Trial HRIA on ICANN PDP (Sub Pros)
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* This is a living document for and by the multistakeholder ICANN community. Please feel free to make edits or additions.
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PDP TopicShort DescriptionDescriptionNegative Impact Scenario(s)Impacted GroupsSeverity of impactPositive Impact Scenario(s)Salient Human RightsApplicable Human Rights LawPotentially Relevant BylawsRecommendationRelevant links
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AppealsGeneral lack of appeals mechanismIRP is very formal (lawyers on both sides) expensive, and long — takes anywhere from 6-18 months. Also only covers procedural ground, not actions made on substantive / technical grounds.Access to due process or recourse impeded for under-resourced or inexperienced applicants- Minority / local communities
- Not-for-profits
- Global South applicants
High- Equal treatment / non- descrimination
- Procedural fairness / due process
AccountabilityCreate streamlined, transparent, dedicated appeals.
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Applicant GuidebookSelection criteriaSelection criteria in Applicant Guidebook too general and not interpreted consistentlyApplication unsuccessful as a result of irregular processes or knowledge asymetries - Minority / local communities
- Not-for-profits
Low- Equal treatment / non- descrimination
- Procedural fairness / due process
TransparencyEnsure that selection criteria are clearly explained to applicants and implemented consistentlyhttps://newgtlds.icann.org/en/applicants/agb
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Applicant GuidebookAccessibility for persons with disabilitiesTesting Applicant Guidebook for accessibilityApplicants who are persons with disabilities have restricted access to Applicant Guidebook.Persons with disabilitiesHigh- Equal treatment / non- descriminationAccountability, TransparencyCarry out Accessibility Evaluation, make any require changes and/or develop a dedicated Accessible Applicant Guidebook.
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Applicant Support ProgramFee / cost informationApplicants not provided with sufficient information on overall fees for costsApplicants under-budget or over-commit resources- Minority / local communities
- Not-for-profits
High- Equal treatment / non- descriminationProvide clear and accurate information about estimated costs of the entire process at the outsethttps://newgtlds.icann.org/en/applicants/candidate-support
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Applicant Support ProgramDeadline noticeApplicants not provided with sufficient information regarding deadlines and time required to complete processApplication unsuccessful due to missed deadlines- Minority / local communities
- Not-for-profits
Medium- Equal treatment / non- descriminationTransparency
Provide adequate information about estimated time to complete application; notify applicants of deadlineshttps://newgtlds.icann.org/en/applicants/candidate-support
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Applicant Support ProgramNotice of scoring practiceUnclear to applicants what criteria / which scoring practice will be used in selection practiceApplication unsuccessful as a result of knowledge asymetries- Minority / local communities
- Not-for-profits
Medium- Procedural fairness / due process
- Equal treatment / non- descrimination
TransparencyClarify scoring practice and ensure its consistent implementationhttps://newgtlds.icann.org/en/applicants/candidate-support
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Application ProcessChanges to applicationUnlimited changes permitted to application fields after submissionApplicant modifies application fields 18A (mission and purpose) and 18B (benefit to registrants + internet users), challenging/thwarting community oversightMediumApplicants can update information about their business if circumstances change (point of contact, address, etc)TransparencyRegistries should be bound to the description in their application, unless changes are initiated through formal processes and agreed upon with community
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Commuity Priority EvaluationCPE panel experts do not have relevant background in community and human rights Narrow interpretations of "public interest" disadvantage certain applicants in the evaluation process- Minority / local communities
- Not-for-profits
Medium- Procedural fairness / due process
- Equal treatment / non- descrimination
Human RightsInclude someone with a human rights background in the pool of CPE panelists.https://newgtlds.icann.org/en/applicants/cpe
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Commuity Priority EvaluationConflict of interestCPE panels have insufficient safeguards against confict of interestApplicants disadvantaged in the evaluation process; less opportunity for community oversight and action- Minority / local communities
- Not-for-profits
Medium- Economic, Cultural, and Social Rights
- Procedural fairness / due process
