Worldwide: The Fate Of WHOIS Under The GDPR: Privacy And Safety On The Internet

As of May 25, 2018, a new EU regulation will make the collection of data and tracking of online selling activity illegal – potentially shielding would-be counterfeiters and trademark infringers from detection in the purchase and sale of counterfeit goods.

Privacy advocates hail the new EU General Data Protection Regulation (GDPR) as a big step forward in the protection of personal data against misuse and abuse by commercial interests. The regulation confirms, they assert, that each natural person interacting on the worldwide web has "the right to be forgotten." But how does our increasingly global internet-based society deal with bad actors, including criminals, in the face of these new privacy protections?

Both global and US-based businesses have been advised by their EU counsel that as of May 25, 2018, the EU General Data Protection Regulation (679/2016) will apply to all online offers of goods or services to EU-based natural persons. The law will make the collection of data and tracking of online activity illegal, except where express consent is obtained and where such consent is not "tied" to the receipt of goods or services (i.e., a 'check the box' form of consent is not expected to be usable). Exceptions to protect "legitimate interests" under the statute have yet to be defined and the statute applies to every website that offers goods or services into the EU.

While offers to corporate persons are exempt from this privacy regulation, businesses can expect would-be counterfeiters and trademark infringers to take advantage of the new regulation in order to avoid detection in the purchase and sale of counterfeit goods online. Moreover, domain name registrars maintain that it is impractical to implement systems that distinguish between legal and natural persons.

Present WHOIS System

The establishment of WHOIS is similar to the reasoning behind statutes that require business entities to designate an agent for service of process – that is, consumers and others should be able to know how to find the entities with which they are doing business.

Under the present Domain Name System (DNS), registries (i.e., operators of top-level domains such as '.com', '.net', and '.biz') and registrars (i.e., sellers of domain name registrations) are obliged by their contracts with the Internet Corporation for Assigned Names and Numbers (ICANN) to maintain WHOIS information on every person or entity registering a domain name. Because of the WHOIS system, trademark holders with complaints against infringing activity occurring at a particular website have been able to contact the responsible party directly and file a UDRP or URS action, which can ultimately result in disclosure of the registrant and the transfer of an infringing domain, even if the registration itself is privacy protected.

Evolution to a New System: Registration Directory Services (RDS)

Although relied on by trademark holders both large and small, the requirements of the WHOIS system have been under scrutiny – as it has long been considered by registries and registrars to be anachronistic. Even proponents of the system have acknowledged that WHOIS information is easily forged and that as much as 40 percent of WHOIS data may be fraudulent or inaccurate. ICANN established an expert working group to study ways to protect privacy interests and preserve freedom of speech on the Internet, balancing the need for consumer protection and the public interest in promoting trust, confidence and competition. Their recommendations pointed towards a 'need to know' system, designed to replace the general public availability of WHOIS information. When it comes to setting new consensus policy, the new General Data Protection Regulation, appears to trump the bulk of RDS policymaking efforts thus far. Some registrars have even claimed that once the regulation goes into effect in May 2018, it will be illegal for them to collect registrant information when registering domain names, and thus illegal to perform a specific obligation set forth in their contracts with ICANN.

Effect on WHOIS: Legal Opinions

The RDS working group commissioned a legal opinion on the effect of the General Data Protection Regulation on its work. ICANN corporate management also sought outside legal counsel as to the effect of the regulation on its operations and contracts with registries and registrars. These opinions are consistent in advising that ICANN, as well as the registries and registrars, are at least 'joint data controllers' or 'data processors' under the new regulation. Thus, these entities are currently working through various models which will permit them to comply with the regulation by May 2018. Some have opined that these efforts have come too late to avoid a crisis in the security and stability of the Internet. Others maintain that interim solutions are available, as long as all the players work together towards a resolution that satisfies the competing interests.

In the interim, ICANN's compliance department has announced the following suspension of enforcement of the contractual obligation:

"*During this period of uncertainty... ICANN Contractual Compliance will defer taking action against any registry or registrar for noncompliance with contractual obligations related to the handling of registration data.*" ICANN's Business and IP Constituencies objected to the broad scope of the compliance statement and the modification of WHOIS policy without involving the ICANN community. Their positions underlined the fact that ICANN already has a policy regarding the procedure for handling WHOIS conflicts with privacy law.

Government Advisory Committee Views

The ICANN Government Advisory Committee (GAC) formally advised the ICANN board at the Autumn 2017 meeting in Abu Dhabi that the maintenance of an information system which enables the enforcement of IP rights and consumer protection mechanisms is critical to the stable and secure operation of the DNS. The GAC advised the board to take immediate and transparent steps with the European Commission in order to come into compliance with the regulation while meeting the public policy goals of consumer protection and IP enforcement.

Article 40 Code of Conduct: a Possible Way Forward

As a possible solution, various trade associations are working with the European Commission to develop data models and codes of conduct pursuant to Article 40 of the General Data Protection Regulation.

ICANN received further legal advice regarding the WHOIS system and the new GDPR affirming the notion that enforcement of IP rights may be a "legitimate interest" for collecting data under the GDPR. Though there are various models being put forward for a revised system, no one is certain as to whether any of these models will be compliant with the new GDPR.

There is general agreement that the present WHOIS system does not comply with the privacy law of certain EU member states and certainly will not comply regarding natural persons when the General Data Protection Regulation comes into effect. It is clear that if no resolution to the issues is found in time for the May 25, 2018 effective date, the entire WHOIS system – as well as rights-enforcement mechanisms such as the UDRP and URS – could enter a dark period where registrant e-mails become unavailable for purposes of enforcing IP rights. Accordingly, trademark holders experiencing infringement of their marks on the Internet should consult expert IP counsel regarding alternative options for enforcement.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions