THE INTERNATIONAL CENTRE FOR EXPERTISE OF THE
INTERNATIONAL CHAMBER OF COMMERCE

CASE No. EXP/409/ICANN/26

PROF. ALAIN PELLET, INDEPENDENT OBJECTOR(FRANCE)vs/
AFILIAS LIMITED(IRELAND)This document is a copy of 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 CENTRE FOR EXPERTISE
INTERNATIONAL CHAMBER OF COMMERCE
EXPERT DETERMINATION IN
EXP/409/ICANN/26

1

EXPERT DETERMINATION IN
EXP/409/ICANN/26
Table of Contents

INTRODUCTION

3STANDARDS APPLICABLE TO LIMITED PUBLIC INTEREST

7OBJECTIONSSUMMARY OF THE OBJECTION

9SUMMARY OF THE APPLICANT’S RESPONSE TO THE OBJECTION

11

THE OBJECTOR’S ADDITIONAL WRITTEN STATEMENT

13

THE APPLICANT’S RESPONSE TO THE OBJECTOR’S ADDITIONAL

15

WRITTEN STATEMENTFINDINGS OF THE EXPERT PANEL

16

DECISION

24

2

EXPERT DETERMINATION IN
EXP/409/ICANN/26

INTRODUCTION
1.

This expert determination arises out of a Limited Public Interest Objection byProfessor Alain Pellet, Independent Objector (“Objector”), to the application of
Afilias Limited (“Applicant”) for the generic top level domain (gTLD) “.health”(Application No. 1-868-3442).

2.

Objector’s address is:Professor Alain Pellet
16, Avenue Alphonse de Neuville92380 Garches
Franceemail: courriel@alainpellet.eu

3.

The Objector is represented by:
Ms. Héloïse Bajer-Pellet
15, Rue de la Banque
75002 Paris
Francetel : +33 1 53 45 47 47
email: avocat@bajer.fr
Mr. Daniel Müller
20, Avenue du Général de Gaulle
78290 Croissy sur Seine
Francetel: +33 1 39 76 52 29
email: mail@muellerdaniel.eu
Mr. Phon van den Biesen
De GroeneBocht, Keizersgracht 253
1016 EB Amsterdam,
The Netherlands
tel: +31 20 7 37 18 69
email: phonvandenbiesen@vdbkadvocaten.eu
Mr. Sam Wordsworth
3

24 Lincoln’s Inn Fields
London WC2A 3EG
United Kingdom
tel: +44 20 7813 8000
email: SWordsworth@essexcourt.net
4.

The Applicant’s address is :Afilias Limited
2 La Touche House, IFSC
Dublin 1
Irelandtel: +35318541100
email: jkane@afilias.info

5.

The Applicant is represented by :Mr. John Kane
Afilias Limited
2 La Touche House, IFSC
Dublin 1
Irelandtel: +35318541100
email: jkane@afilias.info
Mr. Bart Lieben
Bart Lieben BVBA / SPRL
Grétrystraat 54
2018 Antwerpen
Belgium
tel: +32 478 191990
email: bart@bartlieben.com

6.

The members of the Expert Panel in this case are:Professor George A. Bermann (Chair)
Columbia Law School
435 West 116th Street
New York, New York 10027
United States of America
email: gbermann@law.columbia.edu
Professor Attila Massimiliano Enrico Tanzi
Department of Legal Studies « A. CICU »University of Bologna
Via Zamboni 27/29
40126 Bologna
Italy
email: attila.tanzi@unibo.it, attilatanzi@hotmail.com, attila.tanzi@yahoo.com
4Mr. Erik G.W. Schäfer
Cohausz & Florack
Patent- und Rechtsanwälte
Bleichstr. 14
40211 Düsseldorf
Germany
email: eschaefer@cohausz-florack.de
7.

The principal procedural steps in this proceeding are as follows:(a) The Objector filed his Limited Public Interest Objection on March 12, 2013.
(b) The Applicant filed its Response on May 14, 2013.
(c) The Expert Panel was appointed on June 12, 2013.
(d) The Centre confirmed the full constitution of the Expert Panel and accordingly
transferred the file to the Expert Panel on July 31, 2013.
(e) The Expert Panel undertook the “Quick Look Procedure,” as described in
Article 3.2.2.3 of Module 3 of ICANN’s gTLD Applicant Guidebook,concluding unanimously that the Objection was not “manifestly unfounded
and/or an abuse of the right to object.”(f) On August 2, 2013, the Objector requested permission to file an additional
statement in support of the Objection. On the same day, the Expert Panel
granted that request, allowing the Objector until the close of business on
Wednesday, August 7, to submit such additional statement, on condition (1)that the statement not exceed 2500 words or 10 pages, whichever is less, and(2) that the statement not address issues already addressed by both parties, butrather limit itself to those issues that arose from the Applicant’s Response.
Anticipating that the Applicant might seek likewise to submit an additional
statement, the Expert Panel also ruled that, if the Objector does file anadditional statement and the Applicant wishes to respond to it, the Applicant
may do so, on condition (1) that the statement not exceed 2500 words or 10
pages, whichever is less, and (2) that the statement not address issues alreadyaddressed by both parties, but rather limit itself to those issues that the
Objector had identified as new issues, and had addressed as such in its
additional statement.

