Two separate ICC panels have denied the objections to the new gTLD’s .Islam and .Halal finding that although there “opposition to Respondent’s application to some extent, but such opposition is not substantial”.
Although they were two separate opinions both shares a lot of the same finding and drew the same conclusions:
Here are the relevant parts of the decision:
The Expert observes that only the Objector has filed an objection against Respondent’s application. No other individual, organization or country – whether member of the OIC or not – has opposed Respondent’s application within ICANN’s relevant channel.
Some countries – such as India and Saudi Arabia – inquired about Respondent’s application and raised some early concerns in this regard.
However, since such countries neither filed a separate objection nor subscribed that of the Objector, the Expert can draw the conclusion that they finally did not officially back a community objection to Respondent’s application. In fact, in Procedural Order No. 2 the Objector was instructed to submit additional letters of support but did not submit letters from these two countries. This is highly indicative of their lack of official support to the Objector’s community objection.
The Objector filed with the Reply letters of support from governmental agencies of Bahrain, Qatar, Kuwait, Egypt, Oman, Turkey and Malaysia, as well as from the Gulf Cooperation Council.
The Gulf Cooperation Council is composed of the UAE, Bahrain, Saudi Arabia, Oman, Qatar and Kuwait.
Therefore, the Gulf Cooperation Council would only add to the list of supporting countries, at best, Saudi Arabia. However, the Expert has previously found in ¶ 101 above that the opposition of Saudi Arabia has not been evidenced. Consequently, the Objector has only evidenced support from 8 countries (including itself and excluding Saudi Arabia) out of a total of 57 which form the OIC.
103. Furthermore, the Objector has referred to around one hundred comments to Respondent’s application of which, allegedly, the majority are against such application. However, no evidence of such comments has been provided to the Expert and thus the Objector has failed to meet its burden of proof in this regard.
In accordance with the foregoing, the Expert finds that the “[n]umber of expressions of opposition relative to the composition of the community”, which is the first factor in the “substantial opposition” subsection of Article 3.5.4 of the Guidebook, favors Respondent’s position.
The same is true for the second factor listed in the same subsection of the Guidebook. More precisely, the Guidebook finds relevant “[t]he representative nature of entities expressing opposition”. As has been evidenced, the Objector cannot speak for the OIC or any other member thereof. At best, the Objector could speak for the citizens of the UAE and the other 7 supporting countries only. There are around 1.6 billion Muslims worldwide,123 but the total Muslim population of the 8 opposing countries is 207 million, representing roughly 13% of the Muslims of the world.124 In the Expert’s opinion, this is not a substantial portion of the Muslims around the world for the purposes of sustaining a community objection. Therefore, the Expert finds that this factor favors the Respondent.
To the “[l]evel of recognized stature or weight among sources of opposition”, which is the third factor listed in the Guidebook, the Expert wishes not to minimize the authority of the Objector. However, Article 13 of the Telecom Law generally circumscribes the Objector’s functions and power’s within the territory of the UAE. Therefore, the Expert finds that the Objector does not have sufficient international weight – without the support of a substantial number of Muslim countries or the OIC itself – to globally represent the interests of the Islamic community throughout the world. For the avoidance of doubt, the Expert is of the opinion that the other 7 supporting countries cannot be considered as a substantial number.
Finally, as to the factor related to costs incurred by the Objector in expressing opposition,125 no other costs have been evidenced besides those related to the Centre’s filing fee and request for deposit of the estimated costs, which have been paid by ICANN.126 The Expert will also assume some costs related with the Objector’s legal representation in this proceeding. All these costs do not appear to be excessive in relation to the potential impact of a decision affecting a community of around 1.6 billion people. Additionally, the Objector has furnished no evidence of pursuing any “other channels the objector may have used to convey opposition”.127 Thus, this factor disfavors the Objector.
The Expert does not need to consider any other factors and is confident in reaching the conclusion that there is opposition to Respondent’s application to some extent, but such opposition is not substantial.
Accordingly, the Objection must fail.
Article 3.5.4 of the Guidebook (“Detriment” subsection) requires that the “objector must prove that the application creates a likelihood of material detriment to the rights or legitimate interests of a significant portion of the community to which the string may be explicitly or implicitly targeted”. Notably, the Guidebook adds that “[a]n allegation of detriment that consists only of the applicant being delegated the string instead of the objector will not be sufficient for a finding of material detriment”.
The Guidebook sets a high bar in order for the Expert to find any detriment:
If opposition by a community is determined, but there is no likelihood of material detriment to the targeted community esulting from the applicant’s operation of the applied-for gTLD, the objection will fail.179
In this case, as discussed in section V.C(c) above, there is some opposition from the community but such opposition is not substantial. The question now presented is the likelihood of material detriment to the targeted community. To reach an answer, the Expert will analyze the factors included in the relevant subsection of Article 3.5.4 of the Guidebook.
