.au Domain Name Suppliers' Code of Practice (2004-04)

1.1 This document sets out the auDA-endorsed Code of Practice for registrars and resellers in the .au domain. The Code is at Schedule A of this document. It replaces the previous .au Domain Name Suppliers' Code of Practice (Policy No 2003-09).

1.2 The Code was reviewed by a Committee of industry and consumer representatives, following an open call for public comment in September 2004. The auDA Board formally endorsed this latest version of the Code on 11 October 2004.

2.1 Compliance with the Code of Practice is mandatory for all auDA accredited registrars and their appointed resellers. A list of registrars and resellers is available on the auDA website at http://www.auda.org.au/registrars/accredited-registrars/.

2.2 auDA is responsible for enforcing the Code. Complaints about alleged breaches of the Code will be handled in accordance with auDA's Complaints Policy (Policy No 2002-21)

3.1 The full Code, or parts of the Code, will be reviewed by the Committee on an ongoing ad hoc basis in response to market-driven demand. Membership of the Committee is open to all interested people. The review process will include public consultation.

3.2 Any suggested amendments to the Code as a result of the reviews, will be submitted to the auDA Board for approval.

As an integral part of auDA's consultative policy development initiatives and commitment to industry self-regulation, the Code of Practice Committee1, the membership of which was drawn from a wide variety of stakeholders, has prepared this Code of Practice. This Code of Practice version 1.2004 replaces the previous version 2.2003.

The Code of Practice is a compulsory set of principles and approaches to market conduct for auDA accredited registrars and their appointed resellers and is to be read in conjunction with the auDA’s Registrar Agreement2 and all applicable policies published by auDA3.

auDA is the Government-endorsed domain name industry self-regulatory body. auDA’s powers of enforcement are established by legal agreements between participants in the .au domain name registration industry. Learn more about the Federal Government’s approach to industry self-regulation.

The Code of Practice Committee drew on a number of codes of practice across other industries, most notably the registered codes of the Australian Communications Industry Forum (ACIF) and the Australian Direct Marketing Association’s Direct Marketing Code of Practice, November 2001.

Please note that this Code uses the convention of capitalising words to denote that the Code contains a definition in Section 16 of this document.

1.1 The Registrar Agreement and the Code of Practice are two key elements in the industry self-regulatory model for which auDA is responsible.

1.2 The Code sets out rules for the conduct of Domain Name Suppliers in the .au domain name industry. It forms part of the Registrar Agreement to which all Registrars must adhere. The Code also binds appointed Resellers of Registrars through their Reseller Agreement with a Registrar.

1.3 The Code is intended to act as an incentive for industry participants to conduct their business in accordance with the Code and is a non-negotiable commitment to the auDA Registrar Agreement.

1.4 The Code establishes an industry-wide comprehensive process for dealing with Complaints by Customers and other industry participants. The Code has been designed to meet Customers’ expectations of international best practice for complaint handling, based on the Australian Standard AS ® 4269.

1.5 The Code provides practical guidelines for the step by step handling of a Complaint plus a comprehensive set of rules for handling Complaints within an organisation.

1.6 Domain Name Suppliers are expected to develop and enforce a comprehensive Complaint handling process within their respective organisations, in order to:

a) recognise, promote and protect Customers’ rights, including the right to actively provide feedback;

b) provide an efficient, fair and accessible mechanism for handling Complaints;

c) provide information to Customers on the Complaint handling process for the Products of the organisation; and

d) monitor Complaints in an endeavour to improve the quality of Products.

1.7 The Code will be reviewed on an ongoing ad hoc basis to consider whether it:

a) fulfils its purpose; and

b) remains relevant and appropriate to the conduct of Domain Name Suppliers as time goes by, and may be amended according to the recommendations of the committee conducting each review (which will include public consultation).

