THE INTERNATIONAL CENTRE FOR EXPERTISE OF THE
INTERNATIONAL CHAMBER OF COMMERCE

CASE No. EXP/504/ICANN/121

ICANN AT-LARGE ADVISORY COMMITTEE (ALAC)
(USA)
vs/
DOTHEALTH, LLC(USA)(Consolidated with case No. EXP/505/ICANN/122
ICANN AT-LARGE ADVISORY COMMITTEE (USA) vs/GOOSE FEST, LLC (USA))This document is a copy 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 CENTRE FOR EXPERTISE
INTERNATIONAL CHAMBER OF COMMERCE

EXP/504/ICANN/121

ICANN At-Large Advisory Committee (ALAC) (USA)vs/
DotHealth, LLC (USA)Consolidated with EXP/505/ICANN/122
ICANN AT-LARGE ADVISORY COMMITTEE (USA) vs/ GOOSE FEST, LLC(USA)

Expert Determination

Professor Jan Paulsson

13 January 2014

TABLE OF CONTENTS

The Applicant …………………………………………………………………

3

The Objector …………………………………………………………………

3

Defined Terms ………………………………………………………………..

4

The Procedural Framework …………………………………………………

5

Overview ………………………………………………………………………

6

Grounds For The Objection …………………………………………………
a) Standing …………………………………………………………..
b) Community ……………………………………………………….
c) Substantial Opposition …………………………………………...
d) Targeting ………………………………………………………….
e) Detriment ………………………………………………………….

9
9
9
12
14
15

Response By The Applicant …………………………………………………
a) Standing …………………………………………………………..
b) Community……………………………………………………….
c) Substantial Opposition…………………………………………..
d) Targeting………………………………………………………….
e) Detriment…………………………………………………………

19
19
20
22
22
22

Assessment …………………………………………………………………….
a) “Communities” in general ……………………………………….
b) “Global Internet communities” …………………………………
c) .health in particular ……………………………………………...
d) Standing …………………………………………………………...

24
26
28
33
40

Determination …………………………………………………………………

41

Page 2

THE APPLICANT

DotHealth, LLC
345 Walthery Ave,
Ridgewood, N.J. 07450
USA
Represented by :- its Chief Executive Officer
Andrew Weissberg
weissberga@gmail.com+1-201-378-3199- Mr. Don C. Moody and Mr. John M. Genga
The IP & technology Legal group, PC
15260 Ventura Blvd , Suite 1810
Sherman Oaks, CA, USA
don@newgtldisputes.com; john@newgtldisputes.com+1 888 402 7706. + 1 818 444 4582
THE OBJECTOR
At-Large Advisory Committee (ALAC)ICANN, 12025 Waterfront Dr, Ste 300
Los Angeles, 90094-2536
CA, USA
Represented by its Chair:
Olivier MJ Crépin-Leblond+1-310-578-8647
ALAC-Objections@atlarge-lists.icann.org

Page 3

DEFINED TERMS

gTLD

generic top-level domain.

Dispute Resolution
Procedure.

Attachment to Module 3: New gTLD Dispute Resolution
Procedure.

GAC

ICANN’s Government Advisory Committee.

Guidebook

The New gTLD Applicant Guidebook, approved by ICANN on
20 June 2011, updated on 11 January 2012 and 4 June 2012.

IFHIMA

International Federation of Health Information Management.

IFIP

International Federation of Information Processing.

IMIAInternational Medical Informatics Association.

Module 3

see Objection Procedures.

NGO

non-governmental organization.

Objection

Objector’s Objection dated 13 March 2013.

Objection
Procedures

Module 3 of the Guidebook: New gTLD Dispute Resolution
Procedures for Governmental Advisory Committee Advice on
New gTLDs and formal third-party objections.

PolicyThe GNSO Report of 11 September 2007 entitled “Introductionof New Generic Top-Level Domains” as adopted by ICANN’s
Board of Directors on 26 June 2008.

Response

Applicant’s Response dated 6 June 2013.

Rules

Rules for Expertise of the International Chamber of Commerce.

TLD

Top-level domain, aka “string”.

Page 4

THE PROCEDURAL FRAMEWORK

1.

The present Determination assesses the validity of a Community Objection to

the New gTLD Application submitted by DotHealth as a candidate to serve as registry
operator for the string .health. Such Objections are defined in subsection 3.2.1 of the
Guidebook as based on a claim that:
There is substantial opposition to the gTLD application from a significant
portion of the community to which the gTLD string may be explicitly or
implicitly targeted.

Subsection 3.5.4 makes clear that a Community Objection will be successful only if
the Objector satisfies each of the four following tests :The community invoked by the objector is a clearly delineatedcommunity; and

Community opposition to the application is substantial; and

There is a strong association between the community invoked and theapplied-for gTLD string; andThe application creates a likelihood of material detriment to the rights
or legitimate interests of a significant portion of the community towhich the string may be explicitly or implicitly targeted. Each of thesetests is described in further detail below.

2.

In addition to the Objection Procedures and the Dispute Resolution Procedure,

the rules applicable to the Determination are the Rules of Expertise of the ICC,
supplemented by the ICC Practice Note on the Administration of Cases under the
Attachment to Module 3 of the Guidebook.

Page 5

3.

The place of the proceedings is Paris. They were conducted exclusively inEnglish. All communications among the Parties, the ICC, and myself have been
electronic. The file was consolidated with EXP/505/ICANN/122 by the ICC Centre
for Expertise on 7 May 2013.

4.

The Objection is dated 13 March 2013. The Response is dated 6 June 2013. I

was informed of my appointment by the Centre on 11 July 2013.

The file wastransferred to me under cover of a letter from the ICC dated 2 August 2013, and I
confirmed receipt thereof on 8 August 2003.

5.

This draft Determination was submitted for scrutiny to the Centre within the

45 day time limit set down in Article 21(a) and (b) of the Procedure.

Page 6OVERVIEW
6.

