THE INTERNATIONAL CENTRE FOR EXPERTISE OF THE
INTERNATIONAL CHAMBER OF COMMERCE

CASE No. EXP/415/ICANN/32

PROF. ALAIN PELLET, INDEPENDENT OBJECTOR(FRANCE)vs/CHARLESTON ROAD REGISTRY INC.
(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.

INTERNATIONAL CHAMBER OF COMMERCE
INTERNATIONAL CENTRE FOR EXPERTISE
CASE NO. EXP/415/ICANN/32

betweenProf. Alain Pellet, Independent Objector
Objector
andCharleston Road Registry Inc.
ApplicantUnder ICANN’s New gTLD Dispute Resolution Procedure and theRules for Expertise of the International Chamber of Commerce
as supplemented by the ICC Practice Note of March 2012

Re: Limited Public Interest Objection concerning Application 1-1139-2965 (.MED)

Expert Panel:Prof. Fabien Gélinas (Chair)
Mr. John Gaffney (Co-Expert)
Prof. Guglielmo Verdirame (Co-Expert)

TABLE OF CONTENTS

1. INTRODUCTION................................................................................................................. 3
2. AGREEMENT CONCERNING THE PROCEDURE ...................................................... 4
3. THE PARTIES AND THEIR COUNSEL .......................................................................... 5
3.1. The Independent Objector ......................................................................................................... 5
3.2. The Applicant.............................................................................................................................. 6

4. THE EXPERT PANEL ........................................................................................................ 7
5. HISTORY OF THE PROCEEDINGS ................................................................................ 8
6. SUMMARY OF THE PARTIES’ RESPECTIVE POSITIONS .................................... 11
6.1. The Independent Objector’s Objection .................................................................................. 126.2. The Applicant’s Response ........................................................................................................ 16
6.3. The Independent Objector’s Additional Statement .............................................................. 18
6.4. The Applicant’s Reply to the Independent Objector’s Additional Statement .................... 20

7. ANALYSIS .......................................................................................................................... 21
7.1. The “Quick Look” Procedure ................................................................................................. 22
7.2. The Independent Objector’s Standing.................................................................................... 23
7.3. The Standards of Adjudication and Legal Principles ........................................................... 24
7.4. The Merits of the Objection ..................................................................................................... 27
7.5. The Alternative Remedy .......................................................................................................... 32

8. DETERMINATION ........................................................................................................... 33

2

1. INTRODUCTION
1.

The Internet Corporation for Assigned Names and Numbers (“ICANN”) has launcheda program for the introduction of new generic Top-Level Domain Names (“gTLDs”).
Applicants may apply for new gTLDs, in accordance with terms and conditions set by
ICANN, notably in the gTLD Applicant Guidebook (the “Guidebook”).1

2.

The Guidebook contains, as an Attachment to Module 3, a New gTLD Dispute
Resolution Procedure (the “Procedure”). The Procedure governs the resolution of
disputes between an entity that applies for a new gTLD (an applicant) and an entity
objecting to the application (an objector).

3.

Dispute resolution proceedings are administered by a Dispute Resolution Service
Provider (a “DRSP”) in accordance with the Procedure and the applicable DRSP rules.
Four kinds of objections can be brought under the Guidebook: String Confusion,
Existing Legal Rights, Limited Public Interest, and Community.

The DRSP

responsible for Limited Public Interest objections is the International Centre forExpertise of the International Chamber of Commerce (“ICC”), and the applicable
DRSP rules are the Rules for Expertise of the ICC (the “Rules”), as supplemented by
the ICC. In March 2012, the ICC supplemented the Rules by issuing a Practice Noteon the Administration of Cases under the New gTLD Dispute Resolution Procedure(the “ICC Practice Note”).

4.

According to section 3.2.5 of the Guidebook, the Independent Objector may file aformal objection to a gTLD application. The Independent Objector’s role is to act not

1

gTLD Applicant Guidebook, v. 2012-06-04, Module 3, available at http://newgtlds.icann.org/en/applicants/agb[hereinafter Guidebook].

3

on behalf of any particular persons or entities, but in the best interests of the public
who use the global Internet. Neither ICANN staff nor the ICANN Board of Directors
has authority to direct or require the Independent Objector to file or not to file any
particular objection. If the Independent Objector determines that an objection should
be filed, he will initiate and file the objection in the public interest.

5.

The Independent Objector may file objections against “highly objectionable” gTLD
applications to which no objection has been filed. The Independent Objector is limited
to filing two types of objections: (1) Limited Public Interest objections and (2)Community objections.

The Independent Objector is granted standing to fileobjections on these enumerated grounds, notwithstanding the regular standing
requirements imposed on others for such objections.

6.

In light of the public interest goal noted above, the Independent Objector shall not
object to an application unless at least one comment in opposition to the application ismade in the public sphere.

7.

These proceedings arise out of a Limited Public Interest objection (the “Objection”) toCharleston Road Registry Inc.’s application for the .MED gTLD (the “Application”).

8.

The Objection to the Application was filed by the Independent Objector on 12 March2013.

2. AGREEMENT CONCERNING THE PROCEDURE
9.

As stated in Article 1(d) of the Procedure, by applying for a new gTLD under the
Guidebook, an applicant accepts the Procedure and the relevant DRSP rules governing
possible objections.

Similarly, by filing an objection, an objector accepts theProcedure and the applicable rules.
4

10.

Pursuant to Article 8 of the ICC Practice Note, by accepting the process defined in theProcedure, the “parties are deemed to have agreed that the expert determination shallbe binding upon the parties” as provided in Article 12(3) of the Rules.

11.

As provided in Article 4(d) of the Procedure, “the place of the proceedings, if relevant,shall be the location of the DRSP that is administering the proceedings”. In this casethis place is Paris, France.

12.

As provided in Article 5(a) of the Procedure, the language of the submissions andproceedings is English.

13.

