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Is the dark side of new gTLDs starting to emerge?

Category : Domain names, ICANN, Internet, Internet governance · by Apr 18th, 2012

Last week, I received a highly unusual email claiming that an article on my personal website was libellous and insisting I take it down within a week.

Even more unusually, the article was from 2002 – yes nearly a decade ago – it is called “Domain scam merchants get legs sucked by toothless OFT” and it tells how the same man had had his knuckles rapped by the Office of Fair Trading (OFT) in the UK having been caught trying to sell domains for top-level domains that do not exist. Examples were dot-brit, dot-sex, dot-scot.

The OFT had failed to do anything until the two people at the heart of the story crossed the line in the United States by using 9/11 as a way of advertising “patriotic” dot-usa domains (which also do not exist). The Federal Trade Commission (FTC) was not at all amused and got a temporary restraining order against them, even putting out a news release on the matter. There were a series of other news releases as the FTC fought them, winning “as much as $300,000 for consumer redress”. Clearly selling non-existent domain names can be a profitable business done right.

The final judgement [pdf] in the case is what is interesting though. It is best summarized with this excerpt:

IT IS FURTHER ORDERED that in connection with the advertising, promotion, offering for sale, or sale of domain names, Defendants are hereby permanently restrained and enjoined from failing to disclose, clearly and conspicuously, any material limitation or condition on the usability or functionality of those domain names.

Of course it is theoretically possible for the dot-usa top-level domain to exist. There is nothing to stop you setting up a private network with whatever endings you wish. However, only the IANA database holds the Internet extensions that are readily available on what we all think of as “the Internet”. And so the FTC constrained them from the sale or advertising of any domain name that didn’t require a special workaround to get them to resolve in your browser.

The very big difference in 2012 is that these top-level domains – and many thousands like them – are just about to become a reality under the new gTLD program run by ICANN. In fact, in just over a week, the full list of extensions applied for is due to be announced, and industry insiders are expecting between 1,000 and 1,500.

Under these circumstances, suddenly the constraints under which the people in question have been held for a decade will be lifted – because these domains will be on a path to existing on the broader Internet. There is nothing to suggest that they intend to repeat their previous behaviour, but it is a strong indicator that some unscrupulous individuals will seek to use the inevitable consumer confusion to scam people.

Libel claims

As for the libel claims, unfortunately due to the uncertain libel rules that continue to exist in the UK (they are being reformed as we speak), and thanks to a UK government that continues to believe that putting pressure on ISPs is a possible solution to the various issues that the Internet continues to throw out, even though his claims appear baseless, he has had some success in having his name taken offline in connection with the story.

The Register pulled the original article after it was approached recently. It was a ten-year-old article receiving no hits and so the company seemingly decided that it was easier just to pull the article that argue about it. The person complaining claims the article was pulled because the article contained libellous material; there is no evidence of that assertion.

The OFT actually redacted their names on its press release from 2002. I asked them why. They responded: “We felt that continued publication of personal details was no longer necessary, particular in light of our obligations under the Data Protection Act.”

He also approached the hosting company (Heart Internet) for my personal site (not this one, my kierenmccarthy.me.uk site) and told them the article was libellous. He claimed that the assertion that theys had been investigated in 1997 and 1998 for another scam was simply not true. Here’s what the original article states:

…the same two brothers, at the same address, except this time under the name TBS Industries were investigated by the OFT in 1997 and 1998 for deceptive marketing.

Which is true – with one exception which the person complaining appears to claim is libellous. That the other party is in fact his father, not his brother. We fear that here, he may be absolutely right — Well, right in the fact that he is his father (and frankly, he’s likely to know better than we are); not that it is libellous to suggest otherwise.

Regardless of the fact that there is not a good reason to pull the article, Heart Internet – at the moment at least – is going the safe route until it has reviewed the situation and has removed public access to the article on my site.

Anyway, as a measure of good faith, we have offered them a right to reply to the original article – which you can find on this website here – which we hope he will take up.

In the meantime, we hope that the action shown by the OFT in the UK and the FTC in the US is sufficient to warn off potential domain name scammers as the ICANN process puts out hundreds of new Internet extensions in the next year. We fear, as many others do, that it may not.

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