There seems to be some confusion out there over the provisions in the Communications Regulation (Amendment) Bill 2007. While – as promised in the Electronic Communications (Miscellaneous Provisions) Bill 2005 consultation (good post at the time by Antóin) – the law on domain names in Ireland is being updated, very little of this is novel – and most of the sections being discussed have been on the books since the Electronic Commerce Act 2000 (Section 31), and are merely being reorganised. The 2000 Act provided that the Minister could take the .ie registry under his/her control; the 2005/6 consultation proposed substituting ComReg for the Minister. This new Bill does the same, but with slightly different wording – and that’s what’s causing the confusion. I do believe this legislation (and the process surrounding it) is interesting, but for different reasons.
I think the problem starts with the sponsoring Minister (and his civil servants) saying that the purpose “to amend the Electronic Commerce Act 2000 to transfer responsibility for the oversight and management of the Irish internet domain name .ie to the Commission”. The Commission being that for Communications Regulation, or ComReg. Yes – it is a transfer – but a transfer of Ministerial powers already in existence. You would think that the law means that ComReg takes over the IE Domain Registry (IEDR) – but it is not that simple.
For example, Michele expresses the reasonable criticism (of the Bill) that:
They also seem to think that issues surrounding registration disputes are a matter for government:
(6) A person who contravenes subsection (2), or contravenes a regulation made under this section, is liable on summary conviction to a fine not exceeding €5,000.
So that puts it in the realm of civil courts… lovely..
However, this is simply a restatement/renumbering and an increased fine, as compared with the 2000 Act:
(3) A person who contravenes or fails to comply with a regulation made pursuant to this section is liable on summary conviction to a fine not exceeding £500.
And John at whoisireland.com says:
32.—(3) The Commission may make regulations for the purposes of this section, but only after consultation with the Minister for Enterprise, Trade and Employment and such other persons and public bodies (if any) as the Commission thinks appropriate.
That subsection is where IEDR is effectively stripped of deciding the registration policy for .ie domains. Under this subsection, it is now the province of Comreg though it has to consult with the Minister and others.
On the contrary, this was done back in 2000, where the Act provided:
(1) The Minister may, by regulations made for the purpose of easy comprehension, fairness, transparency, avoidance of deception, promotion of fair competition and public confidence under section 3 after consultation with the Minister for Enterprise. Trade and Employment and such other persons and public bodies, if any, as the Minister thinks fit, including the body known as the Internet Corporation for Assigned Names and Numbers, authorise, prohibit or regulate the registration and use of the ie domain name in the State.
John also says:
The first interesting amendment is this:
32.—(1) The purpose of this Part is to facilitate easy comprehension, fairness, transparency, avoidance of deception, promotion of fair competition and public confidence with respect to the use of ‘.ie’ domain names.
While it looks harmless it is rather powerful
But as you can see it is not an amendment – it is the exact same six words as have been on the statute books for seven years! It may be powerful but it is far from new…
I did comment on Eoin’s post, saying that the difference was that “what has emerged in this bill is a more detailed set of issues to be covered in regulation”. It turns out that I am wrong on that too – having finally had a chance to do a line by line, the issues are almost exactly the same (although expressed slightly differently in the new version – for example, some sentences are split into two!). On the other hand, some interesting differences are (a) the removal of the specific reference to ICANN from the provision on consultation, (b) the provisions for Comreg levying the .ie authority and having access to its database, and (c) the interesting provision (new section 35) on designating an ‘interim authority’ (which indicates that this time, they might actually get around to writing some regulations?). Michele also has a very good point on retrospective application of the regulations, which raises all sorts of fun problems over property rights and what not.
The big story here, in my view, is the lack of action over the last seven years, despite numerous suggestions that regulation was just around the corner (see for example this 2003 Irish Independent article or this it’s-really-happening-no-really-it-is 2004 press release from the Minister). And we still don’t know how a ComReg-IEDR squabble will work in practice – no matter what the law says, this is not purely an Irish matter. In 2004, I wrote (referring to the 2000 Act) that:
although this does establish a clear principle in Irish law, the enforceability is no doubt difficult … any change is dependent on IANA/ICANN’s approval, which typically requires certain concessions by the national government, and furthermore, all the Irish authorities could do with an un-cooperative party (i.e. an incumbent registry refusing to inform IANA/ICANN of consent to transfer responsibility) is fine them the maximum under ss. 3 – a whopping £500 (€635)
That question, despite much happier ICANN vs national government relations in the intervening years, remains unanswered. Indeed, the fact that the World Summit and other international events did not have a serious impact on ICANN/IANA/US Governments operations in the area of national ccTLDs means that if a crisis blew up over an “IEDR takeover”, we’d still be in this mess. ICP-1 still applies.
So yes. Interesting times again, but even if this bill didn’t go through, the Minister would still have the powers being criticised. Therefore, those who disagree will not just have to lobby against the 2007 Bill, but also seek the repeal of the 2000 Act!