The Expert Determination Procedure to which the parties have agreed to submit thisdispute provides a specific procedural framework that is different from typical legal
proceedings. It involves brief submissions (which are subject to strict word limits) andan expedited schedule. Hence, while the important and complex matters at issue havereceived serious consideration by both the parties and the Panel within that framework,
the Panel has endeavored to apply a principle of economy to the preparation of thisdocument.

3. THE PARTIES AND THEIR COUNSEL
3.1. The Independent Objector

14.

Professor Alain Pellet is the Independent Objector selected by ICANN pursuant tosection 3.2.5 of the Guidebook.2

15.

The contact information for the Objector is as follows:2

See ICANN Press Release of 14 May 2012, available at
http://www.icann.org/en/news/announcements/announcement-14may12-en.htm

5Prof. Alain Pellet, Independent Objector
16, Avenue Alphonse de Neuville92380 Garches, France
Email: courriel@alainpellet.eu
contact@independent-objector-newgtlds.org
16.

The Independent Objector is represented in these proceedings by:

Ms. Héloïse Bajer-Pellet
15, Rue de la Banque
75002 Paris, France
Email: avocat@bajer.fr
Mr. Daniel Müller
20, Avenue du Général de Gaulle
78290 Croissy sur Seine, France
Email: mail@muelerdaniel.eu
Mr. Phon van den Biesen
De Groene Bocht, Keizersgracht 253
1016 EB Amsterdam, The Netherlands
Email: phonvandenbiesen@vdbkadvocaten.eu
Mr. Sam Wordsworth
24 Lincoln’s Inn Fields
London, WC2A 3EG, United Kingdom
Email: SWordsworth@essexcourt.net

3.2. The Applicant

17.

Charleston Road Registry Inc. (“Charleston” or the “Applicant”) is an Americancompany, wholly owned subsidiary of Google Inc. (“Google”), which was establishedto provide registry services to the Internet public.

Google is an American

multinational public corporation and global technology leader.

18.

The contact information for the Applicant is as follows:6

Charleston Road Registry Inc.
Sarah Falvey
1600 Amphitheatre Parkway
Mountain View, California 94043, United States of America
Email: tas-contact4@google.com
19.

The Applicant is represented in these proceedings by:

Mr. Brian J. Winterfeldt
Katten Muchin Rosenman LLP
2900 K Street NW, North Tower - Suite 200
Washington, DC 20007-5118, United States of America
Email: brian.winterfeldt@kattenlaw.com

4. THE EXPERT PANEL
20.

According to Article 13(b)(iii) of the Procedure, proceedings involving a Limited
Public Interest objection are referred to a panel of three experts (“Expert Panel” or“Panel”), recognized as eminent jurists of international reputation, one of whom shallbe designated as the Chair. The Chair shall be of a nationality different from thenationalities of the Applicant and of the Objector.

Pursuant to Article 3(3) ofAppendix I to the Rules, experts are appointed by the Chairman of the Standing
Committee of the ICC International Centre for Expertise.

21.

On 12, 13 and 14 June 2013, each of the experts completed and filed a Declaration of
Acceptance and Availability and Statement of Impartiality and Independence which
did not give rise to objections.

22.

On 21 June 2013, the Chairman of the Standing Committee of the ICC International
Centre for Expertise appointed the Panel pursuant to Article 3(3) of Appendix I to theRules. Professor Fabien Gélinas, a Canadian national, was appointed as the Chair and7

Mr. John Gaffney and Professor Guglielmo Verdirame were appointed as Co-Experts
in accordance with Article 13(b)(iii) of the Procedure.

23.

The experts’ contact details are as follows:

Prof. Fabien Gélinas
McGill University, Faculty of Law
3644 Peel Street,Montreal (Quebec), H3A 1W9, Canada
Email: fabien.gelinas@mcgill.ca
Mr. John Gaffney
25 rue de Chazelles
Paris 75017, France
Email: jp_gaffney@yahoo.com
Prof. Guglielmo Verdirame
20 Essex Street
London WC2R 3AL, United Kingdom
Email: gverdirame@20essexst.com
24.

After payment of the advance by both parties, the Panel received the file on 1 August
2013 and was deemed fully constituted on that date for the purpose of the Procedure.

5. HISTORY OF THE PROCEEDINGS
25.

This Objection relates to Charleston’s application to register the string .MED. The
Application was posted on ICANN’s website on 13 June 2012 and given ID Number
1-1139-2965 in the ICANN system.3 The Application passed the initial evaluation

3

https://gtldresult.icann.org/application-result/applicationstatus/applicationdetails/1330.

8

process provided by the Guidebook, which is independent from the dispute resolution
process laid out in the Procedure.4

26.

On 12 March 2013, the Independent Objector filed the Objection to the Application
with the DRSP. A copy of the Objection was transmitted to Charleston on 13 March
2013. The requisite filing fee was paid to the DRSP, following Article 8(c) of theProcedure and Article 1 of Appendix III to the Rules.

27.

Pursuant to Article 9 of the Procedure, the DRSP conducted an administrative reviewof the Objection for compliance with its Rules and with Articles 5 to 8 of theProcedure (Language, Communications and Time Limits, Filing of the Objection, andContent of the Objection). On 2 April 2013, the DRSP notified the parties that the
Objection was compliant. On 12 April 2013, ICANN made a dispute announcement
under Article 10 of the Procedure, listing the objections that had passed administrative
review, including this Objection.

28.

On 12 April 2013, the DRSP sought the comments of the parties on the possible
consolidation of this case with two other cases in which the string .MED was at issue,
as contemplated by Article 12 of the Procedure. On 22 April 2013 the DRSP notified
the parties that the cases would not be consolidated.

29.

On 22 May 2013, the Applicant filed a response to the Objection (the “Response”). A
copy of the Response was transmitted to the Independent Objector on the same day.
Pursuant to Article 11(f) of the Procedure, the Applicant also paid the requisite filingfee to the DRSP on the same day.

4

The Application was given a pass by report dated 30 August 2013. The Report is available at
http://newgtlds.icann.org/sites/default/files/ier/m6bk8at7iydw5jrsb9zat5ia/ie-1-1139-2965-en.pdf.

