Hello Ian,

> -----Original Message-----
> From: Ian Smith [mailto:smithi§nimnet.asn.au]
> Sent: Saturday, October 13, 2001 2:15 AM
> To: Bruce Tonkin
> Cc: ronstark§businesspark.com.au; dns§auda.org.au
> Subject: RE: [DNS] Melbourne IT / auDA - Where are you?
> 
> 
> In reference to various correspondence, most lately to Joshua Rowe's
> posting regarding an ING 'Renewal Advice' that must surely be of
> interest to the ACCC (despite rumoured buck-passing back to 
> AuDA), viz:
> 
>  http://joshrowe.com/ing01.jpg
>  http://joshrowe.com/ing02.jpg
> 
> On Tue, 2 Oct 2001, Bruce Tonkin wrote:
> 
> [..]
> 
>  > In general terms the legislation governing business 
> practices is the Trade
>  > Practices Act that applies to all industries.  The ACCC is 
> responsible for
>  > monitoring compliance with this act and investigating complaints of
>  > consumers that relate to the Act.  To date it appears that 
> the ACCC has
>  > found limited instances of abuse by domain name retailers 
> with respect to
>  > the Act - or maybe some retailers have changed their 
> practices after
>  > warnings and the matter has not proceeded to court.  Of 
> course an individual
>  > company can take action against another company under the 
> Trade Practices
>  > Act - but no companies to my knowledge have taken that 
> step in the domain
>  > name industry in Australia.
>  > 
>  > The approach that has often been suggested by this list is 
> for Melbourne IT
>  > itself to take action against its resellers.  However this also has
>  > problems.  Firstly Melbourne IT provides DNS registry 
> services to all domain
>  > name retailers in ".com.au", and is itself a domain name 
> retailer.  It is
>  > difficult to be both the umpire and a player, and appear impartial.
>  > Melbourne IT itself could be seen to be acting in a manner 
> contrary to the
>  > Trade Practices Act.
> 
> I think you've here made a VERY good case as to why there is 
> fundamental
> conflict of interest being both a registrar and a domain name 
> retailer,
> the umpire and a player as you say, and why this should not be allowed
> to happen in the future - or at all, given expiry of current 
> contracts.

The competition panel report recommended that there be a clear and effective
separation of business operations between a registry operator and a
registrar.   


>  > The action Melbourne IT has taken includes: 
>  > � obtained undertakings in relation to potential 
> infringement of trademarks
>  > and passing off
>  > � has called on auda and the ACCC to take action and 
> suggested they release
>  > and publicise consumer warnings (which they did)
>  > � has cooperated with the ACCC in their investigations 
>  > � has redrafted its own renewal notices to carry consumer warnings 
>  > � has lobbied government and made public comments arguing 
> for a code of
>  > practice 
>  > � has called on the Privacy Commissioner to consider the specific
>  > regulations  in the light of these practices
> 
> Has any of this been effective against the clearly ongoing (at least)
> misleading sort of practices illustrated by the URLs Josh gave above? 

Unfortunately no.  They have been some changes in practice by members of the
industry to comply with undertakings, but there are often new entrants to
the industry that try the same thing all over again.  There has been little
change in the underlying business model of some companies despite clever
changes in the wording of notices to remain within the law and within their
agreements with Melbourne IT.

The fundamental problem is a lack of consumer education.  This is something
that we shold all work together to improve.

> 
>  > There have been two other main alternatives, to the Trade 
> Practices Act and
>  > the ACCC:
> 
> Sure, assuming AuDA - or someone? - cannot have the existing laws and
> Consumer Protection regulations enforced, it might have to 
> come to such 
> unpallatable bureaucratic nightmares.  But are we sure they've really
> been tried, and if so, exactly what prevents them from being 
> effective?
> 

Agreed.  I would certainly like to see more involvement of the ACCC in the
industry.
If they can't take action for legal reasons, it would be good for them to
explain why that cannot take action.  This would be a useful input into the
process of developing an industry code of conduct.

Regards,
Bruce Tonkin

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