New auDA domain name licensing rules incoming

A new set of rules by the .au Domain Administration Limited (auDA) governing the use of the .au country code top-level domain (.au ccTLD) will come into effect on 12 April 2021.  The new rules will apply to all domain names in the .au ccTLD registered, transferred, or renewed on or after this date.

The new rules aim to simplify and clarify the governance of the .au ccTLD for both registrants and registrars.

The changes stem from the recommendations made by the auDA Policy Review Panel in their 25 March 2019 Policy Review Panel (PRP) Final Report and Recommendations (Recommendations).  The Recommendations provide, among other things:

  • that the existing policies be simplified and consolidated;
  • a consistent Australian presence requirement should apply to all domain names registered in the .au ccTLD, including the .com.au, .net.au, .org.au, .asn.au, .id.au, and .au namespaces; and
  • for the implementation of a new complaint resolution process.

What is changing?

The new rules incorporate the Recommendations in addition to consolidating and simplifying numerous auDA policies which were previously spread across separate documents.

The new rules include the following key changes:

  • The availability of .au domain names:
    • the use of internationalised domain names in the .au namespace;
    • changes to the eligibility criteria for the use of the State and Territory namespaces (such as, qld.au) to include Peak State and Territory bodies;
    • the omission of the Domain Monetisation test for com.au and net.au namespaces;
    • the ability to use an Australian registered trade mark to meet the Australian presence requirement to be eligible to be the registrant of a domain;
    • the expansion of the definition of corporate entities and the addition of a related bodies corporate rule to allow entities in the same corporate group to be eligible to be the registrant of a domain; and
    • the refinement of the eligibility criteria for the .org.au namespace to only not for profit entities, with the exception of unincorporated associations not registered with the Australian Charities and Not-for-profits Commission (ACNC).
  • The use and management of .au domain names:
    • the prohibition of the renting or leasing of com.au, net.au, and asn.au domain names and sub-domains;
    • allowing additional time to remedy minor policy breaches;
    • providing for two (2) days to restore a cancelled domain;
    • setting out updated terms and conditions for .au domain licences; and
    • requiring a change of the domain name authorisation code after a transfer.
  • The operation of auDA:
    • permitting auDA to respond to the requests of law enforcement or national security agencies, such as to ‘sinkhole’ a domain for investigative or intelligence gathering purposes or to suspend a domain while the agency seeks a court order;
    • a public interest test to deal with government requests;
    • reserve names essential for the operation of government and for future use as a second level domain namespace;
    • respond to prohibited activity occurring on sub-domains, such as by suspending or cancelling the domain name; and
    • a four-tiered complaints process, being the initial complaint, review of a registrar’s decision, internal review of auDA’s decision, and external review.

What is the Australian presence requirement?

The new rules expand the Australian presence requirement.  The key groups which satisfy the Australian presence requirement are:

  • Australian citizens or holders of a permanent resident visa;
  • ASIC registered companies;
  • trusts where the trustee is an Australian citizen or Australian body corporate; and
  • the applicant or owner of an Australian trade mark where the trade mark exactly matches the sought domain.

A new complaint handling and resolution process

Under the current rules, a registrant may only apply for an internal review of the decision if they are dissatisfied with an upheld complaint.  The new rules expand this to provide a four (4) stage system for handling complaints, which is:

  • the initial complaint is made and upheld the relevant registrar;
  • the registrant may apply for a review by auDA of the registrar’s decision;
  • the registrant can then further appeal for an internal review of auDA’s decision; and
  • an external review by the Licence Review Panel.

Changes for unincorporated associations and not-for-profits

Unincorporated associations, such as sporting teams or other shared interest clubs, will no longer be allowed to hold domains in the .org.au namespace, which are to be reserved for:

  • unincorporated associations registered with the ACNC;
  • not-for-profit incorporated associations;
  • companies limited by guarantee; and
  • State, Territory, or Federal statutory bodies.

Unincorporated associations will be able to hold domains in the asn.au namespace and will need to migrate to that namespace when their .org.au domain first comes due for renewal after 12 April 2021.

Key takeaways for registrants

The current rules will continue to apply to all presently registered domains until they first come due for renewal or are transferred after the new rules come into effect on 12 April 2021.  All domains that are registered, transferred, or renewed from 12 April 2021 will be subject to the new rules.

If you are the registrant of a .org.au domain and are an unincorporated association, you may wish to plan your migration to the .asn.au namespace as early as possible to ensure that you are in control of when you switch away from the .org.au namespace in the interest of making a smooth transition for both you and your members.

If you require advice on what these changes will mean for you and your organisation or find yourself in a domain name dispute, please do get in touch for assistance in navigating your legal rights and obligations.

Further references

Related materials

.au Domain Administration Rules: Licensing
.au Domain Administration Rules: Registrar
Policy Review Panel (PRP) Final Report and Recommendations

Related articles

Domain name disputes – the case of eazyjet.com
Domain name escrow services

 

Mitchell Willocks Lawyer

Mitchell Willocks B.Bus., LL.B., GDLP., LL.M., MQLS
Lawyer
Telephone: +61 7 3221 0013
e: mwillocks@dundaslawyers.com.au

 

 

Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

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