NEW GENERIC TOP-LEVEL DOMAIN NAMES (“gTLD”)
DISPUTE RESOLUTION PROCEDURE

Dissenting Opinion
by Prof. August Reinisch12 December 2013
relating toTHE EXPERT DETERMINATION
of 11 December 2013

issued by the Expert Panel,composed ofProf. August Reinische-mail:august.reinisch@univie.ac.at
Department of European,International andComparative Law,
University of Vienna
Schottenbastei 10-161010 Vienna, Austria

Mr. Piotr Nowaczyk
e-mail:piotr.nowaczyk@dentons.com
DENTONS
Rondo ONZ 1, 30th Floor
00-124 Warsaw
PolandTel. +48 22 24 25 705
Fax: +48 22 24 25 242

Mr. Ike Ehiribee-mail:ehiribe@aol.com
Castaldi 7 Stones
Commercial & IP Chambers
88 Kingsway Holborn
London WC2 B6AA
England, United Kingdom

in Case No.
EXP/412/ICANN/29

Prof. Alain Pellet, Independent Objector (France) v. Ruby Pike, LLC (USA)-2-

1. After having participated in an open exchange of views with my esteemed copanelists, during which we have tried to arrive at a mutually acceptable expert
determination in this case, I regret to find that this has proven impossible.
2. For the reasons outlined below, I am unable to concur with my colleagues’
substantive determination to uphold the Independent Objector’s (the “IO’s”)
Objection in the case under consideration.
3. However, I am in agreement with them as regards the finding that there is no basis
to assume the IO’s lack of independence and impartiality, that the IO has standing
in the present case and that there was no indication for a manifestly unfounded
objection which would have justified a “quick look procedure”.
4. I should state at the outset that I do share my co-panelists’ concern about theimportance of public access to reliable health-related information on the internet.
However, I am unable to agree that this concern and the potential threat of future
incorrect information received from websites/domains registered under the appliedfor gTLD string “.hospital” constitutes a ground for upholding an objection to theregistration of such a gTLD string.
5. As my colleagues have agreed, the scope of the Limited Public Interest Objection
is expressly limited to the four grounds enumerated in paragraph 3.5.3. of Module
3 of the gTLD Applicant Guidebook (the “Guidebook”) and “the wording of thisparagraph clearly indicates that this catalogue has an exhaustive character.”(Expert Determination of 11 December 2013, paras. 62, 63).
6. Pursuant to paragraph 3.5.3. of the Guidebook, “[a]n expert panel hearing a
Limited Public Interest objection will consider whether the applied-for gTLD stringis contrary to general principles of international law for morality and public order.”These principles are contained in a number of human rights instruments which arelisted in a demonstrative fashion in paragraph 3.5.3. of the Guidebook.
7. The same provision also contains an exhaustive list of four “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 ofinternational law.” These grounds are “Incitement to or promotion of violent lawless action;
 Incitement to or promotion of discrimination based upon race, colour,gender, ethnicity, religion or national origin, or other similar types of
discrimination that violate generally accepted legal norms recognizedunder principles of international law; Incitement to or promotion of child pornography or other sexual abuse ofchildren; or A determination that an applied-for gTLD string would be contrary to
specific principles of international law as reflected in relevantinternational instruments of law.” (paragraph 3.5.3. of the Guidebook).

