Two members of an objection panel come up with their own rules for whether a top level domain name is acceptable.
An International Chamber of Commerce panel has killed the .hospital top level domain name by siding with the Independent Objector in a Limited Public Interest Objection against Donuts.
I believe the panel wrote its own rules and came to its decision improperly. It went rogue.
And to back me up, I have a concise and clearly written dissent (pdf) by one of the panelists that backs up much of what I was thinking while reviewing the case.
Let me summarize how the panel came to its decision:
Health is important. Someone looking for a hospital during an emergency could find inaccurate information within the content of a .hospital website. Thus, .hospital shouldn’t exist without proper safeguards to ensure accuracy of all information on .hospital domain names.
Don’t believe me? You can read the determination (pdf). Here’s the key paragraph:
Furthermore, a need for a hospital often occurs in the event of emergency – unreliable information about healthcare providers can cause serious harm to vulnerable people and to society at large since there is usually no time for a critical consideration of health related information obtained from the Internet in such circumstances. This is the main reason for the highest standard of requirements for the present gTLD.
Apparently panelists Ike Ehiribe and Piotr Nowaczyk have never tried to look up hospital information on the web today.
As you read through the decision, you’ll see some definite bias by the panel.
For example, they’re biased in favor of any statements made by governments as compared to other internet constituents:
“The Expert Panel relies on GAC’s statement [about wanting safeguards for .hospital] since it is the body representing interests of multinational governments.”
They also rail against Donuts’ commercial purpose:
It is significant that the Applicant’s answer to question “18(c). What operating rules will you adopt to eliminate or minimize social costs?” is completely meritless since it concerns only prices for registering second level domains. Such a disregard for social cost of operating .Hospital provides a very clear indication of the commercial purpose and mission of the Application.
Elsewhere in the decision the panel also derides .hospital applicant Donuts for its commercial purpose of running the domain.
The panel was also biased in favor of statements made by the Independent Objector. This doesn’t come as much of a surprise, as I’d expect arbitration panelists to empathize with someone who they view as being in a similar position to them.
Perhaps this is why I think Donuts made a mistake in blasting the Independent Objector’s objectivity in its responses to his Limited Public Interest objections. It put the panelists on the defensive, almost as if Donuts was attacking “one of theirs” (even though, in reality, the role of the Independent Objector is quite different). The panel’s disdain for Donuts came across throughout its written decision.
Panelist August Reinisch issued a dissenting opinion that calls out the other two panelists for writing their own rules.
He noted that the potential threat of future incorrect information received from websites/domains registered under the applied for gTLD string “.hospital” does not constitute a ground for upholding an objection.
Reinisch explains that the Independent Objector limited his objection to the grounds that the applied-for string and its intended use would contravene “specific principles of international law as reflected in relevant international instruments of law.”
He then points to paragraph 3.5.3 of the Guidebook that mandates that “[t]he panel will conduct its analysis on the basis of the applied-for gTLD string itself. The panel may, if needed, use as additional context the intended purpose of the TLD as stated in the application.”
In my view the majority misconstrues the grounds for objecting to gTLDs which should be primarily the string itself and could also take into account the intended use of the string in a subsidiary way “as additional context”.
He then notes that he cannot concur with an opinion that finds that the intended purpose of the string “.hospital” by the Applicant would be considered “contrary to generally accepted legal norms relating to morality and public order that are recognized under principles of international law.”
At this point in his dissent, Reinisch attacks the other panelists for not following the guidelines of Limited Public Interest objections:
It is not the task of an expert panel to rewrite the application standards for gTLD strings and to supplement them with higher standards in the public interest. Rather, its task is limited to determining whether a specific applied-for string, taking into account its intended use as stated in the application is “contrary to generally accepted legal norms relating to morality and public order that are recognized under principles of international law.
You can argue that .hospital shouldn’t exist or will cause problems. But I agree with Reinisch that the panel erred in upholding the Limited Public Interest Objection against it. The majority of the panel simply determined a .hospital domain name could cause problems and thus should be eliminated. That’s not what this type of objection is for.