Draft advisory is a stark reminder of the legal liabilities and limitations of domain proxy services.
I’ve argued before that providing whois proxy service (commonly referred to as whois privacy, although technically they are different) isn’t free. A big reason is legal repercussions of serving as a proxy.
Technically, a proxy service is the registrant of the domain name and the service merely “licenses” it to the person who actually wanted to register the domain name. This makes the proxy service potentially liable if the licensee does something inappropriate with the domain name.
One central clarification: if a Registered Name Holder licenses the use of a domain name to a third party, a licensee, the third party is not the Registered Name Holder of record (or “registrant”). This advisory also describes under what conditions that a Registered Name Holder is to identify the licensee and to whom.
The advisory explains possible circumstances in which a proxy service would be required to disclose the licensee to avoid facing legal liability, and a suggestion on a timeframe for disclosing the licensee. For example, if a company provides “reasonable evidence of actionable harm”, such as trademark infringement, ICANN suggests that five days might be a reasonable limit in which to disclose the identity of the licensee. But ICANN is careful to point out that these definitions and deadlines would be up to a court or arbitrator to decide.