-3-

8. In the present case, the IO has expressly limited his Objection to the fourth ground,i.e. he has argued that the applied-for string and its intended use would contravene“specific principles of international law as reflected in relevant international
instruments of law.”
9. Importantly, paragraph 3.5.3. of the Guidebook mandates that “[t]he panel willconduct its analysis on the basis of the applied-for gTLD string itself. The panelmay, if needed, use as additional context the intended purpose of the TLD as
stated in the application.”
10. In my view the majority misconstrues the grounds for objecting to gTLDs whichshould be primarily the string itself and could also take into account the intended
use of the string in a subsidiary way “as additional context”.
11. As my co-panelists concede in the Expert Determination there is nothing in thestring “.hospital” itself that is objectionable. It rather appears that, in their view, theintended use of this string is objectionable.
12. In their reasoning arriving at the result that the application is contrary to morality
and public order, my co-panelists state that “[m]orality and public order require all
the members of society, either public or private entities, to be extremely cautiousof human life and health.” (Expert Determination of 11 December 2013, para. 79).
Such caution would be required because unreliable information retrieved fromwebsites could cause serious harm to vulnerable people and to society at large.
13. Apparently this implies for the majority that the Applicant would have to ensure theveracity of content on websites registered at domains using the gTLD string“.hospital”. In my co-panelists’ view “the sensitivity of .Hospital has a different
dimension than gTLDs connected with banking or legal services since human lifeand health require greater care than pure commercial activity.” (Expert
Determination of 11 December 2013, para. 83).
14. In concluding, the majority states that that the “Applicant has failed to appreciate
the highly sensitive nature of the applied-for string .Hospital as articulated by theIO.” (Expert Determination of 11 December 2013, para. 85). Thus, the Objection isheld valid.
15. It is this finding that the intended purpose of the string “.hospital” by the Applicant
was considered “contrary to generally accepted legal norms relating to morality
and public order that are recognized under principles of international law” withwhich I am unable to concur.
16. In my view this construction of the subsidiary relevance of the intended purpose of
an applied-for string exceeds the powers of this expert panel.
17. It is not the task of an expert panel to rewrite the application standards for gTLD
strings and to supplement them with higher standards in the public interest. Rather,-4its task is limited to determining whether a specific applied-for string, taking into
account its intended use as stated in the application is “contrary to generally
accepted legal norms relating to morality and public order that are recognizedunder principles of international law.”
18. The grounds for objection listed in paragraph 3.5.3. of the Guidebook provide aclear indication that only a very limited set of particularly reprehensible behavior isobjectionable. The examples listed in the Guidebook referring to the incitement orpromotion of violence, unlawful discrimination and sexual abuse of children clearly
illustrate this.
19. The limited scope of the fourth ground of objection in paragraph 3.5.3. of theGuidebook is also evident in the ICANN Explanatory Memorandum of 29 October
2008. Under the heading "Morality and Public Order Objection Considerations in
New gTLDs" it stated that “[e]xtensive research has shown that it is difficult toidentify existing generally accepted legal norms relating to morality and publicorder. There are, however, peremptory norms of public international law fromwhich no derogation is permitted and which can be modified only by a subsequent
norm of international law having the same character (jus cogens), such as theprohibition of the use of force, the law of genocide, the principle of racial nondiscrimination, crimes against humanity and the rules prohibiting piracy and tradein slaves.” (ICANN, New gTLD Program Explanatory Memorandum, p. 3, available
at http://archive.icann.org/en/topics/new-gtlds/morality-public-order-draft-29oct08en.pdf). This implies that only certain particularly reprehensive acts and omissions
constitute grounds for objection.
20. This concept was taken up by the IO in stating his mission as one of protecting
against the promotion of seriously offensive behavior. According to the IO, “theessential criterion is not to determine whether or not the application is contrary to
the multiple potential interests of the public who use the global Internet. It is not
the mission of the Independent Objector to protect personal or commercial
interests of individual Internet users. The limited public interest objection aims atensuring that no applied-for gTLD string and its intended use is contrary tofundamental norms of public order and morality that are recognized underinternational law.” (Website of the Independent Objector, http://www.independentobjector-newgtlds.org/).
21. The IO also provides an illustration of the limited scope of objectionable application
by stating that “a limited public interests objection could be triggered in case anapplication promote unlawful activities or international crimes, such as childpornography, sale of counterfeit medicines, slavery, torture or genocide; in case it
endangers international public order or again in case it is obviously against moral
values that have been transcribed in international norms.” (Website of the
Independent Objector, http://www.independent-objector-newgtlds.org/).
22. As stated in paragraph 3.5.3. of the Guidebook, in order to take the intended use
into account, the IO and the Panel of Experts are required to look at theapplication itself.

