[NCUC-DISCUSS] CIS Response to the ICANN Ombudsman's Office

[Corinne Cath]

But where should we go? As it is inevitable that something like this will
happen again (unfortunately).

On Thu, Apr 21, 2016 at 4:07 PM, Robin Gross <robin at ipjustice.org> wrote:

> Agreed.  I was also disappointed in his handling of this matter.
> One lesson learned: don’t go to the ICANN ombudsman with any such
> complaints in the future.
>
> Robin
>
>
> > On Apr 21, 2016, at 7:46 AM, avri doria <avri at apc.org> wrote:
> >
> > +1
> >
> > A very well worked out reply.
> >
> > I must personally add my apology to this thread as one of those who
> > thought the Ombudsman could help.  While he is formally defined just for
> > investigating complaints with ICANN Board and Staff, I had seen him act
> > in situations involving ICANN Participants in the past, in an even
> > handed way.  I agree with those who think he missed that mark in this
> case.
> >
> > avri
> >
> > On 20-Apr-16 07:50, Norbert Klein wrote:
> >> Thanks, CIS.
> >>
> >> Norbert Klein
> >> Cambodia
> >>
> >> =
> >>
> >> On 04/20/2016 06:25 PM, Sunil Abraham wrote:
> >>> *_CIS Statement on ICANN55 Sexual Harassment : A response to the
> >>> ICANN Ombudsman’s Office  _*
> >>>
> >>>
> >>> On March 30, 2016, the Ombudsman’s Office at ICANN released its final
> >>> report (Report) in the matter of the complaint filed by Ms. Padmini
> >>> Baruah (Complainant). The Complainant had alleged that she had been
> >>> subjected to conduct that amounted to sexual harassment by a member
> >>> of the ICANN community attending ICANN 55.
> >>>
> >>> We would like to state for the record our extreme disappointment with
> >>> the Ombudsman’s Report. The Report bases the inability to carry on
> >>> any further investigation in this regard on the claim that
> >>> confidentiality of proceedings was breached. The breach of
> >>> confidentiality, if an issue, must be treated as a separate matter
> >>> and nothing prevents the Ombudsman from pursuing it independently.
> >>> However, this does not prevent an investigation into the incident of
> >>> sexual harassment, itself.
> >>>
> >>> Further, we find that the tone of the Report is problematic. It
> >>> completely disregards the Complainant’s detailed account of events,
> >>> and fails to even acknowledge them in the final Report. Further, many
> >>> parts of the statement are completely misleading. For example, in
> >>> describing the event, the Report says that “There was a general
> >>> discussion about food” but as per the accounts of the Complainant as
> >>> well as the witness to the incident, this is completely untrue. The
> >>> Complainant’s account to the Ombudsman does not speak of any
> >>> discussion prior to the incident in question whatsoever and to claim
> >>> otherwise is to dilute the complaint significantly.
> >>>
> >>> There have also been lapses in procedure throughout this process.
> >>> First, during ICANN55, the Complainant was given no interim relief,
> >>> with the alleged perpetrator freely walking around the conference
> >>> venue, and as per the Complainant’s account, at one instance even
> >>> staring at the her. Second, the Ombudsman failed to contact a witness
> >>> who, according to the Complainant, was referred to by her both at the
> >>> meeting and through email after ICANN55. In spite of the witness
> >>> being put in direct correspondence with the Ombudsman on 24th March,
> >>> 2016, as of 5th April, 2016, the witness has still not been contacted
> >>> or asked to provide a statement. This shows an utter lack of
> >>> seriousness in dealing with this issue. Another failing has been that
> >>> the Ombudsman provided no clarity to the Complainant with respect to
> >>> the powers and mandate of his office, leading to a situation of no
> >>> alternative forum and no clear signal. Please find our specific
> >>> objections to the Report:
> >>>
> >>> 1. What constitutes sexual harassment?
> >>>
> >>> In his Report, the Ombudsman states that “the matters alleged cannot
> >>> be considered serious by any standard.” He further goes to say that
> >>> if “in fact the action and statement were made, it may have been a
> >>> lapse of good manners and insensitive to gender.” The Report does not
> >>> clarify if the Office of the Ombudsman has used a standard or a
> >>> definition of what constitutes sexual harassment to arrive at the
> >>> conclusion that the conduct in question was merely “a lapse of good
> >>> manners and insensitive to gender,” nor is there any reasoning for
> >>> why he considers the matters alleged as not “serious by any
> >>> standard”. Without going into questions of fact, we find the levity
> >>> with which the Report deals with the alleged conduct extremely
> >>> problematic and inconsiderate of globally recognised principles on
> >>> what constitutes sexual harassment.
