The DotBible Litmus Test for Domain Name Dispute Panelists

A dispute policy for the new <.bible> top-level domain name requires panelists who agree to hear cases to affirm that they "enthusiastically support the mission of American Bible Society" and that they "believe that the Bible is the Word of God which brings salvation through Christ." The DotBible Community Dispute Resolution Policy appears to be the first domain name dispute policy that requires panelists to take a religious oath -- or, for that matter, an oath other than anything related to maintaining neutrality.

The "Panelist Affirmation" appears at the end of the DotBible dispute policy as published on the website of the Forum (formerly the National Arbitration Forum), one of the leading providers of domain name dispute services, including under the Uniform Domain Name Dispute Resolution Policy (UDRP) and the Uniform Rapid Suspension System (URS). Interestingly, the affirmation does not appear on a copy of the dispute policy published on the website of the American Bible Society, the registry operator for the <.bible> gTLD. (For reference, a copy of the policy containing the religious affirmation is posted on the GigaLaw website.)

The DotBible dispute policy allows a complainant to object to a registration in the <.bible> gTLD on the grounds that the registration violates the American Bible Society's Code of Conduct or Acceptable Use Policy. Among other things, the Code of Conduct requires registrants to agree that they will use their <.bible> domain name reigstrations "to associate and identify with the healthy respect of the Bible" and that they "will be respectful of all people as children of God by displaying Biblical qualities of loving kindness and charity toward all people, especially when addressing matters of differing doctrines or practices among the full range of Christian churches and ministries." The Acceptable Use Policy, among other things, prohibits domain name registrants from "[p]ointing to any content that, as determined in ABS’s sole discretion, espouses or promotes a religious, secular, or other worldview that is antithetical to New Testament principles, including but not limited to the promotion of a non-Christian religion or set of religious beliefs."

The American Bible Society is certainly not the only registry operator to enact eligibility criteria for new gTLD domain name registrations. For example, fTLD Registry Services limits <.bank> registrants to "[s]tate, regional and provincial banks that are chartered and supervised by a government regulatory authority" and other enumerated entities. Yet, the only oath required of domain name dispute panelists under the <.bank> "Registration Eligibility Dispute Resolution Policy" is that they agree "to be neutral and independent." The policy does not require <.bank> panelists to have any affiliation (or lack of affiliation) with the banking industry.

Similarly, the DotBible dispute policy's religious oath for panelists raises the question of why only those with specific religious beliefs should be qualified to determine whether a domain name registrant has satisfied the registry's eligibility criteria.

In addition, the Code of Conduct and Acceptable Use Policy applicable to <.bible> registrations are themselves quite interesting -- especially because the American Bible Society's application to operate this new gTLD never mentioned an affiliation with Christianity. Rather, the application stated that the purpose of <.bible> included "[p]rovid[ing] world-wide access to all qualified parties interested in disseminating or seeking information (whether non-commercially or commercially) about Bible issues, news, culture, lifestyle, entertainment or any other topic with a convenient and recognizable domain name that affirmatively associates them and⁄or their information with the Bible." (Emphasis added.) The application also said that "[t]he goal of the .BIBLE top-level domain is to establish itself as the recognized choice for registrants who want to market and promote themselves and their websites to, and reach, the Internet-using community, for ministry, business, personal or any other purpose, through a positive association with the Bible." (Emphasis added.)

The American Bible Society's registry agreement with ICANN also does not mention Christianity. Its only oblique reference to eligibility criteria states that the registry operator must "publish and make readily available to the public policies and procedures that cover domain name acceptable use..."

In any event, now that the <.bible> gTLD has been delegated and its Code of Conduct and Acceptable Use Policy apparently are being invoked through registrations, the religious oath required of panelists should face scrutiny -- if only because it is unprecedented.

Not even the controversial <.xxx> domain, which has a dispute policy for eligibility criteria (registrants must provide or relate to "online adult entertainment") requires anything special of panelists other than that they be "qualified and eligible." In other words, a panelist morally opposed to pornography could nevertheless be appointed to a dispute under the <.xxx> policy, presumably because his or her task would simply be to interpret the relevant eligibility criteria. Indeed, the <.xxx> rules states that accredited panelists shall be appointed "on the basis of familiarity with the substance and purpose of" the policy.

The same should be true for <.bible>. That is, a panelist should be able to evaluate whether the registrant of a <.bible> domain name satisfies the American Bible Society's criteria, regardless of whether the panelist supports the registry operator or has any particular religious belief. To require otherwise not only undermines the professional ability of a professional domain name dispute panelist, but it also limits the potential pool of panelists.

Indeed, as a panelist for the Forum (as well as the World Intellectual Property Organization, the Czech Arbitration Court and the British Columbia International Commercial Arbitration Centre), I was invited to sign the DotBible dispute policy's affirmation but declined. I've written more than 200 domain name decisions under many dispute policies over the years, none of which ever required me to sign an oath professing an allegiance to anything other than neutrality, independence and fairness.

The religious oath for DotBible dispute panelists seems especially misplaced given the wide-ranging uses to which the word "bible" can be (and has been) put that have nothing to do with Christianity, or any religion, yet arguably might not run afoul of the American Bible Society's policies. For example, (hypothetical) websites for such (real) books as the "Crock-Pot Bible," "The Yoga Bible" (an Amazon bestseller), and "Windows 10 Bible" might result in disputes under the DotBible policy -- yet surely the panelist's religious beliefs would not impact his or her ability to fairly reach a decision.

The same is true for obviously Christian-related <.bible> domain names. There's no reason why a panelist should profess a religious belief of his or her own to decide (hypothetical) disputes involving such (real) domain name registrations as <> ("Your tool for sign language Bible engagement"), <> ("Over 1000 Bible versions") or <> ("The Bible is the most influential book in world history. Is it part of your education?").

The DotBible dispute policy's unusual, if not unique, religion-based test for panelists arrives at an interesting time, as presidential politics have focused recently on whether a judge's background is relevant to his ability to remain unbiased. In a widely reported public dispute, Republican presidential candidate Donald Trump has said that U.S District Court Judge Gonzalo P. Curiel should not preside over litigation involving Trump University because the judge had “an absolute conflict” given that he was “of Mexican heritage” and a member of a Latino lawyers’ association. Trump's comments were criticized by Speaker Paul Ryan as "the textbook definition of a racist comment."

Similarly, the American Bible Society's mandatory oath for <.bible> panelists seems to be the textbook definition of religious discrimination. It should be eliminated.