ICANN'S New gTLD Program was given its public launch in June 2011.

DotHealth, in its Application originally posted on 13 June 2012, affirmed its belief
that “the .health gTLD provides for a meaningful opportunity to structure anddistinguish a world of online health information and resources that all healthstakeholders can trust.”
7.

The Applicant describes Neustar, Inc., as “the world’s leading provider of

essential clearinghouse services to the global communications and Internet industry”,
and states that Neustar, which is one of three corporate shareholders holding at least
15% of DotHealth’s shares, is the Applicant’s “backend provider”.
8.

The Applicant takes the unsurprising view that everyone is concerned byhealth: “Throughout the world, people rate health one of their highest priorities andconcerns”.

But the Applicant goes further, mentioning the danger presented by“increasingly accessible access [sic] to misleading or fraudulent health information”
and stating its “mission” to be “to establish health as a safe, trustworthy and secure
top-level domain for global health stakeholders” by establishing – “in enterprisecollaboration” with Neustar – a seriesof policies, safeguards and standard operating procedures for the .healthgTLD that collectively comprise our proposed registry services andprocedural framework.

9.

To achieve this objective, the Applicant states that it has executed an exclusive

agreement with LegitScript – “the healthcare industry’s lending provider of online
fraud intelligence and monitoring services”. DotHealth says that its proposed policies

Page 7

and registry services have been developed from numerous global and regional healthscience industry organizations (identifying four such organizations by name). It adds
that it has in place “trademark notification services” operated “in conjunction with theTrademark Clearinghouse” and intended to serve as a central repository for verified
information pertaining to trademark rights.
10.

At the same time, the Applicant indicates that .health could be valuable to“market segments of industries” apart from physicians, hospitals, and other provider
organizations. It gives the examples of health-conscious restaurants which mightmarket their menu options; entities engaged in medical tourism and travel andhospitality in general, such as hotels and cruise ships; and employers wishing to use
health names to disseminate information about their insurance programs or services.
11.

ALAC raises the ground of Community Objection against DotHealth’s

Application. Its Objection was submitted to the ICC on 13 March 2013.

12.

The Community Objection is not the only possible obstacle to the success ofan application. It is important to understand, as a matter of proper regulatory
attribution of authority, that my assessment of the Community Objection is limited tothe specific criteria set out in Paragraph 1 above. This is not the place to determine,for example, conformity with "generally accepted legal norms of morality and publicorder that are recognized under principles of international law". I do not mean toassume or suggest that such an inquiry is called for (or not) with respect to thisApplication, but seek only to point out that those are the criteria pertinent to anotherObjection, classified as the "Limited Public Interest Objection", which is not beforeme.

Page 8GROUNDS FOR THE OBJECTIONa) Standing
13.

ALAC explains that its standing to object is justified by its status as theprimary organisational home within ICANN for individual Internet users. ALAC sits
at the top of a pyramid comprised of so-called At-Large Structures which, once
accredited by ICANN, become members of the appropriate regional At-Large
Organisations (RALOs). Each of the five RALOs is represented on ALAC by three
persons, two appointed by the RALO and one by ICANN's Nominating Committee.
ALAC proceeded pursuant to subsection 3.3.2 of the Guidebook to organise what is
known as the New gTLD Review Group to facilitate the process of developing andassessing potential objections. In this case, the Review Group received and consideredcomments from the International Medical Informatics Association. The Objection was
finally approved by more than three RALOs before being approved by vote by
ALAC.
b) Community
14.

ALAC recognises that a "Community Objections" cannot be successful unlessthe objector (or the community it seeks to represent) can be regarded as "a clearlydelineated community". ALAC seeks to demonstrate the reality of such a community
by relying on the sympathetic attitude to its Objection which it ascribes to theInternational Medical Informatics Association, which ALAC describes as follows:
The International Medical Informatics Association (IMIA ; www.imia.org) plays
a major global role in the application of information science and technology inPage 9the fields of healthcare and research in medical, health and bio-informatics.
The IMIA’s basic goals and objectives are to:promote informatics in healthcare and research in healthcare andresearch in health, bio and medical informatics.



advance and nurture international cooperation.

to stimulate research, development and routine application.

move informatics from theory into practice in a full range of healthdelivery settings, from physician’s office to acute and long term care.

further the dissemination and exchange of knowledge, information andtechnology.



promote education and responsible behaviour.

represent the medical and health informatics field with the World HealthOrganization and other international professional and governmentalorganizations.

15.

ALAC explains that IMIA is a Swiss legal entity established in 1989 after its

initial creation in 1967 as a Special Interest Group of the International Federation ofInformation Processing (“IFIP”). It is a non-governmental organization with “closeties” to the World Health Organization and to the International Federation of Health
Information Management (“IFHIMA”). ALAC describes the WHO as the “directing
and coordinating authority for health within the United Nations system”, and explainsthat IFHIMA has since 1968 “supported national associations and health record
professionals to implement and improve health records and system.”

Page 10

16.

In addition, ALAC observes that IMIA comprises member societies from 57

countries. These are active “in areas ranging from Health or Medical Healthcare
Informatics to Telemedicine and Biomedical Engineering.”

IMIA also has six“corporate” and 44 “academic” institutions among its members “from around theworld”, as well as individual “corresponding members” from countries that do nothave an appropriate organization eligible to become an IMIA Member Society.

17.

ALAC describes IMIA as a “bridge organization” and states that its objectives

include:

moving theory into practice by linking academic and research
informaticians with care givers, consultants, vendors, and vendor-based
researchers;leading the international medical and health informatics communities
throughout the 21st century;

promoting the cross-fertilization of health informatics information andknowledge across professional and geographical boundaries; and18.

serving as the catalyst for ubiquitous worldwide health information
infrastructures for patient care and health research.

Given its status and activity, as described by ALAC, IMIA should in ALAC’sview be regarded as “the representative of the global community of medical andhealth informatics professionals from public, private and academic sectors”, and assuch “a clearly delineated community” in the sense of subsection 3.5.4 of the
Guidebook.

