At the end of 2021, the French media spread the news of a legal action brought by Republique En Marche, the party founded by French President Emmanuel Macron, against a publisher that publishes satirical cartoons on the domain enmarche2022.fr. The dispute concerns the ownership, or rather the way of using a domain name – enmarche2022.fr, precisely – that Macron’s party considers detrimental to its image in the view of the upcoming political elections. by Andrea Monti – Initially published in Italian on Strategikon – An Italian Tech Blog.
Unlike traditional cybersquatting disputes, in which the main issue was the “snatching” of trademarks and unfair competition, the French case is not so much about the domain itself but about the satire that targets Macron through an evocative name inspired by the president’s party. Republique en Marche’s claim is that a voter looking for information on the party, the programme and the candidates may come across the site and be negatively influenced by its satyrical content. The publisher’s defence is based on the ‘right to criticism’ and freedom of expression. However, the judge will not be a high court or even a local court, but the Association française pour le nommage Internet en coopération (Afnic), the private body designated by law to manage the .fr ccTLD, which may decide to take the domain away from ANT Éditions and reassign it to Republique En Marche.
So far, so good; now the analysis.
The French case once again raises the crucial and overlooked issue of governance over domain names (and IP numbers, but that is another matter) and the impact on the rights of citizens, businesses and institutions. In short: whoever registers a domain (including institutions) does not become its owner but only its ‘assignee’. Thus, a domain name can be revoked, cancelled or even ‘lost’ beyond the rights that a person can claim on the name in question.
Until a few years ago, when the internet was little more than a curiosity for geeks, it might have made sense for control over addresses to be managed by private entities outside any direct state control. It might also have been pragmatically acceptable for industrial and intellectual property disputes over trademarks, names and titles of protected works to be decided outside the courtroom. Now, however, when domain names directly affect fundamental rights and political freedoms (not to mention the functioning of public and private services), one wonders whether it is still possible to leave the governance of domain names in the hands of non-institutional subjects.
In Italy, the issue is particularly relevant because while specific regulations regulate essential resources such as telephone numbering arcs, services based on their use are subject to authorisation by the MISE; this is not the case for domain names. The new Italian Electronic Communications Code even limits the powers of Mise and Agcom, which, according to Article 98-sexies, are obliged to cooperate and coordinate with the international (non-governmental, n.d.a.) organisations that decide on the matter.
Therefore, Italian domains are managed in substantial autonomy by the “Registry” – in reality, a scientific project of the Institute of Informatics and Telematics of the National Research Counsel in Pisa. It reserves for itself the ‘ownership’ of each domain name, decides who are the subjects that can permit its assignment (the ‘registrars’), and retains the power to revoke these assignments in the name of self-determined rules, but this does not change the nature of the problem or, if you like, the fundamental political choice on the desirability or otherwise of direct executive control over a cornerstone of the digital transition.
Whatever the governance model may be (direct management by Ministry of the economic development or Communication Authority, the creation of an ad hoc company with the participation of operators and ISPs, or the attribution of technical management to a foundation or a high-profile subject), one point remains central and preliminary: to establish by law that Internet governance is a matter of State. The first step was taken with Law 133/19, which placed in the hands of the Presidency of the Council of Ministers the “kill switch” to shut down the Italian network in the event of danger to national security, but this is not enough. The resilience of public communications networks also depends on the control of domain names.
The Institute of Informatics and Telematics significantly contributed to the development of the Italian internet. Italy owes an outstanding debt to the people who have made the .it Top Level Domain work over the years, but now it is time for a change.
The internet of the future is no longer the internet of the past, and the time for technicians has passed.