9

30.

On 21 June 2013, the Chairman of the Standing committee of the ICC International
Centre for Expertise appointed the Expert Panel pursuant to Article 13 of theProcedure and Article 9(5)(d) of the Rules.

31.

On 24 June 2013, the DRSP informed the parties of the appointment of the Expert
Panel and of the estimate of total costs in this matter. The parties were informed that
the Panel would not be deemed fully constituted and the matter would not proceed
until each of the parties had made advance payment of the estimated costs.

32.

On 1 August 2013, the DRSP informed the parties of the receipt of the necessary
advance payment and transferred the file to the Panel. The Panel received the file andwas deemed fully constituted on that date for the purpose of the Procedure.

33.

On 2 August 2013, the Independent Objector requested leave from the Panel to file anadditional written statement to address issues raised in the Applicant’s Response.

34.

On 5 August 2013, the Expert Panel wrote to the parties asking the Applicant tocomment on the Independent Objector’s request and seeking the parties’ observations
on the conduct of the proceedings generally and, in the event the Independent
Objector’s request were to be granted, the appropriate length and timing of any
additional round of submissions.

35.

The Applicant and the Independent Objector sent their observations on 5 and 9 August
2013 respectively.

36.

On 12 August 2013, the Expert Panel informed the parties that it had conducted the“quick look” procedure contemplated in subsection 3.2.2.3 of Module 3 of the
Guidebook and had not found the Objection to be manifestly unfounded or an abuse of
the right to object such that it should be summarily dismissed.

10

37.

On the same day, in accordance with Article 17 of the Procedure, the Expert Panel
granted the Independent Objector leave to submit an additional written statement
within ten days and gave the Applicant the opportunity to reply within ten days of the
Independent Objector’s submission.

38.

The Independent Objector submitted an additional written statement on 22 August
2013 and the Applicant a reply on 30 August 2013.

39.

As required by Article 5(a) of the Procedure, submissions and communications weremade in English.

In accordance with Article 6(a) of the Procedure, allcommunications in the proceedings were submitted electronically.

40.

On 3 September 2013, the Panel notified the parties that it was moving into adeliberative phase. The Panel then considered the entire record and proceeded with the
preparation of a draft Expert Determination.

41.

On 4 September and 3 October 2013, the DRSP granted the Panel extensions for thesubmission of its draft Expert Determination to 5 and 12 October respectively.

42.

On 12 October 2013, the Expert Determination was submitted in draft form to the
DRSP for scrutiny in accordance with Article 12(6) of the Rules and Article 21(b) of
the Procedure.

6. SUMMARY OF THE PARTIES’ RESPECTIVE POSITIONS43.

The Objection considered in these proceedings is a Limited Public Interest objection.
The Guidebook provides the applicable standards, or principles of adjudication, for a
Limited Public Interest objection. In terms of standing, since the Independent Objector
acts solely in the best interest of the public who use the global Internet, he shall not
11object to an application unless at least one comment in opposition to the application
has been made in the public sphere. On the merits, the Independent Objector must
demonstrate that the applied-for gTLD string is contrary to generally accepted legal
norms of morality and public order that are recognized under principles ofinternational law. The parties’ respective positions concerning the application of theseprinciples are summarized below.

6.1. The Independent Objector’s Objection

44.

The Independent Objector argues that he has standing to bring this Objection because,
as required by the Guidebook, at least one comment in opposition to the Application
was made in the public sphere. In fact, various non-governmental organizations havesubmitted Public Comments with respect to all four of the applications that have been
submitted to ICANN for the .MED gTLD. Many of these comments express great
concern about the reliability and trustworthiness of a .MED gTLD that is run by a
private enterprise. Although several of these comments were submitted under theheading “Community Objection”, the rationale of the comments often refers to “public
interest” and “public health”, which fall within the parameters set for a Limited Public
Interest objection, given the status of health as a fundamental human right and of the
medical sector as a constitutive element thereof.

45.

The Independent Objector’s position is that the applied-for gTLD string would becontrary to specific principles of international law as reflected in relevant international
instruments of law.

46.

The Independent Objector alleges that “med” as an abbreviation for “medical” and“medicine”, as well as similar terms in multiple languages, is inextricably connected tohealth, since it refers to the goods, services and facilities that are necessary for theeffective fulfillment of the right to health. This is confirmed by the approach theApplicant takes in its Application. Therefore, the Independent Objector states that his
12appreciation of a .MED gTLD is directly linked to his appreciation of the very conceptof health.

47.

The Independent Objector submits that health was recognized as a fundamental humanright in international law for the first time in 1948, in the Universal Declaration of
Human Rights. Since then, several instruments of international law have confirmed
the human rights status of health. The Independent Objector argues that the promotion
and protection of international health is inherent in the due respect of generally
accepted legal norms of public order that are recognized under fundamental principles
of international law.

48.

The right to health was defined by the United Nations Committee on Economic, Social
and Cultural Rights (the “Committee”) as “a right to the enjoyment of a variety offacilities, goods, services and conditions necessary for the realization of the highest
attainable standard of health.” The Independent Objector notes that the Committee
lists health care as the very first element covered by the right to health whileinterpreting the right to health as not only extending to health care but also to theunderlying determinants, including access to health-related education and information.
In addition, the Committee observes that states should also ensure that third parties do
not limit people’s access to health-related information and services.

49.

The Independent Objector also refers to the case law of regional human rights courts
confirming that access to information is an essential element of specific human rights.

50.

The Independent Objector is of the view that any entity applying for a .MED gTLD
should demonstrate awareness of its duty to see to it that this gTLD is organized, set
up and managed in such a way that the right to health, with all of the implications
discussed above, including the necessity of reliability and trustworthiness of medical
information, 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, the policies and decision-making
13

of the Applicant will be properly connected to the public authorities, national as wellas international, that are under a legal obligation to respect, protect and fulfill the rightto health. In the view of the Independent Objector, these are requirements that are
fully justified given the specific principles of international law as reflected in therelevant international instruments of law discussed above.

51.