ALAC adds that by virtue of its “goals and objectives” the IMIA

“community” has developed a “strong” relationship with the global health community
in general, “understood as the individuals and entities who provide health-related

Page 11

services and the beneficiaries of health care”. ALAC argues that information scienceand technology in the fields of healthcare and research in medical, health and bioinformatics ultimately benefits the entire global health community, and that theInternet in particular enables members of this community to communicate, toexchange products and services, and to inform and educate.

c) Substantial Opposition
19.

ALAC recognizes that a "Community Objection" must also demonstrate"substantial" opposition from a "significant" portion of the relevant community.
ALAC's demonstration in this respect proceeds primarily by reference to theinclusiveness of IMIA. ALAC notes that IMIA includes organizations representing
medical and health informatics professionals at a national level, corporations,academic institutions, and individuals. ALAC states that IMIA’s designation as an
NGO in “official relations” with WHO, and its partnerships with IFHIMA and IFIP,
as well its status as “liaison organization” for the health informatics technicalcommittee of the International Organization for Standardization (ISO), are evidenceof the recognition of its stature and expertise.

IMIA’s history and broad-based

membership, in ALAC’s words, “lend credence to it having a highly accepted andrecognized stature which commands the support and attention of the community it
represents”.
20.

ALAC goes on to argue as follows:
Acknowledging the extensiveness and diversity of IMIA’s membership, theobjection by IMIA, in speaking for all its members, would constitutesignificant expression of opposition relative to the community it represents,
which is taken to be the global network of professionals working in the science

Page 12of processing data for storage and retrieval of health knowledge.

Suchrepresentation renders unnecessary for each of its members to submit an
objection to DotHealth, LLC’s application for the .health gTLD. The fact thatit boasts and represents members operating in several sectors (i.e. public,
private, academic and individual persons) spread across numerous countries
makes it a legitimate representative in expressing significant opposition to thepresent application.
Therefore, IMIA in being regarded as the established network for global
community of medical and health informatics professionals, presents as aclearly significant portion, if not all, of the global medical and healthinformatics community.

21.

ALAC also invokes and relies upon the fact that other entities "have shared

our concerns over DotHealth, LLC's application". In particular, it mentions “GAC
Early Warnings” from the Governments of France and Mali against DotHealth’s
application for the .health gTLD, and notes that the Government of Mali’s Early
Warning was supported by Argentina, a GAC member. ALAC goes on to review thefollowing expressions of concern from NGOs:
Twenty-three comments were received and published on the Application
Comments Forum, thirteen of which were submitted by entities and/or
individuals affiliated with those entities, which/who mostly comprise health care
professionals, and which/who expressed either an objection or reservation to
DotHealth, LLC’s application for the .health gTLD based on community
objection grounds. Concerns were raised by (1) Save the Children, (2) The
Cochcrane Collaboration, (3) Drugs for Neglected Diseases initiative (DNDi),(4) Medicus Mundi International Network, (5) Health Innovation in Practice, (6)International Society for Telemedicine and eHealth (ISfTeH), (7) Health On the
Net Foundation, (8) World Federation of Public Health Associations, (9) ISQua– International Society for Quality in Health Care; while an objection wasPage 13raised by (10) American Hospital Association. The eleventh comment was an
objection received from the (11) Association of Corporate Counsel, a global bar
association that promotes the common professional and business interests of inhouse counsel serving the professional and business interests of lawyers whopractice in private sector legal departments, and the twelfth comment was an
objection from (12) IMIA.

d) Targeting
22.

ALAC seeks to demonstrate that the .health string explicitly, or implicitly (byinference, based on public perception of the string), targets the community on behalfof which the objection is raised. It argues that the community “represented by IMIA”
is comprised of international medical and health informatics communities who use
and provide information technology tools for the benefit of health sector, thus
“involving and impacting the global health community in general”.

23.

DotHealth, in ALAC’s view, also seeks to have the same impact. DotHealth’s

stated goal, per its Application, is “to establish .health as a safe, trustworthy andsecure top-level domain for global health stakeholders”. Point 18(a) and (b) of its
application mention the following categories as stakeholders: physicians andhealthcare professionals, institutions (health services) and patients (consumers), as
well as the associated industries (pharmaceutical industry, medical tourism, foodindustry, health insurance, etc.).

24.

As for DotHealth’s claim that the .health gTLD has support from the National

Association of Boards of Pharmacy (NABP) , the Inter-American College ofPhysicians and Services (ICPS) , the Association of Black Cardiologists, and thePage 14

World Federation of Chiropractic, ALAC states that it is “mindful” of IMIA’s statureas the global network of experts working in the science of processing data for thehealth sector and “hence, the need to balance the support for DotHealth’s application
against the weight of IMIA’s representation and objection and the concerns of others
to the same.”

25.

Given the “sensitivity” of the .health gTLD, ALAC adds that it is “also guided

by the French Government’s argument that it would not be in the public interest to
entrust the responsibility for operating .health gTLD to an entity which is notaffiliated with, endorsed by, or otherwise formally connected to the global healthcommunity”.

26.

In conclusion, ALAC asserts that DotHealth lacks “sufficient legitimate

interest in the .health gTLD”.

e) Detriment27.

Finally, ALAC seeks to expose the "likelihood of material detriment to therights or legitimate interests of a significant portion of the community. It reasons thata community may invoke the following “types of harm” as constituting “material
detriment”: (1) damage to the reputation of the community; (2) disregard of theinterest of the community, including in effective security protection for Internet uses;(3) interference with “core activities” of the community, including those that depend
upon the Domain Name System; and (4) concrete or economic damage to thecommunity.

Page 15

28.

