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Data Protection Leader

International: The GDPR and the WHOIS data dilemma - ICANN’s new temporary solution under scrutiny

The WHOIS system, which serves to store and make available certain data to be provided by domain name registrants whenever a domain is registered, has recently faced challenges by the General Data Protection Regulation (Regulation (EU) 2016/679) (‘GDPR’). Following intensive discussions and preparatory work, the Internet Corporation for Assigned Names and Numbers’ (‘ICANN’), responsible for the coordination and operation of the WHOIS system, adopted a temporary solution shortly before the GDPR became applicable on 25 May 2018. While this temporary solution has changed the way personal data is made accessible to third parties, the policy for the collection and recording of such data by registrars and registry operators has remained untouched. Whether this is in line with the GDPR is now being tested in German courts in the course of preliminary proceedings. In this article, Dr Lutz Riede and Dr Gernot Fritz of Freshfields Bruckhaus Deringer LLP, explain that, even though these proceedings are still pending, it looks like the German courts do not share ICANN’s position: according to the courts in Bonn and Cologne, ICANN cannot force registrars to collect personal data on administrative and technical contacts, as such collection would be in excess of what is lawful under the GDPR. If this holds true, ICANN will likely have to adopt further changes to its WHOIS ecosystem.

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