2.1 The objective of the Code is to promote and protect the interests of the Domain Name registration industry, Domain Name Suppliers, Registrants and Customers by:

a) supporting and promoting competition;

b) establishing minimum standards for dealings between Domain Name Suppliers and with Customers and Registrants;

c) ensuring that Registrants and Customers receive accurate, complete and timely information concerning Domain Name registrations, renewals and solicitations;

d) ensuring accuracy of Domain Name Advertising Material;

e) preventing practices that undermine the reputation of the industry and the interests of Registrants and Customers;

f) establishing minimum standards in relation to Complaint handling by Domain Name Suppliers; and

g) establishing procedures for dealing with breaches of the Code.

3.1 The Code applies to all Registrars, their appointed Resellers, and all other parties that are signatories to the Code.

3.2 A Domain Name Supplier may use the auDA Compliance Mark to indicate their signatory/compliance status in relation to the Code that the supplier has signed.

3.3 Domain Name Suppliers must provide to auDA, upon request, information about their compliance systems associated with this Code.

4.1 Domain Name Suppliers must not register Domain Names on their own behalf for the purpose of preventing any other Domain Name registration.

4.2 Subject to clause 4.4, Domain Name Suppliers must only:

a) register a Domain Name at the request of a Customer; and

b) renew a Domain Name:

(i) at the request of, or with the approval of, a Registrant; and

(ii) after obtaining confirmation from the Registrant that they continue to satisfy the Domain Name Eligibility and Allocation Policy Rules for Open Second Level Domains in respect of the Domain Name.

4.3 Domain Name Suppliers must not register or renew Domain Names (in advance of a request from a Customer or Registrant) for the purpose of restricting a competitor of the Domain Name Supplier from registering the Domain Name on behalf of the Registrant, or for the purpose of later offering this Domain Name to potential Customers.

4.4 A Domain Name Supplier may register Domain Names on its own behalf for its own use.

4.5 Domain Name Suppliers must only renew an expired Domain Name at the request of a Registrant. The Registry will automatically delete Domain Names that have not been renewed, 14 days after the expiry date.

4.6 Domain Name Suppliers must only sell Domain Name Licences for periods of 1,2,3, 4 or 5 years. Where Domain Name services are provided for periods longer than the licence term, the Domain Name Supplier must clearly inform Customers that the Domain Name Licence must be renewed at the expiry date.

5.1 A Registrar and a Reseller of that Registrar may agree (through a registrar-reseller agreement) on procedures for contacting a Registrant that has chosen the Reseller as the Registrant's agent. The Registrar of Record for a Domain Name Licence may maintain records of a Registrant's current choice of agent.

5.2 A Registrar or other Domain Name Supplier must use reasonable commercial endeavours not to send a renewal notice to a Registrant, or any other communication that might reasonably be construed by a Registrant to be a renewal notice, for a specific Domain Name Licence unless:

a) the Registrar is the Registrar-of-Record for that Domain Name Licence; or

b) the other Domain Name Supplier has a current Written Agreement to act on behalf of the Registrant with respect to that Domain Name Licence.

5.3 A Domain Name Supplier must advise the Registrant if there will be a transfer to a new Domain Name Licence with a different Registrar-of-Record, associated with accepting a renewal offer in response to a renewal notice sent under clause 5.2 (this may occur when either a Reseller becomes a Registrar, or when a Reseller chooses to use a different Registrar).

5.4 A Domain Name Supplier for a specific Domain Name Licence must not send a renewal notice any earlier than 90 days prior to the expiry date, and must make reasonable commercial efforts to advise the Registrant at least 30 days prior to expiry of a Domain Name Licence of the need to renew it.

5.5 A Domain Name Supplier may make an offer to a Customer for Products (other than as described in clauses 5.2-5.4 above), provided:

a) it is clearly identified as a solicitation for business;

b) there is no mention of, or cross-reference of any kind to, a specific existing Domain Name or related information such as expiry dates, unless:

