Latest .health decisions show that Limited Public Interest objections are not consistent.
An International Chamber of Commerce panel has handed down a decision on a consolidated limited public interest objection against .health. The decision shows more inconsistencies in how panels are handling limited public interest objections.
Pellet filed a number of what I’d consider “frivolous cases” against new top level domain names, especially those related to health. He has tried to twist the language of the limited public interest objection rules, as well as add his own rules.
Amazingly, one panel bit. And another agreed with part of his rationale.
For background, limited public interest objections were designed to stop offensive terms from becoming top level domain names. It was designed to stop .childporn, .killsomegroup, etc.
It was also designed such that the string itself had to be offensive. The guidebook states:
The 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.
I suspect this sentence about context was added so that, should a law firm with the initials KKK want to apply, the context would be taken into consideration. Or perhaps if a charity wanted to apply for .childporn to bring awareness and block it.
But the purpose of limited public objections, as would be clear to anyone who followed the process of creating the guidebook, didn’t matter to Pellet. He had a big budget, and perhaps he felt the need to file objections. And one applicant pointed out, he kind of has this thing for healthcare.
Is .health, in an of itself, offensive? Of course not. Pellet even admits this in his complaint. But he thinks that there should be rules about how it is run. That’s way outside his role and the limited public objections rules.
The IO notes that “the subject-matter of this LPI Objection is not the term “health” but rather the intended use of the applied for string and, in particular, the confiscation of “health” for purely commercial purposes which is contrary to the general principles of international law.”
OK, let’s read the guidebook again:
The panel will conduct its analysis on the basis of the applied-for gTLD string itself.
Outside the scope? Yes. Making new TLD applicants run up legal fees? Yes.
What does running .health for “purely commercial purposes” have to do with anything? Where is that listed as a reason for filing a limited public interest objection?
Pellet also asked that, if the panel didn’t find in his favor, that at least it delay the application as requested by some health professionals, so that perhaps more restrictions can be put in place.
Pellet has no authority to request this. The limited public interest objection rules don’t permit it. Just like he has no authority to ask, as he has in other cases, that additional restrictions be placed on top level domains.
The panel blasted Pellet for not meeting the requirements to win his objection. I personally don’t understand how the .health cases got past the “quick look test”. In order to get past the quick look, the panel had to determine that .health may “be contrary to specific principles of international law as reflected in relevant international instruments of law.”
Well, there is this…if the case doesn’t get past the quick look, the panelists don’t get paid. I suspect the costs for this case were more than $100,000.
Now on to the inconsistencies between this case and others.
Pellet also filed a case against Afilias’ application for .health. He lost, but on very different grounds.
Although the panel in that case denied the objection, it determined that it must consider how the domain will be used in order to make a determination. More worrisome, that panel cited a GAC communiqué as proof of why this is part of its mandate. (Many International Chamber of Commerce panelists don’t understand that the GAC is only one representative committee in ICANN, and its word is not final. Neither are its communiqués. I suspect that panelists are used to deferring to government.) In that case, the panel determined that Afilias’ restrictions and governance plans for the domain were sufficient.
That’s inconsistency at its core. On string confusion objections I’m willing to blame the guidebook for the inconsistencies. But not for limited public interest objections.
Also consider the case Pellet won against Donuts for .hospital. In that case one panelist submitted a dissent that calls out the other panelists for making up its own rules.
It’s pretty clear to me that:
1. Had the panel on this latest .health case (Maxi Scherer, Frédéric Bachand, and Stanimir A. Alexandrov) heard the .hospital case, Donuts would have prevailed.
2. Had the majority of the panel on .hospital (Piotr Nowaczyk, Ike Ehiribe) heard this latest .health case, Pellet would have prevailed.
3. Had the panel on Afilias’ .health case (George A. Bermann, Attila Massimiliano Enrico Tanzi, and Erik G.W. Schäfer) heard the .health case against Dot Health and Donuts and applied its same logic, Pellet may have prevailed on.
That’s inconsistent. That’s not good.