Whois Records in Courts

A major reference point for domain name ownership seems to always be the WHOIS records maintained by Registrars independently. There have been instances when these records have been used as legitimate proof to validate ownership of disputed domain names in many courts. However these records never existed for the purpose of it being admissible in a court of law simply because of the reason that these records are not verified or checked and hence their authenticity will always be questionable. Some schools of thought support a validated and verifiable Whois database so that such records are authentic and hence admissible as evidence, while those advocating privacy seem to argue that Whois records are increasingly being scoured by spammers to retrieve personal information about domain name registrants to send unsolicited communications and in many cases even rendering the registrants vulnerable to various cyber scams. Hence a valid Whois record with legitimate email addresses, postal addresses and telephone numbers might well be a treasure trove for spammers and cyber scammers prowling the cyberspace to net an innocent victim. While juxtaposed with the privacy argument is the simple rule that decisions should be made in the greater “public interest” and if a Whois record is verifiable and reliable (hence admissible in courts), the database of Whois information will become an important legal record with significant ramifications in its admissibility as evidence in a court of law. Similarly websites set up to dupe innocent netizens can then be shut down and miscreants brought to justice easily if their personal information is available on the Whois records (of course if only the Whois database requires a validation or authentication process otherwise there is no point). Opinions continue to be divided in this battle between individual privacy vs. public interest. Although there is an important distinction that must be made between Whois records maintained by independent Registrars for generic top level domains against those maintained strictly scrutinised by some national (almost government controlled) Registrars for their own country code (cc) top level domains. These records are often more strictly managed and regulated by those national ccTLD Registrars and hence the admissibility of the same seem to be upheld by their national courts.

It will be interesting to however see the development of jurisprudence regarding the validity of Whois records in domain name disputes that reach Indian courts and if the courts are required to adjudicate on the validity of the records in question.

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