In particular, ALAC asserts that the present Application creates the likelihoodof material detriment to the legitimate interests of the global public health community
because health is a highly-regulated sector having safeguards that include, forexample, licensing, monitoring and enforcement, and the strings associated withregulated sectors are likely to invoke a level of implied consumer trust. Consumer
protection in health is particularly important within the online realm, as national orinternational rules cannot be effectively enforced to provide complete protection,
thereby creating new risks for consumers, industry and governments. The reputationof the community represented by the Objector is based on the professionalism of the
IMIA membership and its affiliation with other well-known international entities,
WHO included, which supports the consumers’ trust in the medical and healthinformatics products, services and research provided by the IMIA members.

29.

As for DotHealth's claimed support from the organizations mentioned in

Paragraph 25 above, ALAC repeats that it is necessary to balance the breadth of
support for DotHealth’s application against the weight of IMIA’s objection and theconcerns of others. In this respect, ALAC asserts that IMIA considers that a .healthgTLD with “insufficient measures” to address these risks will “undermine consumer
trust” and harm “legitimate enterprise, competition and the growth of the healthindustry”; a commercial entity without links to the global health community should
not, in ALAC’s view,

be entrusted with this responsibility.

ALAC pursues its

argument as follows:
It is IMIA’s view that DotHealth, LLC’s application for the .health gTLD does
not provide sufficient guarantees to safeguard the public interest. The applicant
intends to market the gTLD to consumers and other health stakeholders but has

Page 16

validation processes which, according to IMIA, are insufficient. Without alegitimate link to the community and clarity on appropriate governance andpolicies, IMIA believes DotHealth, LLC will perpetuate a status quo that has
already proved detrimental and costly to the global public health community.
IMIA considers that the .health gTLD should only be delegated to an entity
endorsed by the health community and only after a broad-based consultation of
the community has taken place, where the rights, rules and responsibilities forthe operation of the domain have been properly elaborated. IMIA proposes that
there be at least one trusted place on the Internet for health and that .healthshould be considered for this purpose as a global asset for health. In otherwords, .health should have some sort of special, protected status, given thesignificance of the .health string to the health community and to public welfare.

30.

ALAC notes that DotHealth has responded that the sole fact that an applicant

is a commercial enterprise does not mean that it will not operate the .health string in
the public interest, and that DotHealth has emphasized its stringent registry policies
against illicit goods and services, rapid take down mechanisms, and proposed security
measures. ALAC acknowledges that these policies and measures “would appear toaddress some of the concerns that IMIA is voicing on behalf of the community”, but
insists that IMIA policies and measures go much further, and concludes that any
delegated .health gTLD “needs to be the subject of an externally imposed set of rulesthat safeguard public interest,” and that these rules “ought to be established byrelevant global stakeholders of the health community”. It is IMIA’s position, so
ALAC states, that the Applicant “cannot be trusted to self-police the .health domain
space.”

Page 17

31.

ALAC concludes that if in fact the Applicant were successful but then failed toachieve adequate protection of the .health string against the promotion of illicit goods
and services and the dissemination of false, misleading, and/or inaccurate healthinformation, “it is reasonably certain that public welfare will be harmed, health andlife could be endangered, and the reputation of the health industry damaged”. ALAC
adds that if the successful applicant of the .health gTLD places commercial interests
before public welfare interests, “which seems more than likely in the case of acommercial applicant”, those wanting to communicate important public service healthinformation to consumers through the Internet via the .health gTLD will “more thanlikely” be disfavored as against “income-generating subscribers which publicise
health related goods and services.

Page 18

RESPONSE BY THE APPLICANT
32.

DotHealth challenges ALAC’s standing to object. The basis for this challenge

will be outlined first, followed by a summary of DotHealth’s arguments with respect
to the four substantive issues.
a)Standing
33.

The New gTLD Policy, as given effect by subsection 3.2.2 of the Guidebook,permits institutions associated with "clearly delineated communities" that are"strongly associated" with the string for which an Application has been made to raise
an Objection under defined circumstances. DotHealth finds it symptomatic of the
problematic nature of ALAC's present Objection that it has chosen tochallenge applications for the .health string alone, while taking no initiative withrespect to a multitude of strings identified by ICANN's Government Advisory
Committee as related to "health and fitness", including (non-exhaustively) .care, .diet,.fit, .fitness, .healthcare, .healthy, .heart, .hiv, .hospital, .med, .medical, .organic,.pharmacy, .rehab., .surgery, .clinic, .dental, .dentist, .doctor, .dds, and .physio. If
there is a distinct "community" interested in "health", DotHealth suggests, it must also
be concerned with such other stings.
34.

According to the Applicant, ALAC claims to be pursuing the present objection“on behalf of the community represented by [IMIA].” But to conclude that ALAC
has an ongoing relationship with IMIA, it must first be found, under subsection
3.2.2.4 of the Guidebook (but in DotHealth’s words), that “the institutional purpose of
the ALAC is related to the benefit of the IMIA, that it performs regular activities that

Page 19benefit the IMIA.” In fact, so says the Applicant, ALAC has not attempted todemonstrate an ongoing relationship with IMIA, nor the existence of sharedinstitutional purposes, nor yet again regular activity that benefits IMIA.
35.

The Applicant observes that the Objection, at paragraphs 4-5, asserts that thepriorities of funding for ALAC’s objections as defined in subsection 3.3.2 of the
Guidebook support standing so long as ALAC publishes “the approved process forconsidering and making objections”. That is an error; this is a minimum requirement
for the funding of objections, not a criterion of standing. The purpose of funding
ALAC must, in DotHealth's view, be to enable the articulation of concerns ofindividual Internet users, not those of “a highly focused organisation representing
informatics specialists that does not participate in ICANN.”

36.

DotHealth concludes that: “It seems self-evident that the purpose of providing

funding to ALAC for objections was to facilitate objections reflecting the concerns ofindividual internet users, not the concerns of a highly focused organization
representing informatics specialists that does not participate in ICANN.”b) Community

37.

