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[comments-whois] WHOIS Task Force Draft Final Report


> WHOIS Task Force Draft Final Report
> Comment from Reed Smith Warner Cranston
> .......................................................................
> At Section A of Part VIII of the Draft Final Report, the Task Force
> proposes improving data accuracy through enforcement of existing
> contractual clauses against registered name holders.  As a potential part
> of this strategy, the Task Force proposes introducing a system of
> 'graduated sanctions or enforcements' including a combination of policy
> and financial penalties.  Central to the effectiveness of the strategy is
> therefore the enforceability of the contractual provisions which may be
> relied upon as the sanction for provision of  inaccurate data.    
> Prior to recommending this strategy, we suggest that the Task Force should
> ensure that the necessary enforcement provisions will be capable of
> meeting the following basic requirements:
> 	1.	The enforcement provisions should be resistant to legal
> challenge and enforceable in the key jurisdictions;
> 	2.	The enforcement provisions should apply evenly to registered
> name holders in different jurisdictions across the Community.   
> Failure by the Task Force to ensure that these requirements are met may
> result in registrars becoming embroiled in costly litigation over the
> operation of the enforcement provisions and result in potentially damaging
> publicity if the provisions are successfully challenged.   
> We believe that there is insufficient evidence at this stage to suggest
> that the above requirements can be met.  The basis for this belief is
> that, at present, there is insufficient information available as to how
> the enforcement provisions will operate to enable there to be adequate
> legal analysis as to enforceability of these provisions.  Furthermore, if
> the clauses operate as proposed, (ie. as policy and financial penalties),
> there are prima facie legal grounds in some jurisdictions, including
> England and Wales and possibly other common law and also European
> countries, on which they may be found to be unenforceable.   
> In support of our view, we draw the Task Force's attention to the cases in
> English common law (of relevance not only in England and Wales but also in
> other related common law jurisdictions) under which the court will decline
> to enforce a contractual provision which is of a penal nature.  We also
> raise the matter of the possible application of the 1993 European
> Directive on Unfair Terms in Consumer Contracts which is applicable in all
> Member States of the European Union.  
> We therefore recommend that before the strategy for improving data
> accuracy through enforcement of the possibly penal provisions is adopted,
> the Task Force should consider in more detail the drafting of the model
> provisions themselves and conduct a legal review of the enforceability of
> these measures in the key jurisdictions in order to ensure that
> improvements to data accuracy can be delivered as planned. 
> Reed Smith
> Warner Cranston
> Minerva House
> 5 Montague Close
> London SE1 9BB
> +44 (0) 20 7403 2900
> Fax +44 (0) 20 7403 4221
> ref GXB/NAP

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