Content regulation and private ordering at internet governance institutions

Event report

[Read more session reports and live updates from the 12th Internet Governance Forum]

The session was opened by Dr Farzaneh Badii, Author at Internet Governance Project, who introduced the topic of content regulation, the focus of discussion being the role of ICANN in content regulation and the impacts this has on freedom of speech.

Dr Annemarie Bridy, Professor of Law, University of Idaho College of Law, joined remotely and explained that ICANN had not been involved originally in content regulation, but in 2013 ICANN expanded its regulations by Specification 11 of the New Generic Top Level Domain (gTLD) Registry Agreement, which included public interest commitments of registry operators with regard to security threats. This also encompases the consequences for breach and suspension of domain names, and put ICANN into the territory of content regulation. Bridy explained that there has been a contractual migration of content regulation since, and in 2016 the trusted notifier arrangement between Donut and the Motion Pictures of America was allowed to bypass reluctant registrars and suspend the domains at registry levels without public due process, thus allowing for content regulation by the domain name system (DNS) intermediary.

Dr Milton Mueller, professor in the School of Public Policy at the Georgia Institute of Technology, explained the expanding pressure on the intermediaries to take on responsibility of enforcement of content regulations, stating that the implications for freedom of speech are negative. He stated that the ICANN regulation in this area overlapped into content regulation.

Ms Becky Burr, Board Member at ICANN and Chief Privacy Officer at Neustar, explained from the ICANN point of view that ICANN has refrained from regulating content, and that ICANN is extremely mindful of the prohibition on content regulation. As far as the contractual migration of the regulation in Section 11, Burr stated that these are taken on voluntarily by the registrars and registry operators via contractual obligations. She also touched on the enforcement issues related to content regulation.

Mr Tim Smith, General Manager, Canadian International Pharmacy Association, joined through remote access and explained the perspective of trusted notifiers from voluntary initiatives. He stressed the importance of healthy practices when dealing with content regulation and specified that the limitation of the services of the pharmaceutical domain to a national border also constitutes a form of content regulation, since it limits access by all users regardless of borders.

Mr Brian Cute, CEO of the Public Interest Registry, brought in the perspective of the registry operators and stated that they should not be arbitrators of content on the Internet. He stressed the importance of takedown policies, as well as of due process and rule of law in this procedure. He further explained that basic technical abuse of the DNS is always taken down. As far as content is concerned, the takedown relates to exceptions, such as illegal issues and hate speech. Mr Cute stated that there is a clear legal process for takedown and that registry operators rely on due process and rule of law. His concern was increasing government pressure to take down content, and how to approach systemic copyright violations.

Dr Tatiana Tropina, Senior Researcher at the Max Planck Institute for Foreign and International Criminal Law, focused on the description of DNS abuse as one of the content regulation issues. She touched upon the issues in this context of due process and of enforcement. Tropina further explained that the actual takedown of a website or removal of content do not lead to criminal convictions as such.

The discussion at the round table further included issues of due process when taking down content, the Manila principles on intermediary liability, copyright policy concerns, and the issues of enforcement when dealing with DNS abuse. The participants again stressed the importance of due process and of the rule of law, as well as the need for uniformity in procedures.

By Pavlina Ittelson