The Ninth Circuit has affirmed a decision holding a domain name privacy protection service provider not liable for for the actual registrant’s spam violations. Balsam v. Tucows, No. 09-17625 (9th Cir.; Dec. 16, 2010).
Plaintiff sought to hold defendant third-party privacy protection service liable for its refusal to reveal the actual website registrant’s identity. Plaintiff based its liability argument on the following clause of the ICANN registrar accreditation agreement:
A Registered Name Holder licensing use of a Registered [domain] Name . . . shall accept liability for harm caused by wrongful use of the Registered Name, unless it promptly disclosed the identity of the licensee to a party providing the Registered Name Holder reasonable evidence of actionable harm.
The court found that Plaintiff was not a third-party beneficiary of the ICANN registrar accreditation agreement, specifically because such agreement contained a “no third-party beneficiary” clause.
Plaintiff could have, of course, easily subpoenaed the privacy protection server for all relevant information about the actual spammer/registrant, but it seems here that Plaintiff was trying to recover a hefty default judgment ($1,125,000!) against the deeper pocket as the original violator seemed to be broke.
Note: Compare this ruling with Solid Host, NL v. NameCheap, Inc., 2:08-cv-05414-MMM-E (C.D. Cal. May 19, 2009), where a privacy protection service was found potentially liable for contributory cybersquatting (the court denied Section 230 immunity).
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