This is my final report as the ICANN ombudsman.
Office of the Ombudsman
In a matter of a Complaint by dotgay LLC
Updated Report dated 27th July 2016
This investigation was undertaken as a result of the latest rejection of the application for reconsideration for the dot gay string application by an ICANN BGC recommendation. As a result, dotgay LLC have brought this issue to me to investigate.
The issue is the future progress of this application and the final disposition of the recommendation by the BGC to the ICANN board, and the further consideration of this application on a global basis. The board will shortly be considering the recommendation from the BGC, but this report is intended to be on a wider basis than just that issue, because of its importance for the global public interest in ICANN’s ambition to respect human rights.
It is unusual for the ombudsman to intervene at this stage between a BGC recommendation and the final decision made by the ICANN board. I am not aware of any occasion on which the board has rejected the recommendation. I am conscious that the recommendation will be discussed, but given the previous history of such recommendations, it is most likely that the recommendation will be accepted.
So I anticipate that my recommendation will be to some extent controversial. However, I am very concerned about the apparent inevitability that the applicant will not be able to progress as the community applicant for this string, which would otherwise result in the other applicants being able to pay the highest price at an auction, which is almost certainly beyond the reach of the applicant, which is a community-based organisation with limited resources.
However, this investigation and complaint are on a wider basis than just the reconsideration recommendation from the BGC to the board, and the board’s decision on the recommendation. This report is intended for the board to consider on its own, taking into account the history of reconsiderations, but also the history of the application in the context of the difficulties in the interpretations in the AGB which have constrained the EIU in their evaluation.
This is a matter where I have jurisdiction. The complainant has raised an issue of unfairness on several levels, complaining that the decisions of the Board Governance Committee are also unfair.
It is important to note that I do not have jurisdiction to review or act in some way as an appeal body, to the expert decision from the EIU. The reason I do not have jurisdiction relates to the nature of the ICANN community, which is the limit of my mandate. An ombudsman operates with what has been called informality, which means that I am not bound by strict rules of procedure, nor do I operate as if this was a formal hearing, with submissions, evidence and a reasoned decision. My powers such as they are, are limited to making a recommendation to the ICANN Board. If I were to find an unfairness in the decisions, I would recommend a course of action to remedy that unfairness. This has to be done in the context of the limits to my jurisdiction expressed in my mandate.
The extracts from the Bylaw state-
“The principal function of the Ombudsman shall be to provide an independent internal evaluation of complaints by members of the ICANN community who believe that the ICANN staff, Board or an ICANN constituent body has treated them unfairly.”
“problems and complaints that affected members of the ICANN community (excluding employees and vendors/suppliers of ICANN) may have with specific actions or failures to act by the Board or ICANN staff”
From the Framework
“The Ombudsman’s function is to act as an Alternative Dispute Resolution (ADR) office for members of the ICANN community who may wish to lodge a complaint that the staff, board or a constituent body has treated them unfairly. The purpose of the Ombudsman is to ensure that the members of the ICANN community have been treated fairly.”
The definition of the words ICANN community has been treated by me and my predecessor in fairly wide terms. Because ICANN is not a membership driven organisation, but based on a multi-stakeholder model, which includes a very diverse range of people and organisations, a widely inclusive interpretation has been given to explaining who is a member of the ICANN community. The three ICANN meetings each year are open to anybody, and the only requirement is to register prior to the meeting or at the meeting. There is no doubt that any such person would be a member of the ICANN community by this very informal step. It could even be expressed as any person who wishes to be involved, even by submission of policy suggestions. This is supported by ICANN in its material published such as explaining the multi-stakeholder model for example. In that category it describes groups such as civil society and Internet users, the private sector, international and national organisations, governments, research, academic and technical communities. As well as the individuals, any one of those groups could be described as a constituent body.
The scope of the complaint also covers the decision pending before the ICANN board about the ICANN reconsideration decision from the ICANN Board. There is no difficulty with jurisdiction in this case, because that is clearly within ICANN bylaws.
To undertake this investigation I have reviewed the previous reconsideration decisions, and consulted with the applicant over the issues. I have also reviewed the previous own motion report which I prepared for the EIU community application process, and the specific effect that the interpretations used by the EIU from the AGB and the specific effect the interpretation has had on the CPE evaluation for this application in defining community applications. I have also considered the human rights issues and appropriate resources concerning the application of human rights, which was reiterated in the latest report from the special rapporteur on freedom of expression. In particular I have relied on the UN Guiding Principles on Business and Human Rights, the report known as the Ruggie Report. This report states among other things, that business enterprises should respect human rights. This means they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.