5

(g) On August 4, the Objector’s representative, Phon van den Biesen, requested
that the Objector be given until the close of business on Monday, August 12 tosubmit its additional statement. On August 4, the chair of the Expert Panel, on
behalf of the Expert Panel, granted the requested extension, subject to thesame two conditions that the Expert Panel had previously imposed. The chair,again on behalf of the Expert Panel, informed the Applicant that if the
Objector does file an additional statement and the Applicant wishes to respondto it, the Applicant may do so by the close of business on Monday, August 19,
subject to the same two conditions that the Expert Panel had previously
imposed.
(h) On August 12, 2013, the Objector filed with the Expert Panel an additional
written statement.
(i) On August 19, 2013, Applicant’s Representative filed with the Expert Panel awritten Response to the Objector’s additional written statement.
(j) The Parties did not request that a hearing be held, and none was held.
(k) This Expert Determination is rendered within the 45-day time limit inaccordance with Article 21(a) of the Procedure.
8.

This proceeding is conducted subject to :Attachment to Module 3 of the gTLD Applicant Guidebook, New gTLD Dispute
Resolution Procedure (“Procedure”)
Rules for Expertise of the ICC (“Rules”)
Appendix III to the ICC Expertise Rules, Schedule of expertise costs forproceedings under the new gTLD dispute resolution procedure (“Appendix III”)
ICC Practice Note on the Administration of Cases (“ICC Practice Note”).

9.

Pursuant to Article 5(a) of the Procedure, the language of all submissions andproceedings in this case is English.

10.

All communications by the Parties, the Expert Panel and the Centre were submitted
electronically, in accordance with Article 6(a) of the Procedure.

11.

Abbreviations Used in this Expert Determination are:6

“Objector’s Additional Statement”

Additional Written Statement filed by
the Independent Objector“Appendix III”

Appendix III to the ICC Expertise Rules,
Schedule of expertise costs forproceedings under the new gTLD dispute
resolution procedure“Applicant”

Afilias Limited“Applicant’s Additional Statement”

The Applicant’s Response to
Objector’s Additional Statement“Center”

ICC International Centre for Expertise

“GAC”

ICANN

Governmental

theAdvisory

Committee“gTLD”New Generic Top-Level Domain Name

“Guidebook”

Module 3 of the gTLD Applicant
Guidebook“ICANN”

Internet Corporation for Assigned Names
and Numbers“ICC”

International Chamber of Commerce“ICC Practice Note”

ICC Practice Note on the Administrationof Cases“IGO”

Intergovernmental Organization“IO”

Independent Objector“NGO”

Non-Governmental Organization“Objection”

Objection Form Completed by the
Objector“Objector”

Professor Alain Pellet, the Independent
Objector“Procedure”

Attachment to Module 3 of the gTLD
Applicant Guidebook, New gTLD
Dispute Resolution Procedure“Response”

Response Form
Applicant“Response Annex”

Annex to Response Form completed by
the Applicant
7completedbythe

“Rules”

Rules for Expertise of the ICC“Standards Memorandum”

Standards Memorandum for Morality
and Public Order Research“U.N.”

United Nations“WHO”

World Health Organization

STANDARDS APPLICABLE TO LIMITED PUBLIC INTEREST OBJECTIONS
12.

In order for a Limited Public Interest Objection to be successful, the Objector must
establish that the gTLD applied for is “contrary to general principles of internationallaw for morality and public order” (Guidebook, art. 3.5.3).

13.

According to the Guidebook, the grounds upon which a gTLD string applied for may
be considered as “contrary to general principles of international law for morality andpublic order” are:(i) incitement to or promotion of violent lawless action;(ii) incitement to or promotion of discrimination based upon race, color, gender,
ethnicity, religion or national origin (or similar types of discrimination that violate
generally accepted legal norms recognized under principles of international law);(iii) incitement to or promotion of child pornography or other sexual abuse ofchildren; and(iv) a determination that the string applied for would be contrary to specificprinciples of international law as reflected in relevant international legal
instruments.

14.

Further, according to the Guidebook, the “general principles of international law for
morality and public order” referred to must be found in international instruments,
including but not limited to:(i) the Universal Declaration of Human Rights (UDHR)(ii) the International Covenant on Civil and Political Rights (ICCPR)(iii) the Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW)

8

(iv) the International Convention on the Elimination of All Forms of Racial
Discrimination(v) the Declaration on the Elimination of Violence against Women(vi) the International Covenant on Economic, Social, and Cultural Rights(vii) the Convention against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment(viii) the International Convention on the Protection of the Rights of all MigrantWorkers and Members of their Families(ix) the Slavery Convention(x) the Convention on the Prevention and Punishment of the Crime of Genocide(xi) the Convention on the Rights of the Child.
15.

In making its determination, an expert panel may consider not only the applied forstring itself, but also the intended purpose of the gTLD as set forth in the application.

16.

