Tuesday 21st Aug 2018

Nominet DRS upholds criticism site – yet again

Eye with a laser beam shooting into it. Are Nominet suppressing freedom of speech?
Freedom of speech- in the eye of the beholder.

Every corporation dreads a motivated campaigner.  Worse still, someone who is able to gather around them like-minded supporters who are wiling to share their stories of the same thing.  This has been the experience of Optical Express.  Worse for the corporation, it never even treated Sasha Rodoy with refractive eye surgery (that was its competitor, Optimax), and yet, there in all its glory is the website, the Facebook page, the petition and even a private members’ bill recently introduced to Parliament.

What can brand owners do, if their brand gets caught up in a campaign?

Nominet decision on protest site

The recent decision on opticalexpressruinedmylife.co.uk under Nominet’s Dispute Resolution Service serves as a salutary reminder to brand holders of the difficulties in re-filing a case on similar grounds, and in shutting down criticism sites.

I have written an analysis of the case as a guest blogger for the Lexis Nexis specialist intellectual property and IT blogsite, WIPIT.  The article concludes that both Optical Express decisions seem to soften the position on commercial activity with criticism sites.  The DRS Policy and cases such as ihateryanair.co.uk indicate that any commercial gain will take the domain name out of the ‘fair use’ exemption in para 4b.  However, Experts Keith Gymer and Bob Elliott suggest that a ‘sense of proportion’ is necessary.  This may be fairer in terms of freedom of expression, but may make the outcome of DRS cases in this already fraught area more difficult to predict in future, as each case will turn on its own facts.

Update: according to the Facebook page for Optical Express Ruined My Life, the complainant in the opticalexpressruinedmylife.co.uk case has filed an intent to appeal.

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