auDA last week issued statements announcing it had taken DNA and its director, Chesley Rafferty, to court over a mass mail-out of letters the regulator claims resemble invoices, and not advertisements. DNA yesterday retaliated, issuing a press release through its lawyers that questioned auDA's authority as a regulator and the basis of its complaint.
According to auDA's chief executive, Chris Disspain, the domain name regulator had been working closely with the ACCC on the investigation. "When the original DNA mail-outs went out in June and July... we put our heads together," Disspain told ZDNet Australia .
However the appointment of former merchant banker Graeme Samuel as the ACCC's new chairman, following the retirement of Allan Fels, saw the working relationship dissolve. "All lines of communication were shut down," Disspain said.
The two regulatory bodies had worked closely together in the past to make sure the actions of one didn't interfere with the other -- the ACCC helped to draft regulations enforced by auDA. The ACCC and auDA were making significant headway in the DNA investigation, Disspain says, and an internal meeting was scheduled at the ACCC in late June/early July which would determine a suitable course of action for the groups to take.
auDA is uncertain as to whether the meeting even took place -- because Samuel took over that week -- and has been forced to go it alone in its pursuit of DNA, Disspain says.
The first sign of the row between the watchdogs was hinted at in auDA board minutes dated 8 August: "auDA has received over 400 consumer complaints about the latest mail outs by Domain Names Australia. The board expressed its concern at the ACCC's refusal to advise auDA on a confidential basis what action it intends to take (if any)," the minutes read.
"We are attempting to get around that. We're trying to get a meeting with the deputy director next week," Disspain said. "We're not pleased, to say the least."
The legal battle between auDA and DNA does not look like easing up any time soon, with DNA claiming it will fight the action tooth and nail. DNA claimed a victory over auDA when it was unsuccessful in seeking an interlocutory, or temporary, injunction which sought to prevent DNA from accessing funds obtained directly through the mail-out campaign.
"DNA believes that its defence of the proceedings was supported by preliminary comments made by the Federal Court judge that heard auDA's failed application for a temporary injunction on Monday, 27 August 2003. During the hearing, Justice Ray Finkelstein observed that some of the claims brought by auDA in its court documents were 'hopeless'," DNA's lawyers, Phillips Fox, wrote in a statement.
Court transcripts obtained by ZDNet Australia show the claim by DNA that comments made by Justice Finkelstein indicate the court is leaning towards its defence may be premature -- the judge himself saying it was not his job in hearing an application for an injunction to reach a final judgment in a matter relating to a Trade Practices Act action. "This is not an occasion for the grant of the particular interlocutory relief that it seeks," Justice Finkelstein said. "Nothing that I say on this aspect should be misunderstood; I am not meaning to suggest that the applicant hasn't shown an arguable case for misrepresentation."
"To the contrary, I think that there are several respects in which there is real potential for the notice which the first respondent sends out to obtain custom or to provide services, which may well be misleading."
"Anyhow, whatever be the final position insofar as that's concerned, that's a matter for a trial and for a trial judge, it's not a matter that I have to worry about to any extent at this point."
I think that the law in general has become a joke. Judges refuse to follow the most important law of all - logic. Might as well declare that we are a Banana Republic and we have full support for anarchy.
I have received numerous mailouts from the DNA and I nowdays don't even bother opening them just tear them and chuck them out. However I totally agree that they are misleading. I would like to see a law that protects my details from any form of direct mailout without my approval and this is just it - without my approval.
DNA are just simply out to score on people's stupidity. Should we protect people from their own stupidity and ignorance - NO. Should we however stop idiots like DNA from mailout to people who by default do not wish to see their junk - HELL YES - sue them for every penny they've go!
This is I think and I am entitled to it!