This is an article I wrote for New Zealand Lawyer at http://www.nzlawyermagazine.co.nz/CurrentIssue/Issue184/184F4/tabid/4304/Default.aspx in which I suggest a new model for the New Zealand Law Society based on the UK model.
May 18, 2012
May 14, 2012
I regularly receive complaints about cyber squatting. Sometimes this is because someone lets the domain name expire, often not through their own fault, and it is picked up by someone who then buys the domain. At this point the original owner will often complain to me, although unfortunately I do not have jurisdiction to help. What often follows is that when the original owner tries to buy the original name back, the new owner tries to get as much money as they can. In a number of cases, this has caused real hardship to the original owners, although that does not appear to be a concern of the new owner. I regard this as morally repugnant, but recognise that it is legal. As the ombudsman I find it frustrating that I cannot help, because it is an obvious example of unfairness, which I should be able to resolve. In private domestic law, if someone loses an item, then the finder does not acquire title. Obviously many domain names are effectively abandoned, when the original owners decide they will not renew them further, and leaving the name at large for any purchaser. I see nothing wrong with this.
Another form of cyber squatting is of course more well-known, where someone registers a well-known person’s name, or a company name as a domain name, even though they have no actual connection with that name. There has been a considerable amount of litigation about this, and of course the UDRP procedure developed by ICANN can be used to resolve such disputes through organisations such as WIPO. That is of course on a different scale, where it is necessary to protect a company name or trade mark or an individual name.
But a private individual or small business faced with the problem I refer to does not often have a unique name or a trademark, but will often have something which is of either personal value or value to them as a small business. In those cases they fall outside of the jurisdiction of WIPO and others. They are then caught by those who specialise in checking the drop lists from registrars to see if any potentially valuable names can be secured. The new owners then try to either park the names or sell to the old owner. Again this is quite legal under the rules. But again I raise the question as to the fairness of doing so, when it is not the fault of the original owner that they let the registration lapse.
There are also those who just gather names from the web and register names for sale. I have been offered names similar to mine, but declined. Others find that when they want to register a .com name that someone has already done so, and often will bid the price up if they see the person really wants the name. Sometimes though, they just park the name and do not use it. That is very frustrating for the potential user.
It is difficult to imagine what systems can be designed to prevent this, but some country registries have tougher policies, which of course do not apply to the generic top level domains. Australia has at .au Domain Administration (auDA). From Wikipedia ” auDA requires anyone registering a .com.au second-level domain to have a valid entitlement for that domain — i.e. a registered business name with an Australian Business Number (ABN) issued by the Australian Taxation Office. However, this has failed to protect Australia from such cybersquatting acts. Any Australian citizen over the age of 16 can obtain an ABN (which is free) and use it to register as few or as many domain names as they like but they need to have a “close and substantial” connection to the name or it needs to be an “exact match, abbreviation or acronym” of their name.” Other countries have similar policies.
In the end, I have little power to help those who are affected, but it is upsetting to see the unfairness which can result. Perhaps more debate is needed on the issue, as i am sure there some who hold very different views from me.
May 6, 2012
One of the sessions which I attended at Houston was on the academic study of bullying in the workplace. Bullying of course is wider than just a workplace issue, and regrettably the freedom of speech commonly found across the web has an unpleasant side-effect of bullying, which can be very difficult to control. Part of the job of an ombudsman is to intervene in bullying and to help those who are victims, but also ensure that those who inflict the bullying are aware of the harm they are doing. Mediation is not always the answer, because the difficulty in dealing with the disparity of power between the parties, and the real fear experienced by the victims make mediation an uncertain and possibly unsafe answer. I would like to say that there is a correct way of dealing with this but unfortunately the academic study, and my experience do not provide ready answers. A recent article in New Zealand Lawyer, http://www.nzlawyermagazine.co.nz/CurrentIssue/Issue183/183F6/tabid/4253/Default.aspx identifies various types of bullying and techniques for dealing with this. I would hope that if anyone in the ICANN community feels that there has been bullying of any of the sorts described, or other methods, can contact me, knowing that their complaint will be confidential and treated impartially.
Since posting this, I read more in a local paper which underlines the need for protection-see this article on Cyber Bullying and a link to suicide http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10803980
May 2, 2012
My predecessor, Dr Frank Fowlie, has recently been appointed as the ombudsperson for The International Organisation for Migration. This is a most important international agency with many offices around the world and responsible for refugees and migration and settlement of refugees and migrants. Sometimes important appointments like this reflect on the good work in their previous assignment, and certainly in settling into this office, Frank’s assistance and mentoring have been invaluable to me. So my congratulations go to him and best wishes in his exciting new adventure.