ICANN Appeals German Court Decision on GDPR / WHOIS
LOS ANGELES – 13 June 2018 – The Internet Corporation for Assigned Names and Numbers (ICANN) today appealed a decision by the Regional Court in Bonn, Germany not to issue an injunction in proceedings that ICANN initiated against EPAG, a Germany-based, ICANN-accredited registrar that is part of the Tucows Group. The appeal was filed to the Higher Regional Court of Cologne, Germany.
ICANN is asking the Higher Regional Court to issue an injunction that would require EPAG to reinstate the collection of all WHOIS data required under EPAG’s Registrar Accreditation Agreement with ICANN.
The Regional Court in Bonn rejected ICANN’s initial application for an injunction, in which ICANN sought to require EPAG to collect administrative contact and technical contact data for new domain name registrations.
If the Higher Regional Court does not agree with ICANN or is not clear about the scope of the European Union’s General Data Protection Regulation (GDPR), ICANN is also asking the Higher Regional Court to refer the issues in ICANN’s appeal to the European Court of Justice.
ICANN is appealing the 30 May 2018 decision by the Regional Court in Bonn as part of ICANN’s public interest role in coordinating a decentralized global WHOIS for the generic top-level domain system.
“We are continuing to seek clarity of how to maintain a global WHOIS system and still remain consistent with legal requirements under the GDPR,” said John Jeffrey, ICANN’s General Counsel and Secretary. “We hope that the Court will issue the injunction or the matter will be considered by the European Court of Justice.”
On 25 May 2018, ICANN filed the injunction proceedings against EPAG. ICANN asked the Court for assistance in interpreting the GDPR in an effort to protect the data collected in WHOIS. ICANN sought a court ruling to ensure the continued collection of all WHOIS data. The intent was to assure that all such data remains available to parties who demonstrate a legitimate purpose to access it, and to seek clarification that under the GDPR, ICANN may continue to require such collection.
ICANN filed the proceedings because EPAG had informed ICANN that as of 25 May 2018 when it sells new domain name registrations, it would no longer collect administrative and technical contact information. EPAG believes collection of that particular data would violate the GDPR. ICANN’s contract with EPAG requires that information to be collected.
EPAG is one of over 2,500 registrars and registries that help ICANN maintain the global information resource of the WHOIS system. ICANN is not seeking to have its contracted parties violate the law. Put simply, EPAG's position spotlights a disagreement with ICANN and others as to how the GDPR should be interpreted.
On 30 May 2018, the Court determined that it would not issue an injunction against EPAG. In rejecting the injunctive relief, the Court ruled that it would not require EPAG to collect the administrative and technical data for new registrations. However, the Court did not indicate in its ruling that collecting such data would be a violation of the GDPR. Rather, the Court said that the collection of the domain name registrant data should suffice in order to safeguard against misuse in connection with the domain name (such as criminal activity, infringement or security problems).
The Court reasoned that because it is possible for a registrant to provide the same data elements for the registrant as for the administrative and technical contacts, ICANN did not demonstrate that it is necessary to collect additional data elements for those contacts. The Court also noted that a registrant could consent and provide administrative and technical contact data at its discretion.
ICANN appreciates and understands the dilemma of EPAG in trying to interpret the GDPR rules against the WHOIS requirements, but if EPAG's actions stand, those with legitimate purposes, including security-related purposes, law enforcement, intellectual property rights holders, and other legitimate users of that information may no longer be able to access full WHOIS records.
In addition to the court proceedings, ICANN is continuing to pursue ongoing discussions with the European Commission and the European Data Protection Board to gain further clarification of the GDPR as it relates to the integrity of WHOIS services.
ICANN’s mission is to help ensure a stable, secure and unified global Internet. To reach another person on the Internet, you need to type an address – a name or a number – into your computer or other device. That address must be unique so computers know where to find each other. ICANN helps coordinate and support these unique identifiers across the world. ICANN was formed in 1998 as a not-for-profit public-benefit corporation with a community of participants from all over the world.