tldr:
- The Financial Conduct Authority is enabled by Nominet to suspend domains which are criminal.
- Nominet relies on FCA having a sound legal basis on which suspensions are actioned.
- The FCA was asked to provide some transparency in their suspensions and the policy it uses to ensure everything is sound.
- The FCA confirmed it does not have any formal policy for domain suspensions.
- The FCA believes it is not in the public interest to know what domains names it has suspended and why (despite having a public warning list).
- Here I followed up previous foi with the specific example of midlandifa.co.uk below.
request:
Please provide information relating to your having requested the suspension of the domain name “midlandifa.co.uk” some time preceding 2022/08/08.
What date was the suspension requested with Nominet?
What date was the suspension actioned with Nominet?
On what basis was the domain considered worthy of suspension? If for criminal reasons please specify the law and the section?
Why does this domain not appear anywhere on the FCA website such as the warnings list with the others https://www.fca.org.uk/news/search-resul… ?
Can you please provide the communication between FCA and Nominet about the suspension?
Does FCA request the suspension of domains on behalf of third parties such as Financial Services Compensation Scheme Ltd?
What Ltd other than FSCS does FCA suspend domains on behalf of?
Please confirm that the request to disable a domain name is or is not a formal enforcement action?
If you are to cite 348 of the Financial Services and Markets Act 2000 (as section 44) as reason to why disclosing the reason for disablement, please explain why the same exemption is not applied to other domains which do appear on the warning list?
If you are to city commercial confidence (as section 43) of Nominet or other Ltd, please note that Nominet is a membership company who through its own definition is a public benefit company granted the monopoly over .UK for the UK government and whose chair and board commit to transparency, so it is neither commercially sensitive and squarely in the public interest. As this domain does not appear on the FCA warning list, I believe it in the public interest there be a fuller disclosure made, especially as you are showing a suspension page on the domain name that suggests a formal declaration of suspension due to undefined criminal activity.
> Since June 2022, we have retained a third party to support it with the identification and take-down of websites and therefore take down requests are now made by that third party as the FCA’s authorised agent.
Please also provide details of this arrangement.
response:
Our Ref: FOI9803
Dear Mr Heaton
Freedom of Information: Right to know request
Thank you for your email of 22 November 2022, in which you asked for
information relating to the suspension of the domain name
midlandifa.co.uk. Please see Annex A for full details of your request.We have processed your email in line with the provisions of the Freedom of
Information Act 2000 (FOIA) and our response is below.Question 1
We requested the suspension with Nominet on 2 August 2022.
Questions 2, 3 and 5
The date of Nominet’s response, the reason for suspension, and any
communication between the FCA and Nominet constitute ‘confidential
information’ for the purposes of section 348 of the Financial Services and
Markets Act 2000 (FSMA). We are therefore prohibited from disclosing this
information under section 44 of FOIA. For more information on why this
exemption applies, please see Annex B below.Question 4
The company (Midland Independent Financial Services Limited) was placed
into liquidation on 8 September 2020 and was no longer trading but had
failed to remove its website. As the company had ceased trading there was
no ongoing risk to consumers and so it was not necessary to publish an
alert in order to protect consumers from ongoing harm.Questions 6 and 7
The FCA does not request the suspension of domains on behalf of third
parties.Question 8
The FCA is not exercising any formal powers when requesting a domain host
to take down or suspend a website. Where we identify a website which is
being used to carry out or promote regulated activities in breach of FSMA
and the domain is hosted by Nominet, we will write to them with
information about the offending website along with details of the breach
and ask them to prevent the domain name from being used by re-directing
visitors to a FCA landing page for a minimum of 24 months or the expiry of
the domain name (if sooner).Question 9
As explained in question 4, due to no alert being published for this case,
the domain does not appear on the warning list and therefore the
information is not publicly available.Question 10
As we have not cited section 43 in relation to your request, this question
falls away.Question 11
The agreement between the FCA and the third party Incopro is both
confidential and commercially sensitive and we are therefore of the view
that disclosing that information would prejudice the commercial interests
of the firm involved and, therefore, section 43 (Commercial interests) of
FOIA applies.In addition, to the extent that the information you have requested is, or
contains, confidential information received in the course of carrying out
our public function under section 348 of the Financial Services and
Markets Act 2000 (FSMA), we are prohibited from disclosing it to you under
section 44 (prohibitions on disclosure) of FOIA.For more information on why these exemptions apply, please see Annex B.