> >>>
> >>> Article 11 of the Convention for the Elimination of All Forms of
> >>> Discrimination against Women (CEDAW) defines sexual harassment as
> >>> including:
> >>>
> >>> /“such unwelcome sexually determined behaviour as physical contact
> >>> and advances, sexually coloured remarks, showing pornography and
> >>> sexual demand, whether by words or actions. Such conduct can be
> >>> humiliating and may constitute a health and safety problem; it is
> >>> discriminatory when the woman has reasonable grounds to believe that
> >>> her objection would disadvantage her in connection with her
> >>> employment, including recruitment or promotion, or when it creates a
> >>> hostile working environment.”/
> >>>
> >>> Further, the Employment Policy of ICANN itself includes within the
> >>> scope of sexual harassment “verbal, physical and visual conduct that
> >>> creates an intimidating, offensive or hostile working environment, or
> >>> interferes with work performance.” The policy goes on to state:
> >>>
> >>> /Harassing conduct can take many forms and includes, but is not
> >>> limited to, the following:
> >>>
> >>> 1. Slurs, jokes, epithets, derogatory comments, statements or gestures;
> >>>
> >>> 2. Assault, impeding or blocking another’s movement or otherwise
> >>> physically interfering with normal work;
> >>>
> >>> 3. Pictures, posters, drawings or cartoons based upon the
> >>> characteristics mentioned in the first paragraph of this policy.
> >>>
> >>> Sexually harassing conduct includes all of the above prohibited
> >>> actions, as well as other unwelcome conduct, such as requests for
> >>> sexual favors, conversation containing sexual comments, and unwelcome
> >>> sexual advances.”/
> >>>
> >>> The alleged conduct involved physical contact with the victim,
> >>> offensive remarks and behaviour that made the victim extremely
> >>> uncomfortable, and falls within the scope of both definitions
> >>> mentioned above. The Ombudsman’s Report states at a later stage that
> >>> “ICANN, for internal staff purposes and for the board has a specific
> >>> zero tolerance policy for sexual harassment.” While we appreciate the
> >>> difficulty of the Ombudsman’s office that the Internal Policy for
> >>> ICANN staff is not applicable in the immediate matter, we are
> >>> extremely puzzled why an unspecified metric for determining sexual
> >>> harassment so divergent from not only globally accepted standards but
> >>> also ICANN’s own internal policy was relied upon.
> >>>
> >>> 2. Confidentiality
> >>>
> >>> While this entire process has, according to the Ombudsman’s report,
> >>> boiled down to the question of a breach of confidentiality, it
> >>> remains to be shown how a breach in confidentiality nullifies an
> >>> allegation of sexual harassment. It is forseeable that the question
> >>> of confidentiality becomes a separate matter, but to make it the
> >>> deciding factor is a distinct investigation is completely ridiculous.
> >>> While breach of confidentiality may be damaging to the reputation of
> >>> the alleged perpetrator, how does it have an impact on the facts and
> >>> questions that the Ombudsman is seeking to address?
> >>>
> >>> Section 3 of Article V of the Bylaws for ICANN provides that the
> >>> Office of Ombudsman shall comply with ICANN’s confidentiality
> >>> policies. This mandate applies the Ombudsman’s office and not on the
> >>> Complainant. As per the Complainant, she had, at no instance, been
> >>> asked to maintain confidentiality of the event.
> >>>
> >>> According to the Complainant, the lack of a clear policy and the
> >>> intent of the Ombudsman to close the investigation left her with
> >>> little choice than to go public. The Complainant decided to go public
> >>> in the absence of processes on which she could put faith upon, and in
> >>> the absence of a clear indication of the expected course of action.
> >>>
> >>> The next issue is whether revealing the name of the alleged
> >>> perpetrator compromises the procedural fairness of the investigation,
> >>> and to what extent. In what ways does it compromise the perpetrator’s
> >>> ability to defend himself and the ombudsman’s ability to come to an
> >>> impartial assessment? There are three recognised rules of procedural
> >>> fairness. First, the parties must be provided with a right to fair
> >>> hearing (the Hearing Rule). Second, the decision-maker must be an
> >>> impartial body (the Bias Rule). Finally, the decision must be based
> >>> on logically probative evidence and not on mere speculation or
> >>> suspicion. (the Evidence Rule). The Ombudsman’s Report seems to
> >>> suggest the Hearing Rule has been compromised on account of the
> >>> Complainant revealing the name of the alleged perpetrator in her
> >>> public statement. The Report states that
> >>>
> >>> /“The other party has been publically named without an opportunity to
> >>> make any comment or denial of the incident. It is also part of my
> >>> role as the ombudsman to ensure that standards of procedural fairness
> >>> are met, and the premature publication regrettably does not meet the
> >>> standards of natural justice, because the parties have a right to be
> >>> heard before this occurred.”/
> >>>
> >>> The Hearing Rule requires a decision-maker to inform a person of the
> >>> case against them or their interests and give them an opportunity to
> >>> be heard. Procedural fairness is often said to be breached in cases
> >>> where there is a legitimate expectation that a decision-maker will
> >>> act in a certain ways and does not. Further, the Hearing Rule
> >>> mandates that parties are given reasonable notice, adequate time to
> >>> prepare for a meeting, entitlement to a hearing and an opportunity to
> >>> respond to adverse materials. We understand that revealing the
> >>> alleged perpetrator’s identity in a public statement can cause
> >>> damage to his reputation, and there may be separate remedies
> >>> available to him to address the same, either within the ICANN
> >>> framework or outside of it. The parties have a right be a fair
> >>> hearing in front the decision-maker (in this case, the Office of the
> >>> Ombudsman), which should be in no way impacted by a public statement.
