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Protection of Red Cross/Red Crescent Emblem and the Name on the Internet
One of many controversies surrounding the introduction of new domain names is the special protection given, though a moratorium, to the Red Cross and Red Crescent Movement (RCRC) and International Olympic Committee (IOC). [i] Although the RCRC and the IOC are discussed together, they are very different. Substantively speaking, ICANN’s decision to protect the RCRC brand has a solid legal and humanitarian basis. Here, I won’t discuss the procedural aspect of ICANN’s decision to give the RCRC special status, which has been criticised by many as a procedural exception that may inspire similar requests by other international entities.
The RCRC brand is one of the most important global brands, usually compared in its worldwide value to Coca Cola. It consists of emblems (a red cross, a red crescent and a diamond-shaped red crystal) and the names ‘red cross’ and ‘red crescent’ which are protected by international law. The protection of the RCRC emblems and names is an international obligation of all states party to the First Geneva Convention (articles 53 and 54).[ii] In accordance with the Convention, both the emblems and their names are protected everywhere in the world by national law and in most countries it is an offence to use them without permission. If this is not the case, the States must ‘take measures necessary for the prevention and repression, at all times’.[iii]
The rules of protecting the RCRC brand, drafted a long time before the Internet, apply to the Internet as well. Internet fraud regarding the Red Cross name is real and directly affects people in need of help. Almost every newsworthy disaster is now followed quickly by Internet fraud. There are many examples. Recent ones include the tsunamis of 2004, Hurricane Katrina in the USA,[iv] the Sichuan earthquake in China, the Haiti earthquake,[v] bushfires in Australia in 2010, and the Christchurch earthquake in New Zealand.
No clear figures are available on the amount of money collected fraudulently based on humanitarian needs, but statistics from the USA on other sectors indicate that the amount could be as high as 10% of the overall amount contributed. In other words, tens of millions of dollars are stolen every year, with accompanying damage to reputations.
These fraudulent actions have the twin effect of taking money from innocent and generous members of the public and damaging the reputation of the humanitarian organisation whose name is misrepresented.
The main question is what can be done to prevent the misuse of emblems/names on the Internet. The situation of RCRC emblems and names is relatively easy to address because of the requirements of both international and national law.
ICANN’s decision introduced preventive measures. It also protects the global public interest of the most vulnerable. Practically speaking, ICANN’s decision can spare registrars, ISPs and domain name companies a difficult legal situation. Namely, RCRC national societies have the right to request national authorities to close down a website or remove a domain from the registration if it, for example, misuses the name ‘red cross’. One can also argue that all necessary measures would include demotion of such websites from search engines. Such measures have to be taken very quickly since most of the fraud usually aims to take money from gullible but well-intentioned people in the first few days after the humanitarian catastrophe. This makes it very virtually impossible to use a lengthy procedure to take down a fraud, and preventive action is what is required.
The good news is that RCRC national societies prefer to take preventive measures instead of using costly and time-consuming legal action; they have the right to do so. They also know that a legal route could be very complicated – the frauds are seldom based in the country where the main target audience resides. A very good example was the action taken by the New Zealand Red Cross after the 2010 earthquake that made public the campaign against Internet fraud, alerting their own public and others around the world through internet reporting of their information.
The discussion now under way around ICANN’s decision on the RCRC brand could galvanise the global Internet community, including civil society and the business sector, to contribute towards alleviating this problem, a problem that directly affects people in need. New social media tools will introduce new possibilities for misuse of RCRC emblems and require more innovative responses, which go beyond the capacity of humanitarian organisations. ICANN’s decision opens the possibility for introducing Internet governance ‘with cause’.
[i] ICANN’s decision to open a domain space for the new registration triggered much controversy, including the opposition of many governments and trademark lobbies. With hundreds or thousands of new domains, the protection of publicly important names (names of countries, cities) and trademarks is a huge challenge.
[ii] Exact title of the convention is UN Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Full text is available at: http://www.hrweb.org/legal/geneva1.html.
Article 53. The use by individuals, societies, firms or companies either public or private, other than those entitled thereto under the present Convention, of the emblem or the designation ‘Red Cross’ or ‘Geneva Cross’ or any sign or designation constituting an imitation thereof, whatever the object of such use, and irrespective of the date of its adoption, shall be prohibited at all times.
Article 54. The High Contracting Parties shall, if their legislation is not already adequate, take measures necessary for the prevention and repression, at all times, of the abuses referred to under Article 53.
[iii] Article 54
[iv] Hundreds of domains were registered immediately after Hurricane Katrina (2005) without authorisation of the American Red Cross including: www.katrinaredcross.com, www.donateredcross.com, www.red-cross-help.com, www.americaredcross.org
[v] For example, these fraudulent domains were registered after the Haiti earthquake: Haitiredcross.com, Haiti-redcross.org, Redcrosshaiti-com