Registrar Advisory Concerning the Inter-Registrar Transfer Policy
The purpose of this advisory is to assist ICANN-accredited registrars in understanding that under the Inter-Registrar Transfer Policy:
The Inter-Registrar Transfer Policy ("Transfer Policy") was adopted by ICANN as a consensus policy in 2004 in order to assist domain name holders in transferring their domain names from one ICANN-accredited registrar to another upon request. The Transfer Policy is available at http://www.icann.org/transfers/policy-12jul04.htm.
This section of the advisory considers the scenario when a registrar denies a transfer request made by the registrant during the registration period after expiration, if the registrant has not paid for renewal.
Pursuant to Section A.3 of the Transfer Policy, registrars are permitted to deny outgoing transfers of gTLD domain names only in the limited circumstances specifically enumerated by the Transfer Policy. One of these circumstances is:
5. No payment for previous registration period (including credit card charge-backs) if the domain name is past its expiration date or for previous or current registration periods if the domain name has not yet expired. In all such cases, however, the domain name must be put into "Registrar Hold" status by the Registrar of Record prior to the denial of transfer.
The Transfer Policy further states that, "Instances when the requested change in Registrar may not be denied include, but are not limited to: Nonpayment for a pending or future registration period…"
In those cases where a registrant has paid all past registration fees, but has not paid for renewal, and the domain name is in the registration period after expiration, registrars are prohibited from denying a transfer request, as the registration period after expiration is either a "pending or future" registration, during which time the Transfer Policy prohibits denial of transfers on the basis of non-payment.
While issues related to domain name transfers initiated during the Auto Renew Grace period are under consideration by the GNSO’s Transfers Working Group, ICANN’s intention with this advisory is to provide clarification of existing policy.
Registrars are advised that under the Transfer Policy they may not deny a transfer request on the basis of non-payment of fees for the registration period after the expiration date, unless the denial is based on non-payment for a past registration period. Registrars that impose policies or procedures on their registrants that are contrary to this determination are in violation of the Transfer Policy.
This section of the advisory considers the scenario when a registrar requires a registrant to provide consent to deny transfer requests for a certain period of time (usually 60 days) in order for the registrant to update its Whois data.
Section A.3 of the Transfer Policy enumerates nine independent bases that a registrar may rely on to deny a domain name transfer request. Registrant updates to Whois contact details is not enumerated as a valid basis to deny a transfer request in the Transfer Policy. In addition, ordinary changes to Whois data fields are not evidence of fraud and therefore not a basis to deny a domain name transfer request.
Pursuant to Section A.3 of the Transfer Policy, registrars are permitted to deny transfer requests if they have obtained, "6. Express written objection to the transfer from the Transfer contact. (e.g. - email, fax, paper document or other processes by which the Transfer Contact has expressly and voluntarily objected through opt-in means)". While the language in parenthesis is provided as an example in paragraph enumerated 6 of Section A.3 of the Transfer Policy, this language is instructive regarding what types of express written objections were envisioned as acceptable as a basis to deny a transfer request – only those objections that are provided expressly and voluntarily.
Subsection 220.127.116.11 of the Registrar Accreditation Agreement ("RAA") requires registrars to include language in their registration agreements that obligates registrants to maintain "accurate and reliable contact details and promptly correct and update them during the term of the…registration." By agreeing to such language, registrants are under a strict requirement to update their Whois contact details when they change. Subsection 18.104.22.168 of the RAA requires registrars to include language in their registration agreements that authorizes them to cancel domain name registrations for any willful breach of these obligations. Accordingly, failure by a registrant to timely update Whois contact details may result in the cancellation of a domain name.
Registrars that have implemented processes that require registrants to consent to deny transfer requests in order to update Whois contact information are not obtaining voluntary express objections and therefore such objections cannot be used as a basis for denying a transfer pursuant to Section A.3 of the Transfer Policy.
Registrars are advised that any express written objections to transfer obtained by registrars through compulsory means, including express written objections obtained before allowing registrants to make required Whois data changes, are involuntary and therefore not a valid basis to deny transfer requests.
To ensure compliance with Registrar Accreditation Agreement requirements, all ICANN-accredited registrars are encouraged to review their domain name registration transfer processes and relevant domain name registration documents to make certain they comply with the Inter-Registrar Transfer Policy. Specifically, registrars’ processes and documents should be consistent with the interpretations set forth in this advisory regarding Section A.3 of the Transfer Policy pertaining to the Auto-Renew Grace Period and the type of consent required to deny transfers.