The Independent notes that while Google does propose measures and policies toprevent abuse, a random review of other applications submitted by Google shows thatthe same exact abuse prevention and mitigation measures are proposed for entirely
different gTLDs.

52.

The Independent Objector submits that it is clear from the Application that the goal of
the applied-for – community-based – gTLD is to become a source of content related to
medicine and doctors, that the precise meaning of the term “med” yet has to be defined
and will be defined by the Applicant, that the eligibility is to become a worldwide
trusted source for medical-related information and that the eligibility for domain
operating will be restricted in accordance with quality-related standards. It is also
clear that it is the Applicant that will make all relevant policy decisions and that allstated positions, rules and policies may be changed in the Applicant’s sole discretion.
Comparing this Application with the 100 other applications that Google submitted to
ICANN leads to the conclusion that Google views .MED, indeed, as anothercommodity: a random review of several other Google-Applications does not only showthat the texts of those applications are very similar, if not identical to the text of thepresent .MED Application, but also that the same exact abuse prevention andmitigation measures are proposed for all of them. In the view of the Independent
Objector, the Application does not provide for any views on the international nature ofthis undertaking, while for a gTLD the world at large seems to be the naturalenvironment, as is confirmed by the Applicant.

53.

The Independent Objector submits that more importantly the Applicant does notdemonstrate awareness of the fact that “med”, referring to medical services and to14

medical-related information as essential elements, is not only a “term” but that it also
represents a fundamental right, indissociable from the right to health, which involves
extensive obligations for national and international public authorities across the globe
as well as for citizens and private enterprises. Providing medical related information
on a worldwide basis might interfere with efforts of public authorities to fulfill their
obligations, while for developing countries “there is a growing concern that anunrestricted health gTLD will bypass regulatory controls”. The Application is silent
on these aspects of fundamental importance.

54.

The Independent Objector submits that the Application does not meet the standards
that have to be applied to a highly sensitive gTLD and finds that the launch of theapplied-for .MED gTLD would, indeed, be contrary to specific principles ofinternational law as reflected in relevant international instruments of law.

55.

In the alternative, the Independent Objector objects to this Application as long as the
Applicant has not – after consultation and coordination with all stakeholders of thehealth community, including states and competent international organizations –provided solutions for the serious objections raised above.

56.

For these reasons the Independent Objector asks the Expert Panel to hold that thepresent Objection is valid and to uphold the Objection.

In the alternative, theIndependent Objector requests the Expert Panel to hold that the Objection is valid aslong as the Applicant has not provided solutions for the serious objections raised
above.

57.

In addition, the Independent Objector requests that his advance payment of costs be
refunded in accordance with Article 14(e) of the Procedure.

15

6.2. The Applicant’s Response

58.

The Applicant’s position is that the Objection should not be granted.

59.

In line with Google’s general mission, the Applicant’s mission is to help makeinformation universally accessible and useful by extending the utility of the DNS while
enhancing the performance, security, and stability of the Internet for users worldwide.
The Applicant aspires to create unique web spaces where users can learn about
products, services, and information in a targeted manner and in ways never before seenon the Internet. Its business objective is to manage Google’s gTLD portfolio and
Google’s registry operator business. The Applicant intends to outsource all criticalregistry functions to Google Registry Services.

60.

The purpose of the proposed gTLD is to provide a forum for doctors and medical
practices to offer content related to their profession. The mission of the proposed
gTLD is to provide a dedicated domain space in which doctors can enact uniquesecond-level domains.

The Applicant believes the proposed gTLD will havesignificant value, as there are over five million doctors worldwide. This mission will
enhance customer choice by providing new availability in the second-level domain
space, creating new layers of organization on the Internet, and signaling the kind ofcontent available in the domain. The proposed gTLD will also provide the Applicant
with the means to meet its business objectives.

61.

The Applicant agrees that medical professionals and institutions are an essential part ofany health system. The Applicant also agrees that the term “med” will be perceived asa shortened form of the English words “medicine” or “medical” by English speakers
and that it is related to term “health”. However, the two terms are not “inextricably
connected” as alleged by the Independent Objector. The term “health” can mean ageneral soundness or well-being; as well as freedom from injury; as well as a generalcondition or state, while “medicine” and “medical” refer expressly to the science ofdiagnosing, treating, and preventing disease and drugs used for these purposes. A
16

wide variety of issues that may be applicable to the general field of health will not
apply to the term “medicine” or “med”.

62.

The Applicant also agrees that health “is not just another commodity”. It is for this
precise reason that the Applicant desires to create a safe space for users of the .MED
gTLD that improves upon the current environment for accessing medical information
online.

63.

While agreeing that governments have a role to play in fulfilling the right to health, theApplicant notes that many governments, due to their own corrupt policies, instability,
or violence, are not doing a good job of protecting and ensuring the basic right tohealth care, nutrition, clean air, clean water, etc. The Independent Objector seems toargue that, regardless of any lack of capability or prerogative to protect their citizens,
corrupt governments are under health-related obligations, and so this is no excuse for
the Applicant not to offer its gTLD services in connection with these governments.

64.

Also, the Independent Objector’s definition of health/medicine/medical is very narrow.
The healthcare/medical field is very broad and encompasses many different things andspans many different industries, so while some aspects of maybe should bespearheaded by states, there are many areas/aspects of “health” or “medicine” thatshould not be dominated/controlled by states.

65.

The Applicant recognizes the importance of access to reliable and trustworthy healthrelated information. The Applicant has given due consideration to the fundamental
rights and related obligations at stake and will include mechanisms to strengthen the
same.

66.

In designing the new gTLD program, ICANN has always emphasized the need for
applicants to work together, and this is a tenet of the program that the Applicant istaking very seriously. However, the Applicant believes that itself and Google are oneof only a handful of organizations so well suited to provide a secure, globally-relevant
17and politically-neutral domain space to better enhance the profile of global healthissues among Internet users. The Applicant states that it takes Internet security anduser experience extremely seriously, has outlined several policy and technologicalstandards it intends to implement on the .MED gTLD, and has also shown its
experiences within this space – from prior experience with building health-related
products to their unique and data-driven approach to combating fraud, abuse, andcounterfeiting.

