[AFRI-Discuss] Fwd: .Africa Update: ICANN promises to create new top-level domain despite ongoing court case

Abdeldjalil Bachar Bong abdeldjalil.bachar at gmail.com
Fri Mar 3 20:03:18 UTC 2017



---------- Forwarded message ---------
From: DCA NewsAlert <press.africa at dotconnectafrica.org>
Date: Thu, Mar 2, 2017 at 08:27
Subject: .Africa Update: ICANN promises to create new top-level domain
despite ongoing court case
To: <abdeldjalil.bachar at gmail.com>

A Third time lucky: ICANN beats off .africa ban
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*A Third time lucky: ICANN beats off .africa ban *

Kieren McCarthy - The Register
*Promises to create new top-level domain despite ongoing court case*
 *The Register is a UK based highly influential and respected source of
reliable news globally. www.theregister.co.uk

* DCA News Alert *

* Third time lucky: ICANN beats off .africa ban
Internet overseer ICANN will push ahead with a new ".africa" top-level
domain, despite having twice been ordered not to because of serious
questions over how it handled the case.

Earlier this month, a Los Angeles court refused
a preliminary injunction against ICANN that would prevent it from adding
.africa to the internet and allowing South Africa-based ZA Central Registry
(ZACR) from running it.

The decision was just the latest in a lengthy battle between
DotConnectAfrica (DCA), which also applied for the name, and ICANN, which
decided to disqualify DCA back in 2013 on grounds that were later shown to
be highly questionable.

Twice before, DCA has prevented ICANN from "delegating" the name to the
internet's root until its case with DCA was resolved, but this time the
judge decided in ICANN's favor, accepting the argument that it would not
cause harm to delegate it, and that DCA's case is unlikely to succeed
because it signed an agreement with ICANN that said it wouldn't sue the

The decision - which displays a lack of understanding of the internet
registry business, making it vulnerable to challenge - is the first time
that DCA has not prevailed against ICANN, despite a huge disparity in
resources and information. Regardless, its legal case against ICANN will

*Bye-bye bylaws *
Back in April 2015, ICANN was found by an independent review panel to
have broken
its own bylaws
by refusing to allow top officials to be questioned over their role in the
decision to disqualify DCA.

Three months later, we found out why. In a devastating critique of the
organization and its staff, a panel of independent judges determined that
ICANN had not acted fairly in both rejecting DCA's bid and then in refusing
to hear its appeals in anything but the most cursory manner.

ICANN then invited further criticism when its lawyers unilaterally decided
to redact significant portions of the panel's final report to cover up
evidence of ICANN staff's complicity with the other .africa applicant. That
complicity even stretched to ICANN's head of operations personally editing
a letter to make sure it would meet with all of the organization's
criteria, sending it to the applicant, and then receiving it back from
them, signed, upon which the organization approved their application.

When its efforts to conceal the staff's actions were exposed, ICANN's
lawyers then falsely claimed
the redactions had been agreed between both parties, even going so far as
to repeat the falsehood to ICANN board members.

Upon further investigation, it was revealed that ICANN's staff had
also repeatedly
what were supposed to be independent evaluators of the .africa bid in an
effort to ensure that DCA was disqualified and its preferred bidder won the
rights to the name.
(Months later, ICANN's staff were also found to have done the same with
another applicant - for the dot-words .corp, .inc, .llc, .llp and .ltd -
when they literally rewrote independent evaluators
reports to provide the grounds for disqualification. The CEO of the company
called for ICANN's general counsel to be fired

Despite having lost an independent review, ICANN continued to make it
impossible for DCA to be accepted as a legitimate bidder for the name,
prompting DCA to take the organization to court.

*Sham *
In April 2016, that court sided with DCA
it agreed that ICANN had run a "sham process" subsequent to losing the
independent review that was "intended to deny DCA's application based on
pretext." It placed an injunction on ICANN that prevented it from
delegating .africa until DCA's case had made it through the system.

Despite those repeated decisions against it, ICANN continued to use its
significant legal resources in an effort to get that decision overturned,
and managed to have the court's jurisdiction moved, requiring DCA to apply
again for another injunction.

It was that injunction that the judge decided not to allow to stand, under
the logic that it is possible for the .africa name to be redelegated at a
future date. While that is theoretically possible, it demonstrates almost
no understanding of how the internet registry market functions.

The judge also accepted the argument that Africans were suffering by not
having the .africa name under which to register names: a contention that is
misleading at best given the fact that every country has its own top-level
domain, and that the market for dot-words had exploded to several thousand
in the past year. There is literally nothing that the addition of the
.africa name to the internet will do to expand Africans' access to the
internet addresses; it is simply a word.

* Poor judgment *
The judge also accepted the notion that the other bidder - ZACR - was
suffering financial losses as a result of the ongoing litigation. A claim
that is unverifiable since the spreadsheet on which the judge based his
decision was submitted by ZACR under seal, claiming it contained
commercially sensitive material. Regardless, it seems unlikely that ZACR is
suffering ongoing costs with respect to the .africa name that it could not
easily choose to discontinue until the case was decided.

As to the likelihood of DCA winning, the judge argues that a single
paragraph within the contract signed between DCA and ICANN (and written by
ICANN) that says no applicant is entitled to sue ICANN with respect to
decisions made through the process, will prove sufficient to undermine the

That also seems unlikely given the degree to which ICANN's staff and board
have already been shown to have broken their own procedures and bylaws in
order to give preference to one bidder. Under those circumstances, it is
hard to imagine that the contract clause retains its authority.

Regardless, ICANN appears determined to push ahead with delegation of
.africa. While it no doubt views that as a victory, the battle over the
top-level domain is likely far from over.

* The full article is available to read  here:

*About DotConnectAfrica: *

DotConnectAfrica Trust is an independent, non-profit and non-partisan
organization that is based in Port Louis, Mauritius (Reg.ID CT8710DCA90) with
its registry operations located in Nairobi, Kenya. Its main charitable
objects are: (a) for the advancement of education in to the African
society; and (b) in connection with (a) to provide the African society with
a continental Internet domain name to have access to for the people of
Africa as a purpose beneficial to the public in general.

DotConnectAfrica through its affiliate DCA Registry Services Ltd.intends
to channel surplus resources gained from the .Africa registry operation to
sponsor foundations that will cater to various charitable projects
including the already launched miss.africa and generation.africa, as well
as capacity building for African ccTLDs, with the general objective of
improving the African Internet.
*Press Contact:* Thomas Kamanzi, Newsletter Editor
tkamanzi at dotconnectafrica.org DotConnectAfrica, www.dotconnectafrica.org
DotConnectAfrica, 1/F River Court, 6th Denis Street ,  , Port Louis,
Africa Mauritius
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Cordialement --------------------------------- ABDELDJALIL BACHAR BONG DGA
& Co-Fondateur ZIYARA Sarl E-mail:bachar at ziyara.td http://www.ziyara.td
https://twitter.com/bacharbong Tél:0023566274284 N'djaména(Tchad)
--------------------------------- Le Secrétaire Exécutif Forum sur la
Gouvernance de l'Internet au Tchad (FGI Tchad)
---------------------------------- The Executive Secretary Internet
Governance Forum (IGF Chad) E-mail1: Bachar at igf.td E-mail2: info at igf.td
Website: www.igf.td Twitter :IGFCHAD
--------------------------------------------- |AFRINIC Fellow|ISOC CHAD
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