Cohen disputes UK registry's legitimacy
Nominet doesn't exist
The company that runs the UK's Internet registry is not officially recognised by the government and as such has no right to decide what should be done with the millions of domains that it sells each year.
That at least is the claim of Ben Cohen, former owner of iTunes.co.uk, who lost ownership of the domain to Apple in March after a ruling by an independent expert hired through Nominet's domain resolution process.
Cohen has been decrying Nominet since the decision and made a variety of legal threats over the decision. However he recently discovered that he was not able to take the actual decision made against him to the High Court for Judicial Review because of Nominet's peculiar status.
Following questions made under the Freedom of Information Act, the government was forced to state that there is "no formal relationship or written agreement" between the UK government and Nominet. As such, it is not a public body and so is subject only to the usual laws covering UK companies.
Cohen argues that this status is misleading since representatives from government bodies have permanent seats on Nominet's Policy Advisory Board (PAB). The government also accepted that this situation does not exist for any other company.
How this situation aids Cohen's case is not entirely clear however. If he accepts an appeal, heard by three Nominet-appointed experts, to end the matter with Apple, he is intrinsically recognising Nominet's authority in the matter. And as Nominet has pointed out, if you buy domain from it, you are contractually signing up to its domain dispute process anyway.
Cohen's other recourse is to the High Court. But because the High Court cannot decide just on Nominet's decision, it will mean a far wider and therefore vastly more expensive battle. And he would be up against Apple, a company with bottomless pockets in comparison.
If nothing else, Cohen has raised an interesting point with regard to Nominet's legal status.
Nominet, like most other Internet organisations, has had to tread a very fine legal line for the past decade. The problem comes in accepting legal responsibility for domains. Because there are literally millions of them, a company would almost certainly be swamped with legal actions within weeks of accepting overall legal responsibility.
Common law is still playing catch-up with the Internet and domain names. Nominet started selling domains in 1996. Only in March this year did a High Court case regarding Phone4U.co.uk finally start clarifying the law in the area in the UK. And even then, the judgement raised just as many questions as provided answers.
However it is perhaps time that Nominet - with a new chairman who is a recognised expert in company law - started reviewing its status. It is clear that with the Internet becoming such a vital commodity for the country that Nominet cannot continue to live in legal limbo. But do we really want the government to have a hand in running the UK's Internet? Especially when the highly flexible nature of Nominet has been behind a great deal of its success - making it the fourth largest registry on the Internet.
We have asked the new chairman, Bob Gilbert, to give us his thoughts on the matter.
Meanwhile, Ben Cohen will no doubt continue to raise questions over the iTunes decision. More interesting in terms of the actual law however is the case of Game.co.uk, which is far less ambiguous than the iTunes case and has the advantage that it isn't been seen through the prism of rampant press interest.
Here then are Cohen's statements about Nominet and Nominet's response.
"At no point has there ever been a statutory or official recognition by the Government of Nominet's position as a the sole issuer of .uk domain names to the public.
"The status of Nominet is important because their dispute resolution service acts in a quasi-Judicial manner in deciding who should lay claim to a domain name when a dispute arises. CyberBritain was planning on taking the decision made on the 10th March to the High Court for Judicial Review. However, this course of action is only open to review decisions made by public bodies.
"Nominet have always claimed to us that they are on the one hand officially recognised by the Government but not a public body, meaning that their decisions would not be subject to Judicial Review. In my mind, this is a paradox as an official or statutory recognition of an organisation to administer what is in effect a public service would generally be subject to Judicial Review. This certainly would be the case with decisions made by Ofcom who regulate telecommunications and television.
"If Nominet have no official recognition (despite civil servants being on their Policy Board) then all domain names issued by them are placed in jeopardy."
Nominet is not impressed with this logic.
"Mr Cohen has continued to threaten legal action in the press and in private, but no proceedings have ever been issued. Nominet has repeatedly explained to Mr Cohen that we believe that he has no basis for suing us and that the particular type of litigation he was threatening (called "Judicial Review") was totally inappropriate because Nominet is not a Government body.
"Nominet is not a Government body and has never claimed to be. We state on our website that we are 'officially recognised' and we explained the meaning of this to Mr Cohen previously.
"The Dispute Resolution Service forms part of the contract we have with registrants of .uk domain names and is enforced as a matter of contract law. We have told Mr Cohen this, and have never tried to suggest that Nominet‚s Dispute Resolution Service (DRS) is 'quasi-judcial', statutory (i.e. in an Act of Parliament or similar) or Government-backed." ®