[AfrICANN-discuss] Let's be proactive - domain names regulator

[Vika Mpisane]

On 2012/10/30 11:37 AM, "Dr Paulos Nyirenda" <paulos at sdnp.org.mw> wrote:

>On 30 Oct 2012 at 10:49, Vika Mpisane wrote:
>
>> ...
>> The regulation I sought to focus on is the usage of domain names. As you
>> can see from the ECT Act extract, ZADNA regulates 2nd level domain
>> registries (e.g. Org.za, co.za) & registrars. However, we don't regulate
>> how a domain name holder uses the domain name. Effectively, we regulate
>> the ZA domain name registration process that registries & registrars
>> should adhere to, but we don't regulate the domain names themselves or
>>how
>> they are used.
>> ...
>
>Very thin line indeed which makes it easy for the authority to side step,
>easily. As the 
>domain name authority, I think ZADNA has a wider mandate on regulating
>domain names as 
>directed by the RSA Government or legal framework than you seem to
>indicate. 
>
>For example 65(4): "The (ZADNA) Authority may, and must when so requested
>by the 
>Minister, make recommendations to the Minister in relation to policy on
>any matter 
>relating to the .za domain name space". Does this exclude "use"?

Laws try very hard to avoid ambiguity, but interpretation of such laws
tends to always identify ambiguities.The letter & spirit of our ECT Act is
to avoid ZADNA having any authority over "use". I think we've established
that precedent quite well over the last 9 years - so much so that it's
accepted by registrars & registrants alike. Our power to recommend policy
to government may indeed be a gap that could be exploited to regulate use,
but because we don't understand our regulatory mandate to include
regulation of use, we are unlikely to exploit the gap. Plus I think it's
global best practice (I.e. It's a fairly common practice globally) amongst
ccTLDs not to regulate use & to leave use regulation to law enforcement
agencies.

Of course, the fact that ZADNA is a membership entity (every SA citizen
can become a member for free) means that we can only do as much as our
members permit. Reading s65(4) with the current s68, you can see that
regulation of use is excluded or at least is not mentioned expressly
(unfortunately s68 is too long to quote here). S68 lists a number of areas
that ZADNA's regulation may cover beyond & as part of licensing &
regulating registries & registrars.

>
>True that other countries may seek a different model consideration of
>which may include 
>whether they have the resources to create a completely new such
>authority. Further
>examples here include the model in Tanzania with tzNic and Egypt both
>where there is no 
>new such authority BUT the telecomms regulator plays the more significant
>role.

Yes, but I'm not sure how tzNIC stands (in a legal sense) to TCRA (the
regulator), but I know they have a good relationship. In essence, if you
can avoid using a law to set uo or clarify your ccTLD mandate, then don't
use the law. I suppose this is what see in Egypt where NTRA (regulator)
still allows Egypt' Universities Network to continue as the .eg ccTLD
manager.

>
>There  are a number of countries in Africa in a review process like
>Malawi ... it will be
>interesting to see which way they go in the next year or two. This will
>make the ISOC / 
>AFTLD project quite interesting.

Now, this is a very interesting point & it's good because AfTLD & ISOC are
planing to work on this. The ccTLD regulatory study should shed more
light. At least as point of departure, we know upfront what models are
common (in Africa & beyond).

As far as the ZA model is concerned, I should point out that the amendment
of the ECT Act has just commenced - a notice was gazetted last week.
Several amendments in relation are already proposed, but these are more to
clarify ZADNA's role without extending ZADNA's powers. I'm willing to
share the amendment documentation if you desire to see it.

Regards,
Vika