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A plan to create a specific area of the Internet for pornography has been given a reprieve by a distinguished panel of judges.

The panelists - who included a former International Court of Justice judge - told Internet overseeing body ICANN in a majority decision that it was wrong to reject an application for the top-level domain dot-xxx three years ago.

As a result of the panel’s declaration, the ICANN Board will now reconsider the dot-xxx application and decision at its meeting in Nairobi next month, opening the way for dot-xxx’s possible inclusion into the Internet’s “root.”

However, the ICANN Board is not obliged to adopt the panel’s findings, and an initial response by its management made it clear that the organization is keeping its options open. CEO Rod Beckstrom, blogging about the decision, pointed out that the panel decision was not unanimous and that there had been significant community opposition to the application.

That post drew immediate criticism from some in the Internet community who felt ICANN was attempting to backtrack from the panel decision, something Beckstrom subsequently refuted. “I was not involved in the history of this issue so I have no vested interest. I was trying to highlight the possible things that can happen now. In too many cases, people act like everything was an easy decision.”

Beckstrom pointed out that it is the Board that will ultimately decide what to do and that his job as CEO is to ensure ICANN’s staff do the best job possible in providing the Board with the objective advice and information it needs.

In that respect, ICANN’s chairman, Peter Dengate Thrush, is now in an interesting position. As chair, he will direct Board discussions over the panel’s report, but prior to his chairmanship he was one of five Board members that voted against the decision to reject dot-xxx, making a strong public statement against the vote and noting the “particularly thin argument” that the Board made in rejecting dot-xxx. It was this same argument that was also rejected by the independent review panel.

ICM Registry chairman Stuart Lawley hailed the declaration as a victory not just for the company but also “the ICANN model of private sector management of the Domain Name System.” And remarkably, considering it lost the dispute, ICANN’s Beckstrom also recognized that the case was successful “from an outside perspective,” telling us that it had put back an issue in front of the ICANN Board that it previously had no intention of revisiting.

The man who headed the Board at the time of the vote, former ICANN chairman Vint Cerf, told us that he was disappointed with the result since he agreed with the dissenting opinion and reasoning of one of the three panelists. Nonetheless, he welcomed the process itself. “I think the fact of the IRP (Independent Review Process) is important to ICANN processes so regardless of the outcome, it strengthens ICANN because it is a process that allows response to complaints.”

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