.DotHealth's essential criticism of ALAC's Objection is that “neither ALAC

nor IMIA represents a significant portion of the community to which the DotHealthApplication is both explicitly and implicitly targeted.” The word “health” covers abroad and complex range of preoccupations, not only affected by the human body's
biology and chemistry “but also by social structures, religious beliefs, politics andeconomics.” It is conditioned by environment, nutrition, education, occupation,

Page 20

access to health care, sleep, exercise, wealth, culture, religion, and countless otheraspects of life that are of interest to broad swathes of "stakeholders", listed by
DotHealth as "consumers, medical professionals, health care facilities, insurancecompanies, governments, educational and research institutions, pharmaceutical anddevice manufacturers, professional associations, labor unions, athletes and sports
organisations, teachers, clergy, counsellors, charitable organisations, and each andevery one of us, not to mention our pets." Individual categories of such stakeholders
themselves break down into highly differentiated subcategories, such as what one candescribe as the medical "industry", which includes not only medical practitioners but
also managers and administrators, underwriters and lawyers, advertisers, investors,
media, and shareholders of corporate manufacturers and suppliers of services.

38.

DotHealth adds that "health" has "no single authoritative spokesperson, nomonolithic representative organisation, and no sole arbiter of the oftentimescompeting inputs, goals, and resource-allocation priorities." It is "self-evident" that
this is not a "clearly delineated community". DotHealth concludes that ALAC has notdemonstrated that a significant portion of the medical informatics community opposes
the Application, "and does not even attempt to demonstrate that IMIA represents asignificant portion of the 'community' to which .health is explicitly or implicitly
targeted."c) Substantial Opposition

39.

DotHealth asserts that opposition to its Application was not voiced by

the members of the ALAC gTLD Review Group, but by a few NGOs connected to theWorld Health Organization. Only 12 of 187 NGOs "asked and lobbied by the WHO to

Page 21submit opposition" actually did so. These comments, including those in the “Early
Warnings” from France and Mali, were pure "cut and pastes" of texts suggested by theWHO. Ultimately ALAC itself expressed disappointment over "the lack of interest in
the issue".

d) Targeting

40.

DotHealth points out that the word "health" does not appear within IMIA’s

name, and that the public has no reason to know what IMIA is, or what informatics -"a highly specialised narrow field"-- denotes in relation to health. DotHealth also
points out that IMIA did not oppose other strings that appear to be much closer to
IMIA's profile, such as .med and .medical.

e) Detriment

41.

ALAC has the burden of proving detriment, but has not, in DotHealth's

submission, "identified ANY damage or risk of damage to the reputation of any of its
at-large structures or community due to the .health TLD.”

42.

DotHealth asserts that it will actively enforce the policies to which it is boundby virtue of its Application "through an unprecedented and unmatched modelof registry security and governance in partnership with the worlds' leading providersof fraud mitigation and rogue online pharmacy surveillance, Neustar and LegitScript,
both of which maintain active cooperation with numerous regulatory authorities andgovernment agencies throughout the world" and "will reserve and control the
allocation of prominent .health domain names representing commonly used medical
terms." At any rate, the Objection does not specify how DotHealth would interfere

Page 22

with the "core activities of ALAC's purported community (or of Internet users
more broadly)".

As for the assertions attributed to IMIA itself, they are "over-reaching and entirely non-specific" projections of harm to the reputation of IMIA' smembers and to consumer confidence; DotHealth states that it does not"understand any of this logic nor its place within the community objection."

Page 23

ASSESSMENT

43.

DotHealth’s Application has made it clear, under point 19 of its Application,that it does not pertain to “a community-based TLD”. The paradigm of a community
on behalf of which the possibility of an Objection of the present kind was conceived
readily emerges from the perusal of the Guidebook. The paradigm would be a groupof people who have in common not only well-established and distinct origins, beliefs,
traditions, and practices, but also the self-perception that they constitute a groupwhose distinctive interests it is important to preserve and promote. Its members, who
might also occupy a distinct economic niche or constitute a social minority, arereadily perceived by outsiders as forming such a group, and their concerns or indeed
grievances are readily comprehensible, because they are expressed by voices
recognised as reliable reflections of the feelings and legitimate ambitions of thecommunity.

The infinite and infinitely heterogenous groups of persons keenlyinterested in "health" -- including for example the "group" of hundreds of millions ofpeople who suffer permanent afflictions of various intensity -- is self-evidently at the
antipode of this paradigm.

44.

It is rather ALAC that asserts, as it must (see Paragraph 1 above), theexistence of a relevant community on behalf of which it purports to act. (This is the“Community invoked by the Objector”, in the words of subsection 3.5.4 of the
Guidebook). As an Objector, ALAC accepts (as it must) that it has the burden ofproving each of the four requisite elements of a successful Community Objection (seeParagraph 1 above). ALAC fails, as shall be seen, at each of these hurdles. But first

Page 24it seems necessary, given the arguments raised in support of the Objection, to dispel
the notion that the concerns of “communities” disqualify commercial corporations as
Registry operators.

45.

The Guidebook refers its readers, at page 1-2, to a “complete set of the

supporting documentation and more about the origins, history, and details of thepolicy developed background of New gTLDs Program”, to be found at
http://gnso.icann.org/issues/new-gtlds/. That site prominently displays a document
dated

22

October

2008

entitled

“New

gTLDs

Summary–

Principles,

Recommendations and Implementation Guidelines”.

46.

The Guidebook states in subsection 1.2.1, when defining “eligibility,” that

“established corporations, organizations, and institutions in good standing may apply
for new gTLDs”. The Guidebook furthermore asserts that “ICANN has designed the
New gTLD Program with multiple stakeholder mechanisms”. The Preamble is worth
quoting, since it gives substance to the notion of a public/private collaboration:
The program has its origins in carefully deliberated policy
development work by the ICANN community. In October 2007, theGeneric Names Supporting Organization (GNSO) – one of the groups
that coordinate global Internet policy at ICANN – formally completed
its policy development work on new gTLDs and approved a set of 19
policy recommendations.