Increase transparency around panel composition and background to allow for community oversight; improve guidelines and documentation of justificationhttps://newgtlds.icann.org/en/applicants/cpe
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Commuity Priority EvaluationLanguage and accessibilityCPE panels held online in UN languages using a form of discourse approaching US legaleseCommunity applicants promoting diversity and genuinely serving the global public interest have uneven bargaining power- Non-UN language communitiesMedium- Economic, Cultural, and Social RightsDiversityHold panels using language that is as accessible and easily translated as possible.https://newgtlds.icann.org/en/applicants/cpe
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Commuity Priority EvaluationInadequate documentationCPE panels' research supporting findings or argumentation not adequately presented in determinationApplicants have fewer grounds for appealMedium- Fairness / due process
- Effective remedy
Create and enforce guidelines for robust and consistent documentation of proceedings, justification, rationale, etc
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Community ApplicationsCPE & community objectionsApplicants aren't permitted to pursue both Community Objections and Community Priority Evaluations for the same stringValid communities are denied access to different safeguards provided by each processLow- Due Process
- Equal treatment / non- descrimination
Allow community applicants access to sufficient safeguards to ensure that the process isn't biased against small or under-resourced players
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Community Priority EvaluationPanelist affiliationsCPE Panelists' professional background and affiliations not disclosedCertain applicants may be favored, better understood, etc based on the composition of the panel- Minority / local communitiesHigh- Equal treatment / non- descriminationTransparencyBinding obligation that panelists' professional background and affiliations be publishedhttps://newgtlds.icann.org/en/applicants/cpe
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Community Priority EvaluationInsufficient accountability mechanismsProliferation of insufficient accountability mechanisms: Reconsideration Request, Cooperative Engagement Process, Independent Review Process, OmbudsmanApplicants have no access to effective grievance mechanisms / remedy- Minority / local communities
- Not-for-profits
High- Economic, Cultural, and Social RightsDevelop effective unified appeal mechanism to an independent review boardhttps://newgtlds.icann.org/en/applicants/cpe
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Community Priority EvaluationUltimate responsibilitiesUnclear attribution of responsibility for decision-maker (ICANN or external contractors?)CEP panel not accountable for decisions; escalation path unclearHigh- Fairness / due process
- Effective remedy
AccountabilityClearly delineate roles and responsibilities
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Community Priority EvaluationPublic interest commitmentsUnclear to what extent CPE panelsists are aware or acting on behalf of ICANN's public interest commitmentsCEP panelist undermines ICANN's public interest commitmentsHigh- Equal treatment / non- descriminationAccountabilityRequire that all panelists sign off on ICANN's public interest commitments before making decision
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Dispute ResolutionRedressNo effective redress mechanism exists for ICANN dispute resolution processesAffected parties do not receive redress for abusesHigh- All (general)AccountabilityEnsure availability of effective and accessible redress mechanisms.
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Dispute ResolutionAppeal mechanismsNo effective substantive appeal mechanism exists for ICANN dispute resolution processes.Affected parties or their legitimate representatives have no access to recourse and can't raise concerns when they believe public interest or human rights commitments have not been met.High- All (general)AccountabilityEnsure availability of effective and accessible substantive appeal mechanisms.
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Dispute ResolutionLiability for damagesNobody (not the experts, service provider, ICANN, or their respective employees) are liable for any damages or injunctive reliefNo attribution of responsibility for fair and adequate examination of cases.High- Procedural fairness / due processDevelop and enforce fair trial standards, which include provisions for independency, accountability, and transparencySee Applicant Guidebook 3.4.4
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Dispute ResolutionProliferation of processesProliferation of processes (UDRP, URS, PDDRP, RRDRP,
TDRP, PICDRP...) makes it unclear where and how to resolve disputes
Rightsholders are unable to lodge grievances due to lack of procedural coherenceHigh- Procedural fairness / due processDiversityEstablish single dispute resolution center within ICANN based on substantive and procedural grounds.
