ICANN Ombudsman's "Draft Decision" titled "Investigation Report" on the Nameshop issues

7/28/2019 ICANN Ombudsman's "Draft Decision" titled "Investigation Report" on the Nameshop issues

1/4

Office of the Ombudsman

Case 13-00128

In a matter of a Complaint by Sivasubramanian Muthusamy

Report dated 9th May 2013

Introduction

This investigation has commenced from a verbal complaint made to me at the Beijing meeting,

followed up by a written complaint and email submissions.

Facts

The essence of the complaint is that the complainant applied for a new gTLD string, .IDN, and later

when this was rejected, sought an amendment to read .internet. As an ancillary issue he also

sought funding for his application. The first string was rejected because of a conflict with theaccepted string for Indonesia. The application for funding was also rejected. The amendment was

also rejected. Subsequently he has made many approaches to the ICANN board and staff, and most

recently has sought a reconsideration under the ICANN Bylaws, which was rejected.

Investigation

To undertake this investigation I have read the submissions filed with me by the complaint, listened

to his verbal explanation, and read the reports filed with ICANN for the reconsideration. The

complainant has also provided me with a number of other documents in relation to these matters. I

have also reviewed the applicant handbook in relation to some of the issues which have been raised,

and considered his complaint in the context of my bylaw, the reconsideration bylaw and my

framework.

Issues

The issue which I am required to investigate are given six headings by the complainant. These can

be summed up as follows:-

1. Refusal by ICANN to accept the guidebook is ambiguous2. discrimination and arbitrary denial and failure to provide reasons in a transparent fashion3. an arbitrary and discriminatory decision on the support request, without reasons4. abuse of the process by erroneous interpretation5. infringement of his rights and to be treated fairly and transparently6. breach of natural justice

Jurisdiction


2/4

This is a matter where I clearly have jurisdiction. However perhaps more critically, my framework

provides that I would not formally investigate matters where the events have taken place more than

60 days ago. In the rapid evolution of domain name issues, matters can change very quickly, and the

Ombudsman Framework, (specifically approved by the ICANN Board and recommended by the

previous ombudsman Dr. Frank Fowlie, who has a very strong academic background in operation

of the ICANN ombudsman office), does impose this time limit. Against this, the InternationalOmbudsman Association guidelines do emphasise the need for informality in the approach to

decisions by the ombudsman. This need for informality would also mean a degree of flexibility in

the imposition of time limits.

In this case however, the complaint has already been dealt with in a very substantial fashion by the

Board Governance Committee in rejecting the reconsideration request. So while the complaint has

come fairly close on the rejection of the reconsideration request, in fact the relevant decisions go

back to February 19 2013 when the change request was rejected. The rejection of the .IDN goes

back somewhat further, and was tacitly accepted by the complainant when he sought the change

request to use .internet instead.

Taking all these matters together, I do not intend rejecting the complaint because of time limit

issues. In the context of a complaint about unfairness in process, perhaps a rejection on the

perceived technical grounds of being outside the usual time limit would be inappropriate.

Reasoning

The correspondence between the complainant and the board in relation to the application for

reconsideration have been very useful in examining and investigating the issues raised by the

complainant. It is immediately apparent that there has been a full consideration of these issues made

in the application and in the decision to reject the reconsideration request.

Effectively, the complainant is asking me to review or appeal a decision made after a lengthy

examination by ICANN staff. That is of course my function, to examine such decisions to

determine whether there has been any delay or unfairness in the way in which the various

applications have been made and in the way in which the reconsideration request was handled and

completed.

So, dealing with the issues as outlined by the complainant I have considered these as follows.

1. Refusal by ICANN to accept the guidebook is ambiguousThe Applicant Guidebook can certainly be described as a work in progress. After the initial

publication there have been a number of amendments and certainly it has been open for wide

discussion within the ICANN community. The specific issue which the complainant makes, relates

to the geographical limitations of the gTLD names. He says that the guidebook is ambiguous

because it does not specifically state that the string which he applied for, will be excluded because of

the similarity to existing country strings. The guidebook does make it clear that there will be issues


3/4

with geographical names, but that it is also incumbent on any applicant to ensure that the proposed

string does not carry any similarity to existing cc TLD strings. At page 67 in module to of the

guidebook it states explicitly at 2.2.1.4.1 that applications for strings that for country or territory

names will not be approved. This is referred to as the alpha-3 code in ISO 3166-1. I suspect this is

why the complainant has not pressed his application for the original string of dot idn, because he

must have realised that this was hopeless. It was at this point that he then decided to change this tothe alternative string of .internet by a change request made on 30th September 2012. But the

guidebook seemed very clear on this issue.