Representatives from a wide variety of

stakeholder groups – governments, individuals, civil society, businessand intellectual property constituencies, and the technology community– were engaged in discussions for more than 18 months on such

Page 25

questions as the demand, benefits, and risk of new gTLDs, the selection
criteria that should be applied, how gTLDs should be allocated, andthe contractual conditions that should be required for new gTLD
registries going forward. The culmination of this policy development
process was a decision by the ICANN Board of Directors to adopt thecommunity-developed policy in June 2008.

47.

The proposition that private corporate entities are free to apply without

requiring the approval of public officials is unmistakably confirmed in a number ofways, notably by the fact that Module 2 of the Guidebook (a) requires government
support only with respect to strings that wish to use geographic names, such as thoseof a country or a city, and (b) contains detailed references to “evaluation procedures”
which notably provide that corporations listed on the world’s 25 largest stock
exchanges will be deemed to have passed the “general business diligence and criminal
history screening.”

48.

Among the “Implementation Guidelines” set down in the document dated 22

October 2008 (see Paragraph 45 of the Implementation Guidelines), we find the plain
words:
community should be interpreted broadly.
It therefore seems proper to begin by considering how a “broad interpretation” of“community” should be understood.

a) “Communities” in general

Page 26

49.

The word “community” refers not to a place, but to an abstraction: theconvergence of a sense of involvement with common interests. True enough, acommunity may have a physical center, in the sense that its members care about theamenities, prosperity, security, and reputation of the place where they live. One may
also speak, however, of communities which are unattached to a locale, such as thosecomprised of defenders of animal rights, speakers of Esperanto, adherents of
Swedenborg, or fans of the Ajax football team. Communities of persons united bytheir interests in how they earn their living may be especially strong, whether they
form permanent organisations (like professional associations) or not (like the entire
population segment of retirees).

50.

Communities do not necessarily create institutions. They do not necessarily

function as a polity, in the sense of identifying officials formally authorized to act intheir name, represent their interests, or formulate their policies. They may exist
without structures of self-governance, such as membership committees which admit
or exclude individuals by reference to more or less well-articulated standards ofqualification or conduct.

51.

It follows that communities may include individuals who are more or lessconcerned with the welfare of the group as a whole; it may contain cynics as well as
idealists, speculators as well as altruists. Naturally it may include subgroups or evenindividuals whose opinions and preferences are sharply at odds with those of the
majority of the community. Unless the community has in some constitutional sense
defined itself as excluding undesirable individuals, or at least limited their capacity tomake claims to speak as members of the group, someone looking at a community

Page 27

from the outside, and armed only with this broad understanding of what a“community” may be, has no rules-based criteria for evaluating who does or does notbelong to the community.

b) “Global Internet communities”

52.

The determination I am now charged with effecting deals – so the Guidebook

states in subsection 1.1.2.3 – with “global Internet communities”. That expression has
not, however, been given further specific definition. One must therefore proceed on
the basis of (i) discerning what the relevant rules do not say about “communities” and(ii) being attentive to implied constraints derived from principles developed by
ICANN.

53.

ICANN defines itself as a

private-public partnership dedicated to: preserving theoperational security and stability of the Internet, promoting
competition, achieving broad representation of global Internet
communities, and developing policy appropriate to its mission
throughbottom-up,

consensus-based

processes.

This

necessarily involves the participation of many stakeholder
groups in a public discussion. (Guidebook, subsection 1.1.2.3.)

54.

The same subsection further explains that a

Page 28

distinction should be made between application comments,
which may be relevant to ICANN’s task of determining whether
applications meet the established criteria, and formal
objections that concern matters outside those evaluation
criteria. The formal objection process was created to allow afull and fair consideration of objections based on certain
limited grounds outside ICANN’s evaluation of applications on
their merits.

55.

Six “Principles” are defined in the 22 October 2008 document referred to in

Paragraph 45. They are worded as follows:A

New generic top-level domains (gTLDs) must be introduced in
an orderly, timely and predictable way.

B

Some

new

generic

top-leveldomainsshouldbeinternationalized domain names (IDNs) subject to the approval
if IDNs being available in the root.

C

The reasons for introducing new top-level domains include that
there is demand from potential applicants for new top-leveldomains in both ASCII and IDN formats. In addition to theintroduction of new top-level domain application process has
the potential to promote competition in the provision of registry
services, to add to consumer choice, market differentiation andgeographical and service-provider diversity.

Page 29

D

A set of technical criteria must be used for assessing a newgTLD registry applicant to minimize the risk of harming theoperational stability, security and global interoperability of theInternet.

E

A set of capability criteria for a new gTLD registry applicant
must be used to provide an assurance that an applicant has thecapability to meet its obligations under the terms of ICANN’s
registry agreement.

F

A set of operational criteria must be set out in contractual
conditions in the registry agreement to ensure compliance withICANN policies.

G

The string evaluation process must not infringe the applicant’s
freedom of expression rights that are protected underinternationally recognized principles of law.

56.

It is striking that this list of principles focuses primarily on technicalperformance – reliability, coherence, and capability to secure compliance with
relevant protocols imposed by ICANN’s registry agreement.

To the extent that

abstract or aspirational principles are defined, they are those of a free market(“competition”, “consumer choice”, “differentiation” and “diversity”) and freedom of
expression, rather than regulatory constraints arising from a protective (orPage 30

authoritarian) desire to filter “wrong” or “unsound” views, or otherwise restrict accessso as to reserve it to those who are vetted by some type of official bodies.
57.

To put it another way, I see no reflection here of ALAC’s undisguised bias

against “commercial applicants” who “cannot be trusted to self-police the .healthdomain space and are “more than likely” to place “commercial interests before publicwelfare interests” (see Paragraphs 30-31 above). This type of policy was not the roadtaken, notwithstanding the lengthy and broad consultations described in The
Guidebook (see Paragraph 45 and the quotation in Paragraph 55 above). It is not forme to express preferences in this regard, but to apply the relevant rules as I find them.
The Objector’s animadversions against the Applicant miss the target; profit-seekers
may apply; the public interest is evidently intended to be protected by protocols
imposed by ICANN in a manner akin to that of regulators whose supervision
constrains the conduct of for-profit providers of public services generally.

