RE: [registrars] Fw: WHOIS & Transfers reports

["Bruce Tonkin" <Bruce.Tonkin@melbourneit.com.au>]

Hello Siegfried,

You may be confused about the overall process. 

> 
> It is not the first time in that very issue that I rise my 
> objections to the 
> suggested transfer procedure.
> 
> For the sake of shortness I will concentrate on one item only:
> 
> 25. Instances when the Losing Registrar may not deny a 
> transfer include, but are not limited to; 
> 
> *   No response from the Registrant or Administrative 
>     contact ...
> 
> I do repeat : no response can, according to german law ( and I 
> would be surprised if in other european countries that is different),
> NOT be considered as agreement.

Recommendation 25 has no relation to getting agreement for a transfer - you have taken it out of context.  It is part of an audit process.  You need to refer to recommendation 25 in the context of recommendation 11: "If the Losing Registrar chooses to independently confirm.."


The actual task force report REQUIRES explicit consent from the registrant before a transfer can be completed.

For example, see recommendation 8:
The gaining registrar MUST confirm a transfer request, by requiring that the Registrant or Administrative contact of record as listed in the WHOIS complete a valid Standardised Form of Authorisation.  A transfer MUST NOT be allowed to proceed if no confirmation is received.




> 
> It just as simple : introducing that will have the effect that some 
> registrars will act agains the law or not follow that procedure:
> not really a good result.
> Not dealing with that fact is not going to help anybody.
> 

There are no laws being broken here as the registrant MUST give explicit agreement to a transfer.

As a losing registrar you have the right to audit the process (using the same Standardised Form of Authorisation), and if a gaining registrar has not complied with the policy you have the right to take action via dispute resolution - and of course you have the right to take legal action using German law against an organisation that has transferred a domain name without the consent of the registrant.  

Recommendation 25 is actually consistent with the law as you have described it.  As the registrant has given agreement under recommendation 8 to the transfer, you may NOT deny the transfer WITHOUT the agreement of the registrant.  By denying a transfer against the wishes of the registrant that has not given you permission to deny the transfer, then instead you would be in violation of the law.

I am not a lawyer, but I would be surprised if there is a law that requires a person to contact their previous supplier of a service, simply becuase they have chosen to transfer their business to another supplier.  I would expect the previous supplier to be able to check if this was the customer intent, and if so, find out why they chose another supplier.

Regards,
Bruce