[lac-discuss-en] Fwd: German Appellate Court Rules on ICANN Request to Preserve WHOIS Data

[Carlton Samuels]

Well, its news...but really no news, the spin aside.

-Carlton

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*Carlton A Samuels*

*Mobile: 876-818-1799Strategy, Process, Governance, Assessment & Turnaround*
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[image: ICANN] <http://www.icann.org/> News Alert

https://www.icann.org/news/announcement-2-2018-08-03-en
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German Appellate Court Rules on ICANN Request to Preserve WHOIS Data

3 August 2018

LOS ANGELES – 3 August 2018 – The Internet Corporation for Assigned Names
and Numbers (“ICANN”) today announced that a German appeal court (Appellate
Court of Cologne) has issued a decision on the injunction proceedings ICANN
initiated against EPAG, a Germany-based, ICANN-accredited registrar that is
part of the Tucows Group. The Appellate Court has determined that it would
not issue an injunction against EPAG.

In making its ruling, the Appellate Court stated that the interpretation of
provisions of the GDPR was not material to its decision, so there was no
obligation to refer the matter to the European Court of Justice.

Rather, the Appellate Court simply found that it was not necessary for it
to issue a preliminary injunction to avoid imminent and substantial
disadvantages, and noted that ICANN could pursue its claims in the main
proceedings in order to enforce the rights it asserts.

ICANN is considering its next steps, including possible additional filings
before the German courts, as part of its public interest role in
coordinating a decentralized global WHOIS for the generic top-level domain
system and will provide additional information in the coming days.
Background

On 25 May 2018, ICANN filed the injunction proceedings against EPAG. ICANN
asked the Regional Court in Bonn, Germany for assistance in interpreting
the GDPR in an effort to protect the data collected in WHOIS. ICANN sought
a court ruling to ensure the continued collection of all WHOIS data. The
intent was to assure that all such data remains available to parties that
demonstrate a legitimate purpose to access it, and to seek clarification
that under the GDPR, ICANN may continue to require such collection.

ICANN filed the proceedings because EPAG had informed ICANN that as of 25
May 2018, it would no longer collect administrative and technical contact
information when it sells new domain name registrations. EPAG believes
collection of that particular data would violate the GDPR. ICANN's contract
with EPAG requires that information to be collected.

EPAG is one of over 2,500 registrars and registries that help ICANN
maintain the global information resource of the WHOIS system. ICANN is not
seeking to have its contracted parties violate the law. Put simply, EPAG's
position spotlights a disagreement with ICANN and others as to how the GDPR
should be interpreted.

On 30 May 2018, the Regional Court determined that it would not issue an
injunction against EPAG. In rejecting the injunctive relief, the Court
ruled that it would not require EPAG to collect the administrative and
technical data for new registrations. However, the Court did not indicate
in its ruling that collecting such data would be a violation of the GDPR.
Rather, the Court said that the collection of the domain name registrant
data should suffice in order to safeguard against misuse in connection with
the domain name (such as criminal activity, infringement, or security
problems).

The Court reasoned that because it is possible for a registrant to provide
the same data elements for the registrant as for the administrative and
technical contacts, ICANN did not demonstrate that it is necessary to
collect additional data elements for those contacts. The Court also noted
that a registrant could consent and provide administrative and technical
contact data at its discretion.

On 13 June 2018, ICANN appealed the Regional Court's ruling to the Higher
Regional Court of Cologne, Germany, and again asked for an injunction that
would require EPAG to reinstate the collection of all WHOIS data required
under EPAG's Registrar Accreditation Agreement with ICANN.

On 21 June 2018, the Regional Court in Bonn, Germany, decided to revisit
its ruling in the injunction proceedings, which it has the option to do
upon receipt of an appeal.

On 18 July 2018, the Regional Court decided not to change its original
determination not to issue an injunction against EPAG, and referred the
matter to the Higher Regional Court in Cologne for the appeal.

In addition to the court proceedings, ICANN is continuing to pursue ongoing
discussions with the European Commission and the European Data Protection
Board to gain further clarification of the GDPR as it relates to the
integrity of WHOIS services.
About ICANN

ICANN's mission is to help ensure a stable, secure and unified global
Internet. To reach another person on the Internet, you need to type an
address – a name or a number – into your computer or other device. That
address must be unique so computers know where to find each other. ICANN
helps coordinate and support these unique identifiers across the world.
ICANN was formed in 1998 as a not-for-profit public-benefit corporation
with a community of participants from all over the world.
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