[lac-discuss-en] Fwd: ICANN Request to Preserve WHOIS Data Referred to German Appeal Court

[Carlton Samuels]

The beat goes on.....

-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-2-2018-07-19-en
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ICANN Request to Preserve WHOIS Data Referred to German Appeal Court

19 July 2019

LOS ANGELES – 19 July 2018 – The Internet Corporation for Assigned Names
and Numbers (ICANN) was informed yesterday that the Regional Court in Bonn,
Germany, has decided to refer to the Higher Regional Court in Cologne,
Germany, the injunction proceedings ICANN initiated against EPAG, a
Germany-based, ICANN-accredited registrar that is part of the Tucows Group.
ICANN filed the injunction proceedings seeking assistance in interpreting
the European Union's General Data Protection Regulation (GDPR) in order to
protect the data collected in WHOIS.

In its initial ruling, the Regional Court determined that it would not
issue an injunction against EPAG. ICANN appealed this decision. Upon
receipt of the appeal, the Regional Court exercised its option to
re-evaluate its decision instead of immediately forwarding the matter to
the Higher Regional Court to address the appeal.

In referring the matter to the Higher Regional Court in Cologne, the
Regional Court did not change its original determination not to issue an
injunction against EPAG. The Regional Court also rejected the alternative
claims submitted by EPAG in recent court filings. Notably, the Regional
Court issued this second ruling without consideration of the additional
court filings submitted earlier this week by ICANN and ICANN's Intellectual
Property Constituency. Those filings will be part of the record to be
transferred to the Higher Regional Court for the appeal.

ICANN will continue to pursue this matter as part of its public interest
role in coordinating a decentralized global WHOIS for the generic top-level
domain system. ICANN awaits further direction from the Higher Regional
Court on next steps, which could include referring the matter to the
European Court of Justice, issuing a decision based upon the papers already
submitted, requesting additional briefings or scheduling a hearing with the
parties.
Background:

On 25 May 2018, ICANN filed the injunction proceedings against EPAG. ICANN
asked the Court 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.

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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