Court action forces au Domain name industry regulator - auDA - to back down
Documents tendered to the Supreme Court of Queensland have raised serious concerns about sharp and arbitrary practices at Australia’s domain name industry regulator, au Domain Administration Ltd (auDA).
The documents show that auDA’s chief executive, Chris Disspain, ordered that Melbourne based domain registrar, be given just 48 hours
to prove their eligibility to an Au domain name – auregistry.com.au - they’d been using for 8 years.
Even worse, although Domain Directors did manage to respond, Disspain still ordered the domain name deleted from the .Au registry.
That much is abundantly clear from affidavits lodged with the Court in the action brought against auDA by Domain Directors.
The documents show that Disspain ordered auDA’s then compliance officer, Shayne Honey, to give Domain Directors just 48 hours to respond to a request for proof of eligibility.
Domain Directors had held the domain name since 2000 and so the email notice from Honey was both unexpected and surprising.
Honey used auDA’s standard pro-forma email – an email that says auDA has received a complaint.
But in this case there had been no recent complaint. Disspain had initiated the action himself after seeing an advertisement linking to the domain name in the Age Online.
When Domain Directors got its lawyers involved, and began legal proceedings, auDA initially backed down and re-instated the name.
But then auDA persisted with a claim that Domain Directors eligibility to hold the name remained in question.
So Domain Directors proceeded with Court action and succeeded in securing a Court ordered undertaking from auDA not to delete the domain name without giving 5 days written notice.
auDA subsequently backed down completely, although not until the eve of the court hearing scheduled for the 4th December.
As we previously reported, Justice Chesterman, in hearing the case, asked where auDA’s power to cancel domain names comes from and said that the issues raised were important.
Further hearings since then have been mainly concerned with procedural issues, including the not insignificant question of who should be liable for costs.
Affidavits lodged with the Court in early February clearly show that in this case auDA departed from its normal procedures; and was able to do so because the domain name is licensed by
an officially accredited registrar (i.e. rather a registrars‘ customer).
Normally auDA’s complaints and threats to strip licensees of domain names are sent first to the registrars with instructions to pass them on to their clients.
And auDA has detailed policies for how those instructions should be managed, including allowing the client 14 days to respond.
But auDA’s policies for cases involving domain names licensed by registrars don’t specify any time limits, leaving auDA unfettered discretion over how long to give a registrar to respond.
Indeed the affidavit from Chris Disspain appears to show that effectively, he can, at any time, and without any right of appeal, order the company
managing the master Au domain name database under contract to auDA - AusRegistry - to delete a domain name licensed by a registrar.
Concerns about the revelations contained in the affidavits aren’t just limited to auDA’s apparent arbitrary powers, however, nor the lack of any internal or external appeal processes.
The concerns are heightened because this is the second time in recent months that the industry regulator has found itself on the wrong side of the ledger after court action.
Last year we reported that auDA had re-instated some Au domain names after 2 years defending legal action initiated by a Melbourne Internet entrepreneur.
The cost of that defence isn’t yet known but it seems likely that this latest action will also prove costly to auDA’s finances.
Feeling over the latest action is also high because auDA summarily sacked its former compliance officer in the wake of the incident.
Shayne Honey has submitted his own affidavit to the Supreme Court over the incident. Disspain’s affidavit too, canvasses issues around the sacking of his former compliance officer.
Allegedly the dismissal had nothing to do with the Domain Directors action, and instead relates to unauthorised leave Honey took back in February last year to go on 3 days honeymoon.
In a further twist to the sorry tale, auDA’s board minutes from its meeting of 15h December have now been published.
Remarkably, they say that auDA’s lawyers had “updated the board on the status of the current legal matter with Domain Directors [and that] The Board agreed auDA process was followed correctly.”
For more information go to
www.ecommercereport.com.au/story57.php
www.auregistry.com.au
www.ausregistry.com.au
www.auda.org.au/minutes/audaboardminutes15december2008
www.domaindirectors.com.au
www.courts.qld.gov.au/esearching/filedetails.asp?FileNumber=11795%2F08&Court=Supreme&Location=BRISB
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