67.

The Applicant requests that, for all of the above reasons, the Objection be dismissed.

68.

Finally, with regard to the Independent Objector’s alternative basis for objection, theApplicant submits that consultation and coordination with all stakeholders of thehealth community is unwarranted and impossible. While the Applicant recognizes that
it is the prerogative of the Independent Objector to advance an objection on behalf of acommunity, particularly when there is no central organization or entity to do so, theApplicant argues that this measure has been misapplied, as the intent of this power isto protect groups with little structure, resources or governance.

6.3. The Independent Objector’s Additional Statement

69.

In its Response, the Applicant questions the Independent Objector’s position that“med”, i.e. “medicine”, “medical”, is inextricably connected to health, since it refers to
the goods, services and facilities that are necessary for the effective fulfillment of theright to health. However, this same approach of the Independent Objector is also
applied in the Safeguard Advice issued by ICANN’s Governmental Advisory
Committee (GAC), which Advice the Applicant has annexed to its Response. In thisdocument the GAC advises that extensive additional safeguards should be put in place
for a whole range of gTLDs, including the .MED.

Also, the GAC advises that

registration restrictions for particular strings, including .MED, may be imposed so longas they are appropriate for the types of risks associated with the gTLD. The GAC’s
18

Safeguard Advice confirms the sensitivity of all health-related strings, among them
.MED.

70.

The Independent Objector notes that the Applicant has apparently responded in apositive manner to the GAC’s requiring additional safeguards for health-related gTLDs
and from that perspective it draws the conclusion that this should be more thanadequate to ensure that the Applicant operates .MED in accordance with principles ofinternational law. He submits that the Applicant seems to misunderstand his position
that “health” is a fundamental right, “med” being inextricably connected to it, which
implies that public authorities across the world, national as well as international, areunder a legal obligation to respect, protect and fulfill the right to health.

The

Independent Objector has stated that the Applicant’s activities should be properly
connected to national as well as international public authorities that are under a legal
obligation to protect the right to health of their citizens.

In this approach the

Independent Objector is aiming, in the interests of the internet using public at large, toprevent that the effective protection, by public national and international authorities, ofthe citizens’ fundamental rights would be undermined.

71.

Noting the Applicant’s submission that many governments, due to their own corrupt
policies, instability, or violence, are not doing a good job of protecting and ensuring
the basic right to health care, the Independent Objector submits that the obligations torespect, protect and fulfill also apply to possibly corrupt governments, while the lackof capabilities signaled above is not the prerogative of corrupt governments.

72.

The Applicant also states that while some aspects maybe should be spearheaded bystates, there are many areas of health or medicine that should not be dominated orcontrolled by states. Contrary to what the Applicant seems to suggest, there is nothing
in the position of the Independent Objector as set out in his Objection that may beconstrued as the Independent Objector promoting that all aspects related to “health” or“medicine” are to be dominated or controlled by states.
19

73.

Recently, the Sixty-sixth World Health Assembly adopted a Resolution on “eHealthstandardization and interoperability” through which, the Independent Objector
submits, it in effect shows to understand, confirm and support his concerns raised inrelation to the applied-for and other health-related gTLDs. In this Resolution, theWorld Health Assembly emphasizes that health-related global top-level domain names
should be operated in a way that protects public health. In the view of the Independent
Objector, this Resolution demonstrates the value of the alternative remedy sought by
the Independent Objector.

6.4. The Applicant’s Reply to the Independent Objector’s Additional Statement

74.

The Applicant submits that the Independent Objector has not established that the
Application will interfere with any obligations imposed on public authorities, or that
there is any obligation for a generic gTLD operator to provide its domain nameservices in connection with local governments.

On the contrary, the Applicant

proposes to provide a new dedicated and trusted Internet space for the medical andmedicinal industries to provide information about goods, services, and issues withinthose industries to citizens worldwide, regardless of the capabilities of theirgovernment’s ability to provide adequate healthcare, medical services, or medicinal
supplies. In some cases, this will be in connection with government actors in thisspace, and in other cases, it will be filling a void left open by governments that are notfurthering the interests of their citizens. The Applicant submits that opening up thisnew space for these industries will, contrary to the Independent Objector’s assertions,extend access to medical and related information in areas where a government may
aim to suppress or be unwilling to communicate such information. Regardless, theIndependent Objector has not demonstrated how running such a registry could possibly
be contrary to international law or international legal norms of morality and publicorder.

20

75.

In his Additional Written Statement, the Independent Objector relies on a Resolution
adopted by the Sixty-sixth World Health Assembly on 27 May 2013 to argue that
health-related domain names should not be treated as belonging to a different category
than the .HEALTH gTLD. The Independent Objector also cites to the Safeguard
Advice issued by ICANN’s Governmental Advisory Committee (GAC) on 11 April
2013, which advises that additional safeguards be put in place for a range of sensitive
strings including .MED. The Applicant argues that the Resolution of the Sixty-Sixth
World Health Assembly and the GAC Advice do not contain general principles ofinternational law for morality and public order.

76.

Under the Guidebook, the Independent Objector bears the burden of proving facts
needed to sustain his Limited Public Interest objection, but it has offered only mere
speculation or irrelevant evidence. The Independent Objector allegations that theGovernmental Advisory Committee’s (GAC) Communiqué and the eHealthstandardization and interoperability document contain general principles ofinternational law for morality and public order are incorrect.

77.

The Applicant maintains that the Independent Objector has not demonstrated that the
Application is contrary to any international law, norm of morality, or public order andthat the Objection should be dismissed.

7. ANALYSIS
78.

In this section the standards of adjudication and relevant legal principles for a Limited
Public Interest objection are discussed in detail and applied to the facts of the case. In
applying the standards the Panel is mindful that the Independent Objector bears theburden of proof in respect of both standing and merits.5 If he has standing, the5Guidebook, s. 3.5; Procedure, art. 20(c).