58.

Twenty “Recommendations” are articulated in the 22 October 2008 document.

Broadly speaking, they concern matters relating to achieving realistic assurances thatstrings should be technically reliable, not infringe legal rights, and be run by entities
having adequate “financial and organizational operational capability” (Principle 8).

59.

Only three of these Recommendations merit mention for present purposes:

1

ICANN must implement a process that allows the introductionof new top-level domains.

Page 31The evaluation and selection procedure for new gTLD
registries

shouldrespect

theprinciples

offairness,transparency and non-discrimination.
All applicants for a new gTLD registry should therefore be
evaluated against transparent and predictable criteria, fully
available to the applicants prior to the initiation of the process.
Normally, therefore, no subsequent additional selection criteria
should be used in the selection process.

6

Strings must not be contrary to generally accepted legal norms
relating to morality and public order that are recognized underinternational principles of law.

Examples of such principles of law include, but are not limited
to, the Universal Declaration of Human Rights (UDHR), theInternational Covenant on Civil and Political Rights (ICCPR),
the Convention on the Elimination of All Forms ofDiscrimination

AgainstWomen(CEDWA)andthe

International Convention on the Elimination of All Forms of
RacialDiscrimination,

intellectual

property

treaties

administered by the World Intellectual Property organization(WIPO) and the WTO Agreement on Trade-Related Aspects ofIntellectual Property (TRIPS).

Page 32

20

An application will be rejected if an expert panel determinesthat there is substantial opposition to it from a significant
portion of the community to which the string may be explicitly
or implicitly targeted.

60.

Recommendation 1 focuses on fairness, transparency, non-discrimination, andpredictability. If there had also been an intent to adopt such a fundamental principle
as the requirement that the right to apply – whether generally or with respect to certain
strings – be exclusively reserved for non-profit entities, it surely would have been
explicit.

61.

Recommendation 6 clearly concerns matters of political interest, but I have noreason to presume that the Applicant in this case is to be suspected of the intent toadminister .health in violation of fundamental norms of “morality and public order”.

62.

Recommendation 20, of course, echoes the criteria for the present

determination (see Paragraph 1 above).

c) .health in particular
63.

The Guidebook states in subsection 1.1.2.4 that:A GAC Early Warning may be issued for any reason.

64.

That sentence, however, refers to the following footnote at the bottom of page

1-8:

Page 33

While definitive guidance has not been issued, the GAC has indicatedthat strings that could raise sensitivities include those that “purport torepresent or that embody a particular group of people or interests
based on historical, cultural, or social components of identity, such as
nationality, race or ethnicity, religion, belief, culture or particularsocial origin or group, political opinion, membership of a national
minority, disability, age, and/or a language or linguistic group (nonexhaustive)” and “those strings that refer to particular sectors, suchas those subject to national regulation (such as .bank, .pharmacy) or
those that describe or are targeted to a population or industry that isvulnerable to online fraud or abuse.”

65.

I have noted ALAC’s reference to the “sensitivity” of the .health string, as

well as its reference to the French Government’s Early Warning to the effect that
responsibility for operating that string must be given to an entity “affiliated with,endorsed by, or otherwise formally connected to the global health community.”

66.

ALAC has not explained what France may have meant by “the global healthcommunity”. Nor has ALAC indicated whether France’s Early Warning evolved into
the status of GAC Advice pursuant to subsection 1.1.2.7 of the Guidebook (in theabsence of which I see no reason to give it any weight in making this Determination).
For present purposes, I proceed on the basis that the relevant “community” is to beunderstood by reference to the criteria articulated, however diffusely, in the relevant
ICANN rules. As should already be clear, I have seen no warrant for considering thatthe .health “community” is limited to that of a) public health administrations or b)

Page 34

private health practitioners or bodies operating under public license or accreditation,or even c) private health professionals generally.

67.

This does not mean that I do not acknowledge the variable intensity of public

interest that may attach to different strings. ALAC seems to be missing the markwhen it refers to the “sensitivity” that should attach to .health; a more careful readingof the footnote quoted in Paragraph 64 above should have led to the conclusion thatthe issue is not one of the very subjective “sensitivities” referred to in the first part of
the footnote, but to the “particular sectors” alluded to in the second part as being
subject either to national regulation or vulnerability to online fraud or abuse. No
matter; I readily accept that there is greater public interest, and greater risk of socially
undesirable outcomes, if .health were poorly administered than if proper protocols
were ignored with respect to strings that target communities defined by their interestin philately or sports memorabilia.

68.

The footnote in question, however, begins with the acknowledgment that“definitive guidance has not been issued” – indeed without an explicit indication thatsuch guidance was forthcoming or anticipated or possible (such as might have been
signalled by the insertion of a “yet” before the words “been issued’). I draw theconclusion not that the unquestionably important concerns alluded to in that footnote
have been ignored, but are left to be addressed in the protocols imposed on those who
administer those strings that are of an inherently higher intensity of public concern.
69.

The more significant problem with ALAC's presentation, however, is its

introduction of the notion of a "health" community in the first place. In so doing, it

Page 35

misses the essential point that the "community whose interests" are putatively served
by a Community Objection is, as the Guidebook provides explicitly (see Paragraph 1
above), the community "invoked" by the Objector. That community is not necessarily
one conceived as coextensive with the inherent scope of the string, which may be far
broader. In other words, in the present case one needs to assess, in the first place, thecredentials of "medical informatics" as a "targeted” community rather than those of"health".

70.

True enough, it is natural to consider the ambit of the inherent reach of thestring itself. It would be natural to consider the population plausibly concerned by astring named ".astrophysics" when evaluating the contention that that string targets
the community of UFO enthusiasts. There is a connection -- but the world is full of
connections, and one must be guided by a sense of degree, proportionality, andrealism.

