ICANN and the “Farcical” Waiver Requirements for ICANN74

The upcoming ICANN74 to be held both virtually and in-person in The Hague in June has some rather strange legalese when it comes to those attending regarding to COVID-19. There are some of the usual to be expected conditions such as to be vaccinated, wearing face masks and so on. But one that has stirred up a bit of a hornet’s nest is the requirement of attendees to sign a liability waiver [pdf].

ICANN justifies the waiver in their Health and Safey information for ICANN74 as a means of enshrining that “ICANN’s funds should not be used to defend ICANN against items for which ICANN itself should not be held liable. Protecting ICANN in this way helps support ICANN’s continued ability to serve its mission.” ICANN also claim their “COVID-19 liability waiver is similar in breadth and scope to those used for other conferences.”

One regular and long-term participant of ICANN meetings finds it all rather farcical.

“I’ve absolutely no issue with ICANN, or any other event organiser, wanting to protect themselves from frivolous claims,” Blacknight’s CEO and founder Michele Neylon told me. “However the waiver that ICANN is forcing people to agree to goes way beyond that and demands that attendees give up not only their own rights, but those of their heirs. From my perspective it’s massive overreach and is legal bullying by a corporation.”

Neylon wrote to ICANN in late March [pdf] with legal advice he had obtained which said he shouldn’t sign the waiver.

“Our legal counsel, Mr William Clarke, has advised me that I cannot sign this waiver and I obviously cannot ask any of my staff to do so either,” Neylon wrote in his letter to ICANN. Further he added “you cannot expect people to grant you a blanket exclusion of liability which includes actual fault.”

As a result Neylon felt he couldn’t attend the meeting in The Hague, noting “being unable to attend an event due to this unreasonable requirement is incredibly frustrating.” The reply from ICANN [pdf] said the organisation had “updated their Frequently Asked Questions” relating to health and safety at ICANN74.

“I wrote to them in the hope that they’d adjust the language to something more palatable, but instead of doing so they’ve ‘replied’ by adding some ridiculous FAQs,” Neylon said. “The waiver literally asks that you give ICANN a free pass if they were to poison attendees.”

Neylon finds ICANN’s response to and the waiver itself “farcical”. He highlighted sections in the waiver such as “I knowingly and freely assume all risks related to illness and infectious diseases, including but not limited to COVID-19, even if arising from the negligence or fault of ICANN.”

“They could lace the coffee with poison and expect you let them off.” Neylon is also concerned that if an attendee did something to himself or one of his staff, the waiver would let them off the hook.

Neylon believes the only way ICANN could be liable is if they are the “sole” source of the issue – which if you look at a personal injury claim is unlikely. There’s usually a percentage at play he believes.

Neylon was joined in his condemnation of the waiver requirement by Eberhard Lisse, ccTLD Manager for .NA, member of the ccNSO and medical practitioner. Together they wrote a “Request for Reconsideration” of the waiver [pdf], suggesting it should be rewritten in its entirety. They even suggested some replacement text [pdf] along the lines of:

ICANN will do its best to provide a safe environment during the ICANN 74 meeting. This may include measures over and above requirements imposed by local government at the time of the meeting, such as wearing of masks, social distancing, disinfection, vaccination requirements and/or other reasonable measures. Participants are responsible themselves for making appropriate arrangements, in particular health and travel insurance covering Covid and consequential risks such as delays, quarantine, and hospitalization. ICANN will assume no liability in this regards, nor can participants rely on any assistance by ICANN in this regards. Participants not willing or able to accept this, may not attend in person but only virtually. The Community Anti-Harassment Policy, Terms of Participation and Complaint Procedure, and the ICANN Expected Standards of Behavior apply as usual.

However ICANN’s Board Accountability Mechanism Committee didn’t find the Request so urgent. In their Determination [pdf] on 14 April they wrote “Request 22-2 does not qualify for urgent consideration.” However rather than the Request be resubmitted as would usually be required “ICANN org will proceed with Request 22-2 under
the regular time frame of the reconsideration process. The BAMC will ensure that Request 22-2 will be handled expeditiously, to the extent feasible and practicable.”

Michele Neylon has also published “Hey ICANN! What’s With the Draconian Waiver?” with some more links on the Blacknight blog here.

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