At the end of 2021 the French media spread the news of a legal action launched by Republique En Marche, the party founded by French President Emmanuel Macron, against a publisher who publishes satirical cartoons on the enmarche2022.fr domain. The dispute concerns the ownership, or rather the method of use of a domain name – enmarche2022.fr, in fact – that Macron’s party considers detrimental to its image in view of the upcoming political elections.
Unlike the traditional cybersquatting disputes in which the “snatching” of brands and unfair competition was essentially discussed, the French case concerns not so much the domain itself but the satire that targets Macron through an evocative name inspired by the president’s party. The thesis of Republique en Marche is, therefore, that a voter looking for information about the party, the program and the candidates may come across the convict site and therefore be negatively influenced by its critical contents. The defense of the publisher is based on the “right to the right to criticize” and on the right to freedom of expression.
However, it will not be a high court or a local court, but the Association française pour le nommage Internet en coopération (Afnic), the private body designated by law to manage the “ccTLD” .fr and which may decide to remove the domain from ANT Éditions and reassign it to Republique En Marche.
So far, the breaking latest news; below the analysis.
The French affair once again proposes the crucial and neglected issue of governance over domain names (and IP numbers, but this is another matter) and the impact on the system of citizens ‘, businesses and institutions’ rights. In summary: whoever registers a domain (including institutions) does not become the owner but only the “assignee”. Therefore, a domain name can be revoked, canceled or even “lost” beyond the right that a subject can claim on the name in question.
Until a few years ago, when the internet was little more than a curiosity for geeks, it could make sense that address control was handled by private entities outside of any direct state control. It might also be pragmatically acceptable for industrial and intellectual property disputes over trademarks, names and titles of protected works to be decided outside the courtroom.
Now, however, that domain names directly affect fundamental rights and political freedoms (not to mention the functioning of public and private services), it is questionable whether it is still possible to leave governance over domain names in the hands of non-individuals. institutional.
In Italy the issue is particularly relevant because while important resources such as telephone number ranges are regulated by specific regulations and the provision of services based on their use is subject to authorization by the MISE, this does not happen for domain names. The newborn Electronic Communications Code even limits the powers of Mise and Agcom which, according to article 98-sexies, are obliged to collaborate and coordinate with international organizations (non-governmental, ed.) That decide on the matter.
Even today, therefore, the Italian domains are managed in substantial autonomy by the “Registry” – in reality, a scientific project of the Institute of Informatics and Telematics of the CNR of Pisa. It reserves the “ownership” of each domain name, decides who are the subjects who can allow its assignment (the “registrars”), 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 we want— of the underlying political choice on the desirability or otherwise of direct control by the executive on a cornerstone of the digital transition. Whatever the conceivable model (direct management of Mise or Agcom, creation of an ad hoc company owned by operators and ISPs or 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 “state affair”. The first step was taken with Law 133/19 which put the “kill switch” in the hands of the Prime Minister to turn off the Italian network in the event of a threat to national security, but it is not enough. The resilience of public communications networks also passes through the control over domain names.
The Institute of Informatics and Telematics has made a great contribution to the development of the Italian internet and the country owes a great debt to the people who in recent years have made the “Top Level Domain” .it work, but now is the time to change.
The internet of the future is no longer what it used to be, and the time of technicians is now over.
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