21Independent Objector must show that the applied-for gTLD string is contrary to
generally accepted legal norms of morality and public order that are recognized underprinciples of international law.

79.

It should be noted that the Expert Panel comes to this Determination applying a
principle of judicial economy arising out of the nature of these proceedings, which
involve brief submissions (which are subject to strict word limits) and an expeditedschedule for their disposal. Hence, while the issues raised are complex and havereceived serious consideration by both the parties and the Panel, the Panel’s
Determination will be correspondingly brief.

7.1. The “Quick Look” Procedure80.

Subsection 3.2.2.3 of the Guidebook provides that anyone may file a Limited Public
Interest objection. Due to this inclusive standing base, however, objectors are subject
to a “quick look” procedure designed to identify and eliminate frivolous or abusive
objections. An objection found to be manifestly unfounded or an abuse of the right toobject may be dismissed at any time.

81.

The quick look was the Panel’s first task after its appointment by the DRSP and
involved an initial review on the merits of the Objection in the light of therequirements of subsection 3.2.2.3 of the Guidebook.

A Limited Public Interest

objection would be manifestly unfounded if it did not fall within one of the categories
defined as the grounds for such an objection at section 3.5.3 of the Guidebook. A
Limited Public Interest objection may also be an abuse of the right to object. An
objection may be framed to fall within one of the accepted categories for Limited
Public Interest objections, but other facts may clearly show that the objection is
abusive.

22

82.

On 13 August 2013, the Expert Panel informed the parties that it had conducted the“quick look” procedure contemplated in subsection 3.2.2.3 of the Guidebook and had
not found the Objection to be manifestly unfounded or an abuse of the right to object
such that it should be summarily dismissed.

7.2. The Independent Objector’s Standing

83.

Section 3.2.5 of the Guidebook provides that a formal objection to a gTLD application
may be filed by the Independent Objector on the grounds of Limited Public Interest or
Community. The Independent Objector may file a Limited Public Interest objection toan application even if a Community objection has been filed, and vice versa. The
Independent Objector may file an objection notwithstanding the fact that a String
Confusion objection or a Legal Rights objection has also been filed in respect of thatapplication. Absent extraordinary circumstances, the Independent Objector is not
permitted to file an objection to an application where an objection has already been
filed on the same ground. There is no issue here in any of these respects because thisObjection was brought on the ground of Limited Public Interest and no other objection
has been filed on the same ground.

84.

Section 3.2.5 of the Guidebook also imposes a public comment requirement. The
Guidebook states that “in light of the public interest goal” associated with his role, “theIndependent Objector shall not object to an application unless at least one comment in
opposition to the application is made in the public sphere.” As the Independent
Objector indicates, several public comments were filed on the ICANN website inrespect of the Application. The Panel is satisfied that the public comment requirement
imposed by the Guidebook has been met in this case.

85.

One last point bears mention before turning to the merits of the Objection. According
to section 3.2.5 of the Guidebook, “the Independent Objector may file objections
against ‘highly objectionable’ gTLD applications.” Conceivably, this could be viewed23

as raising a question of standing. The parties have not addressed it as such, however.
In fact the parties’ submissions do not address the question whether the Application is“highly objectionable” other than by discussing the application of the principles ofadjudication governing the merits.

7.3. The Standards of Adjudication and Legal Principles

86.

Section 3.5 of the Guidebook stipulates that each panel will use appropriate generalprinciples (standards) to evaluate the merits of each objection, while Article 20(a) of
the Procedure obliges each panel to apply the standards that have been defined by
ICANN. In addition, pursuant to Article 20(b) of the Procedure, the Panel “may refer
to and base its findings upon the statements and documents submitted and any rules or
principles that it determines to be applicable.”.

87.

In the case of a Limited Public Interest objection, section 3.5.3 of the Guidebook
specifies that an expert panel will consider “whether the applied-for gTLD string iscontrary to general principles of international law for morality and public order”.

88.

The Guidebook provides that “the Panel will conduct its analysis on the basis of theapplied-for gTLD string itself” but, as emphasized by the Independent Objector, “may,if needed, use as additional context the intended purpose of the gTLD as stated in the
Application.” The Panel will thus proceed on that basis.

89.

Section 3.5.3 of the Guidebook provides useful guidance concerning “the generalprinciples of international law for morality and public order” which it contemplates:

Examples of instruments containing such general principles include, but are notlimited to:

The Universal Declaration of Human Rights (UDHR);24The International Covenant on Civil and Political Rights (ICCPR);The Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW);The International Convention on the Elimination of All Forms of Racial
Discrimination;

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;



The International Convention on the Protection of the Rights of all MigrantWorkers and Members of their Families;90.



The Slavery Convention;



The Convention on the Prevention and Punishment of the Crime of Genocide; and

The Convention on the Rights of the Child.

The Guidebook notes that these instruments “are included to serve as examples, rather
than an exhaustive list,” and that they “vary in their ratification status.”

The

Guidebook also observes that “states may limit the scope of certain provisions throughreservations and declarations indicating how they will interpret and apply certain
provisions.”91.

One principle which finds express mention in section 3.5.3 of the Guidebook is
freedom of expression. The Guidebook however adds that “the exercise of this rightcarries with it special duties and responsibilities” and that “certain limited restrictions
may apply.”92.

The following part of section 3.5.3. elaborates on the grounds upon which an appliedfor gTLD string may be considered contrary to generally accepted legal norms relating
to morality and public order that are recognized under principles of international law
are. Four such grounds are identified:25



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 other similar types of discrimination that
violate generally accepted legal norms recognized under principles of internationallaw;

Incitement to or promotion of child pornography or other sexual abuse of children;orA determination that an applied-for gTLD string would be contrary to specificprinciples of international law as reflected in relevant international instruments of
law.

93.

The present Objection is based upon the fourth ground, namely that the string, in thecontext of the Application, would be contrary to specific principles of international law
as reflected in relevant international instruments of law.

94.

