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No Verfügungsanspruch for ICANN in GDPR lawsuit

Kevin Murphy, August 7, 2018, 13:18:37 (UTC), Domain Policy

ICANN has lost its latest attempt to use the German courts to force Tucows to continue to collect Whois records the registrar thinks are unnecessary.
In an August 1 ruling, a translation of which (pdf) has been published by ICANN, the court ruled that no preliminary injunction (or “Verfügungsanspruch”) was necessary, because ICANN has not shown it would suffer irreparable harm without one.
ICANN wants Tucows’ German subsidiary EPAG to carry on collecting the Admin-C and Tech-C fields of Whois, even though the registrar thinks that would make it fall foul of Europe’s new General Data Protection Regulation.
The organization has already had two adverse decisions at a lower court, and the appeals court‘s latest ruling does not change anything. The judge ruled:

The Applicant [ICANN] has already not demonstrated that a preliminary injunction is required in order to avoid substantial disadvantages. To the extent the Applicant submitted in its application that interim relief was necessary in order to avert irreparable harm by arguing that the data to be collected would otherwise be irretrievably lost, this is not convincing. The Defendant [EPAG] could at a later point collect this data from the respective domain holder by a simple inquiry, provided that an obligation in this regard should be established.

The court also declined to refer the case to the European Court of Justice, as ICANN had wanted, because nothing in the ruling required GDPR to be interpreted.
This a a blow, because the whole point of the lawsuit is for ICANN and registrars to get some clarity on what the hell GDPR actually requires when it comes to Whois.
ICANN said it is “considering its next steps, including possible additional filings before the German courts”, noting that the “main proceedings” of the case are still ahead of it.

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Comments (1)

  1. Volker Greimann says:

    ICANN, please stop wasting our money. The courts have been very clear already, how much more clarity do you need? Or does clarity just mean “hearing what we want to hear”?
    The court has been explicit in stating that it sees no need for these data elements to be collected and that despite the contractual obligation to the contrary this would be seen as unenforceable under the GDPR.
    The only thing ICANN has achieved so far is to tell other registrars that it is likely OK to stop collecting this data as well.
    Face the facts: The old whois is dead and it is time to finally build something new with the ePDP and subsequent PDPs. As the current status quo is troublesome for all parties that pain should provide sufficient incentive for the community to come together and deliver a workable, and above all legal solution.

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