71.

The Objection itself reveals either that IMIA does not in fact represent the

global health community, or else that ALAC does not demonstrate an accuratecomprehension of it. ALAC states that "through its goals and objectives the IMIA
community [sic] has strong ties to the global health community in general, understoodas the individuals and entity who provide health-related services and the beneficiaries
of health care." It should be perfectly obvious that this conception misses importantsegments of human society devoted to "health" in a multitude of enabling capacities,
from entrepreneurs to agencies that test foods and medicines in the interest of publichealth. Moreover, "health" is not limited to the absence of disease and infirmity. And
to say that IMIA has "strong ties to the global health community in general" – which

Page 36

is doubtless likely true with respect to the particular, and highly specialized, interface
between medical informatics and those who use such technologies – illustrates thenebulousness of the claim that IMIA represents a "delineated" community which is
perforce affected by a string that evokes the interests of a putative "global healthcommunity".

72.

DotHealth's Response to the Objection makes the following points, which I

consider to be well taken (albeit perhaps expressed with unnecessary rhetoricalflourishes):
It would be nothing less than absurd for the Panel to accept the
ALAC’s [sic] to assert they represent everyone, everything,
everywhere and simultaneously be able to qualify for standing as adelineated community.

By definition, if either the ALAC or the

IMIA represent the stakeholders we intend to serve, they can’t be“delineated”. However, if they are a community themselves, they have
not offered one bit of proof that their community and its functions will
be targeted, negatively impacted, or that the opposition within
their community is substantial. Thus the Panel is compelled under
ICANN rules to dismiss the objection.

The vast majority ofthis objection contains mere speculation and miscellaneous concerns,
without any facts or proof to support these concerns…. [E]very oneof the concerns is voiced through the perspective of otherorganizations, rather than the ALAC itself…. ALAC has completely
ignored, and did not address, what must be proven within the four testsof the Community Objection framework.

Page 37

Many of their comments

would perhaps belong in a Public Interest Objection, but that is notwhat this Panel is charged with evaluating.

73.

This characterization of ALAC's objection is in my view accurate, and thisconclusion is fatal to it.

74.

The Internet, as operated under ICANN’s system of policies, is conceived as

an open vehicle for communication, intended to promote free expression, to enable
innovation, to increase consumer choice, and to permit the dissemination of diverse
data, analyses, and opinions rather than the orthodoxy proclaimed by public officials
who assert the authority to decide what is “true” or “sound”.

75.

For a string to succumb to a community-based Objection, its very name mustsurely bring to mind the identity of the Objector (or those sought to be protected by
the Objector) as its “target”. I cannot see how IMIA can be accepted as speaking for aclass of inevitable potential victims of Internet communications that concern the
diffuse aggregation of human beings who are vitally concerned by “health”. The very
notion of a community of “medical informatics” has not, moreover, been shown to me
as “clearly delineated”.

76.

We are certainly at a great remove from the case of a unitary ethnic orconfessional community reasonably apprehensive of its vulnerability to detractors andpersecutors, or other groups put at risk by reason of the particular circumstances orcharacteristics that define them.

Page 38

77.

If the existence of a clearly delineated community is not shown, it is

impossible, for want of reference points, to see how any opposition could becharacterised as substantial.

78.

Moreover, considering that the first of the various “factors” listed by the

Guidebook (at p. 3-23) as relevant in evaluating the materiality of opposition, namely“Number of expressions of opposition relative to the composition of the community,”
I can only record that the Objection, even assuming its factual accuracy as far as it
goes, gives me no basis to conclude that ALAC has discharged its burden to provethat the opposition to the Application among the persons and entities who deal
extensively with medical informatics is substantial.

79.

What ALAC (through IMIA) must show is that the Applicant here targets “theCommunity represented by the objector”. I have seen no convincing evidence that
“informatics” or “bioinformatics” is in fact the Applicant’s target, save in the purely
contingent sense that the registry would (a) understand that persons involved thereinwould have an interest in some of the communications pertaining to “health”, and (b)certainly not exclude them.

80.

The matter of “detriment” is, in my view, the locus of the Objector’s principal

misconception.

ALAC presumes that for-profit entities cannot be trusted to beproperly heedful of the public interest. That is a political stance, and controversial.
Some will say that history shows that great social benefit has resulted from private
innovation and enterprise. Others will say that public or quasi-public regulators are as
likely to stifle as to stimulate progress. It is not my role here to express any views as
to the policy choices made, except to point out that ICANN insists on the deliberative

Page 39and inclusive manner in which they have been made (see Paragraph 46 above), andthat the rules upon which the present determination is based rely on the agreements
and protocols which ICANN impose on registry administrators, as well as on the way
they are enforced and monitored to ensure that public concerns are considered, andreflected in conduct.

d) Standing
81.

Logic suggests that the issue of standing be resolved prior to any considerationof the merits. Indeed, subsection 3.2.2 of the Guidebook provides that “Objectors
must satisfy standing requirements to have their objections considered.” There is,however, considerable overlap between the requirement of standing (to be an“established institution associated with a clearly delineated community”) and the test
that the “community invoked” must be a “clearly delineated community” -- indeed somuch of one that it seems any Objector who succeeds in establishing standing has
perforce prevailed on the first out of the four merits tests under subsection 3.5.4 of the
Guidebook. That conclusion strikes me as sufficiently unusual to put into question
whether such was the intention of the drafters. For that reason I assumed pro tem that
the Applicant had standing, and assessed the merits, with the result that I reach theunhesitant conclusion that the Objection is unfounded. This confirms that standing
and merits are inextricably linked; as there is no “clearly delineated community” ofpresent relevance, the Objector, irrespective of its institutional quality, in this casesimply cannot be “associated with a clearly delineated community” since there is noso defined community to be associated with.

Page 40