (attached as Annex 10 to DotHealth’s Additional Written Statement).

117

United Nations Committee on Economic, Social and Cultural Rights, General Comment No. 14, The Right to theHighest Attainable Standard of Health (Art. 12 of the Covenant on Economic, Social and Cultural Rights), ¶ 35
(cited in Objection, ¶ 20).

118

See ICANN, Objection Statement Against Applicant “DotHealth, LLC” for the “.HEALTH” String,https://community.icann.org/pages/viewpage.action?pageId=40930487 (last visited 9 Sept. 2013).

32

Committee (“GAC “) Early Warnings with regard to DotHealth’s Application for the .healthgTLD.119A.

The Merits of the IO’s LPI Objectioni.

88.

The .health string is not in itself contrary to general principles ofinternational law for morality and public orderTo sustain the IO’s Objection, the Panel must determine that .health is an“applied-for gTLD string” that is “contrary to general principles of international law for morality
and public order.”12089.

It is clear that under Section 3.5.3 of the AGB, an LPI Objection may be sustained

if the string itself—in other words, the terms constituting the applied-for .gTLD—is “contrary to
general principles of international law for morality and public order.” But it is just as clear to the
Panel that the generic term “health” is not, in and of itself, contrary to such generally accepted
legal norms. The IO has primarily conjectured that a .health gTLD registry, as operated by
DotHealth, would not be adequately safeguarded or protective enough of human rights to health,but that changes nothing to the fact that word “health” is by no means inherently
objectionable.121
90.

As explained in the AGB, LPI Objections are designed, to weed out gTLD

applications where the gTLD string at issue is “contrary to general principles of international law
for morality and public order.” Thus, the relevant principles must at the very least be similar to
the examples provided in the AGB, namely principles prohibiting: (i) the incitement to or
119

As ICANN explains, an Early Warning is a notice from a member or members of the ICANN GAC that an
application is seen as potentially sensitive or problematic by one or more governments; it is not a formal objection.
See ICANN, GAC Early Warning and Advice, http://newgtlds.icann.org/en/applicants/gac-early-warning (lastvisited 9 Sept. 2013).
120

See AGB, Section 3.5.3.

121

See discussion supra ¶¶ 50, 53-55, 76-77.

33

promotion of violent lawless action; (ii) the incitement to or promotion of discrimination based
upon race, color, gender, ethnicity, religion or national origin, or other similar types of
discrimination that violate generally accepted legal norms recognized under principles ofinternational law; (iii) the incitement or promotion of child pornography or other sexual abuse ofchildren). For instance, publicly-available documents illustrate how ICANN clearly
contemplates that the LPI Objection process would be proper to prevent the creation of a gTLD
registry whose string contained “objectionable or racist” terms.122 Thus, to be contrary to suchgeneral principles of international law for morality and public order, the string at issue must be
as objectionable as words that would incite or promote senseless violence, discrimination, or
child pornography, or any similar words or terms.
91.

The proposition that the string itself must be severely objectionable to sustain an

LPI Objection is supported by ICANN’s publicly-available analysis of public comments to theAGB.123 In its analysis, ICANN noted that the fourth ground for an LPI Objection should beconstrued in light of the first three grounds, because “panels considering morality and publicorder should have discretion to consider gTLD strings that do not fit within one of the three
specific categories but are nonetheless contrary to generally accepted legal norms relating to
morality and public order to the same degree as the first three grounds”. ICANN added that“[a]pplications for such strings may well be rare or non-existent.”124 Therefore, ICANN122

See ICANN, New Generic Top-Level Domains: Frequently Asked Questions, available at
http://newgtlds.icann.org/en/applicants/customer-service/faqs/faqs-en. (“4.5 Will ICANN prevent the registration of
objectionable or racist extensions? Consistent with the policy advice on new gTLDs, all applied-for strings could be
subject to an objection-based process based on Limited Public Interest grounds. This process will be conducted by
the qualified DRSP utilizing standards drawing on provisions in a number of international treaties.”).
123

See ICANN, New gTLD Draft Applicant Guidebook – Version 2: Analysis of Public Comment 137-140 (2009),
available at http://archive.icann.org/en/topics/new-gtlds/agv2-analysis-public-comments-31may09-en.pdf.
124

Id at 139.

34

intended that the fourth ground be limited to violations of legal norms relating to morality andpublic order that would be similar to those prohibiting anyone to incite or promote violent
lawless action, discrimination, or child pornography or sexual abuse.125
92.

The Panel has no hesitation in finding that the string “health” is not objectionable

in and of itself. It is obvious to the Panel that the word “health” does not conflict with any
generally accepted legal norms relating to morality and public order of the same nature as thefirst three grounds ICANN listed in AGB Section 3.5.3.
93.

