Is It Legal To Mask The Domain Name Owner’s Identity In The WHOIS Information?
Domain Name Ownership Privacy has been a hot topic recently. Many domain name owners user third party "Privacy Protection" or "Proxy Registration" services to mask their true identity. Domain Name Privacy is like having an unlisted phone number, which is not available in any telephone directory or online database. This means that by doing a WHOIS Search, your domain name registrant information shows up with masked or pseudo information belonging to a mail or email forwarding service. This article deals with the legality of masking your domain name ownership identity.
Does The Privacy Service Become The Owner?
The owner of a domain name can be identified by the WHOIS records of the domain. The Registrant information is to clearly indicate the Name, Address, Email Address and Contact Number of the owner of the domain name. But when a privacy service is turned on, you don’t get to see these. Hence, an important question that arises is whether the person named as the Registrant is the defacto owner.
In a famous cyber-squatting case of SolidHost v. NameCheap, the latter was a Privacy Protection provider, who had their contact details mentioned as the owner of the domain name. Solid Host insisted that they reveal the true identity of the domain owner, which they refused. Solid Host sued NameCheap in California. In an interim motion, the court held that NameCheap, by listing itself as the owner of a domain name in dispute was contributing to cyber-squatting although the real owner maybe a different person, for whom NameCheap was only holding the domain name in trust. This judgement was received with a bit of criticism and a lot of two pence from most people.
In another case, where the Registrar of the Domain Name went Bankrupt and was still listed as the domain Registrant, the court ordered the litigating partners of the business to reveal the domain ownership information and handover the details to ICANN, which would then facilitate the transfer and move the domains over to a new Registrar.
What Are Legitimate Uses For Domain Name Privacy Protection?
Domain Name Privacy is important in many cases, especially for legitimate business purposes where company’s want to obscurely purchase domain names to secure them for future product launches or for internal business purposes. Non Government agencies, like news broadcasters, investigative journalists, whistle blowers and even researchers may want to stay anonymous while booking domain names and may want to mask their identity for their own safety.
So Is It Legal?
The ICANN website states that: "Privacy and proxy services are outside the scope of the 2001 RAA and 2009 RAA. To determine who is involved in a domain name behind a proxy or privacy service, please refer to the service provider’s terms of service. If you have a complaint involving a law or regulation, you may want to refer the matter to the appropriate law enforcement agency within your jurisdiction or seek legal counsel."
It goes on to state that: " The 2013 RAA requires that privacy and proxy service providers: Disclose service terms (including pricing), on its website and/or registrar’s website and abide by such terms; Publish an abuse/infringement point of contact; Disclose the business contact information on its website and/or registrar’s website; and Publish and abide by terms of service and description of procedures on its website and/or registrar’s website, such as handling of abuse or trademark infringement reports, communication handling, conditions of ending service, Whois data publication conditions, and access to support services."
The clincher is when ICANN mentions that "Please note that displaying privacy or proxy protected Whois data is not itself inaccurate. Please only submit a complaint if you are unable to contact the domain name holder because of inaccurate privacy or proxy service Whois data." This means that only if you are not able to trace the true identity of the owner after due diligence checking, only then can you complain to ICANN and they will attempt to trace the true owner.