The first factor in the Guidebook is:
Nature and extent of damage to the reputation of the community represented by the objector that would result from the applicant’s operation of the applied-for gTLD string
The Expert finds particularly illustrating Dr. Pellet’s report to address this point.180 Although this report is intended for the “.Islam” application, some of his conclusions are applicable to the String. Dr. Pellet reviewed a number of binding and non- binding international instruments, both at global and regional levels, which deal with the freedom of religion.181 The Expert notes that a common denominator of these instruments is the protection of freedom of religion and the freedom to manifest one’s religion. Of particular relevance is the Universal Declaration of Human Rights, adopted by the United Nations General Assembly on 10 December 1948. Notably, the UAE has been a member of the United Nations since 1971.182
As Dr. Pellet correctly mentions, the Universal Declaration of Human Rights explicitly says:
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
For the Expert, the registration of the String will contribute to promoting this objective, as it will become a vehicle for Muslims to express themselves and expand their faith across the world.
The possible damages asserted by the Objector, which have not been sufficiently evidenced, are outweighed by the necessity of promoting human rights, such as the freedom of religion and the opportunity for every individual to manifest its own religion. Therefore, this factor favors the Respondent.
The second factor in the Guidebook is:
Evidence that the applicant is not acting or does not intend to act in accordance with the interests of the community or of users more widely, including evidence that the applicant has not proposed or does not intend to institute effective security protection for user interests
The Objector has certainly not provided any evidence that the Respondent is not acting or does not intend to act in accordance with the interests of the Muslim community. On the contrary, the Respondent has promised to operate the String in a manner that will prevent “radical content or criticism of Islam and the Muslim faith”, and the Respondent “will take immediate and severe action against this should it occur”.
It has been evidenced that the Respondent intends to implement security measures to avoid the misuse or abuse of the String.
In this regard, the Guidebook does not require that the measures be in place at this time, but rather that such measures be proposed (or an appearance of an intention to propose or implement them in the future).
Among these measures already proposed, the Respondent intends to:
Design a multi stakeholder governing system (a/k/a “Policy Advisory Council), where Islamic governments, organizations and individuals will have representatives that will participate in the management of the String under direct supervision of a multinational Islamic organization or institute.
Implement a strict policy under which not everyone will be eligible to apply for a second-level “.Halal” domain, but only those who meet certain requirements.187 Additionally, certain second-level domains will be restricted and all second-level domains will be subject to a policy of use.
Impose penalties and suspensions upon violators of the user’s policy.
Include one addendum to its Registry Agreement with ICANN whereby certain requirements will be imposed on the registry operator in order to promote transparency and avoid misuses or abuses.
In accordance with the above, the second factor favors the Respondent.
The third factor in the Guidebook is:
Interference with the core activities of the community that would result from the applicant’s operation of the applied- for gTLD string
The key language in this factor is “core activities”. In ¶ 65 above the Expert
transcribed the five pillars or core principles of Islam. The Expert is of the opinion that the operation of the String will not, on its face, interfere with any of them. Nonetheless, as discussed above, the Respondent intends to implement policies and mechanisms to ensure that the integrity of Islam is preserved. Consequently, this factor favors the Respondent.
The fourth factor in the Guidebook is:
Dependence of the community represented by the objector on the DNS for its core activities
The Respondent has stated that “[t]he global Halal community is not dependent upon the DNS for its core activities, namely practicing Islamic religion and living a Halal lifestyle”.191 The Objector has remained silent in this regard.
Islam originated around 1400 years ago, long before Internet was created.192 Therefore, the Islamic community is not dependent on the DNS. As a result, this factor favors the Respondent.
The fifth factor in the Guidebook is:
Nature and extent of concrete or economic damage to the community represented by the objector that would result from the applicant’s operation of the applied-for gTLD string
Neither of the Parties has argued a concrete or economic damage to the Islamic community. In fact, the Expert is of the opposite view. In line with ¶ 146 above, the Expert agrees with the Respondent in that the String may serve as a platform for the expansion of Halal products across the borders, which may be translated into increased profits for the participants in the Halal industry.
The sixth factor in the Guidebook is:
Level of certainty that alleged detrimental outcomes would occur
The Objector has not evidenced any immediate or imminent detriment. Rather, the Objector has speculated with some possible outcomes. In light of the foregoing, the Expert finds that the likeliness of detriment to the Islamic or Halal communities, though possible, is remote. As a consequence, this factor favors the Respondent.
n sum, the Expert concludes that the Objector has failed to prove the likelihood of any material detriment to the rights or legitimate interests of a significant portion of the Islamic community. For this reason, the Objection must fail.