The Panel’s conclusion is consistent with the position adopted by the IO himself.

Indeed, the IO suggested in both his initial Objection126 and his Additional Written Statement127
that the operation of a .health gTLD registry should be allowed, provided that such a registry was
subject to proper oversight and administration. Specifically, the IO took the position that theoperation of a .health gTLD registry would comply with principles of international law if it gave
“due consideration to the fundamental rights and related obligations” attendant to the use of the.health string.128 By highlighting that the operation a .health gTLD—as opposed to the mere
existence of the gTLD—is at the heart of its LPI Objection, the IO conceded that the string125

See id. This view is supported elsewhere in ICANN’s publicly-available materials relating to the new gTLD
process. See ICANN, New gTLD Program Explanatory Memorandum: Morality and Public Order Objection
Considerations in New gTLDs, Oct. 29, 2008, available at http://archive.icann.org/en/topics/new-gtlds/moralitypublic-order-draft-29oct08-en.pdf (“[S]ome have proposed that panelists be provided significant discretion to findthat other categories might also reach to the level of violating generally accepted legal norms of morality and publicorder.”).
126

Id. at ¶ 32 (suggesting a delay in the review of .health applications “in order to allow for consultations with theglobal health community which may lead to a satisfactory structure of a .Health TLD.”) (emphasis supplied). See
also id. (requesting as alternative relief that the Panel postpone the creation of the .health registry until the Applicant
provides “solutions” for the IO’s objections).
127

IO’s Additional Written Statement at ¶¶ 6-7.

128

See Objection at ¶ 31 (“[T]he present Application does not meet the standards that have to be applied for a . . .
highly sensitive TLD.”).

35

itself—“.health”— is not contrary to the principles of international law contemplated in Section
3.5.3 of the AGB.
ii.

94.

The manner in which DotHealth proposes to operate a .healthgTLD registry does not conflict with general principles ofinternational law for morality and public order.

The IO concedes that, in appropriate circumstances, the operation of a .healthgTLD registry would not be contrary to generally accepted legal norms of morality and publicorder that are recognized under principles of international law. But he contends that the mannerin which DotHealth intends to operate a .health registry falls short of requirements that allegedly
derive from the right to health and, more specifically, the right to health-related information.129
For example, the IO states that “the question is not, or at least not only – and usually notprimarily – whether the word or the term would be objectionable, but whether the proposed
string and its intended operation may be objectionable from the perspective of ‘general principles
of international law for morality and public order.’”130 Implicit in the IO’s argument is the
proposition that these alleged flaws in DotHealth’s Application constitute grounds upon whichan LPI Objection may be sustained.
95.

DotHealth disputes this last point. In its Response, it contends that, rather thanobjecting on the basis of the .health string itself as permitted in the AGB, the IO attempts to

129

See Objection at ¶ 25 (“[the IO] is of the view that any Applicant applying for a .Health TLD should demonstrateawareness of its duty to see to it that this TLD is organized, set up and managed in such a way that the right to healthwith all of the implications discussed above . . . is fully respected and, consequently, should demonstrate that thisduty will be effectively and continuously implemented. In addition, the Applicant should demonstrate how, given
the public interest at stake, the policies and decision-making of the Applicant will be properly connected to the
public authorities . . . that are under a legal obligation to respect, protect and fulfil [sic] the right to health.”). See
also id. at 13 (noting the need for “reliability and trustworthiness” in a .Health gTLD); id. at pg. 14 (supporting theWHO’s view of the need for “a satisfactory structure of a .Health TLD,” and requesting that the objection besustained “as long as the Applicant has not provided solutions” to address its purported lack of recognition of rights
in health).
130

IO’s Additional Written Statement at ¶ 6.

36

impose additional hurdles and safeguards in a way that is inconsistent with, and represents a
circumvention of, the gTLD application process ICANN carefully designed.131
96.

According to the AGB, the Panel’s task is to “conduct its analysis on the basis of

the applied-for gTLD string itself,” but it also is stated that the Panel “may, if needed, use asadditional context the intended purpose of the TLD as stated in the application.”132 The AGB
provides no details regarding the circumstances under which a panel should accept to take such“intended purpose” into consideration. Nor does it specify what importance ought to be given to
the “intended purpose” while assessing the merits of an LPI objection, or whether this “intended
purpose” may form the sole basis of LPI objection. That said, the Panel need not decide thisissues since it is not necessary to dispose of the IO’s Objection.
97.

Indeed, even taking additional context provided by the IO into consideration, his

Objection still fails on the merits. Although the IO has argued that the right to health and theright to accurate health-related information are “specific principle[s] of international law asreflected in relevant international instruments of law,” he has failed to demonstrate convincinglythat the operation of a .health gTLD registry by DotHealth would be contrary to such allegedprinciples of international law unless certain safeguards were in place.
98.