The Objector in this case is an Independent Objector (“IO”). Under Article 3.2.5 of
the Guidebook, an IO is exempt from satisfying the usual standing requirements forraising objections, but must act in the best interests of the public who use the global
Internet, and must initiate and prosecute the objection in the public interest.

17.

As stated in the Objection, and apparently quoting from the Application, theApplicant’s intention in applying for the gTLD in question is “to provide a namespacefocused on wellness, fitness, and general physical and mental well-being,” and “tobrand ‘.Health’ as a namespace for general wellness information and provide ICANNaccredited registrars the tools to successfully promote ‘.Health’ domains.” Thus,“‘.Health’ will serve both those delivering health services and those seeking formal
and informal information” (Objection, para. 2).

SUMMARY OF THE OBJECTION18.

The Objector contends that the string applied for in this case would be contrary to
specific principles of international law as reflected in relevant international
instruments of law (Objection, para. 6).

9

19.

By way of background, the Objector underscores that “health” is not just anothercommodity, but rather “a crucial, existential need for each and every human being.”
According to the Objector, health has been recognized as a fundamental human rightin various international instruments, including the Universal Declaration of Human
Rights adopted by the United Nations (U.N.) General Assembly and, most notably,
the International Covenant on Economic, Social and Cultural Rights (article 12 ofwhich provides that the “States Parties to the … Convention recognize the right ofeveryone to the enjoyment of the highest attainable standard of physical and mental
health) and the constitution of the World Health Organization (“WHO”) (Objection,paras. 12, 15).

20.

The Objector invokes in particular a General Comment by the Committee on
Economic, Social and Cultural Rights of the U.N. emphasizing the specificimportance to health of the availability of, and accessibility to, information and ideas
concerning health – a principle reinforced by the case law of regional human rights
courts such as the European Court of Human Rights (Objection, paras. 17-19). He
also underscores the affirmative obligation of States under international law
instruments to ensure such availability and access (Objection, para. 20) – anobligation that international law also imposes on private actors, including notably
business organizations (Objection, para. 25).

21.

The Objector reports that various non-governmental organization had submitted
public comments with respect to this and other applications for the “.health” gTLD,
expressing concern about the reliability and trustworthiness of a “.health” gTLD thatis run by a private enterprise (Objection, para. 23), and that the Governments of Mali
and France had expressed similar concerns (Objection, paras. 3, 24). The Objector
further reports that the WHO in a letter to ICANN of April 11, 2012 requested
ICANN to postpone decisions on “.health” applications in order to allow for
consultations with the global health community which might lead to a satisfactory
structure of a “.health” gTLD (Objection, para. 34).

22.

Turning to the gTLD application, the Objector suggests that launching a “.health”
gTLD without giving due consideration to the fundamental rights and obligations at10

stake, and without including mechanisms strengthening those rights and obligations,would impair the right to health.
23.

More specifically, the Objector contends that the Applicant has failed to demonstrateawareness of its duty to ensure that the gTLD is organized and managed in such a way
as to promote health (including access to reliable health information) as a fundamental
right and to collaborate with public authorities in carrying out their own affirmative
obligations with regard to the right to health.

24.

The Objector notes that, despite health’s status as a fundamental right, the Applicant’s
request for the “.health” gTLD is framed largely in terms that are identical to thosethat Applicant used in applying for gTLDs relating to “pets,” “wine,” and “casinos”(Objection, para. 30). The Objector points out in this regard that the application
provides for no operating rules, policies or protective measures beyond those that the
Applicant practices for the 16 gTLDs for which it currently serves as registry operator
or beyond those proposed for the other gTLDs for which it is now applying(Objection, para. 31). According to the Objector, the Applicant, in responding to the
Objector’s preliminary assessment of the application, showed no recognition thatmanaging a “.health” gTLD is any different from managing other gTLDs on accountof the public interest in health or of the State’s affirmative obligations in regard to it.

25.

The Objector acknowledges that the Applicant made certain “public interest
commitments” on March 6, 2013 that substantially modify its proposed mode ofoperation of the gTLD, but insists that those modifications “do not remedy theconcerns set out in [the] Objection” (Objection, para. 32).

26.

By way of remedy, the Objector seeks a declaration by the Expert Panel upholding the
Objection or, in the alternative, a declaration by the Expert Panel that grant of theapplication should be made conditional on the Applicant’s providing solutions to theconcerns raised (Objection, para. 34).

SUMMARY OF THE APPLICANT’S RESPONSE TO THE OBJECTION
27.

Responding to the Objection, the Applicant initially remarks that, in order for an
Objection to prevail, the gTLD that is applied for must itself be contrary to accepted11legal norms of morality and public order recognized under principles of internationallaw. It then observes that the term “health” is not a term that is contrary to suchnorms, and that the Objection must therefore fail. (Response, p. 5).
28.

