The Digital Economy Act 2010 (DEA) introduces new powers in relation to domain name registries to prevent potential abuses in light of the liberalisation by ICANN (the Internet Corporation for Assigned Names and Numbers) of the generic top-level domain (gTLD) market.
The Digital Britain Report noted that ICANN, the body responsible for allocating generic- and country-code top level domains, had introduced a new policy in 2008 proposing the expansion of the gTLD space to a virtually unlimited number of gTLDs. Whilst most of these are likely to be geographically neutral, like .sport, it is possible that an organisation could apply successfully to operate a geographical gTLD such as .britain. Currently, the only specifically UK-related domain registry is Nominet, which operates the .uk register. The risk that ICANN's gTLD expansion policy could give rise to additional registries whose names identified them with the United Kingdom has led to a Government decision to reserve powers in any forthcoming legislation to regulate registries should this prove necessary.
THE NEW POWERS
Section 19 DEA introduces a power for the Secretary of State to notify a registry of a "serious failure" in its practices. "Relevant failures" are defined in Section 19(3) as the occurrence of
- The registry, any of its registrars or end users engaging in prescribed practices that are unfair or involve the misuse of internet domain names, or
- The arrangements made by the registry for dealing with complaints in connection with domain names not complying with prescribed requirements.
A relevant failure is deemed serious if it affects adversely the reputation or availability of communications networks or services, or the interests of consumers or members of the public in the United Kingdom, or has the potential to do so. Provision is made for regulations to set out the "prescribed requirements" referred to in Subsection (b) above.
Section 20 affords the Secretary of State the power to appoint a manager over a failing registry which has not taken appropriate steps to remedy its failures within a prescribed period (which has not, as yet, been prescribed). Section 21 sets out the functions of a manager appointed under Section 20.
The Government has itself acknowledged that, as long as Nominet remains the only UK registry, the current system of self-regulation works. Sections 19-21 of the DEA now provide a mechanism to intervene should self-regulation prove ineffective after the liberalisation of the gTLD market