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Nominet UK Could Take Down Piracy Website Domains Without a Court Order

Posted: 14th Nov, 2011 By: MarkJ
www domain namesnominet ukA soon to be approved draft proposal from Nominet, which is responsible for the .uk registry of internet domain names (e.g. "ISPreview.co.uk" is a domain), could see allegedly illegal websites (including those "directly involved in the criminal distribution of counterfeit goods") being taken down (suspended) from the World Wide Web (WWW) without a court order.

Nominet states that the new policy "must be proportionate in scope" and give recognition to the fair and legitimate interests of registrants and users. It claims that the powers would only be used as a "principle of last resort", where urgent suspension is necessary to "reduce harm to individuals".

Apparently the "criminal activity" would first need to show that it creates a clear risk of "imminent serious harm" before any removal action could be taken. This is defined as "urgent or on-going harm" that include, "but is not limited to", the following examples.
Nominet - Types of Website Content Defined as Causing Imminent Serious Harm
* Phishing.
* Fraud.
* The unlicensed sale of medicines or other regulated goods and services.
* Botnets.
* The domain is directly involved in the criminal distribution of counterfeit goods.
It's easy to understand where Nominet is coming from with their proposal and we can't fault their core intention, yet it appears to lack a well structured appeals process and many fear that it could go too far; if not now then through a future expansion of its remit (we can already see Rights Holders salivating at the mere thought).

Likewise the unilateral removal of any website, especially given Nominet's crucial position in the market and its structure of corporate governance, should really require a court order. Broadband ISPs have all been requesting this and in an ideal world Nominet should not be any different.

Trefor Davies (blog), CTO of Business ISP Timico UK, cautioned:

"The problem lies in the fact that Nominet wants to do this without being in receipt of a court order – the process of obtaining which can be laborious. The proposal is that an authorised senior officer of a relevant Law Enforcement Agency will contact the registrar as a “trusted party” and declare that the suspension of a specific domain name is proportionate, necessary, and urgent, and that the agency is seeking suspension under the principle of last resort.

The issue is that here in the UK we have independent judges in place to decide on whether something is illegal or not and we don’t leave this decision to others. It is the same argument I have against the implementation of the Digital Economy Act notification system although I’m sure that no one is intending to compare “infringers” as defined by the DEAct with the “criminals” Nominet is seeking to thwart."

Last year the UK governments Minister for Culture, Communications and Creative Industries, Ed Vaizey, ominously proposed that "the internet industry" (e.g. Nominet) could introduce a new Mediation Service that would allow them the freedom to censor third party content on the internet, without court intervention, in response to little more than a public complaint (here). He might just get his way.

Nominet is currently looking to finalise its proposals on Friday and we would be very surprised to see any radical changes before then.
Nominet Proposal - Dealing with Criminal Domains (PDF)
http://www.nominet.org.uk/digitalAssets/54345_Issue_group_draft_recommendations_101111.pdf
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