The Applicant cites an explanatory memorandum entitled “Standards for Morality andPublic Order Research” (“Standards Memorandum”) published by ICANN that
identifies three categories of standards for purposes of the limited public interest
objection: (1) standards or principles that are widely if not universally accepted, (2)standards that apply across various jurisdictions in every region of the world, and (3)standards that have not been included for upholding objections because they are only
accepted in a limited number of countries or are applied in substantially different
ways (Response, p. 7). The Applicant maintains that the standards contained in
categories (1) (e.g., sexual exploitation and sexual abuse) and (2) (e.g., incitement toor promotion of violent lawless action”) are entirely contrary to what is generally
understood as “health.”29.

According to the Applicant, among the reasons why ICANN has excluded certain
standards (e.g., sedition and subversive propaganda, libel, or antitrust law) from
qualifying as “norms relating to morality and public order recognized under generalprinciples of international law” is that the relevant standards vary substantially among
countries (Response, p. 8). The Applicant would place health in this same category
due to “the diversity and disparity of the different national laws, regulations, systems
and criteria for being recognized as a ‘health’ product, a ‘health’ service, or anindividual to be qualified to practice in the ‘health’ care sector.” The Applicant
concludes that no internationally recognized principles and standards exist in relation
to the use of the word “health.”30.

The Applicant acknowledges its “duty and stewardship role” in managing the“.health” gTLD and its obligation to perform that management in a “responsible, safe
and secure manner.” It describes the Objection as based upon speculation as to how agTLD might possibly be abused, and rejects that line of argument on the ground that
(1) any gTLD is susceptible of abuse, (2) ICANN has set up processes and proceduresthat provide adequate safeguards, and (3) assessments about how a gTLD, once
granted, will be managed are not relevant to the determination of an Objection
12

(Response, pp. 9, 11). In the Applicant’s view, “[i]t is not the Panel’s task todetermine how an applicant for a new gTLD should conduct its business” (Response,
p. 11).
31.

The Applicant claims to have already voluntarily committed to implementing
additional safeguards through the “Public Interest Commitment Specification” that it
submitted prior to the Objector’s filing its Objection. According to the Applicant, its
Public Interest Commitment Specification demonstrates awareness of its obligation toensure that the gTLD is properly set up and managed (Response, p. 11). Thus, theApplicant established (a) detailed eligibility requirements for the registration of adomain name under the “.health” gTLD, and (b) an “Acceptable Use Policy” that
permits the Applicant to deny or cancel registration of any registered name that isused in a manner that violates the “‘.health’ Acceptable Use Policy” reflecting
national and international standards. The Applicant emphasizes that a Public Interest
Commitment

Specificationisenforceable

under

ICANN’s

PublicInterest

Commitment Dispute Resolution Policy. Other commitments cited by the Applicant
include creation of a “.health non-compliance hotline,” enabling public authorities tocontact the Applicant to report non-compliance with the “.health” gTLD’s eligibility
and acceptable use policies and requiring the Applicant to initiate an investigation
within 24 hours” (Response, p. 12).
32.

The Applicant also professes commitment to putting additional processes andprocedures in place after consultation with the ICANN Board (Response, p. 9),
including channels of communication with national authorities and internationalorganizations to ensure that the “.health” gTLD performs in accordance withapplicable rules (Response, p. 12).

33.

According to the Applicant, ICANN’s Governmental Advisory Committee (GAC)
issued only “Safeguard Advice” in relation to the “.health” gTLD, a move that, in the
Applicant’s view, signifies that the Committee had no major concerns in relation tothis gTLD. The Applicant underscores that the Committee did not, as in other cases,
recommend to the ICANN Board that it reject the application (Response, p. 10).

34.

The Applicant asserts that its various commitments constitute compliance with therecommendation made by the GAC that gTLDs like “.health” should be “operated in a13

way that is consistent with applicable laws,” and more specifically should beequipped with a series of specific safeguards (Response, p. 12).1

THE OBJECTOR’S ADDITIONAL WRITTEN STATEMENT35.

In his additional written statement, filed August 12, 2013, the Objector records his
dissatisfaction with the assurances given by the Applicant in its Response, bothbecause he finds those assurances inadequate and because he views the Response as
failing to appreciate the status of health as a human right and the obligations
incumbent on States and the private sector in protecting that right (Objector’s
Additional Statement, para. 1).

36.

The Objector stresses that he does not direct his Objection to the use as such of theword “health,” but rather to the negative impact the new gTLD applied for would
have on that value. The Objector stresses that he also did not direct his Objection to
the string as such, but to other matters such as the “proposed safeguards, proposedmanagement, etc.” of the proposed gTLD (Objector’s Additional Statement, paras. 3,4). The Objector also disputes that the standards that the Objector invoked are among
those that ICANN had excluded from consideration (Objector’s Additional Statement,
paras. 5-9).

37.

The Objector underscores that both national and international authorities are under anobligation to protect the health of individuals, and cites the Applicant’s failure to
make mention of such health-related international organizations as the WHO(Objector’s Additional Statement, para. 10).

38.

