European Union: Impending WHOIS Data Blackout Is Likely To Impede IP Enforcement

On May 25, 2018, the European Union's new General Data Protection Regulation (GDPR) will take effect. While the regulations are a welcome change for many privacy advocates, they will introduce a new set of challenges for brand owners seeking to enforce their intellectual property rights online by essentially disabling an important tool in a brand owner's arsenal. It appears increasingly likely that the WHOIS system, which makes the contact details of domain name registrants publicly available, will soon enter a months-long blackout period, since the publication of certain WHOIS data runs afoul of GDPR and any interim compliance model will not be fully operational by May 25.


GDPR replaces the EU's current Data Protection Directive of 1995. It is intended to protect the personal privacy and data of individuals in the EU, though its impact will be global. The regulation generally applies to any individual, company, or organization - regardless of their location - that processes personal data relating to individuals in the EU. Among other things, GDPR requires organizations to have a lawful basis for any personal data they process, such as consent of the individual. For purposes of GDPR, "personal data" means "any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person." 

Failure to comply with GDPR could result in administrative fines of up to €20 million or 4% of a company's annual global turnover of the preceding fiscal year, whichever is higher. More information is available here

Impact on WHOIS Data

The WHOIS system, which contains information including the name, address, email, phone number, and administrative and technical contacts for domain name registrants, is maintained by the Internet's global domain name organization, the Internet Corporation for Assigned Names and Numbers (ICANN). Currently, ICANN requires that domain name registrars and registries provide the public with unrestricted access to this data. However, in some instances, ICANN arguably does not have a lawful basis to process such personal data under GDPR. Thus, the disclosure of WHOIS information may soon subject ICANN's contracting registrars and registries to harsh penalties under GDPR.

ICANN is now racing to devise a solution that will balance data protection considerations and GDPR compliance against the desire to maintain the existing WHOIS system to the greatest extent possible. ICANN recently proposed an "Interim Compliance Model" and has called for a temporary moratorium on enforcement of GDPR with respect to WHOIS data. For the latest updates from ICANN, see here.

The Interim Compliance Model

ICANN's Interim Compliance Model proposes layered access to WHOIS data. Under this approach, the publicly available WHOIS data will include the registrant's organization (if applicable), the registrant's state or province and country, and an anonymized email address or web form from which email can be forwarded to the registrant. The data will not include real names of individual registrants or actual email addresses. Other information will not be public, but may be available to approved users such as law enforcement officials and IP attorneys "based on predefined criteria and limitations that would be established as part of [a] formal accreditation program." 

Various aspects of the Interim Compliance Model have been criticized by EU data protection authorities, ICANN's contracting parties, brand owners, and stakeholders such as the International Trademark Association (INTA). For example, INTA has commented that providing an anonymous email address or web form to contact a registrant is not a sufficient substitute for an actual email address, since elimination of this information may prevent investigators from recognizing patterns of abuse and illegal activity by repeat offenders. INTA has also expressed concern about the lack of clarity about access to non-public WHOIS data, including who would be considered an authorized third party, what criteria or limitations would be in place for accreditation, and the timeline for finalization of any accreditation program. ICANN's contracting registrars and registries, on the other hand, may fear that even the Interim Compliance Model could subject them to GDPR's penalties, if publishing registrant organization information would include personal data. In bids for compliance, various registrars have started to roll out their own policies regarding the availability of certain WHOIS data, which threatens to create a fragmented universe of WHOIS information. 

How Brand Owners May Be Affected

Without access to certain WHOIS data, brand owners may be unable to identify and contact directly the registrants of websites that sell counterfeit goods or host infringing content, making enforcement initiatives more difficult or costly to pursue. Further, it may become more difficult to prove that websites have been registered and used in bad faith when bringing a complaint under the Uniform Dispute Resolution Policy (UDRP), since WHOIS data can often be a valuable source of information to show a pattern of bad faith or abusive registrations. Without full access to WHOIS data, UDRP complainants may also run into procedural snags, including difficulty determining when multiple domains are commonly owned and may be consolidated into one complaint.

On May 25, ICANN will likely place all of the currently available WHOIS data behind a wall until it implements its accreditation mechanism for access to certain restricted data. In a draft timeline released on April 20, ICANN indicated that it could take up to a year for any interim model to be fully implemented. In short, it appears that the WHOIS system will never be the same and that there may be little to no access to WHOIS data for a significant period of time.

In the interim, brand owners and their counsel will be forced to investigate and pursue online infringements more creatively. Where an infringing website does not provide any clues about the infringer, it may be possible to glean information from the site's IP address or nameservers. Counsel may consider making demands to registrars or other intermediaries for registrant contact information, bringing proceedings under the UDRP where possible, filing "John Doe" lawsuits with subpoenas for information, or referring matters to private investigators or law enforcement officials. 

Brand owners are encouraged to consider their online enforcement priorities and legal budgets ahead of the likely May 25 blackout period, with the understanding that certain initiatives may become more costly to pursue during any WHOIS data blackout.

This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.

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.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please 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