A full discussion of whether the rights to health and to health-related information

are fundamental human rights and “specific principle[s] of international law” for the purpose of
Section 3.5.3 of the AGB, as contended by the IO, is unnecessary. For the purpose of reviewing
the IO’s LPI Objection, these assertions may be assumed to be correct. Even in that case,however, the IO has not met his burden of demonstrating that the .health gTLD, as applied for by131

See DotHealth Response at ¶¶ 27, 29-31.

132

See AGB, Section 3.5.3 (emphasis added).

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DotHealth, is “contrary to specific principles of international law.”133 The Panel finds that theterm “health” is not, even when looking to the “additional context [of] the intended purpose of
the TLD,” equivalent to the per se offensive terms suggested by the AGB as deserving of an LPI
Objection.134 The Panel finds that the term “health” is not, even when looking to the “additional
context [of] the intended purpose of the TLD,” equivalent to the per se offensive terms suggestedby the AGB as deserving of an LPI Objection.135
99.

As mentioned above, the IO’s key contention is that the alleged right to health-related information requires that “any Applicant applying for a .Health TLD should demonstrateawareness of its duty to see to it that this TLD is organized, set up and managed in such a waythat the right to health with all of the implications discussed above . . . is fully respected and,
consequently, should demonstrate that this duty will be effectively and continuously
implemented” and that “the Applicant should demonstrate how, given the public interest at stake,the policies and decision-making of the Applicant will be properly connected to the publicauthorities . . . that are under a legal obligation to respect, protect and fulfil the right tohealth.”136 The Panel does not find the IO’s view convincing: even if an applicant failed to meet
any or all of the IO’s suggested benchmarks for a .health registry operator, the Panel would still
not be convinced that the gTLD string is contrary to specific principles of international law for
the purpose of Section 3.5.3 of the AGB.
100.

The IO predicates his Objection on language found in the International Covenant

on Economic, Social and Cultural Rights and the Universal Declaration of Human Rights, with133

See id.

134

See AGB, Section 3.5.3.

135

See AGB, Section 3.5.3.

136

Objection at ¶ 25.

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secondary citations to statements promulgated by the WHO and the UN Committee on
Economic, Social and Cultural Rights and decisions by regional Human Rights Courts (e.g., theEuropean Court of Human Rights). Even assuming that the IO has shown that there is a
generally accepted right to health, it is nonetheless unclear to the Panel how the sources invokedby the IO support the proposition that access to accurate health information is a “specificprinciple of international law as reflected in international instruments of law.” Furthermore—andcrucially—none of these instruments provide any support for the IO’s argument that theoperation of .health gTLD registry by a private entity would inhibit or impair the access toaccurate health information unless it was done under the conditions envisaged by the IO. In
other words, the IO fails to provide any convincing explanation as to why the Panel should inferfrom the broad statements regarding the right to health found in these instruments that it would
be contrary to specific principles of international law for a private entity like DotHealth tooperate a .health gTLD registry unless certain safeguards were in place.
101.

The Panel considered additional sources beyond those cited to by the IO—as is

explicitly recommended by ICANN137—in evaluating the LPI Objection. ICANN provides in
the AGB a non-exhaustive list of international legal documents that may serve as the basis for an
LPI Objection.138 These provisions simply add to, but do not substantively alter, the IO’s
position with regard to the principles of international law relating to health.
102.

The IO thus fails to connect the alleged right to health-related information to his

key assertion that DotHealth could only validly operate a .health gTLD string under theconditions envisaged by the IO. No explanation was provided as to why the Panel should so

137

See AGB, Section 3.5.3.

138

See discussion supra, ¶¶ 40-41.

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conceive the scope of the alleged right to health-related information, and no sources supporting
the IO’s key assertion—even if only indirectly—were provided to the Panel. As the IO bears theburden of proof, his LPI Objection must be rejected.
103.

To be clear, the Panel wishes to underscore that none of the preceding points canbe taken to suggest that the string “health” is, in and of itself, objectionable as contrary to
specific principles of international law for the purpose of Section 3.5.3 of the AGB. As
mentioned earlier, the string “health” is itself wholly inoffensive and, even viewed within thecontext of DotHealth’s Application, the Panel does not find that the applied-for string violates
such principles of international law.
104.

Finally, the Panel notes that ICANN recognizes the right to exercise the freedomof expression, and suggests that the exercise of this right should be limited only in instanceswhere free expression would result in a string that “may be considered contrary to generally
accepted legal norms . . . that are recognized under principles of international law.”139
B.

The Alternative Remedy Sought by the IO

105.