The Objector insists that the fact that the GAC does not specifically oppose ICANN’sconsideration of “.health” applications does not lessen the fact that the GAC has

1

The safeguards called for by the GAC are that registry operators (1) include in their acceptable use policies a
requirement that registrants comply with all applicable laws, (2) see to it that registrants are notified uponregistration of this requirement, (3) require registrants who collect and maintain sensitive health and financial
data implement reasonable and appropriate security measures, (4) establish a working relationship with relevant
regulatory or industry self-regulatory bodies, in particular in combating fraud and other illegal activities, and (5)require registrants to provide a single point of contact for notification on a current basis of complaints andreports of abuse, as well as for communication with the relevant regulatory and industry self-regulatory bodies(Response, pp. 12-13).

14

expressed concerns over use of such a string – concerns that had led the Objector to
file his Objection in the first place (Objector’s Additional Statement, para. 12).
39.

The Objector asserts that the Applicant’s Response to the GAC’s Safeguard Advice isa “superficial” one (Objector’s Additional Statement, para. 13). While acknowledging
that the Applicant has moved away from its original position that the gTLD would be
subject to no content or use restrictions (Objector’s Additional Statement, paras. 2,15), the Objector continues to find that the Applicant fails to appreciate thefundamental nature of the right to health or the legal obligations of national andinternational authorities to protect that right.

40.

As to the anti-abuse measures and safeguard mechanisms that the Applicant intends
to put into place, the Objector asserts that the Applicant’s Public Interest
Commitment Specification does not explain how the Applicant would appropriatelyinteract with national and international public authorities in operating the “.health”
domain.

41.

Finally, the Objector cites the Resolution issued by the Sixty-sixth World Health
Assembly on May 27, 2013, dealing with “eHealth standardization andinteroperability” (reproduced as an annex to the Objector’s Additional Statement), tothe effect that all health-related top-level domain names making reference to healthshould be operated in such a way as to protect public health and support global publichealth objectives (Additional Statement, para. 16).

THE APPLICANT’S RESPONSE TO THE OBJECTOR’S ADDITIONAL WRITTENSTATEMENT42.

In Applicant’s Additional Statement, filed in response to Objector’s Additional
Statement, the Applicant acknowledges that health is a fundamental human right thatboth States and the private sector are bound to protect (Applicant’s Additional
Statement, p. 4).

43.

The Applicant asserts, however, that a gTLD application may be denied only on thebasis of an objection that is directed against a string, that is, against the “top-level
name,” and that the Expert Panel should refrain from taking into account “the15

possibility of someone registering a domain name in a TLD that can be used by theregistrant contrary to generally accepted legal norms relating to morality and publicorder that are recognized under international principles of law” (Applicant’sAdditional Statement, pp. 5- 6). In this context, the Applicant refers to certain recent
Expert Determinations relating to Existing Legal Rights Objections (annexed to
Applicant’s Additional Statement),2 in which expert panels declined to consider therisk that third parties might seek to register domain names likely to create confusion
with Complainant’s trademark.
44.

Thus, the Applicant insists that, in acting upon applications, ICANN does notconsider “the actual selection, registration and use of the domain name (Applicant’sAdditional Statement, p. 6). It asserts that the mere possibility that the use of a domainname might be contrary to the relevant international standards is not a reason fordisapproving the application for a gTLD (Applicant’s Additional Statement, p. 7).

45.

In any event, the Applicant insists that its application is in compliance with the
GAC’s Safeguard Advice and is responsive to requests for safeguards made both by
ICANN and by certain governments in connection with operation of the “.health”
gTLD.

46.

According to the Applicant, the safeguards and restrictions that the Applicant has
already put in place for a wide variety of gTLDs under its management demonstrate
the Applicant’s sensitivity to the issues surrounding domain name registration and use(Applicant’s Additional Statement, p. 7). The Applicant reaffirms its commitment toimplement any requirements, policies and safeguards imposed by ICANN and to takeany steps necessary to avoid abuse (Applicant’s Additional Statement, p. 8).

THE “QUICK LOOK” PROCEDURE47.

As noted in paragraph 7(e), supra, the Expert Panel performed the “Quick Look
Procedure,” as described in Article 3.2.2.3 of the Guidebook, concluding unanimously

2

I-REGISTRY Ltd v. Vipspace Enterprises LLC, Case No. LRO2013-0014, July 4, 2013); Express, LLC v. Sea
Sunset, LLC , Case No. LRO2013-0022 (July 9, 2013); Blue Cross and Blue Shield Association v. Afilias
Limited, Case No. LRO2013-0004 (Aug. 16, 2013).

16

that the Objection was not “manifestly unfounded and/or an abuse of the right toobject.”
FINDINGS OF THE EXPERT PANEL
48.

Based on the Objection and the Response, the additional statements submitted by theparties, and the various annexes to these submissions, the Expert Panel makes thefindings that follow.

49.

A premise of the Objection in the present case is that health is a fundamental humanright and that, under various relevant international legal instruments (such as the
Universal Declaration of Human Rights, the International Covenant on Economic,
Social and Cultural Rights, and the United Nations Economic Commission for Europe(“UNECE”) Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters), protection of that right has
become an international legal obligation of the State as well as the private sector. The
Expert Panel does not understand the Applicant to contest these propositions, and it
accepts them. There can be no dispute that, as the Objector asserts, health is not justanother commodity, but rather “a crucial, existential need for each and every humanbeing,” and that this is recognized internationally.