(i) the Registrar is the Registrar-of-Record for that Domain Name Licence; or

(ii) the other Domain Name Supplier has a current Written Agreement to act on behalf of the Registrant with respect to that Domain Name Licence;

c) it includes a statement that the Customer is under no obligation to respond;

d) in the case of soliciting the renewal of a Domain Name Licence, it includes a statement that the Customer may choose to renew their Domain Name Licence through the Registrar-of-Record in the Registry Database, or their existing agent (who may be a Reseller of the Registrar-of-Record);

e) if it concerns a transfer from the Customer's current Domain Name Supplier, it is clearly explained whether acceptance of the offer requires the Customer to either transfer between agents (or Resellers) within the databases of the Registrar-of-Record, or transfer to a new Domain Name Licence with a different Registrar-of-Record;

f) if it concerns a transfer from the Customer's current Domain Name Supplier, it is clearly explained that a Domain Name Licence is independent of any Products that the Domain Name Supplier's service offering may include (such as webhosting or email Products);

g) the offer is not sent as email, unless the Domain Name Supplier has an existing relationship with the Customer, or the Customer has requested marketing information from the Domain Name Supplier. Any such email must include a simple and effective mechanism to enable the Customer to choose not to receive any further communications;

h) the contact information for the Customer is not obtained from the Registry or auDA's centralised WHOIS service (see clause 13 of the Registrar Agreement); and

i) it cannot reasonably be construed as a renewal notice or an invoice.

5.6 If a Complaint is made about the accuracy of WHOIS data, then the Registrar-of- Record on receiving, or receiving notice of, the Complaint must make reasonable commercial efforts to contact the Registrant to arrange for the information to be corrected. The Registrar-of-Record may delegate this responsibility to a Reseller via the terms of a registrar-reseller agreement.

6.1 If a Domain Name Supplier provides bundled Products, Products bundled with other goods or services (whether related services such as hosting or forwarding services or otherwise) or both, then the Domain Name Supplier must specify the unbundled price of each Product.

6.2 Where a Domain Name Supplier presents Products in Advertising Materials as being provided as part of a bundled offering, the Domain Name Supplier must make it clear which Products depicted in the Advertising Material are supplied under the bundled offer.

6.3 Where a Domain Name Supplier represents that Products in Advertising Materials are provided under a bundled offering, the Domain Name Supplier must be in a position to supply those Products unless a disclaimer (that complies with clause 8.1 of this Code) to the contrary effect is included.

6.4 Where Advertising Materials indicate the price of a component Product of a bundled offering, the Domain Name Supplier must include in the Advertising Materials a statement of the minimum total charge of the bundled offering and indicate any conditions that may apply to obtain the component Product at the stated price.

7.1 All Advertising Materials used by a Domain Name Supplier must comply with all applicable legislation and published standards.

7.2 Domain Name Suppliers must provide Customers with information about Products that is:

a) clear;

b) accurate;

c) complete; and

d) not confusing, misleading or deceptive.

7.3 Domain Name Suppliers must give Customers information, which avoids unnecessary complexity, is in simple and straightforward language, and is readily understandable by the target audience.

8.1 Disclaimers are to be used in Advertising Materials as follows:

a) A Domain Name Supplier must clearly state any disclaimers to an offer next to the offer, or linked to the offer by an asterisked footnote in proximity to the offer, or for television and radio Advertising Material, as part of the advertisement.

b) A Domain Name Supplier must ensure that disclaimers used in Advertising Materials are clearly indicated, and readily understandable having regard to the nature of the advertisement including the size of the text in the body copy, the medium used to convey it and its likely audience.

c) A Domain Name Supplier must ensure that a disclaimer used in Advertising Materials that use text appears in text which contrasts sufficiently in colour with its background to be clearly readable, and is positioned as a horizontal statement.

d) A Domain Name Supplier must not use a disclaimer to negate the principal messages of the Advertising Materials.

8.2 If any offer for a Product has eligibility requirements, such requirements must be clearly set out in all Advertising Materials in which the offer is promoted.

8.3 A Domain Name Supplier must state in Advertising Material any applicable time limits on availability of an offer promoted in the Advertising Materials.

8.4 A Domain Name Supplier must not make a Savings Claim in any Advertising Materials unless it is true and each reasonable inference from the Advertising Materials as to savings can be substantiated.

8.5 A Domain Name Supplier must make clear in Advertising Materials the basis for any Savings Claim made.

8.6 If it is possible some Customers with particular usage patterns would not save, a Domain Name Supplier must qualify a Savings Claim.