2. discrimination and arbitrary denial and failure to provide reasons in a transparent fashionThe complainant then says that the refusal to accept the request to change the string was

discriminatory and arbitrary and lacked reasons. I have been unable to identify any evidence of

discrimination, both in the material given to me by the complainant or in the responses by ICANN.

An arbitrary decision would be one made without reasons. There is certainly no shortage of reasons

given by ICANN, and those reasons are expressed in the correspondence relating to the rejection. Itis difficult to understand why those are considered not transparent. Certainly there is a

requirement that reasons be readily understood, and the process for reaching those decisions is

understood. For me to make a recommendation as to an unfair process, my investigations would

need to show that no reasons were provided or that they were not readily understood. In addition,

to find that decisions had been made in an arbitrary fashion, is really another way of expressing a

claim that reasons were not given. However my investigation clearly shows that there have been full

explanations given, and while the complainant may not necessarily agree, it is not part of my role to

act as an appellate body, but only to assess the fairness of the process.

3. an arbitrary and discriminatory decision on the support request, without reasonsThe investigation about this matter follows much the same approach as 2 above. The failure to

provide reasons would be unfair, but in this case again there were reasons. And again, it is not my

role to review those reasons but only to see if the process for reaching those reasons was conducted

fairly.

4. abuse of the process by erroneous interpretationIt is possible that serious errors in interpretation could be unfair. But the complaint by the

complainant is more generic, and is in reality a further attempt to have me you the decision as an

appeal rather than the fairness of the process. Certainly to decisions were made on interpretations of

the guidebook and on a review of the complainants application. But I think the point which the

complainant is making, is based on the decision about the effect of the string being too similar to the

Indonesian domain string, and he has effectively waived his right to challenge this by seeking the

amendment to the new string. So even if the interpretation was erroneous (and I do not believe that

it was), the complainant has been caught by his decision to change to an alternative string. I had

some difficulty in identifying where errors were said to have been made in the change application,

but certainly the investigation showed that this was considered and then rejected.


4/4

5. infringement of his rights and to be treated fairly and transparentlyThis heading is in many respects a repeat of earlier allegations. My investigations show that he was

able to make all of the applications necessary, omitted to seek an amendment to his application and

that no procedural difficulties were placed in his way. As with the other applicants, all of the material

was placed openly on the ICANN micro site and the decisions made have all been posted as well. Itis patently clear that this is as transparent and open as it can be, and there is no unfairness.

6. breach of natural justiceA breach of natural justice is another way of saying that there is unfairness. I was particularly

concerned reading the documents to see whether the complainant had been deprived of any rights

to take any of the necessary steps. I was also concerned to see whether his submissions had been

heard and considered. Finally, in the investigation I endeavoured to check whether there was

anything unusual or untoward or concealed about the decision-making. If these had been present,

there may be a breach of natural justice. However I did not see any such issues.

Result

As a result of this investigation, I consider that there has been an open and transparent treatment of

this application, and I find that there are no issues in relation to the way which his application has

been handled, that I would find necessary to bring to the attention of the board. It is a little unusual

for a complaint to come to the ombudsman after an application for reconsideration. It did enable

me to examine the evidence in relation to his complaint more thoroughly, because of the work

undertaken by ICANN staff in processing the reconsideration application, and the decision made by

the board to reject the reconsideration. My jurisdiction is limited to finding unfairness and/or delay,

and in this case I have not been able to find any such issues. Regrettably, the complainant will haveto accept the decisions made.

Chris LaHatte

Ombudsman

Documents

ICANN Ombudsman's "Draft Decision" titled "Investigation Report" on the Nameshop issues