* Posts by Edward Phillips

18 posts • joined 3 Mar 2007

Internet overseer continues wall-punching legal campaign

Edward Phillips

If only there was a solution to having a WHOIS system that is GDPR compliant ....

...but unfortunately it's impossible because there isn't a single TLD registry in Europe who has worked it out, *except absolutely every ccTLD in the 30+ Member States and EEA. *

10 minutes doing WHOIS on Nominet.uk, Denic.de, sidn.nl etc and they'd find a series of acceptable solutions...

ICANN't get no respect: Europe throws Whois privacy plan in the trash

Edward Phillips

Local Expertise

The thing I find most inexplicable is that ICANN hasn't looked at the WHOIS systems in Europe that work - there are country domain registries who have solutions to GDPR working just fine, yet ICANN doesn't appear to consider them options. There are IPR lawyers in the UK and Germany, yet Nominet and DENIC don't seem to be struggling with this.

ICANN pays to push Whois case to European Court of Justice

Edward Phillips

"Appealing" to the ECJ

There are two reasons for going to the ECJ - first because you want a point of EU law clarified, and secondly because you're desperate to slow things down.

An ECJ reference can take years and might be useful for, for an example entirely at random, a US corporation desperate to buy yourself time because you've done nothing about something for years and need time to do nothing for a few more years.

However, as ICANN seems to know, you don't "appeal" to the ECJ, and you don't get to choose if you go there. The ECJ is the court's "phone a friend" option: the court decides whether to refer a case, and should refer only if the need guidance on EU law. If something is obvious or clear, they won't do it. "Demanding" a reference will only work if the court (a ) agrees and (b ) is sympathetic to being lectured about data protection by a US corporation.

Bloke sues dad who shot down his drone – and why it may decide who owns the skies

Edward Phillips

UK Law

In the UK, in Bernstein of Leigh v Skyviews & General Ltd [1978] 1 QB 479 it was held that a (manned) plane overflying properties (once) and taking a photo (one) was not trespass (they were selling the owners photos of their houses from the air, in pre-Google days). It overturned the previous (13th century) maxim Cujus est solum ejus est usque ad coelum et ad inferos (for whoever owns the soil, it is theirs up to heaven and down to hell) for the air, saying instead that property owners only have rights over the air above their property to such height as is necessary for the ordinary use and enjoyment of his land. There are earlier cases - in 1815 it was decided that floating across land in a balloon wasn't trespass, nor was firing a bullet across it (unless it landed or hit an animal).

The court did say that if a claimant was subjected to the harassment of constant surveillance from the air, accompanied by the photographing of his every activity then that would be a "monstrous invasion of privacy" and an actionable nuisance (for which damages would be given). Nowadays the Data Protection Act 1998 rights would also apply.

Overhanging cranes can constitute trespass and it is common for crane operators to get a licence from neighbouring owners.

More generally, the relevant Air Navigation Order 2009 (SI 2009/3015) imposes rules on flying in congested areas or within 50m of any person. Breach of the ANO is a criminal offence for which people have been prosecuted.

s.76 of the Civil Aviation Act 1982 imposes liability for any damage caused on the ground (if the drone crashes into your greenhouse). That was for manned planes but it is thought to extend to drones. Also Regulation (EC) No 785/2004 requires all commercial air operators (including drones) to have insurance. Private model aeroplanes have an exception.

National Crime Agency: Your kid could be a nasty interwebs hacker

Edward Phillips

I was speaking to a load of schoolkids on an IT course recently. Many of them believed that the way to immediate riches and a well paid job was to hack a high profile organisation, and then the security industry would immediately scoop them up and give them a lucrative job.

I suggested that perhaps criminal hacking was a high-risk interview approach but they were convinced.

Either they're right (in which case the NCA has a different problem) or they're wrong (and convincing them of that would be more useful than telling their parents to check their browsing history).

Why OH WHY did Blighty privatise EVERYTHING?

Edward Phillips

Re: The Purpose of Government.

I was taught at college that the Crown has a couple of prerogative duties (to go with its Royal Prerogative rights):

1. Defense of the Realm

2. Maintaining the Queen's Peace

Which align with your longboats and police bit and explains why those are the hardest bits to privatise because they are the core responsibility of the state. If a state can provide a peaceful and secure environment then the rest of society may be able to pick up the rest itself.

The state may feel that it has to do something to ensure that utilities, public transport and so on actually happen - if the water, sewage and food distribution system fail the Queen's Peace will fail shortly afterwards - but it doesn't have to do them itself, it can just regulate to enable them.

Australia mulls dumping the .com from .com.au – so you can bake URLs like chocolate.gate.au

Edward Phillips

Re: Dot Oz?

No they don't. It's drawn from an ISO list (ISO 3166-1 alpha 2, for the pedants out there). One or two early adopters cheated slightly (.uk) but otherwise it's fixed.

MySpace wins UK domain name that pre-dated its service

Edward Phillips
Thumb Up

Abuse through use

With Nominet's DRS there are two tests - is it abusive when it was registered (no), is it abusive today, now that life has moved on (in this case the expert said yes).

Just because he registered the name ages ago doesn't mean that once it (by accident or design) later becomes famous for something else, he can jump on that bandwagon and take advantage of that fame. If he had started a genuine business at the time and was still doing it, the DRS says "fine". But he wasn't - he changed to take advantage of the later company's subsequent reputation and that's what the DRS doesn't allow.

Scotsman wins £1,300 settlement against spammer

Edward Phillips

In response to "Hmmmm..."

In answer to the "Hmmm..." poster -

It doesn't matter if he put the email address on the website, or Transcom got his email address because he had emailed a list (from Nominet or anywhere else) that Transcom (or an associated company) happened to have been subscribed to. The law does not allow:

1. spam to be sent to any email address you happen to be able find; or

2. spam to be sent to someone just because you have have had some contact with them through work.

There is an exemption that allows businesses to send emails where that person has previously had contact with you as a customer and you meet various other requirements.

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