Websites confiscated: Businesses ‘losing everything’ as regulator cracks down on prohibited domains

In 1996, when the internet and websites were still in their relative infancy, digital marketer Craig Lennard purchased the australia.net.au domain for a nominal sum.

The small business owner, who has over the years used the website for business and other purposes, including the curation of general information about Australia, was paying about $40 a year for the website through retailer Crazy Domains.

But that all ended late last month when he was informed, after 22 years, that australia.net.au was a prohibited domain under Australian law and he could not renew the website as usual.

“I was sent a notice saying there had been changes with the policy,” Lennard tells SmartCompany.

“I tried to renew the website anyway, but was told I couldn’t.”

Having operated his businesses through the australia.net.au domain for several decades, Lennard says he was astonished by the decision, which has seen him lose everything related to the domain without compensation.

“I spent three weeks having to change my entire life with new email addresses everywhere … I’ve lost credibility in the business marketplace with the things I’ve been doing,” he says.

Business owners left with more questions than answers

Lennard is one of several business owners SmartCompany has spoken to over the last week, that have either lost their longstanding domain names, or have been informed they will need to change prior to their next renewal, or risk losing their websites.

It’s part of a recent crackdown being overseen by Australia’s domain space regulator au Domain Administration (auDA) on domains in its reserved list policy, which could even see the likes of the Adelaide Football Club (www.afc.com.au) lose its domain on renewal without ministerial consent.

Phrases and terms on the reserved list are pinned by the domain authority because they relate to various pieces of government legislation, events, or authorities, such as the Defence Force or the Grand Prix. An acronym such as ‘AFC’ would be reserved due to its relation to the ‘Australian Flying Corps’.

Businesses SmartCompany spoke to report being contacted out of the blue by their domain registrars, informing them to either change their domains or obtain ministerial consent for their current address.

One such business affected by the crackdown is the local distributor for Italian industrial dehumidifier manufacturer FRAL, with the domain ‘fral.com.au’ pinned by the authority as being reserved for the Family Relationship Advice Line.

The business tells SmartCompany the Australian arm for FRAL had owned the fral.com.au domain for five years, and was contacted earlier this year and told the business was no longer able to operate under the domain.

In email correspondence seen by SmartCompany, the domain retailer for FRAL, Crazy Domains, alerted the business the domain was being reserved due to an “auDA conducted audit”, and told the business they would need ministerial consent to continue using the phrase, as per auDA’s policies.

Worried about losing the website, which drives the vast majority of sales for the local arm of FRAL, the business instilled a redirect to another website which did not involve the phrase ‘FRAL’.

“To say that we are angry would be an understatement. Checking for any possible organisations which would be abbreviated to FRAL showed that the family relationships advice line could be a candidate,” sales director Roger Moore tells SmartCompany.

“I cannot find any history on this group, but I doubt it has existed for over five years, and should not need a commercial (.com.au) domain name anyway.”

The Family Relationship Advice Line has existed since 2006, but has, and continues to, operate through the familyrelationships.gov.au domain.

Another business owner with an affected domain who spoke to SmartCompany says they were similarly shocked by the sudden revoking of their domain, and are currently in the process of receiving ministerial approval and “stringently” fighting the process through the courts.

The business owner says they were confident in winning the case, believing auDA and the government were only concerned about cases where government programs and services were being misrepresented via similar domain names.

Other websites featuring on the prohibited list of domain names include the website for political movement the Socialist Alternative (sa.org.au), and the website for anti-bullying organisation the Alannah and Madeline Foundation (amf.org.au), along with a spate of other foundations, charities and businesses.

At the time of publication, each of these organisations still had access to their domains.

AuDA cracks down 

Under Australian law, auDA is responsible for ensuring domains prohibited for registration under legislation are not occupied without government consent.

AuDA has the right to reserve names prohibited under the law and can reserve domains when legislation is updated or passed.

When domain names are issued, registrants must affirm they are legally entitled to use the name in terms of conditions present within applicable retail agreements.

However, while auDA maintains it has always complied with its responsibility for prohibited domains, several people with first-hand experience of the inner workings of the organisation have told SmartCompany auDA has historically not enforced the list stringently.

That has changed. In January this year, auDA updated its publicly available (but “non-exhaustive”) list of reserved names, more than tripling the size of the list.

The current published list, published on January 28 as a “minor amendment”, contains well over 100 terms, compared to the previous version of the list (also updated late last year to include some Commonwealth Games terms), which had only 37 restricted words and phrases.

On February 7 2018, auDA began warning of an incoming crackdown on prohibited domains through advertisements in newspapers and on a website FAQ.

Then, following an audit of potentially affected domains, auDA implemented a “non-renewal restriction” on a variety of domains, effective July 1, telling registrants to get in line.