> >>> There could be an argument that in some cases, a trial by media and
> >>> overwhelming public opinion can compromise juries and the scales of
> >>> justice. Such a concern, we feel, may not be pertinent, in the
> >>> immediate case, owing to the presence of a judicially trained
> >>> decision-maker and limited press coverage of the incident in
> >>> question. Therefore, we completely fail to understand how the public
> >>> statement compromised the Hearing Rule, so much so that the only
> >>> recourse that the Ombudsman’s office could imagine was to arrive at a
> >>> conclusion of his inability to be an impartial adjudicator and refuse
> >>> to investigate further. It is worth noting that the Complainant, a
> >>> final year law student, has time and again, emphasised the importance
> >>> of procedural fairness in her interactions with the Ombudsman’s
> >>> office and has sought satisfy the Evidence Rule, through her
> >>> testimony and that of a witness, who—it cannot be emphasised
> >>> enough—was never approached by the Ombudsman’s office.
> >>>
> >>> In conclusion, we also want to state that we found the tone of the
> >>> Ombudsman’s Report extremely surprising in that it seemed to place
> >>> much more value in the reputational damage to the alleged perpetrator
> >>> than the need to comprehensively investigate and address the sexual
> >>> harassment complaint of the Complainant. This balance is, in our
> >>> opinion highly skewed, and while we do appreciate the value for
> >>> confidentiality to the accused, we find issue with an adjudication
> >>> process which seems to make this its priority.
> >>>
> >>> 3. Ombudsman’s role, powers and duties
> >>>
> >>> In our opinion, the role played by the Ombudsman’s office in this
> >>> matter leaves a lot to be desired. We state our specific objections
> >>> below:
> >>>
> >>> a. The question of jurisdiction
> >>>
> >>> It was conveyed to the Complainant as well as clearly stated in the
> >>> Ombudsman’s Report that this was a matter in which he had
> >>> “jurisdiction as any such allegations are a matter of unfairness
> >>> under Bylaw V.” However, a reading of Article V of the ICANN Bylaws
> >>> reveals the following:
> >>>
> >>> “The principal function of the Ombudsman shall be to provide an
> >>> independent internal evaluation of complaints by members of the ICANN
> >>> community who believe that the ICANN staff, Board or an ICANN
> >>> constituent body has treated them unfairly. The Ombudsman shall serve
> >>> as an objective advocate for fairness, and shall seek to evaluate and
> >>> where possible resolve complaints about unfair or inappropriate
> >>> treatment by ICANN staff, the Board, or ICANN constituent bodies,
> >>> clarifying the issues and using conflict resolution tools such as
> >>> negotiation, facilitation, and "shuttle diplomacy" to achieve these
> >>> results.” (emphasis added)
> >>>
> >>> According to the above clause, only complaints against ICANN staff,
> >>> Board and ICANN constituent body fall within the jurisdiction of the
> >>> Ombudsman. If this is the case, then we wonder on what basis did the
> >>> Ombudsman’s office undertake the investigation in this matter, let
> >>> alone, recommending shutting down of the complaint. We also feel that
> >>> it would have been the duty of the Ombudsman’s office to very clearly
> >>> spell out the extent of their authority, and the kind of redressal
> >>> they could offer to the Complainant, at the very outset. If the
> >>> Complainant was made aware of the lack of authority on the
> >>> Ombudsman’s part, she could have immediately explored other avenues
> >>> to pursue her complaint at ICANN 55 rather than relying on a process
> >>> which had ultimately proved fruitless.
> >>>
> >>> b. The manner in which the complaint was dealt with.
