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Nominet caused controversy recently when it announced its draft proposals to take down websites alleged to be facilitating copyright infringement without a court order. Despite Nominet’s insistence that this will only be applied as a last resort where there is a clear risk of “imminent serious harm”, a number of industry bodies have expressed their concern with the proposals.

Neil Watson, Head of Service Operations

Neil Watson, Head of Service Operations

ORG (Open Rights Group), ISPA (Internet Service Providers’ Association) and LINX (London Internet Exchange) have all criticised the draft proposals on the grounds that the take down is being applied without a fair trial and there currently appears to be no appeals process.

ORG argues: “ORG’s understanding is that Nominet’s current practices fail to comply with the European Convention on Human Rights (the Convention). It is an Article 6 right under the Convention to have an open fair and public hearing by an independent and impartial tribunal established by law. Article 6 rights cannot be waived.”

Nominet have stated the proposed measures would be enforced in the following situations. However, it’s important to point out this is not a definitive list and Nominet actually state that the proposals are not limited to the following:

  • Phishing
  • Fraud
  • The unlicensed sale of medicines or other regulated goods and services
  • Botnets
  • The domain is directly involved in the criminal distribution of counterfeit goods.

Whilst most would agree that we need to target such sites quickly and efficiently to protect Internet users, the main concern is that the realms of these actions could be expanded over time to cover less serious offences. Personally, I think if this had been limited to Phishing, Fraud and botnets it would have received much less criticism. With the ongoing debate within the industry over the DEA and its bias towards rights holders though, surely people’s perception will be that this is yet another attempt to take down websites that allegedly contain or facilitate the distribution of copyrighted material. A case of being found guilty before proving your innocence. The Government has already tried a similar approach as part of the DEA which would have required ISPs to take down the sites, but later had to reject the proposals following concerns from Ofcom.

Following this latest criticism it looks like Nominet may have to revise their draft proposals. A spokesman for Nominet said: “We had hoped to submit a proposed policy to our board in the December time-frame but following some recent public feedback it is clear that there are issues that require further discussion.”

We agree with ISPA, LINX and ORG that the current proposals are insufficient and that more thought needs to be given to an appeals process. We would prefer a system where websites are only removed as a last resort and in compliance with a court order which has independently judged the criminal nature of the site, a decision that shouldn’t be taken lightly. Without such safe guards all manner of websites could be subjected to unfair take downs. For example, consider the impact such proposals could have on websites such as eBay and Google.

Have your say!

Do you think Nominet’s current proposals are acceptable or do you agree that websites should only be taken down when in compliance with a court order? How do you think such proposals would affect your business? Let us know your thoughts on this subject by leaving us a comment below.

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