Domain Administration Needs Dispute Resolution Process

By Sue Bushell

Australian Domain Name administrator auDA got it right last year when it decided against opening up the .au domain space for direct registration, and Australian e-government is the stronger for it.

But regulators should consider instigating domain registration dispute resolution processes and clarifying areas of responsibility across our multiple tiers of government, according to a visiting German PhD student.

Martin Backes, from the Institute of Law and Informatics in Saarbrucken, told a seminar at the University of NSW Cyberspace Law and Policy Centre last week the lack of a sub-level domain structure devoted to government in Germany has created a highly competitive environment rife with disputes.

Under the German domain structure, every entity — including government bodies, individuals, businesses and local councils — registers under the .de domain, and competition for domain names can be fierce and the results uncertain.

In one of the more infamous disputes, in 2001 a German court ruled oil giant Deutsche Shell GmbH, the German unit of Royal Dutch/Shell, had more right to the SHELL.DE domain name than an individual named Andreas Shell who had already registered the name. The German federal court in Karlsruhe said in its ruling the use of Web addresses should be determined according to which party had the overriding interest in owning the name, even if someone else had already registered it.

"This is important for example for cities and councils and so on because we have a competition between council names and names of natural private persons," Backes says. "And it's very difficult to say when a person is well-known, when Shell is well-known: what are the criteria?"

In Germany the central registry is run by DENIC, a non-profit organization, using an almost fully automatic registration system. Registration is open to both German and foreign natural and legal persons and no legal check is performed of the chosen domain name by registry. Registration of government Web sites is conducted via a contract between the agency and DENIC

In his thesis Backes says he will urge the German government and domain administrator DENIC to consider adopting the Australian system of having a .gov sub domain. He says the German government has so far taken a "very passive" approach to domain name registration.

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"Australia has a more systematic and structured system," Backes says. "You have it easier because you have not so much competition; you have not so many disputes. And the government has a very safe way to show their contents because you have this .gov.au domain, and if you would like to register for this domain, you have to follow the guidelines, you have to be a government body, and so on.

"In my thesis I suggest that we introduce a .gov.de sub-level domain to the domain system because it will be easier for citizens to see and to trust these Web sites, and they wouldn't have to search so long for the Web sites."

The German government has publicly stated it will not interfere as long as the system is working successfully. With almost 12 million registrations to date under the .de domain, it appears to believe there is no need for it to involve itself.

But Backes says Australia could better clarify the situation for entities wanting to register a fourth-level domain name under the relevant state government. While there are guidelines on the Web pages of AGIMO, GCIO and auDA, they are confusing, he says.

"It's not really clear who is responsible for what and on whose behalf GCIO is acting," he says, "especially in NSW. There is a dispute resolution on the AGIMO Web pages for cases where there is a dispute between two registrants (one who has a .gov.au domain and another who would like to have the same .gov.au domain) but there is no dispute resolution for a dispute between AGIMO, GCIO and a local council for example.

"My question is: What happens when GCIO or AGIMO refuse to accept an application. What happens when GCIO don't pay the fees, and so on?"

He is urging state and federal authorities to work together to eliminate confusion, establish dispute resolution procedures, clarify the roles of various authorities and draw up clearer guidelines for applicants.