Government has today announced the launch of a consultation concerning bringing provisions of the Digital Economy Act 2010 (DEA) into force. The consultation sets out the government’s expectations of UK based internet domain name registries, including .UK, .cymru and .wales which are administered by Nominet. In the event of a “serious relevant failure” then the Government may intervene in a registry’s operations.
The serious relevant failures relate to the misuse and abuse of UK-related internet domain names, and prescribed requirements relating to complaints procedures. Prescribed requirements are proposed to cover malware, botnets, pharming, phishing, spam emails, child sexual abuse material (CSAM) and cybersquatting.
Where a registry has been formally notified of serious relevant failures and does not take steps to resolve them, the Secretary of State can replace the registry management and/or apply to a court to ask for a registry’s constitution to be amended to ensure it remedies the failures it has been notified of. An impacted registry is provided with an opportunity to make representations in response to any notification. Please read the full consultation for further details.
Where Government intends to introduce or enact legislation that has significant impact on parts of the critical national infrastructure it is normal practice to meet with affected parties to hold informal discussions about the technical feasibility of such provisions. Prior to the consultation launch, in confidence, Nominet was made aware by the Department for Science Innovation and Technology (DSIT) that Government was considering bringing the DEA provisions into force.
Nominet, together with the .london and .scot registries, has attended meetings with Government officials to discuss the possible prescribed requirements that might be included in the DEA. The registries have collectively provided expert advice on the technical feasibility of the proposals and made representations to government that any new regulatory powers should be consistent with and not exceed established international norms that have been carefully developed through multi-stakeholder forums such as ICANN. It is worth noting the final consultation document highlights the importance of alignment with existing ICANN policies concerning gTLDs.
The proposed prescribed requirements are consistent with Nominet’s current voluntary procedures, which Government has made clear it believes Nominet operates in a perfectly satisfactory manner. As the Government has had a reserve power to “step in” ever since the DEA was introduced, the purpose of the new provisions is to give Government a formal mechanism to do so, should it ever be required. Our understanding is that Government is enacting these provisions now to ensure the UK meets international best practice on governance of country code top-level domains in line with key global trading partners and future global trading commitments.
As it reflects current practice, we do not see the proposed legislation as detrimental to Nominet. But we intend to work with members and the UK Registry Advisory Council (UKRAC) to consider this in more detail before submitting our consultation response.
The consultation is open for input until 31 August 2023.
Bill Mitchell is Nominet’s Head of Public Affairs
Update: the Nominet response, informed by UKRAC, can now be found here.