By EFF Deeplinks Blog
The European Commission dropped a surprise announcement last week that following the withdrawal of the United Kingdom from the European Union (“Brexit”), British domain owners may no longer be entitled to keep their “.eu” domain names.
Not only will it no longer be possible for United Kingdom residents or organizations to register or renew these domain names, but the remaining period for which existing domain names have been registered could also be cut short as soon as Brexit occurs—which is currently scheduled for March 30, 2019. Unless a transitional arrangement is negotiated in the meantime, this could mean the loss of the content associated with over 300,000 domain names.
The availability of a special domain name may seem like a relatively minor inconvenience compared to some of the other likely outcomes of Brexit for the United Kingdom, including effects on the cost of good and services, incomes, and migration levels.
But unlike most of those changes (and as significant as those are), the deletion of .eu domain names would carelessly impact the expressive content of thousands of domain owners, along with the ability for unknown millions of users to use the websites and other services hosted at those domains.
The European Commission’s announcement doesn’t have legal force in itself, but it is based on a reading of Regulation (EC) No 733/2002 which authorized the establishment of the .eu top-level domain.
The Commission summarizes the effect of this regulation to mean that following Brexit “organisations that are established in the United Kingdom but not in the EU and natural persons who reside in the United Kingdom will no longer be eligible to register .eu domain names…”
However, the regulation doesn’t actually say that. It says that the registry for .eu (currently EURid) is obliged to register domains for the use of organizations based in the European Union, and for individuals resident there. But there’s nothing forbidding the registry from opening up the .eu domain for some non-residents.
On the contrary, the rule specifically envisions that, in at least some cases, parties from “third countries” (meaning non-EU members) could be given access to the .eu domain space:
The .eu TLD can accelerate the benefits of the information society in Europe as a whole, play a role in the integration of future Member States into the European Union, and help combat the risk of digital divide with neighbouring countries.
It is therefore to be expected that this Regulation will be extended to the European Economic Area and that amendments may be sought to the existing arrangements between the European Union and European third countries, with a view to accommodating the requirements of the .eu TLD so that entities in those countries may participate in it.
Although not specified at the time, ensuring the continuation of domains registered in the .eu top-level domain while the United Kingdom was a European Union member is another purpose that EURid could decide to allow, consistently with Regulation 733/2002.
And there’s good reason why it should, both as a matter of principle and practice. As far as principle is concerned, freedom of opinion, freedom of expression and the right to information are enshrined in Article 11 of the Charter of Fundamental Rights of the European Union. The deletion of hundreds of thousands of domains without appeal threatens these values, and is an interpretation of EURid’s responsibilities that it ought to actively avoid.
And in terms of practice, there are many examples of domain names registered in redundant top-level or second-level domains being “grandfathered,” meaning that they are allowed to continue to exist, even though no new registrations in those domains are permitted.
Examples include the still actively-used .su domain which was originally used for the former Soviet Union, and the .oz.au domain, which was the original subdomain available for registration under Australia’s .au domain space. Even the .uk top-level domain name itself is an example of a kind of grandfathering—since it was adopted before the decision to base country-code domains on the ISO 3166 standard, under which the United Kingdom ought to have a .gb rather than a .uk top-level domain.
If EURid follows the European Commission’s misguided advice to eliminate UK-registered domains from the .eu domain space, enough time exists for the lost content to be archived, as occurred before the 2009 shutdown of Geocities. But it shouldn’t have to come to that.
Despite what the Commission’s announcement suggests, the maintenance of legacy .eu domains held by British residents and organizations is consistent both with EU regulations, and with previous practice of other domain name registries. We strongly encourage EURid to push back against the European Commission’s announcement and affirm that it will be safeguarding these domains following Brexit.