Designed as an easy and effective method to locate websites and route email, domain names attracted the attention of speculators in the mid-1990s who quickly realized their value and the potential to resell them to the highest bidder. It is no wonder then that domain name disputes emerged as one of the first Internet legal issues.
Continued growth of “cybersquatting” led to several unsuccessful attempts at a dispute resolution system. Finally in 1999, the Internet Corporation for Assigned Names and Numbers (ICANN), the agency responsible for administering the domain name system, approved the Uniform Domain Name Dispute Resolution Policy (UDRP).
The Canadian Internet Registration Authority (CIRA), which manages the dot-ca domain, adopted its own dispute resolution policy, the CIRA Domain Name Dispute Resolution Policy (CDRP) in 2002. That policy resembles the ICANN UDRP, yet contains several important differences. One notable variation is its stronger free speech protections that guard against abusive actions by trademark holders designed primarily to suppress websites that engage in criticism.
Although the CDRP has become an increasingly popular mechanism to resolve dot-ca domain name disputes, the policy, alongside broader Internet governance questions, may be put to the test in the months ahead as this issue has been thrust onto the national political agenda.
The impetus for governmental interest in domain name disputes and Internet governance is the registration of several domain names bearing the names of sitting Members of Parliament by the Defend Marriage Coalition, an opponent of same-sex marriage legislation. The resulting websites, which include donboudria.ca and davidmcguinty.ca, include MP contact information, photos, and advocacy materials.
While the information itself is obviously constitutionally protected free speech, the complicating factor is that the websites are using domains that feature the MPs’ names and bear a striking resemblance to the official sites of the MPs such that they could easily cause confusion.
The domain name registrations led to a heated, if somewhat misleading, debate in the House of Commons earlier this month. One MP argued that the registrations might constitute identity theft (it does not), while another indicated that the government does not own, regulate or manage domain name registrations (the government indeed does not manage domain name registrations but it does hold ultimate authority over the dot-ca domain).
A closer examination of the CDRP suggests that an action against the Defend Marriage Coalition would be unlikely to succeed. A complainant must prove three elements under the CDRP in order to obtain a transfer of the domain: (i) that the complainant has trademark or trade name rights in the contested name; (ii) that the domain name was registered in bad faith; and (iii) that the registrant does not have a legitimate interest in the domain.
In this case, all three elements would be problematic. First, it is doubtful that MPs enjoy trademark or trade name rights in their names. Although Anne McLellan was successful in an ICANN UDRP case in 2000, that decision has faced criticism since politicians’ personal names do not typically rise to the level of trademark status.
Second, proving bad faith registration would also pose a challenge since the CDRP includes an exhaustive short list of what constitutes bad faith. Most of the criteria focus on attempts to profit from the domain name, which is apparently not the motivation in this case.
Third, and most important, the Canadian policy would likely hold that the registrant has a legitimate interest in the domain name since the sites unquestionably feature good faith criticism despite their deceptive qualities.
While the CDRP may not be an option, the MPs are not without legal recourse. For example, they could launch lawsuits grounded in tort against the registrant since a claim for misrepresentation might succeed. That suit is different from a trademark claim or a CDRP action, however, and a fairly lengthy process.
Examining the situation in the longer term, the incident has implications for the CDRP, CIRA, and the regulation of the Internet in Canada.
Despite (or perhaps because of) its protective approach to free speech, some may argue that the CDRP has failed to find the appropriate balance. As the saying goes, hard cases make for bad law. This is a hard case and there is a danger that protections that have earned worldwide acclaim might be scrapped leading to bad law.
The case is also likely to put the spotlight on CIRA. While some MPs assumed that the government had no role to play in the management of Internet domain names, the reality is that many countries do provide active regulatory oversight over their national domain name systems. CIRA is a well-run, successful organization, but MPs may put it under their microscope to ensure that the dot-ca is fairly managed on behalf of all Canadians.
Most tellingly, the case has forced MPs to consider how they use the Internet to interact with the public. Last week the Speaker of the House concluded that the case “raises important issues in an era where communications technology is ubiquitous and the demand for accessibility grows daily more aggressive” and called on Standing Committee on Procedure and House Affairs to “explore, at a minimum, the ramifications of new communication technologies, including the Internet, as they affect members in the performance of their duties.”
Since the chair of that committee is none other than Don Boudria, hearings seem likely. A handful of domain name registrations have placed the domain name issue on MP’s radar screens and may ultimately lead to significant new policies on how the Canada’s politicians interact with the Internet.