8.7 A Domain Name Supplier must only use general Savings Claims, eg. "save money", "you will save" or "our rates are cheaper", if all Customers would save under the offer. Otherwise a Domain Name Supplier could use Savings Claims, such as the examples below:

8.8 If access to a Product is promoted in any Advertising Material as provided for free or below market price, but additional charges apply to the use of the Product, a Domain Name Supplier must disclose the additional charges.

8.9 A Domain Name Supplier must not advertise Products as "free" that may accompany a Domain Name registration unless the principal terms and conditions of the free offer as they relate to fees and charges are disclosed in the Advertising Material, and the prices for the Products accompanying the offer are not inflated to cover some or all of the cost of the free offers.

9.1 A Comparative Advertisement must make it clear what the Preferred Products and the Compared Products are.

9.2 A Domain Name Supplier must ensure that either:

a) the Preferred Products are genuinely comparable with Compared Products, having regard to any claims made in the Comparative Advertisement; or

b) if the Preferred Products are not genuinely comparable with the Compared Products, that the Comparative Advertisement is not misleading as to the differences between the respective Products.

9.3 When considering whether Preferred Products are genuinely comparable with Compared Products, a Domain Name Supplier must also have regard to:

a) the respective purpose or purposes for which the Preferred Products and the Compared Products are ordinarily to be used;

b) the respective pertinent features of the Preferred Products and the Compared Products; and

c) whether, in relation to the Compared Product, other goods or services offered by the Domain Name Supplier would afford a more appropriate comparison.

9.4 A Domain Name Supplier must ensure that any disclaimer used in a Comparative Advertisement complies with clause 8 of this Code.

9.5 A Domain Name Supplier must use current information in a Comparative Advertisement.

10.1 Domain Name Suppliers must fully disclose to a Registrant the following minimum level of information:

a) the identity of the Domain Name Supplier including:

(i) the legal name of the business and the name under which the business trades (including the Australian Business Number or ACN);

(ii) the address of the registered office or principal place of business;

(iii) an email address or other electronic means of contact, or telephone number;

b) the identity of the Registrar being used by the Domain Name Supplier if the Domain Name Supplier is NOT a Registrar including the trading name shown in the auDA list of Registrars;

c) the terms and conditions of the Domain Name Licence; and

d) the processing time for Domain Name registrations, Customer support contact information and a web address link to this Code.

10.2 Domain Name Suppliers must publish information about changes to any policy of the Domain Name Supplier that materially affect a Registrant’s Domain Name Licence.

10.3 Where the information referred to in clause 10.2 of this Code is not published on the Domain Name Supplier’s website, the Domain Name Supplier must take reasonable steps to ensure that Registrants are aware of the changes.

11.1 Each Domain Name Supplier must use reasonable efforts to ensure its employees, agents and contractors comply with the Code.

11.2 If a Domain Name Supplier becomes aware of any actual or potential breach of the Code by its employees in the course of their employment or by its agents or contractors (including Resellers) in the course of performing their functions as agents or contractors, the Domain Name Supplier must take such action which may be reasonably available to it to prevent or discourage the continuation of the breach of this Code, including informing auDA if, in the opinion of the Domain Name Supplier, it is appropriate to do so.

12.1 Domain Name Suppliers must:

a) publish on their website, and observe, a written Complaints handling process which is to be available to all Customers at no charge;

b) provide a link on their website to auDA for consumer information, including the consumer guide and FAQ;

c) gain the consent of Registrants before changing the terms and conditions of an existing Domain Name Licence.

12.2 Domain Name Suppliers should note that:

a) under the general law, Domain Name Suppliers must:

(i) comply with the National Privacy Principles of the Privacy Act (Cth) 19884

in all dealings with Customers;

(ii) comply with their obligations to consumers pursuant to the Trade Practices Act (Cth) 1974, and the Disability Discrimination Act (Cth) 1992;

(iii) comply with any other relevant consumer related laws and codes of the Commonwealth, States and Territories of Australia; and

b) a breach of any applicable law of Australia (or elsewhere) is also a breach of sub-clause 14.1.12 of the Registrar Agreement.