The complainant says that there are many levels of unfairness, including the way in which the applicant guidebook has been applied to the application by the EIU and ICANN, but that overall significant aspects of their application and reconsideration applications have not been properly considered and the rejection of their application is therefore unfair. The history of this matter has been set out in the reconsideration decisions, and the materials filed by the complainants, and for the purpose of this recommendation it would be repetitive.
There are a great many issues which have been raised in the course of this application, and the three reconsideration requests. It is accurate to say that the applicant and the gay community have been unhappy with the results of those reconsideration requests, and that a considerable part of the difficulty arises from the ICANN BGC’s very narrow view of its own jurisdiction in considering reconsideration requests. Issues raised include highlighted cases of inconsistency of the EIUs application of the CPE criteria set forth the in the AGB, which the BGC and the board have refused to address to date, as well as the lack of support for community endeavours as expressed in ICANN policy to foster diversity on the internet, as expressed in Article 1 Section 2 (4) of the ICANN Bylaws. It is no surprise that this jurisdiction has been discussed extensively in the CWG working groups about accountability.
Further, in the context of ICANN currently developing policy about the role of human rights, it is timely that the board demonstrates a commitment. In the past, the issue of whether ICANN had any role in the human rights was itself controversial, but the position has moved since then so that a commitment to human rights is now accepted, and the real issue is a demonstration of that commitment.
The Ruggie principles emphasise the need for organisations other than states to comply with human rights principles. The extent to which ICANN will be bound is very much a topic for discussion, but it is inevitable that there will be statements about the human rights principles which ICANN will operate under as part of its adherence to the accountability principles being discussed at present, and is also supported by the Bylaws in Article 4, and thoroughly established prior to accepting community applications for purposes of transparency and fairness. See among others, Bylaw Article III, about transparency.
There comes a point where as the ombudsman I need to take a look at the greater picture. The role of the ombudsman is to deal with issues of fairness, and this encompasses issues such as respect for diversity and support for all parts of our community. Sometimes the mechanisms which we have put together to resolve challenges are simply inadequate. The community and ICANN went to considerable lengths to prepare the new gTLD program and the Applicant Guidebook as the user manual for the process. It is difficult to criticise the community for the problems which arose subsequently, particularly with regard to the community evaluation process because this was a brand-new process and it was inevitable that there would be problems with interpretation and the situation is one which no one could have anticipated. I have previously referred to the problems which arose with the process which is less transparent and regrettably the EIU process should perhaps in retrospect, have been much more open to scrutiny.
But the issue that I want to emphasise in this recommendation is that it has always been open to ICANN to reject an EIU recommendation, especially when public interest considerations are involved. What is needed is to take a bold approach and demonstrate to the ICANN community, but also much more widely, to the world of Internet users, that ICANN has a commitment to principles of international law (see Article IV of the Bylaws), including human rights, fairness, and transparency. The board will be very aware of the human rights initiatives undertaken in the light of the IANA transition and the careful evaluation of the accountability processes. But sometimes it is necessary to take a view which evaluates whether the decision taken corresponds with the bylaws and articles of incorporation. That view should be that ICANN supports the gay community and recognises that there is a community which requires protection and recognition, which has been marginalized, threatened and attacked, and which should be considered a genuine community notwithstanding the EIU recommendation.
The result of refusal of CPE status is that the string would go to auction, even though this is said to be the last resort in the AGB. So the purpose of the CPE process to support community applicants will be lost in the auction process.
There was obviously an intention by the ICANN community to favour community applications for the new generic top level domains. The success rate of these applicants is however rather low, and I expect that this has been disappointing for the advocates of community applications. The reasons for this may well need further analysis when the program is reviewed over the next period until the next round. But now the ICANN board has an opportunity to correct the imbalance, perhaps most starkly illustrated by the dot Gay application. This is the time to recognise that even if the EIU evaluation did not achieve the appropriate number of points, that the community is real, does need protection and should be supported.
As a result of this investigation, I recommend that the board looks at the bigger picture beyond the BGC recommendation and the board’s decision on the recommendation and using Article IV (2) 17 where the board is not bound to support the BGC. The board should grant the community application status to the applicant and put an end to this long and difficult issue. By doing so the board will take a major step in recognising the role of ICANN in complying with its own policies and well established human rights principles.