The curious legal status of .uk and .ie

From The Register:

The company that runs the UK's Internet registry is not officially recognised by the government and as such has no right to decide what should be done with the millions of domains that it sells each year.

That at least is the claim of Ben Cohen, former owner of iTunes.co.uk, who lost ownership of the domain to Apple in March after a ruling by an independent expert hired through Nominet's domain resolution process.

Cohen has been decrying Nominet since the decision and made a variety of legal threats over the decision. However he recently discovered that he was not able to take the actual decision made against him to the High Court for Judicial Review because of Nominet's peculiar status.

Following questions made under the Freedom of Information Act, the government was forced to state that there is "no formal relationship or written agreement" between the UK government and Nominet. As such, it is not a public body and so is subject only to the usual laws covering UK companies.

Cohen argues that this status is misleading since representatives from government bodies have permanent seats on Nominet's Policy Advisory Board (PAB). The government also accepted that this situation does not exist for any other company.

[...]


"At no point has there ever been a statutory or official recognition by the Government of Nominet's position as a the sole issuer of .uk domain names to the public.

"The status of Nominet is important because their dispute resolution service acts in a quasi-Judicial manner in deciding who should lay claim to a domain name when a dispute arises. CyberBritain was planning on taking the decision made on the 10th March to the High Court for Judicial Review. However, this course of action is only open to review decisions made by public bodies.

"Nominet have always claimed to us that they are on the one hand officially recognised by the Government but not a public body, meaning that their decisions would not be subject to Judicial Review. In my mind, this is a paradox as an official or statutory recognition of an organisation to administer what is in effect a public service would generally be subject to Judicial Review. This certainly would be the case with decisions made by Ofcom who regulate telecommunications and television.

"If Nominet have no official recognition (despite civil servants being on their Policy Board) then all domain names issued by them are placed in jeopardy."

Nominet is not impressed with this logic.

"Mr Cohen has continued to threaten legal action in the press and in private, but no proceedings have ever been issued. Nominet has repeatedly explained to Mr Cohen that we believe that he has no basis for suing us and that the particular type of litigation he was threatening (called "Judicial Review") was totally inappropriate because Nominet is not a Government body.

"Nominet is not a Government body and has never claimed to be. We state on our website that we are 'officially recognised' and we explained the meaning of this to Mr Cohen previously.

"The Dispute Resolution Service forms part of the contract we have with registrants of .uk domain names and is enforced as a matter of contract law. We have told Mr Cohen this, and have never tried to suggest that Nominet's Dispute Resolution Service (DRS) is 'quasi-judcial', statutory (i.e. in an Act of Parliament or similar) or Government-backed."

Much the same problem exists in relation to the .ie domain registry which carries out a public function without any legislative or regulatory underpinning. Their FAQ addresses this point, but in a way which raises more questions than it answers:

6. What exactly is the IEDR - is it a statutory body, is it a semi-state, is it part of UCD, is it some kind of public service or is it just a monopoly like, say, the ESB?

6. The IEDR's origins are in UCD but since July 2000 it's been a private company, limited by guarantee. It has no shareholders, the company is owned by its members who are the directors. Surpluses are not distributed, they are added to opening reserves. Directors as per the company's constitution, do not receive fees or emoluments. Only the IEDR can administer .ie - which it does as a public service - but it is not a monopoly in the sense that anybody in Ireland, or elsewhere, can register from a choice of approximately 250 different national and generic TLD names. The IEDR works closely with national and international governments, governing bodies, trade associations and abides by Internet best practice principles while still operating as an independent private company.

The E-Commerce Act 2000 allows (in section 37) the government to regulate the .ie TLD - however this has yet to be done, despite Ministerial promises that the .ie domain will eventually be regulated by ComReg.

You might well ask - so what? As long as the .ie domain functions, why should lawyers nitpick about its legal foundations? The narrow answer is that there have been many complaints about the governance and transparency of the IEDR, including allegations that it is still dominated by UCD (from which it is an offshoot), all of which ultimately have their origins in the lack of a proper legal basis for the registry.

More widely, though, as a matter of principle where a body controls a public asset (the .ie domain), is exercising a public function, and has its origins in the public sector, it should be subject to rules of public oversight (such as the Freedom of Information Act and judicial review). Instead, the IEDR currently exercises a state-sanctioned monopoly without any real oversight.

Update (17/6/05): Ben Cohen has decided to proceed with the judicial review. Stay tuned to see whether the English courts will accept jurisdiction to judicially review decisions of Nominet.

Update (5/8/05): The judicial review application was rejected - but it's not clear whether the court considered whether Nominet was subject to judicial review. According to Out-Law:

the judge noted that the application was flawed in several respects, being both late and unnecessary given the right of appeal which forms part of Nominet's Dispute Resolution Service, which Mr Cohen had failed to use.

This suggests that the application was rejected on a procedural basis (delay and failure to exhaust remedies) rather than on the substantive ground that Nominet was not a public body.