A spokesperson for auDA told SmartCompany the new terms under the expanded reserved list have always been restricted under relevant legislation, but were added to its published list following the release of a discussion paper by auDA’s independent advisory panel, The Policy Review Panel, in January.

Despite that, it took six months for auDA to issue a non-renewal order, which it puts down to the onboarding of a new registry provider, Afilias.

“While the policy has always been enforced, the transfer of registry operations to a new provider required a new technical set up that had to align with the policy setting at the time — which included the expanded schedule of reserved names,” the spokesperson said.

Asked why auDA has only recently issued a non-renewal order on domains it maintains have always been subject to prohibition, the spokesperson said auDa doesn’t police the use of “certain strings of characters”.

“AuDA issues domain name licences in accordance to its published policies, it doesn’t police whether or not registrants are allowed to use certain strings of characters,” the spokesperson said.

Cleaning house

AuDA sits within the remit of the Department of Communications and was subject to a review last year amid ongoing controversy over a proposed move to transition from a .com.au domain regime to a .au system.

Scott Long, former chairman of auDA’s constitutional reform committee, who resigned in January and has been publicly critical of the organisation, says auDA is cracking down to clean house ahead of the proposed regime change.

“They’re just throwing their weight around to make themselves out to be politically correct and legitimate,” he tells SmartCompany.

A former member of auDA familiar with the leadership of the organisation tells SmartCompany auDA had not been explicitly instructed by the government to tighten its enforcement belt, but there has been broader pressure to get its house in order.

“Government is the puppeteer that really doesn’t want to move too many strings,” they say.

In emails between FRAL and auDA, seen by SmartCompany, the domain regulator said it was “informed” by the department it must comply with Australian law when it came to the treatment of names restricted under Australian legislation, and therefore it was unable to renew the domain name for the business.

A spokesperson for the Department of Communications said auDA was not instructed to expand its reserved list by the department or Minister Mitch Fifield.

“The expansion of the reserved list was a result of a policy development process conducted by auDA, involving public consultations on each phase of work,” the spokesperson said.

An auDA spokesperson also said the organisation was not instructed to expand its reserve list policy list by the government.

“The implementation of direct registration is an issue still being considered by the Policy Review Panel and has no effect on names which are restricted by Australian legislation,” the spokesperson said.

Consultation conundrum 

As business owners come to grips with losing their domains, there are lingering questions over the public consultation process auDA has undertaken in relation to its reserved list policy.

AuDA convened a policy review panel to oversee public consultation on a range of issues, including its reserved names list, in 2017.

Called the ‘Policy Review Panel’ (PRP), the panel released a discussion paper last October which raised a series of questions about the reserved list policy.

These questions included whether domain names not prohibited under the law should be reserved and whether potentially confusing or misleading domains should be unavailable for registration ahead of plans to change to a direct .au domain regime.

While a full list of terms being considered for addition to the list was not published in the paper, references were made to restricted domains under Family Law Regulations, which would later appear on the expanded reserved names list.

A total of 51 submissions were received in response to the October paper, while published minutes from a PRP meeting on November 29 show a discussion of reserved list policy implications.

“Considerable time” was spent exploring the justification for blocked names, according to the minutes.

The panel published a second paper on January 25, 2018, three days before it updated the reserve list policy on its website, which made public a full list of terms that would be added to the published list.

In that paper, the panel again raised a series of serious questions about the reserved name list, including whether auDA should continue to maintain a public reserved list in the first place.

Other questions included whether the list should be published, and what processes or steps auDA should take before deleting a restricted or prohibited name.

Submissions in response to that paper closed on March 13, over a month after the published reserve list was updated, drawing 60 responses.

A former senior member of auDA familiar with the matter told SmartCompany the organisation’s board has made a habit of lacklustre consultation to avoid scrutiny over changes.

Another source familiar with the workings of PRP said consultation related to the reserved name list has been inadequate, with ad-hoc decisions being made regarding enforcement.

An auDA spokesperson said the organisation consulted widely as part of an “extensive policy review” that included elements of the reserved list policy.

The spokesperson pointed to public hearings in Perth, Sydney, Melbourne and Brisbane in February, where members of the public were entitled to seek clarification and further information on the reserve list, among other matters.

AuDA also worked with the Department of Communications after the release of the January issues paper to set up a process for affected registrants looking to apply for ministerial consent — a mechanism that remains in place.

“While elements of the policy were up for consultation, the names appearing on the schedule are there because they are protected by legislation enacted by the Australian Parliament, auDA has no discretion whatsoever in regards to legislative compliance,” the spokesperson said.

Have a domain issue? Let us know at news@smartcompany.com.au.

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