12.3 Domain Name Suppliers must publish on their website, and include in their terms and conditions, a written cancellation policy.

13.1 Industry participants must conduct their business in accordance with the Code. For the avoidance of any doubt, this Code:

a) forms a part of the Registrar Agreement under clause 7.4 of the Registrar Agreement; and

b) is a Published Policy for the purposes of clause 7.2 of the Registrar Agreement.

13.2 Any person including a Customer, Reseller, Registrar or the Registry, may bring a Complaint under this Code.

13.3 Alleged breaches of this Code will be dealt with, by auDA under its Complaints Policy5.

13.4 Nothing in this Code is intended to derogate from any rights or causes of action a person may have under any law of any jurisdiction.

13.5 A breach of this Code is an Event of Default under the Registrar Agreement and may result in the suspension or termination of the Registrar’s auDA accreditation or the termination of the Registrar Agreement.

13.6 For the purposes of auDA complying with its responsibilities in relation to the regulation of the .au domain, the suspension or termination of a Registrar’s auDA accreditation or the termination of a Registrar Agreement will immediately suspend or terminate any agreement between that Registrar and their appointed Resellers.

14.1 Domain Name Suppliers must:

a) provide an efficient, fair (both to the subject of the Complaint, and the Complainant whether an organisation or individual) and accessible mechanism for handling Complaints;

b) demonstrate a commitment to the right of Customers to complain; and

c) in their dealings with Complainants, regard Complaints as an opportunity to improve their Products.

14.2 Domain Name Suppliers must provide adequate resources for Complaint handling with sufficient delegated levels of authority.

14.3 Domain Name Suppliers’ Complaints handling processes must have the capacity to determine and implement remedies to achieve resolution.

14.4 Complaints must be dealt with in 30 days where possible, or as soon as practicable after this time, and Complainants must be treated with courtesy.

14.5 If a Complaint is made Domain Name Suppliers must ensure that the Complainant is aware of:

a) their rights under this clause 14 and the Complaints Handling Rules under clause 15 of this Code; and

b) the Domain Name Suppliers’ own Complaints handling procedures.

14.6 If a Domain Name Supplier is not able to resolve a Complaint to the satisfaction of either the Domain Name Supplier or the Complainant, the Domain Name Supplier may refer the Complaint to auDA.

14.7 If a Domain Name Supplier is not able to resolve a Complaint to the satisfaction of either the Domain Name Supplier or the Complainant, the Domain Name Supplier must inform the Complainant that the Complainant may either refer the Complaint to auDA, or may request the Domain Name Supplier to refer the Complaint to auDA.

14.8 auDA may investigate a Complaint at any time either before or after it has been referred to auDA by a Complainant or a Domain Name Supplier.

15.1 Domain Name Suppliers must implement processes and procedures and must deal with Complainants in accordance with the Complaints Handling Principles and Rules set out in this Code.

15.2 Domain Name Suppliers’ Complaints handling processes must:

a) be publicised (in accordance with clause 12.1 (a) of this Code) to Customers and staff of the Domain Name Supplier;

b) include information about a Customer’s right to complain; and

c) specify how the Domain Name Supplier can be contacted in order to make a Complaint.

15.3 Domain Name Suppliers must provide information on how, when and where to make a Complaint. This may include information about the Complaint lodging process, hours of operation and offices or locations at which Complaints can be lodged. This information must be simple, in plain English, and reasonably accessible to all Complainants, including people with disabilities and from non- English speaking backgrounds.

15.4 Domain Name Suppliers must ensure that Complainants have access to free or low cost and flexible methods for lodging Complaints.

15.5 Where requested, Domain Name Suppliers must provide Complainants with reasonable assistance in formulating and lodging Complaints and must ensure that Complainants are aware of their right to make such a request.

