New gTLD Recommendation 6 Community Discussion Group Terms of Reference
Preliminary Draft, 10 August 2010
Preface (for this preliminary draft only)
This document was prepared by Chuck Gomes as a preliminary draft to facilitate development of terms of reference for a community discussion group as recommended by the GAC regarding the implementation of GNSO New gTLD Recommendation 6 ("Strings must not be contrary to generally accepted legal norms relating to morality and public order that are recognized under international principles of law.") The content was developed solely by Chuck without consultation with other members of the GNSO and should not be assumed to represent the views of the GNSO or any participants in the GNSO. The underlying goal is to prepare terms of reference as quickly as possible so that the discussion group may begin quickly and hopefully provide input to the GNSO, to ICANN Staff and to the ICANN Board prior to the Board retreat in September.
The following steps and deadlines are recommended for finalizing the terms of reference:

  • With input from their respective constituencies as possible, the leadership of the GAC, ALAC and GNSO along with a representative from the ICANN new gTLD Implementation Team and an ICANN staff support person should finalize a second version of the terms of reference not later than 16 August and distribute it to the full email list for discussion & comment as well as to the participating SO's and AC's for their input.
  • A teleconference call of the full list membership should be held by 23 August to finalize the terms of reference and begin work, time permitting.


References

  1. GNSO Final Report – Introduction of New gTLDs: http://gnso.icann.org/issues/new-gtlds/pdp-dec05-fr-parta-08aug07.htm (Note recommendation 6 in the section titled ' SUMMARY – PRINCIPLES, RECOMMENDATIONS & IMPLEMENTATION GUIDELINES' as well as the 'Recommendation 6 Discussion' found later in the section titled ' TERM OF REFERENCE – SELECTION CRITERIA'.
  2. New gTLDs Draft Applicant Guidebook, version 4: http://www.icann.org/en/topics/new-gtlds/comments-4-en.htm (Note the portions of Module 3, Dispute Resolution Procedures, relating to new gTLD recommendation 6.)
  3. Letter from Heather Dryden, GAC Chair, to Peter Dengate Thrush dated 4 August 2010 regarding Procedures for Addressing Culturally Objectionable and/or Sensitive Strings: http://www.icann.org/correspondence/gac-to-dengate-thrush-04aug10-en.pdf


Name of the Group
The name of the group shall be 'New gTLD Recommendation 6 Community Discussion Group' or 'Rec6 CDG' for short.
Purpose of the Discussion Group
The primary purpose of the Rec6 CDG is to provide guidance to the ICANN new gTLD Implementation Team and ultimately to the ICANN Board with regard to the implementation of recommendation 6. The purpose is not to revisit recommendation 6 but rather to develop implementation guidelines that will address the concerns of the Governmental Advisory Committee (GAC) in a way that also balances the issues of freedom of speech and while also keeping in mind the global nature of gTLDs.
Discussion Group Tasks
The Rec6 CDG is asked to attempt to perform the following tasks:

  1. Address the concerns raised by the GAC regarding the terms 'morality' and 'public order' by possibly recommending other terms in their place
  2. Review the dispute resolution procedures related to recommendation 6 in the New gTLD Draft Applicant Guidebook, version 4, and identify areas where improvements may be needed (For convenience, relevant excerpts of the guidebook are included in Appendix A.)
  3. For each area identified in task 2 above, develop guidelines for improving the process including the possibility of developing:
    1. Measurable criteria for evaluating whether strings are offensive or objectionable based on international norms
    2. A way to involve governments and/or the GAC in the evaluation as applicable
  4. Deliver a report with any recommendations to the ICANN Board.


Key Assumptions
The following assumptions should guide the work of the Rec6 CDG:

  1. Recommendation 6 involves public policy issues for which the GAC should be involved, per the ICANN GAC mission.
  2. No one solution will satisfy all stakeholders because there are strongly divergent views on the underlying issues that recommendation 6 seeks to address.
  3. This is not a policy development process as defined in the ICANN Bylaws but rather a policy implementation review effort to address concerns of the GAC and ALAC.


Rules of Engagement
The following rules should guide the operation of the Rec6 CDG:

  1. This is not a forum for revisiting Recommendation 6 and rehashing debates that have occurred over long periods of time in the past few years
  2. Any recommendations considered should not attempt to create law or treaty, but rather should be consistent with legal norms that already exist
  3. There must be a global focus rather than an individual government or regional focus except in cases where a gTLD is restricted to a limited jurisdiction.


