In the recent WIPO case of Nippon Paper Industries Co., Ltd. v. Harriett Swift, found at http://www.wipo.int/amc/en/domains/search/text.jsp?case=D2011-0832, a sole panelist, Gabriela Kennedy, determined that Free Speech is not just a U.S. concept.
In her findings, she stated, “The Respondent does not contend that she has used the Disputed Domain Name (NipponPaper.net) in connection with a bona fide offering of goods and services. The Respondent’s arguments relating to a right or legitimate interest largely revolve around the fact that she is using the Disputed Domain Name to operate a noncommercial website for the purpose of criticising the Complainant with a view to campaigning for the environment, and that this constitutes a legitimate noncommercial purpose.”
Many prior decisions draw a distinction between cases with a connection with the United States ( “U.S.”) (e.g. where one or both of the parties reside in the U.S., where the registrar is located in the U.S. etc.), and those cases with no connection to the U.S. This distinction appears to have been drawn on the basis that the right of free speech is a constitutional right in the U.S., which is not the case in other jurisdictions.
There have been non-U.S. cases which have preferred the free speech approach, and conversely U.S. cases that have rejected the free speech approach;
– The Internet is an international medium and it is desirable to have uniform implementation of the Policy;
– Many cases involve multiple jurisdictions and it is not always clear whether a particular case has a U.S. connection;
– The principle of freedom of speech is not confined to the U.S. For example the principle of freedom of expression is enshrined in the European Convention on Human Rights and the Universal Declaration of Human Rights; and
– The Policy should take into account general principles of law which are widely accepted throughout the world and not be dependant on particular national laws.
In addition, the Website is not being used for any financial gain or other commercial purpose. The Website does not contain advertisements or sponsored links and does not call for any type of donation. “The Panel is also of the opinion that the Respondent genuinely believes in the criticisms that she is displaying on the Website, and that the Respondent is not operating the Website for any dishonest purposes.”
These are all great reasons why the Respondent won this case and the Complaint was Denied.
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