The four grounds are similar insofar as they all correspond to a notion of contrariety togenerally accepted norms of morality and public order. If a situation of contrariety tointernational law does not relate to morality and public order, then an objection cannot
stand. At the same time, the Panel notes that the fourth ground is different from thefirst three in an important way. The first three grounds each provide a specific basis
for a finding that the string is “contrary to generally accepted legal norms relating to
morality and public order that are recognized under principles of international law.”
They refer to specific actions deemed contrary to the relevant norms, i.e., “incitement
to or promotion of […] violent, lawless action”, “discrimination” and “sexual abuse ofchildren”. The fourth ground, by contrast, leaves open the scope of further possible
substantive violations, but imposes an important requirement: the string must be
contrary to specific principles of international law that rise to the level of generally
accepted legal norms relating to morality and public order.

26

95.

Under the overall requirement of contrariety “to generally accepted legal norms
relating to morality and public order that are recognized under principles ofinternational law”, the fourth ground leaves it to the discretion of the Expert Panel todetermine if the applied-for gTLD is contrary to a specific principle or principles ofinternational law relating to morality and public order. The three preceding grounds
provide context which may assist the Expert Panel in determining the kinds ofprinciples of international law that are sufficiently specific, and the kinds of grounds
considered sufficiently serious, to restrict the right to freedom of expression of the
Applicant.

96.

The Panel notes that the first three grounds mentioned in section 3.5.3 could
potentially afford a basis for necessary and proportionate restrictions on free
expression under international law, in terms, for example, of Article 19(3)(b) and
Article 20(2) of the ICCPR. There are other grounds on which free expression may belimited, i.e.: respect for the rights or reputations of others, national security, publicorder, public health or morals. In the Panel’s view, the reference to “morality” and“public order” in the first paragraph of section 3.5.3 of the Guidebook does not
exclude limitations of free expression on such other grounds as are mentioned in the
ICCPR. While also accepting that – as underscored in section 3.5.3 of the Guidebook– state practice on the interpretation of these provisions (including the right to free
expression) varies, in the Panel’s view there is a specific principle of international law,reflected in relevant international legal instruments, which permits limitation of free
expression on public health grounds.

7.4. The Merits of the Objection

97.

The Independent Objector alleges that the applied-for gTLD string, viewed in context
with the intended purpose of the gTLD as stated in the Application, would be contrary
to a specific principle of international law as reflected in relevant international
instruments of law, namely the right to health. He argues that his appreciation of the27

.MED gTLD is directly linked to his appreciation of the concept of health, since theabbreviation “med” for medical and medicine is inextricably connected to health. On
the other hand, while agreeing that the term “med” is related to the term “health”, theApplicant argues that they are not inextricably connected, since a wide variety ofissues that may be applicable to the general field of health will not apply to the term“medicine” or “med”. In his Additional Written Statement, the Independent Objector
relies on a Resolution adopted by the Sixty-sixth World Health Assembly on 27 May
2013 to argue that health-related domain names should not be treated as belonging to adifferent category from the .HEALTH gTLD. The Independent Objector also cites to
the Safeguard Advice issued by ICANN’s Governmental Advisory Committee (GAC)
on 11 April 2013, which advises that additional safeguards be put in place for a rangeof sensitive strings including .MED. The Applicant argues that the Resolution of the
Sixty-Sixth World Health Assembly and the GAC Advice do not contain generalprinciples of international law for morality and public order.

98.

The Independent Objector lists several instruments of international law that confirm
the existence of a right to health and concludes that the promotion and protection ofhealth is inherent in the due respect of generally accepted legal norms of public orderthat are recognized under fundamental principles of international law. He argues thatthe right to health extends to access to reliable and trustworthy health-related educationand information.

99.

According to the Independent Objector, the Applicant should demonstrate how its
policies and decision-making will be properly connected to the public authorities,
national as well as international, that are under a public international law obligation torespect, protect and fulfill the right to health.

While the Applicant agrees thatgovernments have a role to play in fulfilling the right to health, it submits that not all
aspects related to health or medicine are to be dominated or controlled by states. The
Applicant supports the inclusion of health as a fundamental, international human rightand recognizes the importance of access to reliable and trustworthy health-related
information.
28

100.

The Independent Objector has framed his Objection in terms of the right to healthrather than in terms of public health as a valid ground for limiting freedom of
expression. There are analytical differences between the right to health as an individual
human right (enshrined, for example, in Article 12 of the International Covenant
Economic, Social, and Cultural Rights (“ICESCR”)) and public health as a ground forlimiting freedom of expression (in terms, for example, of Article 19 of the ICCPR). It
is worth exploring these differences to cast light on the state of international law in this
area.

101.

The right to health is defined by the United Nations Committee on Economic, Social
and Cultural Rights as the right to the highest attainable standard of physical andmental health.6 In the interpretation of the Committee, the right to health also includes
the right to receive and have access to information about health.7 As the terms of
Article 12 of the ICESCR indicate, the principal obligor is the state. The Independent
Objector has however stressed that “not only public authorities, but also the private
sector have responsibilities vis-à-vis the protection of human rights.” The Panel does
not consider it necessary to come to a definitive view on the question of the extent towhich, if any, non-state actors may be bound by international human rights obligations,because, as explained below, the right to health question can be resolved by reference
to the content of the right.

102.

Where public health appears as a ground for restricting freedom of expression, as forexample in the case of Article 19 of the ICCPR, it has permissive rather thanobligatory effects. States are permitted to limit the exercise of free expression on
public health grounds. But they are not obliged to do so – at least not in terms of
Article 19 of the ICCPR.

6

United Nations Committee on Economic, Social and Cultural Rights, General Comment No. 14, The right tothe highest attainable standard of health (art.12 of the Covenant on Economic, Social and Cultural Rights), 11
August 200, E/C. 12/2000/4, para. 9.
7Id., para. 11.

29

103.