50.

The Expert Panel also finds that the right to health protection may reasonably beunderstood to include a right of access to information concerning human health, asobserved by the United Nations Committee on Economic, Social and Cultural Rights
and implemented by such regional human rights courts such as the European Court of
Human Rights.

51.

However, the fundamental question in this case is not whether the right here asserted
exists, but whether, as the Objector claims, the string applied for here would becontrary to that right.

52.

Before squarely confronting this question, the Expert Panel addresses here two
threshold arguments advanced by the Applicant in this case.

53.

First, the Applicant asserts that, in order for an Objection to prevail, the gTLD that is
applied for – which in this case consists of the term “.health” – must itself be contrary17

to accepted legal norms of morality and public order recognized under principles ofinternational law. In the Applicant’s view, the Objection, and a fortiori the Expert
Panel’s assessment, should be focused exclusively on the proposed domain name assuch, and not on “the way Respondent will be managing the .HEALTH gTLD.”
Basically, according to the Applicant’s line of reasoning, the string “.health” should
not be deemed contrary to public order for the simple reason that the word “health” isin no way offensive to Internet users. Accordingly, few strings – perhaps“.Howtotorture,” “.Nazism,” “.Childpornography,” or “.Howtokillyourwife” – would
qualify as contrary to public order and morality.
54.

Relatedly, according to the Applicant, an Objection should not concern itself with themanner in which a string, once authorized, is actually used. The Applicant contends
that focusing on the eventual use or abuse of a string “is outside of the (Independent)
Objector’s mandate, which is limited to reviewing whether the string as such iscontrary to generally accepted legal norms of morality and public order that arerecognized under principles of international law” (Response, p. 11). “[T]heGuidebook does not provide the Objector with the means nor the authority to
speculate on how a top-level domain could potentially be abused, and whether or not
such abuse would qualify as behavior that is contrary to generally accepted legal
norms of morality and public order that are recognized under principles ofinternational law” (Response, p. 9).

55.

Thus, the Objector and the Applicant differ substantially as to the proper scope ofinquiry by an expert panel in a Limited Public Interest Objection. The Expert Panelaccordingly deems it necessary to clarify its understanding as to that scope.

56.

The Expert Panel finds that the Applicant’s position in this regard is mistaken.

57.

An expert panel charged with deciding a “Limited Public Interest” objection cannot
properly assess the compatibility of a proposed string with public order and morality
without taking into account the context of its application, including the likely effectsof the operation of the string on the Internet community. Indeed, such an inquiry
corresponds precisely to the mandate of such an expert panel. A GAC communiquéof April 11, 2013 issued in Beijing, supplied by the parties, specifically calls, in thecase of strings using the term “.health,” for safeguards against improper use to be18

implemented with respect to issues such as privacy, consumer protection, andregulatory compliance, all of which pertain to the operation, rather than theregistration as such, of a gTLD.
58.

The Expert Panel is not dissuaded from this view by the Applicant’s reliance on theExpert Determinations annexed to its Additional Statements.3 The objections in thosecases were filed within the framework of ICANN’s policy of protecting Existing
Legal Rights, largely in the trademark law field. In ruling on an Existing Legal
Rights Objection, an expert panel assesses whether attribution of the proposed gTLD
string would infringe upon the existing legal rights of the objector by taking “unfair
advantage of the distinctive character or the reputation of the objector’s registered or
unregistered trademark or service mark (‘mark’) or IGO name or acronym (asidentified in the treaty establishing the organization), or unjustifiably impairs thedistinctive character or the reputation of the objector’s mark or IGO name oracronym, or otherwise creates an impermissible likelihood of confusion between theapplied-for gTLD and the objector’s mark or IGO name or acronym” (Guidebook,art. 3.5.2, Procedure, art. 8(a)(iii)(bb)). In such cases, it would be beyond the scope ofan expert panel’s mandate to assess whether the rights of a trademark holder may be
impaired by registrants of second level names. In fact, a different kind of procedure isprovided within the ICANN system for the settlement of disputes over the alleged
infringement of trademark rights by the attribution of second level domains4.

59.

By contrast, the present Expert Panel has the task of establishing whether attributionof the proposed string would result in a violation of generally accepted legal norms of
morality and public order recognized under principles of international law. Such an
inquiry requires balancing the interests of the Applicant (as well as of potential
registrants of second level names) against broader public interests, including
protection of human rights. This in turn cannot be done without giving consideration
to the potential effects on the Internet community of the way in which a proposed
string is managed. It is not by chance that, under the new gTLD dispute resolution
procedures, Limited Public Interest Objections and Existing Legal Rights Objections

3
4

See supra, note 2.
ICANN Uniform Domain Name Dispute Resolution Policy, effective Dec. 1, 1999.

19

are determined by expert panels whose composition differs both in the number ofpanel members and in their expertise.5
60.