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Dispute ResolutionRemote hearingsDisputes resolved without an in-person hearing. Panel may decide to hold such a hearing only in extraordinary circumstances.- Lack of community involvement / oversight
- Applicants unable to present responses to counter-arguments
LowNot having mandatory in-person hearings could make the dispute resolution process more efficient- Procedural fairness / due process
- Effective remedy
Clearly define what constitutes "extraordinary circumstances"See Applicant Guidebook 3.4.5
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Dispute ResolutionLack of guidelinesImplementation guidelines for service providers and evaluators do not specify which rights should be considered throughout the processFreedom of Expression and other rights not properly considered throughout evaluation / objection processes, Requests for Reconsideration, and/or Independent Review PanelMedium- Freedom of Expression
- All (general)
AccountabilitySpecific implementation guidelines should be developed to ensure consistent respect for human rights in evaluation and dispute resolutionsInitial report. 2.3.3.c.1
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Dispute ResolutionAtomistic evaluationPolicy principles and legitimacy of interests evaluated in isolation.Skewed outcomes where approved policies goals are incongruent or otherwise seem in conflictMedium- All
- Procedural fairness / due process
Policy principles should be evaluated through a balancing of legitimate interests, with respect for fundamental human rights paramountInitial report. 2.3.3.c.1
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Dispute ResolutionInsufficient documentationDispute Resolution Service Provdiers' determinations not uniformly justified or documented- Difficult for community to process and track decisions;
- Unpredictable / unfair outcomes
Medium- Procedural fairness / due processAccountabilityCommon template used for all DRPs for quality assurancehttps://newgtlds.icann.org/en/program-status/odr/determination
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Fees / CostsHigh costsFees and costs set in $USD at level appropriate for commercial market playersUnder-resourced applicants from smaller communities or developing economies priced out of acquiring TLDs- Minority / local communities
- Not-for-profits
- Global South
High- Equal treatment / non- descriminationTransparencyVariable fees reflecting ICANN's global public interest should be supported.
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Predictability FrameworkIRT compositionImplementation Review Team mostly consists of representatives from registries and registrarsMembers of the Implementation Review Team make decisions that negatively impact human rightsHigh- Freedom of ExpressionHuman RightsEnsure that have inadequate knowledge and training in human rights
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Public InterestDefinitions and interpretationsGlobal public interests interpreted inconsistently in ICANN decision-making processesConflicting definitions or interpretations render the term moot and ultimately undermine ICANN's public interest commitments and standards for accountability- Groups actually serving the global public interestHighAll (General)DiversityHarmonize definitions and interpretations of Public Interest, taking the ICANN Human Rights Core Value and other WS2 recommendations into consideration.
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Public InterestSpec 11ICANN's "Spec 11" public interest commitments do not include mention of human rightsSalient rights (FoE, privacy, association, etc) not considered HighAll (General)Human RightsUpdate Spec 11 to reflect ICANN's Human Rights bylaw
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Public InterestLimited Public Interest ObjectionsLimited Public Interest objections can be filed if TLD strings are "contrary to general principles of law for morality and public order." ALAC provided with funds to do so.gTLD applicants and end users aren't aware of this mechanism and can't protect their rights.LowThe community makes use of this mechanism to contest strings that may violate fundamental human rightsAll (General)Accountability (Is this more transparency/general HR rather than accountability) Make use of this tool? Emphasize this in the AGB by placing it in the beginning sections of it and create more awareness in this during community discussions. https://iccwbo.org/dispute-resolution-services/icann-gtld-process/pending-cases/
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Public InterestPICsStriated "Public Interest Commitments" (for example, mandatory vs voluntary PICs)Oversight more difficult; false sense of security; more room to manouever and get around commitmentsMediumConsolidate Public Interest Commitments; ensure that they're in-line with international human rights standards and best practices.
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