> >>>
> >>> We find various issues with the manner in which the complaint was
> >>> dealt with by the Ombudsman’s office. According to the Complainant,
> >>> on March 15th, 2016, she received an email from the Ombudsman stating
> >>> that he was inclined to shut down the case because: a) the alleged
> >>> perpetrator had not conceded or admitted to the incident, and b) he
> >>> had apparently left Marrakech on 10 March, 2016, putting him outside
> >>> the territorial jurisdiction of the conference. We believe that the
> >>> neither of the two factors mentioned should have any bearing on
> >>> whether the Ombudsman chooses to proceed with the investigation. The
> >>> alleged perpetrator had been a part of the ICANN community for many
> >>> years, and his leaving Marrakech did not in any way curtailed the
> >>> Ombudsman’s powers to censure and sanction him. With regard to the
> >>> first matter of the alleged perpetrator denying the incident, we feel
> >>> that there were a number of things that the Ombudsman’s office could
> >>> have by way to trying to reconstruct the events of March 6, 2016,
> >>> most importantly seeking an account from the witness. Another reason
> >>> for shutting down the case provided by the Ombudsman was the delay in
> >>> receiving some details from the Complainant. The Ombudsman’s office
> >>> was aware that the Complainant had been travelling back to India
> >>> after ICANN 5 in the past few days, and the haste in wanting to close
> >>> the investigations is odd, to say the least. This raises questions
> >>> about the seriousness with which the Ombudsman viewed and pursued the
> >>> matter.
> >>>
> >>> Further, no records were kept of the Complainant’s interview during
> >>> her meeting with the Ombudsman. According to the Complainant’s
> >>> account, she asked for the same and was told the meeting was being
> >>> electronically registered.  According to her, she was told that she
> >>> would be provided a written account of her complaint but this was not
> >>> done for as long as 19 days after the meeting.  On March 25, as per
> >>> the Complainant’s account, she received a response with the
> >>> screenshot about her complaint which contained a single line –
> >>> “Complaint that there is no sexual harassment policy for ICANN
> >>> meetings” However, this did not capture her individual complaint. We
> >>> believe that by making the Complainant repeatedly seek information
> >>> and failing to properly address her concerns, the Ombudsman’s office
> >>> made the process extremely difficult for the Complainant. The
> >>> Ombudsman's office and any authority investigating a sexual
> >>> harassment complaint is expected to be sympathetic to the Complainant
> >>> and without compromising procedural fairness, make the process as
> >>> painless for them. In this respect, the Ombudsman has clearly failed.
> >>> The lack of record-keeping also reflects in the narration of the
> >>> events in the Ombudsman’s Report which is inaccurate according to the
> >>> accounts of both the victim and the witness, as narrated to us.
> >>>
> >>> It is worth noting that it was in light of these factors that the
> >>> Complainant felt compelled to release a public statement on this
> >>> matter on March 19, 2016. Had the Ombudsman’s office acted more
> >>> responsibly and not made her question her faith in the fairness of
> >>> the process, the Complainant may not have felt the need to resort to
> >>> alternate avenues to seek justice.
> >>>
> >>> c. Factual divergence
> >>>
> >>> The Ombudsman’s Report says the the Complainant “provided the name of
> >>> a witness, but this was only given after the substantial publicity
> >>> and after the other party was named.” While this in itself should not
> >>> have prevented the Ombudsman from seeking an account from the witness
> >>> before adjudicating on the matter, we are even more concerned about
> >>> the divergence in facts as presented by the Ombudsman and the
> >>> Complainant. The Complainant in her account is extremely clear about
> >>> having mentioned the existence of a witness and her name to the
> >>> Ombudsman a number of times during her meetings with the Ombudsman at
> >>> Marrakech. As there are no written records of these meetings, we have
> >>> no way to ascertain the veracity of the two accounts, but we find
> >>> this extremely disturbing
> >>>
> >>>
> >>> 4. Clarifications to previous statement
> >>>
> >>> CIS published a Statement on this issue on March 21, 2016. Following
> >>> this, a few complaints and disagreements have been levelled on social
> >>> media and mailing lists. We think it important to clarify some
> >>> important concerns expressed by the ICANN community.
> >>>
> >>> a. In our ask for “Gender sensitization” of the ICANN community, we
> >>> were merely reflecting the requirement under India’s sexual
> >>> harassment law. This was in no way to offend or accuse the community.
> >>>
> >>> b. In discussing the Ombudsman’s office and the lack of diversity, we
> >>> used the term “white male” to demonstrate how the office was simply
> >>> not equipped to deal with such a sensitive matter. This was not to
> >>> demonize a particular demographic, but instead to point out to the
> >>> vast cultural and gender differences on understanding invasion of
> >>> space and discomfort due to sexual harassment. The stark difference
> >>> in approach and seriousness of this issue is evidenced from the
> >>> course of events that have taken place since the 6th of March, where
> >>> the Complainant’s case of sexual harassment has been reduced to a
> >>> “lapse of good manners.”
> >>>
> >>>
> >>>
> >>>
> >>>
> >>>
> >>>
> >>>
> >>>
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> >>
> >>
> >>
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