The Expert Panel is also unimpressed by the Applicant’s citation of ICANN’s
Standards Memorandum in support of the proposition that health must be excluded
from the category of “norms relating to morality and public order recognized undergeneral principles of international law,” due to the great diversity in health standards
across countries. The Applicant’s attempt in this context to assimilate health tosedition, libel or antitrust – which the explanatory memorandum cites as examples ofmatters in which the diversity of standards among countries prevents them fromachieving the status of international law norms – is unconvincing. Countries clearly
disagree over what amounts to sedition or libel and have widely different policies in
the area of antitrust. But there is no basis on which to conclude that countries differ
widely over the question of what constitutes health. The fact that some countries
achieve higher – indeed much higher – standards than others does not mean that they
do not understand health in the same way or that health lacks a near-universal
meaning.

61.

In conclusion, an expert panel does not look merely at the simple wording of the
proposed string, but also at its probable use and operation. Without doing so, an
expert panel could not possibly come to any determination as to whether the gTLD
that has been applied for would impair interests protected by any fundamental normof international law – and making such a determination is precisely an expert panel’smandate.

62.

Having rejected the threshold propositions advanced by the Applicant, the Expert
Panel now confronts the Objector’s challenge directly.

63.

First, the Objector questions whether, as a general proposition, a “.health” gTLD
should be run by a private enterprise – concern to that effect having been voiced by

5

In proceedings addressing Existing Legal Rights Objection, “[t]here shall be one Expert or, if all of the Parties
so agree, three Experts with relevant experience in intellectual property rights disputes” (Article 13(b)(ii)).
Differently, in proceedings involving a Limited Public Interest Objection “[t]here shall be three Experts
recognized as eminent jurists of international reputation, one of whom shall be designed as the Chair. The Chair
shall be of a nationality different from the nationalities of the Applicant and of the Objector” (Article 13(b)(iii)).

20

various non-governmental organizations as well as by two countries, France and Maliin particular.
64.

Second, according to the Objection, the Applicant has failed to demonstrateawareness of its duty to ensure that the gTLD is organized and managed in such a way
as to promote health as a fundamental right. More specifically, the Applicant isclaimed to have failed to provide mechanisms that would ensure that due
consideration is given to protection of that right.

65.

The Expert Panel takes up these arguments in turn, bearing in mind that the Objector
bears the burden of proof as to both.

66.

As for the abstract proposition that no “.health” gTLD should be run by a private
enterprise, the Objector has failed to adduce any evidence to that effect other than thestatements by certain NGOs and two countries. Significantly, the WHO, which has
unique standing in the field of public health at the international level, has not takenthat position. By urging consultation with the global health community before
application for a “.health” gTLD is acted upon, the WHO impliedly rejected that
position.

67.

Moreover, ICANN’s own GAC also rejected the proposition that the Objector
advances. Rather than categorically reject the grant of a string application of thepresent sort to a private enterprise such as the Applicant, the GAC merely issued“Safeguard Advice” in relation to the operation of the proposed gTLD. Significantly,
the GAC did not, as it did in other cases, recommend to the ICANN Board that it
reject the application.

68.

In sum, in the absence of supporting data or other evidence of some kind, the Expert
Panel cannot accept the Objector’s bald assertion that no private enterprise canreliably and responsibly manage a “.health” gTLD.

69.

The Objector’s second basic argument is that the Applicant has failed to demonstrateawareness of its duty to ensure that the gTLD is organized and managed in such a
way as to promote health as a fundamental right that is clearly established underinternational law.

21

70.

This is a legitimate concern. The Expert Panel recognizes that a “.health” string will
operate in a very sensitive domain in which the risks of a failure of due diligence orabuse, including fraud, are particularly high. Both the Objector and the Applicant
acknowledge that strings such as “.health” that are linked to the health sector are
likely to generate a high level of trust in consumers, inducing them to believe that
information available under that domain name is scientifically sound.

71.

The Expert Panel is thus called upon to determine whether the guarantees that the
Applicant proposes to put in place in order to manage the domain in conformity withpublic interest requirements are likely to be effective, especially, but not only, inregard to the elderly, children and persons with disabilities. For example, theConvention on the Rights of Persons with Disabilities, brought to the attention of theExpert Panel by the parties, binds contracting states to “ensure that private entities
that offer facilities and services which are open or provided to the public take into
account all aspects of accessibility for persons with disabilities… [t]o promote otherappropriate forms of assistance and support to persons with disabilities to ensure theiraccess to information… [t]o promote access for persons with disabilities to new
information and communications technologies and systems” (art. 9.2).

72.

Significantly, notwithstanding its position that the outcome of a gTLD application
should not be based on predictions about how the domain registry will be managed,
the Applicant’s Response enters in those matters in some detail (Response,
pp. 11-13). Indeed, as the Objector itself acknowledges, in March 2013, the Applicant
made a series of public interest commitments – in the form of a Public Interest
Commitments Specification – that reflect significant safeguards in connection withthe operation of the gTLD. The Expert Panel finds that the commitments made by the
Applicant are, by any standard, substantial and respond directly to the concerns that
had been voiced by the public health community up to that time. Accordingly, theExpert Panel finds that the Applicant has expressly acknowledged its “duty andstewardship role” in managing the “.health” gTLD and its obligation to perform thatmanagement in a “responsible, safe and secure manner.”73.

