All Eyes on Europe’s Data Protection Laws and Their Impact on the Domain Name System

This fall marked a particularly busy time for INTA’s advocacy efforts on Internet Policy and Data Protection, as INTA staff and volunteers attended ICANN63, the Internet Governance Forum (IGF), and the International Association of Privacy Professionals (IAPP) European Policy Conference. INTA hosted two panels at IGF and IAPP respectively, and continued to emphasize the importance of restoring access to critical domain name registration information under ICANN’s policies. In addition, INTA’s Senior Director of Internet Policy, Lori Schulman, and European Chief Representative, Hélène Nicora, met with multiple agencies of the European Commission to discuss ways forward for the interpretation and implementation of the General Data Protection Regulation (GDPR) with respect to ICANN.

ICANN63

The season started off with ICANN63 in Barcelona, Spain, from October 20 through 25. INTA members were out in full force representing trademark owners’ interests in the ongoing discussions around access to registration information in ICANN’s WHOIS system. As reported earlier in the INTA Bulletin, ICANN’s Temporary Specification (Temp Spec) to its Registrar and Registry agreements essentially redacts the most useful domain registration information needed for business transactions, answering security threats and intellectual property (IP) enforcement. The Temp Spec requires that registers and registries provide “reasonable access,” but there is no uniform access policy to ensure that those who have a legitimate purpose and interest in accessing such data can do so; therefore, IP owners that wish to enforce their rights online are at the whim of 2,500 different policies. INTA CEO Etienne Sanz de Acedo observed the concurrent High-Level Government Meeting (HLGM) that was held in parallel to ICANN’s regular meetings and heard government officials share their impressions of where they think privacy regulation and Internet governance are headed. There appears to be agreement that the global trend is to emulate the European model for privacy laws; however, there is equal concern for the ability of law enforcement, cybersecurity experts, and IP owners to access the information in an efficient, legally compliant way. The GDPR has created some unintended consequences in that regard. INTA’s ICANN presence was reinforced by holding its sixth community outreach reception. Nearly 120 members of the ICANN community, local and prospective INTA members, and government officials met to discuss the issues of the day in a collegial atmosphere.

Internet Governance Forum

From Barcelona, the Internet Policy caravan headed to Paris, France, for the global meeting of the IGF at UNESCO Headquarters from November 12 through 14. The week started with a powerful keynote speech from France’s President Emmanuel Macron. President Macron demanded more accountability and measurable outcomes from the IGF and other Internet governance entities and indicated that failure to do so would result in more regulation, including taxation of Internet transactions. He highlighted that there is a “California Internet” and a “China Internet” and indicated that now is the time for Europe to take a greater lead. He emphasized that Switzerland, France, and Germany are working together to implement more reforms and accountability, including the possibility of taxing certain Internet transactions, including search services. It is worth noting that the three nations cited above have will have hosted IGF in 2017, 2018, and 2019, respectively. This marks a notable shift from holding IGF meetings in emerging economies rather than developed, western economies. IGF was part of a greater Paris Digital Week, which also included meetings of the Peace Forum and the GovTech Forum.

Macron’s controversial and thought-provoking speech paved the way for greater discussions among the hundreds of panels offered throughout the week. INTA was pleased to host a session on “Trademarks and ICTs [information and communications technologies]: Empowering Entrepreneurs in Emerging Economies.” Using real-world examples, INTA member Charles Shaban (Abu-Ghazaleh Intellectual Property, Jordan) and Ms. Schulman discussed the importance of trademarks and domain names to small and women-owned businesses and how proper trademark development and use protect innovation and facilitate economic growth. The theme of this year’s IGF was “The Internet of Trust,” and trademarks are particularly important to discussions of Internet inclusion and development as they are symbols of consumer trust. This is the second time that INTA has presented such a panel at IGF. IGF sessions are subject to a competitive application process. INTA’s Internet Committee will apply for the 2019 IGF to continue to share positive messaging about the importance of trademarks to the United Nations’ strategic development goals and the Internet policy discussions at IGF.

IAPP European Policy Conference

After Paris, INTA staff and volunteers headed to Brussels for the IAPP European Policy Conference. Flip Petillion (Petillion, Belgium) and Diane Plaut, CIPP, (Corsearch, USA) presented a complex discussion on “Online Brand Protection: Two Sides to the Privacy Coin” that highlighted the tension between privacy protection as a key to building brand value and the equally important task of trademark enforcement, which requires access to information. The panel, moderated by Ms. Schulman, was the last of six projects that were part of the INTA/IAPP strategic alliance. During 2018, INTA and IAPP co-hosted webinars and panels and contributed to each organization’s newsletters in areas of mutual interest, which included global trends in data protection and cybersecurity, privacy protection as a component of brand value, California’s new privacy laws and its effects on brand owners, and the ongoing WHOIS policy discussions at ICANN. The IAPP relationship is under the stewardship of INTA’s Data Protection Committee.

The whirlwind of fall meetings ended with the European Commission’s Directorate-General (DG) Connect, DG Home, and DG Justice discussing ways forward with GDPR interpretation and ICANN’s Expedited Policy Development Process (EPDP) on WHOIS. Comments on the initial report of the EPDP Working Group are due December 21, and INTA will be submitting its views on behalf of brand owners.

INTA members are reminded that they can share their experiences with the temporary WHOIS policy at [email protected]. All are welcome to submit as INTA needs real-world examples in order to emphasize the impact of the policy on consumer protection and IP enforcement.

Although every effort has been made to verify the accuracy of items in the INTA Bulletin, readers are urged to check independently on matters of specific concern or interest. Law & Practice updates are published without comment from INTA except where it has taken an official position.