Group Membership & Leadership
The Rec6 CDG will be open to volunteers from all ICANN Supporting Organizations (SO's) and Advisory Committees (AC's) who are willing to constructively contribute to the tasks of the group and respond to the leadership of the group co-chairs. The chairs of the GNSO, GAC and/or ALAC or their designees will serve as co-chairs of the Rec6 CDG.
ICANN will provide:

  • A designated staff support person to assist the group
  • A representative from the ICANN new gTLD implementation team
  • Administrative support
  • An email list
  • A wiki sight and/or other tools as needed


The GNSO, GAC and ALAC must identify one person who will serve as a primary liaison between the Rec6 CDG and their respective organizations; the co-chairs may serve in that capacity if so desired. Other SO's and AC's may also identity a liaison if desired.
Operational Guidelines & Timeline
In general, the working group should operate using a rough consensus approach. Every effort should be made to arrive at positions that most or all of the group members are willing to support. To the extent possible any recommendations produced should be commented on by the GNSO Council, the ALAC
If possible, the Rec6 CDT should deliver its report with comments from the GNSO, ALAC and GAC not later than 13 September 2010 to meet the 11-day advance publication that the Board requests for its retreat. If that is not possible, an interim report should be delivered that provides the status of the work to date, estimates for completion and possible recommendations.


Appendix A
Relevant Excerpts from New gTLD Applicant Guidebook, v.4, Module 3
The following excerpts related to recommendation 6 are taken from the New gTLDs Draft Applicant Guidebook, version 4, module 3.
3.1.1 Grounds for Objection
An objection may be filed on any one of the following four grounds:
. . .
Morality and Public Order Objection – The applied-for gTLD string is contrary to generally accepted legal norms of morality and public order that are recognized under international principles of law.
. . .
3.1.2.3 Morality and Public Order Objection
Anyone may file a Morality and Public Order Objection. Due to the inclusive standing base, however, objectors are subject to a "quick look" procedure designed to identify and eliminate frivolous and/or abusive objections. An objection found to be manifestly unfounded and/or an abuse of the right to object may be dismissed at any time. For more information on the "Quick Look" procedure, refer to the accompanying Explanatory Memorandum.
. . .
3.1.3 Dispute Resolution Service Providers
To trigger a dispute resolution proceeding, an objection must be filed by the posted deadline date, directly with the appropriate DRSP for each objection ground.
. . .
• The International Center of Expertise of the International Chamber of Commerce has agreed in principle to administer disputes brought pursuant to Morality and Public Order and Community Objections.
. . .
3.1.5 Independent Objector
A formal objection to a gTLD application may also be filed by the Independent Objector (IO). The IO does not act on behalf of any particular persons or entities, but acts solely in the best interests of the public who use the global Internet. In light of this public interest goal, the Independent Objector is limited to filing objections on the grounds of Morality and Public Order and Community. Neither ICANN staff nor the ICANN Board of Directors has authority to direct or require the IO to file or not file any particular objection. If the IO determines that an objection should be filed, he or she will initiate and prosecute the objection in the public interest.
Mandate and Scope - The IO may file objections against "highly objectionable" gTLD applications to which no objection has been filed. The IO is limited to filing two types of objections: (1) Morality and Public Order objections and (2) Community objections. The IO is granted standing to file objections on these enumerated grounds, notwithstanding the regular standing requirements for such objections (see subsection 3.1.2). The IO may file a Morality and Public Order objection against an application even if a Community objection has been filed, and vice versa. The IO may file an objection against an application, notwithstanding the fact that a String Confusion objection or a Legal Rights objection was filed. Absent extraordinary circumstances, the IO is not permitted to file an objection to an application where an objection has already been filed on the same ground. The IO may consider public comment when making an independent assessment whether an objection is warranted. The IO will have access to comments from the appropriate time period, running through the Initial Evaluation period until the close of the deadline for the IO to submit an objection.
Selection -- The IO will be selected by ICANN, through an open and transparent process, and retained as an independent consultant. The Independent Objector will be an individual with considerable experience and respect in the Internet community, unaffiliated with any gTLD applicant. Although recommendations for IO candidates from the community are welcomed, the IO must be and remain independent and unaffiliated with any of the gTLD applicants. The various rules of ethics for judges and international arbitrators provide models for the IO to declare and maintain his/her independence. The IO's (renewable) tenure is limited to the time necessary to carry out his/her duties in connection with a single round of gTLD applications.
. . .
For a Morality and Public Order Objection, the applicable DRSP Rules are the Rules for Expertise of the International Chamber of Commerce.
. . .
3.4.3 Morality and Public Order Objection
An expert panel hearing a morality and public order objection will consider whether the applied-for gTLD string is contrary to general principles of international law for morality and public order, as reflected in relevant international agreements. Under these principles, everyone has the right to freedom of expression, but the exercise of this right carries with it special duties and responsibilities. Accordingly, certain limited restrictions may apply. The grounds upon which an applied-for gTLD string may be considered contrary to morality and public order according to internationally recognized standards are:
• Incitement to or promotion of violent lawless action;
• Incitement to or promotion of discrimination based upon race, color, gender, ethnicity, religion or national origin;
• Incitement to or promotion of child pornography or other sexual abuse of children; or
• A determination that an applied-for gTLD string would be contrary to equally generally accepted identified legal norms relating to morality and public order that are recognized under general principles of international law.

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