[governance] Big Porn v. Big Web Ruling Could Spell Trouble for ICANN / was Re: new gTLDs

[Norbert Bollow]

Riaz K Tayob <riaz.tayob at gmail.com> wrote:

> ICANN enjoys the discretion of complying or not. At national levels 
> court's may refuse to even hear a case over which it will render an 
> "empty judgement" - hence issues of jurisdiction and effective 
> enforcement would play up here to even ensure legal standing. So the 
> sufficiency of the argument on national (other than US) control is
> much more complicated than at first sight.

Another aspect which complicates the matter, even if we assume that a
non-US national court would agree to assert jurisdiction, is the
following: Given that the kind of Internet governance questions that
could become court cases almost certainly weren't explicitly considered
when the relevant national laws were written, chances are that the
written laws will not be strictly deterministic of what the outcome of
the court case should be. National courts outside the US might, even in
countries with strong independence of the courts from the preferences
of other branches of government, choose to exercise their discretion by
following the example of how US courts have ruled on that kind of
matter. It certainly seems to me that there is an international
tendency of more and more adopting the US ways of thinking about
various legal matters even when other ways of thinking about those
topics locally have a longer tradition and are at least equally
justifiable. In countries where the court system is less independent, a
similar outcome might result after the executive branch of government
receives a more or less veiled threat of retaliation from the US
embassy.

My conclusion is that the legal foundation of ICANN really should be
fixed so that such questions of jurisdiction have answers which are
reasonably clear and internationally acceptable (which US hegemony in
any form or shape clearly isn't.) 

Greetings,
Norbert

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