It is conceivable that an obligation to restrict freedom of expression may arise as partof a state’s obligation vis-à-vis the right to health. But such a restriction would still
have to satisfy the conditions in the limitation clause in Article 19 (or other equivalent
provisions protecting free expression). A restriction of free expression cannot bejustified solely on the basis of its purported positive consequences on the right tohealth. To do so would result in endless expansions in the permissible limitations of
freedom of expression by reference to consequentialist arguments about the impact thata particular restriction could have on the enjoyment of other rights. Moreover, such
restrictions must be both necessary and proportionate.

104.

Furthermore, as the Independent Objector has himself noted, the information-related
element of the right to health is the right to have access to information that is reliable
and trustworthy. It does not follow from this right that a state has a duty to censor all
information on health that is not deemed reliable and trustworthy.

105.

The above analysis of the relationship between the right to health, freedom of
expression and public health as a ground for limiting free expression informs theapproach of the Panel. The Panel accepts that the right to health is a specific principle
of international law, but that right has to be considered in light of the right to freedomof expression and of the limited grounds upon which it is permissible to restrict thisright.

106.

Starting from those premises, the Independent Objector bears the burden of provingthat the applied-for gTLD string, in light of the Application, would be “contrary” to theright to health, that a restriction on freedom of expression would be permissible under
section 3.5.3 of the Guidebook, and hence that the Objection should be sustained(Article 20 of the Procedure). The Panel finds that the Independent Objector has failed
to discharge his burden of proof in this case.

107.

The Independent Objector has not established how the right to health requires that theoperation of the string must “be properly connected to … public authorities who are30

under a legal obligation to protect the right to health.”

He affirms, but fails toestablish, that the right to health prohibits the dissemination of health-related
information, on a commercial basis or otherwise.

108.

The Independent Objector claims that the private sector has responsibilities vis-à-vis
the protection of human rights, but links these responsibilities to the idea of a possible
interference with the obligations imposed on public authorities by international law:“[p]roviding medical related information on a worldwide basis”, he writes, “mightinterfere with efforts of public authorities to fulfill their obligations” underinternational law. (emphasis added)

109.

The Independent Objector has not demonstrated to the Panel’s satisfaction that thecapacity or efforts of public authorities to fulfill their international obligations byprotecting and promoting the right to health would be affected by the applied-for
gTLD string and, furthermore, how such alleged interference by the applied-for gTLD
string (in the context of the intended purpose thereof) would be contrary to a specificprinciple of international law relating to public morality, public health or public order..

110.

Even if the Panel were to assume, arguendo, that the capacity and efforts of publicauthorities to protect and to promote the right to health might be adversely affected, itwould still be necessary to show that morality and public order – or any of the othergrounds on which limitations of free expression are justifiable under international law– are engaged in a way that justifies a limitation on freedom of expression. Free
expression cannot be limited merely on the grounds of policy convenience. As noted
earlier, the threshold for a permissible restriction is higher. In the case of publichealth, the restriction must also be shown to be necessary to the protection of publichealth. The Independent Objector does not meet this necessity test.

111.

Even if one were to consider the Independent Objector’s case exclusively on right tohealth grounds, and not take into account the principles governing the limitation of
freedom of expression, the Objection would have to fail. In fact, in the view of the31Committee on Economic, Social and Cultural Rights, information accessibility inrelation to the right to health “includes the right to seek, receive and impart
information and ideas concerning health issues.” It does not include the right to beprotected from the mere risk of misleading or unreliable information. Had there been
proof of a significant risk of dissemination of misleading or unreliable information, ora deliberate intention to this effect, the Panel’s assessment may well have differed.
But the Independent Objector has offered no such evidence. For its part, the Applicant
has provided various assurances, most notably in relation to the administration of the
gTLD.

112.

The Panel thus finds that the Independent Objector has failed to bridge the large gap
between, on the one hand, his bare allegation that the capacity or efforts of states tofulfill their obligations under the right to health might be affected by the applied-for
gTLD, and, on the other hand, a demonstration of how such a scenario would amountto contrariety to general principles of international law for morality and public order.
The Objection must therefore fail.

7.5. The Alternative Remedy

113.

In the event the Objection is not successful, the Independent Objector seeks analternative remedy. He asks this Panel “to hold the present Objection is valid as longas the Applicant has not provided solutions for the serious objections raised”. The
Independent Objector does not provide details of this alternative remedy or of its basis
in the Guidebook or the Procedure. The Procedure indicates quite clearly that theavailable remedies are “limited to the success or dismissal of an Objection and to therefund by the DRSP to the prevailing party, as determined by the Panel in its Expert
Determination, of its advance payment(s) of costs pursuant to Article 14(e) of thisProcedure and any relevant provisions of the applicable DRSP Rules.” This Panelfinds that there is no basis in the Procedure for the alternative remedy sought by the
Independent Objector.
32

114.

This does not take away from the serious concerns raised by the Independent Objector.
However, the very difficult policy questions surrounding the delegation and operationof health-related strings are not matters for this Panel to decide. It was not in particular
this Panel’s task to decide on matters of public interest broadly defined, although theexpression “Limited Public Interest” might suggest otherwise. This Panel was asked
only to determine whether the Objection could be sustained on the basis that theapplied-for gTLD string (in the context of its intended purpose) was contrary to
general principles of international law for morality or public order. It was not, in otherwords, the task of this Panel to determine whether granting the Application advances
the public interest in a more general sense. This Panel’s task was to impartially apply
the tests as they are found in the Guidebook and as they may be understood from a
consideration of the broader context in which they came to be formulated.

8. DETERMINATION115.

For the reasons provided above, and in accordance with Article 21(d) of the Procedure,
the Panel

DISMISSES the Limited Public Interest Objection to Charleston Road RegistryInc.’s Application for the string .MED brought by the Independent Objector;

DECLARES that the prevailing party for the purpose of cost advance refund under
Article 14(e) of the Procedure is Charleston Road Registry Inc.; and

DISMISSES all other requests in these proceedings.

33

Mr. John Gaffney

Professor Guglielmo Verdirame

Co-Expert of the Expert Panel

Co-Expert of the Expert Panel

Professor Fabien Gélinas
Chair of the Expert Panel

Date: 19 December 201334