The IO requests, as an “alternative” remedy, that the Panel “hold that the present

objection is valid as long as the Applicant has not provided solutions for the serious objections
raised above.”140 Essentially, the IO is asking the Panel to sustain the Objection until such pointas DotHealth makes the public policy commitments requested by the IO. Given the Panel’sfinding above that the manner in which DotHealth proposes to operate a .health gTLD registry
does not conflict with general principles of international law for morality and public order, the139

AGB, Section 3.5.3.

140

Objection, at page 14.

40

IO’s alternative request becomes moot. The Panel nevertheless will briefly explain why thealternative relief sought by the IO would be outside its powers.
106.

First, the Panel is limited under Article 21 of the Procedure to ruling on the meritsof the objection. The AGB, Attachment to Module 3, Article 21(d) states that “[t]he remedies
available to an Applicant or an Objector pursuant to any proceedings before a Panel shall belimited to the success or dismissal of an Objection and to [fees determinations].” Nothing in the
AGB, Procedure, or Rules suggests that the Panel could or should set conditions necessary forsatisfying public policy concerns in gTLD applications while carrying out its task of evaluating
the merits of the LPI Objection. To entertain such a proposal would circumvent the procedural
reviews and safeguards ICANN established in the AGB to ensure that new gTLD registry
operators would have the technical, institutional, and organizational means to operate by the endof 2013. A determination of the Panel that dictated restrictions on the use of an applied-for
gTLD would exceed the Panel’s authority under the ICC Procedure and would go beyond therole of the Panel contemplated by ICANN.
107.

Second, the Panel’s mission is not to implement safeguards on the operation of agTLD registry; such safeguards are implemented by ICANN. In light of the safeguards
contemplated by ICANN with respect to the new gTLD process—including input from the GAC
and other authorities in the development of the final new gTLD Registry Agreements (“Registry
Agreements”)141—the IO’s public policy argument concerning the operation of a .health gTLD
registry is rendered much less effective. As detailed above, the Panel is mindful of the legitimate
public interest concerns inherent in the application for any new gTLD that is health-related, and141

See, e.g., ICANN, NGPC [New gTLD Program Committee] Progress on Addressing GAC Beijing Advice on
New gTLDs, 27 June 2013, https://www.icann.org/en/news/announcements/announcement-27jun13-en.htm.

41

their importance in the new gTLD application process.142 However, the Panel recognizes that
ICANN can and will impose several layers of responsibilities, including intellectual property
safeguards and public policy considerations, on the selected registry operator.143 Thus, there isno sufficient public policy argument that would satisfy the IO’s demands, while also upholding
free speech and ensuring that the ICANN gTLD application process continues in a manner that
respects the process ICANN established for developing new gTLDs, in which there is apredisposition towards new domain names.
C.

Costs

108.

Article 21(d) of the Procedure states that “[t]he remedies available to an Applicant

or an Objector pursuant to any proceeding before a Panel shall be limited to the success or
dismissal of an Objection and to the refund by the DRSP to the prevailing party, as determinedby the Panel in its Expert Determination, of its advance payment(s) of Costs pursuant to Article
14(e) of this Procedure and any relevant provisions of the applicable DRSP Rules.”144
109.

Article 14(e) of the Procedure states: “[u]pon the termination of the proceedings,

after the Panel has rendered its Expert Determination, the DRSP shall refund to the prevailingparty, as determined by the Panel, its advance payment(s) of Costs.”145

142

See discussion supra at ¶¶ 85-87.

143

Note also that public sources illustrate how ICANN has enforced its Registry Agreements and attempted toexercise effective control over registries that fail to honor the Registry Agreements signed with ICANN. ICANN
has asserted its ability to dictate the terms of registry maintenance, including the process by which names are
assigned. See Letter from John O. Jeffrey to Brian Johnson and Ray Fassett, Employ Media, LLC, 27 Feb. 2011,
available at http://icann.org/en/correspondence/burnette-to-johnson-fassett-27feb11-en.pdf (regarding administrationof the .Jobs gTLD).
144

Procedure, Art. 21(d).

145Id., Art. 14(e).

42

110.

Further to the Centre’s 2 August 2013 correspondence with the Panel and theParties, DotHealth made a payment of the estimated costs of these proceedings. In accordancewith Articles 14(e) and 21(d) of the Procedure, the advance payment by DotHealth is to berefunded.
VI.

Determination of the Panel111.

On the basis of the foregoing and in accordance with Article 21(d) of theProcedure, the Panel makes the following determination:i.

The IO’s LPI Objection against DotHealth’s Application is dismissed.

ii.

The Applicant DotHealth, LLC prevails.

iii.

The Applicant shall be refunded its advance payment of costs made under
Article 14(e) of the Procedure by the Centre.

43

Dr. Maxi C. Scherer
Co-Expert

Prof. Frédéric Bachand
Co-Expert

Dr. Stanimir A. Alexandrov
Chair of the Expert Panel
Date: 12/16/201344