Council of Europe, DGI(2014)12, 22 - 26 June 2014

Report for Council of Europe Triggering Debate on ICANN & Human Rights

During the ICANN50 meeting in London that took place from 22 - 26 June 2014, Dr Monika Zalnieriute and Thomas Schneider presented their Report on "ICANN’s procedures and policies in the light of human rights, fundamental freedoms and democratic values" the preparation of which had been facilitated by the Council of Europe. The opinions expressed in this Report are the opinions of the experts and do not engage the responsibility of the Council of Europe. The Report aims at catalysing community discussion on human rights and internet governance.

Background

The Global Multistakeholder Meeting on the Future of Internet Governance (NETmundial,Sao Paolo, Brazil, 23 and 24 April 2014) held by consensus that the Internet is a global resource which should be managed in the public interest, and that states have primary legal and political accountability to protect human rights. In this connection, there is a need to examine ICANN’s policies and procedures in terms of its service in the global public interest and its accountability. The report is not intended to be comprehensive, but aims at being a starting point for discussion.

Main Findings of the Report

• International Human Rights Standards:  In order to operate in the public interest, ICANN has to comply with international human rights standards. Particularly, the existence of a number of predominant commercial interests within the ICANN systems suggests the need for the implementation of a solid human rights framework in order to foster the public interest. Human rights are internationally agreed upon values and standards.
• Measurable Standards:  The notion of public interest is insufficiently clear to provide guidance in policy development processes; accountability requires measurable standards. Human rights could serve to delineate the notion of public interest.
• State Responsibility:  States need to be aware of their responsibility to protect the human rights of their citizens, also with regard to internet governance. Non-compliance with human rights could lead to governments being held to account before national or supranational courts, such as the European Court of Human Rights.
• Necessary Consideration:  Human rights and the right to freedom of expression in particular need to be fully taken into account when deciding on the approval or refusal of sensitive new gTLDs.
• Crucial Balance:  The positive obligations of states require specific attention to vulnerable groups. It is desirable that the people-centeredness of ICANN’s policy development is further improved. A balance must be struck between economic interests and other objectives of common interest, such as pluralism, cultural and linguistic diversity. Auctions may be an efficient way of allocation from an economic point of view but not from a view of respecting plurality and diversity. ICANN must always ensure that the outcome is in the best public interest.
• Vital Rebalancing:  Human rights and the right to private life in particular require a rebalancing exercise with regard to the processing and retention of data under the 2013 RAA as well as to public access to personal information in the WHOIS database.

Suggested Way Forward

As the role of ICANN in the field of internet governance is increasing, its responsibility and accountability have to grow. A more attentive approach towards human rights could help to create an accountable and transparent way of doing business. Therefore the Report recommends to:

• Include reference to human rights in ICANN’s Bylaws;
• Define public interest objectives;
• Improve the human rights expertise in and early engagement of the GAC;
• Develop an early engagement mechanism for the safeguard of human rights;
• Review ICANN’s legal basis and explore innovative solutions for developing an international or quasi-international status for ICANN.

Next Steps

It is expected that the debate continues at ICANN51. During the Internet Governance Forum (IGF) in Istanbul from 2-5 September 2014, a side meeting will be held on the report, to present the report to the public at large and have an open and inclusive dialogue and exchange of ideas. We welcome comments on the report below to enrich the debate.

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Council of Europe, "ICANN’s procedures and policies in the light of human rights, fundamental freedoms and democratic values" by Zanieriute/Schneider, DGI(2014)12, 22 - 26 June 2014

Council of the Europe, "Council of Europe triggers debate on ICANN & Human Rights"