15.6 Responsiveness

a) A Domain Name Supplier must acknowledge written Complaints within 5 business days of receipt of the Complaint. A Domain Name Supplier can elect to do this either verbally or in writing, unless the Complainant specifies one or the other method.

b) Verbal Complaints will be taken as acknowledged at the time the Complaint is made.

c) At the time of receiving the Complaint or as soon as reasonably practicable after receiving the Complaint, the Domain Name Supplier must inform the Complainant of the Complainant's right:

(i) to request the Domain Name Supplier to provide their response or determination in relation to the Complaint in writing;

(ii) to request information from the Domain Name Supplier as to the progress of the Complaint.

d) Wherever possible, a Domain Name Supplier must advise Complainants when they make a Complaint, within 5 working days, of the complexity of the investigation and a timeframe for the possible final determination of the Complaint. The timeframe for finalisation should not exceed 30 calendar days unless clause 15.7d) applies or the Complaint has been referred to auDA.

e) In certain cases it will not be possible for a Complaint to be handled within the 30-day timeframe due to the complexity or circumstances of the Complaint. A Domain Name Supplier must provide regular updates to the Complainant in these circumstances and the Complainant must be kept informed as to the Complaint’s progress and likely timeframe for finalisation. The Domain Name Supplier must also inform the Complainant of the Complainant's right to refer any such Complaint to auDA.

f) Domain Name Suppliers must advise Complainants of the outcome of the investigation of their Complaint. This must be in a written format, if requested by the Complainant, giving reasons for the response or determination.

g) If a Complainant makes a request for information regarding the progress of a Complaint, a Domain Name Supplier must provide a response as soon as is reasonably practicable. A Domain Name Supplier need not provide a response to such a request if it can reasonably be said that the request is frivolous or vexatious.

h) Domain Name Suppliers must not impose Complaints handling charges on Complainants, except where the investigative/handling process is sufficiently onerous to justify the levying of a Complaints handling charge.

i) Where the outcome of a Complaint is upheld in favour of the Complainant, a Domain Name Supplier must refund any Complaints handling charges paid by the Complainant for that Complaint.

j) Where a Domain Name Supplier considers that the investigative/ handling process is sufficiently onerous to justify the levying of a Complaints handling charge, a Domain Name Supplier must not impose the charge without reference to, and discussion with, the Complainant. In cases where a charge is to be imposed, the Domain Name Supplier must inform the Complainant of such charge in writing.

k) Where the Domain Name Supplier deems the Complaint frivolous or vexatious, the Domain Name Supplier must:

(i) inform the Complainant of the reasons for the decision not to investigate; and

(ii) inform the Complainant of the availability of external options for Complaint handling, eg. by making the Complaint to auDA.

15.7 Escalation and further recourse

a) A Domain Name Supplier’s Complaints handling process must include an escalation process.

b) Domain Name Suppliers must advise Complainants of their avenues of recourse, including their internal options and/or external options, in all instances where the Complainant indicates to the Domain Name Supplier that they remain dissatisfied with the outcome of a Complaint.

15.8 A Domain Name Supplier must not demand payment of justifiably disputed amounts whilst the Complaint is being investigated.

15.9 Complaints data collection and analysis

a) Domain Name Suppliers must have appropriate systems to record Complaints and their outcomes. These systems must enable the Domain Name Supplier to collect and analyse Complaints in order to identify Systemic Problems and provide the basis for Complaint reporting required under the regulatory and the self-regulatory regimes.

b) Domain Name Suppliers must ensure that data collected is categorised and analysed at least every six months to allow for the identification and rectification of recurring Systemic Problems.

c) A Domain Name Supplier must retain any material collected and recorded and any material provided by or communicated from a Complainant throughout the complaint handling process for a minimum period of two years following the closure of a Complaint.

15.10 Domain Name Suppliers must review their Complaints handling process at least every two years to ensure that it is delivering fair and reasonable outcomes. Any necessary amendments must be made to the Complaint handling process based on these reviews.

15.11 Changes to Complaints handling policies and processes

a) Domain Name Suppliers must update any information regarding their Complaint handling process to reflect any variations to the process.

b) Where significant variations are made that affect Complainant’s access to the process, Domain Name Suppliers must inform Complainants of the changes.