—
Annex A
As you can see below, we have numbered your request for ease of reference.
1. What date was the suspension requested with Nominet?
2. What date was the suspension actioned with Nominet?
3. On what basis was the domain considered worthy of suspension? If for
criminal reasons please specify the law and the section?
4. Why does this domain not appear anywhere on the FCA website such as
the warnings list with the others
[7]https://eur01.safelinks.protection.outlo…
?
5. Can you please provide the communication between FCA and Nominet about
the suspension?
6. Does FCA request the suspension of domains on behalf of third parties
such as Financial Services Compensation Scheme Ltd?
7. What Ltd other than FSCS does FCA suspend domains on behalf of?
8. Please confirm that the request to disable a domain name is or is not
a formal enforcement action?
9. If you are to cite 348 of the Financial Services and Markets Act 2000
(as section 44) as reason to why disclosing the reason for
disablement, please explain why the same exemption is not applied to
other domains which do appear on the warning list?
10. If you are to city commercial confidence (as section 43) of Nominet or
other Ltd, please note that Nominet is a membership company who
through its own definition is a public benefit company granted the
monopoly over .UK for the UK government and whose chair and board
commit to transparency, so it is neither commercially sensitive and
squarely in the public interest. As this domain does not appear on the
FCA warning list, I believe it in the public interest there be a
fuller disclosure made, especially as you are showing a suspension
page on the domain name that suggests a formal declaration of
suspension due to undefined criminal activity.
11. Since June 2022, we have retained a third party to support it with the
identification and take-down of websites and therefore take down
requests are now made by that third party as the FCA’s authorised
agent. Please also provide details of this arrangement.Annex B
• Section 44 (Prohibitions on Disclosure)
Section 44(1)(a) of FOIA states that information is absolutely exempt from
disclosure if this is prohibited by law. Section 348 of FSMA restricts the
FCA from disclosing ‘confidential information’ it has received in the
course of carrying out its public function. FSMA allows exceptions to this
in a few specific circumstances, but none of these apply to this request.Confidential information here is defined as non-public and non-anonymised
information involving a person’s business or other affairs, which the FCA
received in the course of carrying out its public function.The information you requested is confidential information under this
provision. If we disclosed this information, without the provider’s
consent or the consent of the person the information is about (if
different), we would be in breach of section 348 of FSMA. This would be a
criminal offence.In many requests for information under FOIA we have to judge different
factors to decide whether disclosing the requested information would be in
the public interest or not. For this request, we have an ‘absolute’
exemption against supplying the information, and so we do not need to make
this kind of judgement.• Section 43 (Commercial Interests)
This section of FOIA states that we are exempt from providing this
information if disclosing it would, or would be likely to, prejudice the
commercial interests of any person, including the public authority that
holds the information.As this exemption is subject to the public interest test, we have
considered relevant factors in favour, and against, disclosing information
as required by FOIA.For disclosure:
Disclosing the information might reassure the public about the
effectiveness of the FCA’s regulatory approach and demonstrate how we
respond to supervisory matters in the sector we regulate.• Disclosure could also give consumers information to help them in
making decisions about their dealings or potential dealings with firms
and individuals that are, or may be, operating in the financial
services industry.Against disclosure:
• Disclosure would be likely to lead to widespread speculation affecting
the firms’ brand and reputation in the market in which they operate,
without due process having been followed – i.e. without any formal
public announcement and without the relevant markets and/or entities
having had the opportunity to comment.
• It is strongly in the public interest that the FCA is able to have
open and candid exchanges of information with the firms it regulates,
regardless of the commercial sensitivity of the information.
Disclosing the information could lead to firms being less willing to
cooperate with us on similar work.On this occasion, and for these reasons, we have concluded that the
balance of the public interest is in favour of not disclosing the
information.