German Courts Swats ICANN away For Fourth Time Over WHOIS/GDPR Data Collection
“The plea of remonstrance of 17 August 2018 filed by the Applicant [ICANN] concerning the order of the Senate of 1 August 2018 (19 W 32/18) is rejected with costs.”
ICANN has been hit with the fourth expected loss in its quest to continue to collect and make public domain name registrant contact (WHOIS) details following an appeal to a German High Court who ruled against ICANN’s plea to reconsider the Court’s own earlier decision following the introduction of the European Union’s General Data Protection Regulation earlier this year.
The court stated (Translated from German);
Finally, the Applicant’s objections are also unsuitable to dispel the detailed concerns set out in the order of August 1, 2018 with regard to the (further) requirements for a reason for an injunction, because in particular it is not apparent that it is facing irreparable damage in case it is (only) successful in the main proceedings.
Even on the basis of the Applicant’s submissions, there are no reliable indications for its assumption that a temporary non-collection of data on the so-called Admin-C and Tech-C could not be rectified or that in such case such damage was caused to the Applicant that the disadvantages associated with the requested injunction caused to the Defendant and third parties are outweighed by the interests of the Applicant, especially as the provision of the information, the collection of which the Defendant now refuses, was also not previously obligatory and the GDPR applicable as of 25 May 2018 reaffirms the principle already in force that (personal) data should be handled with as much restraint as possible.
ICANN has sought a preliminary injunction from the German Court to require EPAG, a Germany-based, ICANN-accredited registrar (that is part of the Tucows Group and based in Bonn, Germany) to continue to collect parts of WHOIS data, as required under ICANN’s Registrar Accreditation Agreement (RAA), which permits the registrar to sell domain name registrations for generic top-level domains.
ICANN received a ruling from the German Higher Regional Court in Cologne (“Appellate Court”) last week, that rejected ICANN’s request for review (“plea of remonstrance”) filed by ICANN on 17 August 2018. ICANN’s plea was filed to continue the immediate appeal in the ICANN v. EPAG injunction proceedings. ICANN initiated such proceedings against EPAG, to seek assistance in interpreting the European Union’s General Data Protection Regulation (GDPR) in order to protect the data collected in WHOIS. The Appellate Court again has determined that it would not issue an injunction against EPAG.
This is the fourth time the German courts have rejected ICANN’s attempts to have EPAG enforce the RAA. In May ICANN filed for an injunctive relief in a matter related to the latest EU Data law enforcement with the German regional court seeking assistance in interpreting the European Union’s General Data Protection Regulation (GDPR) in order to protect the data collected in WHOIS. ICANN then announced that the German regional court (LG Bonn) rejected the request for injunction against EPAG.
On 13 June ICANN appealed and on 18 July the Regional Court decided not to change its original determination not to issue an injunction against EPAG. The matter was referred to the Higher Regional Court in Cologne for appeal. Next on 3 August ICANN announced a German appeal court (Appellate Court of Cologne) had issued a decision on the injunction proceedings ICANN initiated against EPAG determining that it would not issue an injunction against EPAG. Read more
In its response, ICANN says it is continuing to evaluate its next steps in light of this ruling, including possible additional filings before the German courts, as part of its public interest role in coordinating a decentralized global WHOIS for the generic top-level domain system.
This is however unlikely to yield any different result.