It is unrefuted that the Applicant has established detailed eligibility requirements forthe registration of a domain name under the “.health” gTLD. To that end, theApplicant’s Public Interest Commitments Specification states that “[o]nly persons or22

entities that are licensed as a healthcare provider qualify to be a registrant of a
.HEALTH domain name. Such license must be granted by a governmental body, or
an organization authorized by a governmental body to issue such licenses” (at p. 1).
This approach resembles the one recommended by the GAC in a communiqué issued
in Beijing on April 11, 2013 (i.e., a month after the Applicant issued its Public
Interest Commitments Specification), regarding strings that are linked to regulated or
professional sectors.6 The Expert Panel thus assumes that the attribution of a second
level domain name will be conditioned on the registrant clearly indicating the kind oflicense it has been granted in the health sector and the institution that has issued it.
74.

The Expert Panel does not read this particular commitment as implying that the
Applicant will necessarily consider it sufficient for potential registrants to have been
granted a license by a single State. This might not be a sufficient guarantee, as healthstandards vary significantly from country to country, and in any given case may
significantly fall short of internationally recognized standards. Thus, the Expert Panelregards it as essential that the Applicant, in managing the gTLD, be attentive to thehealth standards developed by the relevant governmental institutions at theinternational level, of which the WHO is the prime example, and remain in close
communication with them in the interest of safeguarding the right to health.

75.

Significantly, the Applicant has adopted a “‘.health’ Acceptable Use Policy,” byvirtue of which it will be “able to block or even remove domain names in the.HEALTH gTLD if the registrant does not comply with national or international
standards” (emphasis added).

76.

The Expert Panel also recognizes the importance of the Applicant’s establishing asolid working relationship with national and international regulatory bodies in thefield of health. However, the Applicant has committed to opening and maintaining
channels of communication with national authorities and international organizations
to help ensure that the “.health” gTLD performs properly. The Applicant has
undertaken to create a “.health non-compliance hotline” which would enable publicauthorities to contact the Applicant to report non-compliance with the “.health”

6

In that document the GAC recommended that “[a]t the time of registration, the registry operator must verify
and validate the registrants’ authorisations, charters, licenses and/or other related credentials for participation inthat sector” (p. 10).

23

gTLD’s eligibility and acceptable use policies and to require the Applicant to initiate
an investigation within 24 hours. The Expert Panel does not have a sufficient basis
upon which to conclude that the Applicant will fail to collaborate with publicauthorities in carrying out their affirmative obligations with regard to the right tohealth.
77.

It is also unrefuted that a Public Interest Commitments Specification such as the onethat Applicant has made is enforceable under ICANN’s Public Interest Commitment
Dispute Resolution Policy.

78.

The commitments described here put to rest the Objector’s argument that the
Applicant framed its request for the “.health” gTLD in terms that are largely identicalto those it used in applying for gTLDs, such as “pets,” “wine,” and “casinos,” that do
not implicate the public interest to the extent that a “.health” gTLD does. The fact isthat the applications for those other gTLDs apparently contain no comparable
commitments.

79.

The Expert Panel thus finds that the Objector has failed to show that the Applicant isinsensitive to, much less unaware of, the importance of the fundamental right tohealth, the special responsibilities connected to the management of a “.health” gTLD,or the need to put mechanisms in place to ensure that the gTLD is administered andoperated in a way capable of preventing abuse and guaranteeing the consumer’s rightto accurate and reliable health information.

80.

At the end of the day, the Objector essentially invites the Expert Panel to speculate as
to whether a domain that, from all appearances, is designed to support thefundamental right to health value will fail in practice to do so. The Objector cannot
meet its burden of proof in that fashion.

81.

As a fallback position, the Objector urges that the Expert Panel, in eventually
supporting the Application, declare that grant of the application should be madeconditional on the Applicant’s providing further safeguards responsive to the concerns
raised. Even if it were disposed to make a determination imposing such conditions,
the Expert Panel cannot validly do so. The procedures under which the Expert Panelis conducting these proceedings require expert panels to limit themselves to deciding
24whether or not an Objection is successful. Whatever outcome it reaches, an expert
panel must render an unconditional determination.
82.

Pursuant to Article 21(g) of the Procedure, the Expert Panel agrees with the
publication of this Expert Determination in full on the ICC’s website.

DECISION
83.

In light of the above reasons, the Expert Panel hereby renders the following Expert
Determination:
1. Prof. Alain Pellet, the Independent Objector and the Objector in this matter, hasfailed to establish that the gTLD “.health” applied for is “contrary to generalprinciples of international law for morality and public order” (Guidebook, art.
3.5.3).
2. The Applicant Affilias Limited prevails in this proceeding and the Objection is
dismissed.
3. The Applicant is thus entitled to a refund of its advance payment of costs by theInternational Chamber of Commerce pursuant to Article 21(d) of the Procedure.

84.

This Expert Determination constitutes the Expert Panel’s final and binding findings.

6_____
November 2013____________________________
Prof. George A. Bermann
Chair of the Expert Panel25

Prof. George A. Bermann
Chair of the Expert Panel