Recently, relevant state departments have stepped up efforts to control obscene and pornographic information on mobile phones and the Internet. The China Internet Network Information Center (CNNIC), my country's domain name registration and management agency, has also successively introduced many management measures to continuously strengthen the governance of the domain name field. However, the dispute about "whether individuals have the right to register and use domain names" has also become the focus of many media and public concerns. So, do individuals have the right to register and use domain names? Are there any legal obstacles to allowing individuals to register CN domain names? To this end, China University of Political Science and Law Associate Professor Chen Jian from the Intellectual Property Institute of the Civil and Commercial Law School explained his views to reporters from a legal perspective.
Individually registered domain names can receive legal protection
It is understood that at present, my country's normative documents related to domain name registration and management are mainly issued by the former Ministry of Information Industry (now the Ministry of Industry and Information Technology), the "China Internet Domain Name Management Measures" (hereinafter referred to as the "Management Measures", December 2004 Effective from June 20, 2009) and the "China Internet Network Information Center Domain Name Registration Implementation Rules" (hereinafter referred to as the "Implementation Rules", effective from June 5, 2009) formulated by China Internet Network Information Center. Among them, Article 14 of the "Implementing Rules" clearly stipulates: "The applicant for domain name registration (hereinafter referred to as the applicant) shall be an organization registered in accordance with the law and capable of independently assuming civil liability." The "Implementing Rules" have this special provision for domain name applicants. This directly excludes individuals from domain name applications. However, Article 27 of the "Administrative Measures" stipulates: "The domain name registered and used by any organization or individual shall not contain the following content:...".
Judging from the content of the provisions, the "Administrative Measures" do not prohibit individuals from registering and using domain names, but the "Implementation Rules" stipulate that domain name registration applicants should be "organizations", which is equivalent to prohibiting individuals from registering and using domain names. So, what do individuals have? What if you don’t have the right to register and use a domain name?
In this regard, Associate Professor Chen Jian said that from a legal point of view, when a lower law conflicts with a higher law, the higher law is more effective than the lower law. The legal effect and legal level of the "Administrative Measures" of the Ministry of Information Industry are higher than the "Implementation Rules" of China Internet Network Information Center. Therefore, when the "Implementation Rules" conflict with the "Administrative Measures", the relevant provisions of the "Implementation Rules" are invalid, and The provisions of the "Management Measures" should be followed.
Associate Professor Chen Jian further explained: Whether an individual has the right to register a CN domain name should be subject to the provisions of the "Administrative Measures". Since the "Administrative Measures" do not prohibit individuals from registering domain names, then according to the law of "if it is not prohibited by law, it is allowed." According to the principles of science, individuals have the undisputed right to register and use CN domain names.
It is understood that in some domain name dispute cases accepted by arbitration institutions, individuals’ rights to register and use CN domain names have also been recognized. In the case that occurred in 2007, Tianjin Irizar Bus Manufacturing Co., Ltd. applied to the China International Trade Arbitration Commission to transfer the irizar.com.cn domain name registered by ordinary netizen Peng Wei to the company. The expert panel finally ruled to reject his request. Peng Wei Wei successfully retained his CN domain name.
From judicial practice, individuals’ legal rights to register and use domain names have also been supported and protected by courts at all levels (including Beijing Haidian District People’s Court, Beijing No. 1 Intermediate People’s Court and Beijing Higher People’s Court). For example: Beijing No. 1 Intermediate People's Court pointed out in its judgment on a domain name dispute that has been concluded ([2008] Yi Zhong Min Chu Zi No. 13024) that the court believed that "Article 27 of the "China Internet Domain Name Management Measures" It stipulates that domain names registered and used by any organization or individual must not contain nine contents such as 'opposing the basic principles established by the Constitution'. It can be seen from the regulations that individuals can become domain name registrants." "China Internet Network Information Center Domain Name. "Registration Implementation Rules" "Although Article 4 stipulates that domain name registration applicants should be organizations registered in accordance with the law and capable of independently assuming civil liability. However, since the "Domain Name Registration Rules" are less effective than the "China Internet Domain Name Management Measures", Therefore, the relevant provisions cannot be applied." Judicial protection was given to the legitimacy and legality of the domain names registered and used by individuals involved.
Personal domain names are an internationally accepted practice
Associate Professor Chen Jian pointed out: "Whether it is legal theory or judicial practice, the legal right of individuals to register CN domain names has been recognized. From the perspective of international practice and the promotion of Internet development, it is urgent to open up individual registration of domain names."
First of all, opening up individual domain name registration is an internationally accepted practice. Various countries and regions around the world, such as the United States, the United Kingdom, France, Germany, Australia, and Taiwan, have opened domain name registration to individuals. Many countries in Asia, including Japan, South Korea, Singapore, Hong Kong, and Malaysia, have opened personal domain names. .
Secondly, not allowing individuals to register domain names is contrary to current regulations. According to the Ministry of Industry and Information Technology’s Measures for the Registration and Management of Non-commercial Internet Information Services, individuals can set up websites. The Ministry of Industry and Information Technology's "Answers to Issues Concerning Registration Policies and Other Issues" clearly affirmed that websites run by individuals can apply for registration. Therefore, if individuals cannot apply for a registered domain name, they cannot create a truly personal web page, and they cannot engage in "individual" online services and trade, and many excellent business opportunities will be lost.
Third, opening up personal registration of domain names is conducive to active and prosperous e-commerce. The advantages of e-commerce over traditional commerce are very obvious. It can not only save costs for merchants, but its low prices are also very popular among consumers, especially young people. Therefore, we may have the courage to build a "free market" in the early stages of reform and opening up, allowing individuals to register domain names to promote the development of "self-employed individuals" online.
Associate Professor Chen Jian said that personal registration of CN domain names is not only related to personal interests, but also has great significance for society, the country, and the integration with the international Internet. Looking at the development history of the Internet, most websites in the world are established and operated by individuals. However, because the provisions of my country's "Implementation Rules" for personal domain name registration conflict with the "Administrative Measures", it has indeed brought a lot of confusion and inconvenience to individuals applying to register domain names in reality.
At the end of the interview, Associate Professor Chen Jian put forward his own suggestion, that is, under the current situation that the domain name real-name system measures are basically effective, my country's domain name management agency, the Ministry of Industry and Information Technology, and the China Internet Network Information Center should work closely together to revise relevant regulations and policies as soon as possible. Clearly protect the legitimate rights and interests of individuals in registering CN domain names, and officially open CN domain name registration to individuals as soon as possible.