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Thursday, February 28, 2008

NiRA to shun frivolous complaints

Early this month, the Nigerian Internet Registration Association (NiRA) released some 14 policy-documents for comments by the Internet community.

One of these was the NIRA complaints’ policy, which tends to set the association’s policy on handling of complaints made about domain names, registrars and resellers in the .ng second level domains.

According to NiRA, its jurisdiction to handle complaints is limited to matters relating to the .ng domain space, even as there are two types of complaints that NIRA handles, namely complaints about .ng domain names and registrants, which may centre on “domain complaints” and complaints about .ng domain name services provided by NIRA accredited registrars and their resellers otherwise known as “industry complaints.”

However, the different types of complaints were explained in more details in sections four and five below:

The second 2 subsection 2 dwelt on NiRA not having jurisdiction to handle complaints about (a) generic Top Level Domains, for instance, .com, .net, .biz, .info, and so on or other country code Top Level Domains for example .nz, .uk, .us, among others; (b) web hosting, website management or website design services; (c) Internet access or email services; or (d) possible breaches of Nigerian law relating to Information Technology, telecommunications, broadcasting or unfair business practices.

For complaints about these matters NiRA advised that complainants should contact the relevant government authorities.

While subsection 3 stated that NIRA reserves the right not to acknowledge or investigate a complaint that is clearly frivolous, vexatious or abusive, or in NIRA’s opinion has been brought in bad faith.

Equally, NIRA’s complaints-handling process indicated that complaints may be submitted to NIRA via the online form on its website, by fax or by post, even as NIRA will acknowledge receipt of complaints subject to paragraph 2.3 of its policy on complaints and indicate the time-frame that a response would be expected.

NIRA says it would endeavour to resolve complaint as quickly as possible, but if complaints seem complex it may take several weeks to resolve, adding that if this happens to be the case, NIRA would keep such complainants informed of the progress of their complaints.

On receipt of any complaint, where appropriate, NIRA would request a response from the registrant, registrar or reseller involved and would investigate complaints based on the facts provided by all parties involved in the matter and may seek further information from any party to assist with its investigation.

NIRA may place a registry server lock on the domain name(s) in question, in order to preserve the status quo whilst the investigation is pending.

After conducting a full investigation, NIRA will notify the complainant in writing of the outcome of complaint and, if relevant, of any other courses of action available to the complainant.

The section four of the policy, which centred on domain complaints, NiRA says included complaints about (a) registrant eligibility, including the “close and substantial connection” rule; (b) prohibited misspellings; (c) offering a domain name for sale (d) correct “ownership” of a domain name (e) transfers (change of registrant); and (f) breaches of the domain name license terms and conditions, or any NIRA policy.

While subsection four-two, stated that NIRA is the first point of contact for the above mentioned domain complaints and has the powers to investigate complaints on the basis of whether there has been a breach of NIRA policy, not on the basis of whether complainant have a better claim to the domain name, or whether the rights in the domain name have been infringed. Just as NiRA cautioned that if desired outcome is transfer of the domain name to an individual, then it would be considered lodging a complaint under the NIRA Dispute Resolution Policy or taking legal action directly against the registrant.

But if complaint is upheld, NIRA may take one or more of the following three actions;

(a) instruct the registrar of record to “policy delete” the domain name(s) in question; (b) instruct the registrar of record to correct the registrant details of the domain name(s) in question; or (c) in the case of an unauthorised transfer, instruct the registry to reverse the transfer.

Industry complaints including that of domain name registration and domain name management services of a registrar or reseller; (b) transfers - change of registrar of record and (c) breaches of the Registrar Agreement, Registrar’s Practice Policy, or any NIRA Published Policy.

The policy further indicated that before NIRA will investigate a complaint, the complainant must have first attempted to resolve the complaint with the registrar or reseller involved, noting that under the Registrar’s Practice Policy, all registrars and resellers must have adequate complaints-handling policies and procedures in place.

And before making a complaint to NIRA, such a complainant must allow a reasonable period of time for the registrar or reseller to respond to complaints.

NIRA however, warned that it would not investigate complaints unless such complainant have fulfilled this aspect, even as they should also collect any relevant supporting documentation, such as registration agreements, policies, emails and other correspondence with the registrar or reseller.

Failure to do so may mean that NIRA is unable to investigate any complaint for lack of evidence. While if complaints is upheld, NIRA may take one or more of the following actions: (a) request the registrar or reseller to issue the complainants with a full explanation and apology; (b) request the registrar or reseller to remedy their error and/or refund any payment for services not received; (c) in the case of an unauthorised transfer, instruct the registry to reverse the transfer; (d) request the registrar or reseller to amend the practice or procedure that led to the complaint; (e) notify the registrar or reseller that they are in breach of the Registrar Agreement, or any other NIRA Policy, and request them to remedy the breach; or and (f) refer complaints to the relevant government authority.

Noting that NIRA is not a government agency or statutory authority, therefore, it does not have legislative power to impose fines or other penalties on a registrar or reseller.

The section five subsection five of the policy stated that if the registrar or reseller involved does not comply with NIRA’s request pursuant to paragraph 5.8 [a-d], NIRA may take the following action: (a) in the case of a reseller of a registrar, NIRA may direct the registrar not to accept any services from that reseller, and to terminate any reseller license in existence between the registrar and that reseller; or (b) in the case of a registrar, NIRA may suspend or terminate the registrar’s accreditation.

NiRA further stated that it could handle other complaints and disputes as provided for in its Dispute Resolution Policy byway of seeking for independent arbitration of disputes between a registrant and another party with competing rights in the domain name. Proceedings must be lodged with one of the approved providers listed on NIRA’s website.

So, NIRA will not mediate or resolve disputes between a registrant and another party over a domain name, although it may, at the request of the parties or at its own discretion, place a registry server lock on the domain name pending resolution of the dispute by the parties themselves.

Resolution of the dispute must be evidenced by a Deed of Settlement or an order of a competent arbitrator, tribunal, court or legislative body.

NIRA maintained that it would not mediate or resolve commercial disputes between registrars and their own resellers, except insofar as the dispute involves a breach or possible breach of the Registrar Agreement or any NIRA policy.

Commenting, Nigerian-born United States-based IT expert, Prof. Bolaji Aluko, advocated for segmented commentary column for each of the policies to facilitate easier collation process targeted at a policy documents.

NiRA President, Mr. Ndukwe Kalu, while assuring that responses will be appropriately streamlined, advising Nigerians to make inputs on or before February 29 through sending hardcopy to NiRA office or electronically by email to: policy@nira.org.ng.

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