-523. Applying these considerations to the present case, one may well consider that theapplication for a string “.hospital” which contains an indication that the intended
purpose of such a string might be the sale of counterfeit medicine or maybe also
the offering of unsafe medical treatment or other high risk medical services might
be objectionable.
24. However, I fail to see that the application by the Applicant indicates any intention ofinciting or promoting any such highly reprehensive behavior.
25. The Applicant is a commercial domain name provider who intends to offer domainsites with the gTLD string “.hospital”. It is the task of such a provider to ensure thatdomains are available and functioning and that specific users may register. The
prospective domain name provider in the present case is not itself active in thehealth or medical field and there is nothing in the application that lends itself topresume that it intends to engage in any activities like the sale of medicine, theoffering of medical treatment or other medical or hospital services, let alone in thesale of counterfeit medicine or other reprehensible behavior.
26. Thus, under the IO’s own standards it would appear difficult to image how thepresent application could be considered to be contrary to “fundamental norms of
public order and morality that are recognized under international law.”
27. One may criticize that Applicant’s purpose is primarily commercial, regarding theapplied-for gTLD string as mere “commodity”, but that does not render it contrary
to “morality and public order”.
28. I am sympathetic with the majority’s concern that the lack of a specific guaranteethat the Applicant will ensure that the information imparted through internet sites
registered with the “.hospital” gTLD will be reliable and trustworthy information isproblematic.
29. However, I cannot tell from the current ICANN registration prerequisites that suchan implied substantive, content-wise check is a precondition for a gTLD string
registration.
30. The majority relies heavily on the fact that the present application “does notinclude those specific protection safeguards listed at page 8 of the GAC’scomments.” (Expert Determination of 11 December 2013, para. 83). Indeed, on 11April 2013, ICANN's Governmental Advisory Committee (GAC) issued an Advice tothe ICANN Board which stated that extensive additional safeguards should be put
in place for a whole range of gTLDs including “.hospital”. (Available at
http://www.icann.org/en/news/public-comment/gac-safeguard-advice-23apr13en.htm).
31. The recommended safeguards comprise for all new gTLDs: (i) increased WHOIS
verification and checks; (ii) expanded terms of use by registry operators to mitigate
abusive activity; (iii) increased security checks by registry operators, (iv) constantrecord keeping by registry operators to identify frequent inaccurate WHOIS records
and security threats; (v) provision of mechanisms for the handling of complaints byregistry operators arising from the provision of inaccurate WHOIS information or-6the facilitation of infringement activity contrary to applicable law; and (vi) theidentification of real and immediate consequences for providing inaccurate WHOIS
information and engaging in infringement or unlawful activity.
32. In addition, the GAC recommended safeguards for new gTLDs carrying a higher
risk of consumer harm, which include the string “.hospital”, such as: (i) heightened
use policy requirements in the interest of consumers, (ii) information obligations ofregistrars in this request, (iii) security measures for sensitive health and financial
data, (iv) strategies to mitigate fraud and other illegal activities, and (v) theestablishment by registrants of single points of contact for complaints.
33. I agree with my co-panelists that “the issue is not whether ICANN will follow thesesuggestions or not because this Panel is only expected to examine the present
Application and cannot take into account possible amendments that may be madein the future.” (Expert Determination of 11 December 2013, para. 83).
34. However, I feel compelled to conclude that as long as ICANN has not adopted
these GAC recommendations and added specific additional requirements forapplications relating to the health sector, it would be inappropriate to demandcompliance with such recommendations from applicants in order to grant gTLDs.
35. This consideration is all the more relevant to the function of the Expert Panel
whose task is limited to ensuring that gTLD names, taking into account theirintended use, are not contrary to “fundamental norms of public order and moralitythat are recognized under international law”. It is not the Expert Panel’s
assignment to check compliance with registration prerequisites.
36. While I agree with my colleagues that “a hard case […] requires not only the simple
application of legal rules, but also the balancing of different values and rules”(Expert Determination of 11 December 2013, para. 89), I do not think that thiswould entitle us to rewrite ICANN’s current registration policy and usurp its
registration role.
37. Consequently, I have to dissent and would reject the IO’s Objection. I cannot seethat the IO has met the burden of proof establishing that the intended purpose of
the Applicant for the gTLD string “.hospital” as stated in its application is contrary to“fundamental norms of public order and morality that are recognized underinternational law.”______________________
August Reinisch(12 December 2013)