[NCUC-DISCUSS] Statement from NCUC executive committee

avri doria avri at acm.org
Wed Mar 30 23:31:33 CEST 2016


Hi,

good questions.  I have some comments inline:

On 30-Mar-16 13:56, Corinne Cath wrote:
>
> Dear all,
>
>
> I welcome the statements made by the Ombudsman on the necessity for
> opening a conversation about developing an anti-harassment policy, but
> am quite surprised by some of the wording in his blog.
>
>
> I feel it leaves several questions unanswered, which I am sharing with
> you below.
>
>  
>
> 1. Why is the breach of confidentiality presented as a reason to being
> unable to further investigate the alleged harassment case? Why
> does/should such a breach impede the Ombudsman from further
> investigating?
>
>  
>

Why is a victim naming her accused a breach of confidentiality.  Does
one have to sign a confidentiality document when they enter the
ombudsman office?  Does a conversation become sealed on entering the
ombudsman's office?  I understand he has a duty to confidentiality.  But
others?

> 2. “The matters alleged cannot be considered serious by any standard.
> If in fact the action and statement were made, it may have been a
> lapse of good manners and insensitive to gender. Such issues need to
> be taken in proportion, and best practice is not to debate this in a
> public forum where the issues are not yet clear. I note Ms. Baruah
> does not agree with my view.”
>
> Why and how was this assessment of the seriousness of the alleged
> harassment made? What standards has the Ombudsman looked at or taken
> into consideration when making this judgment?
>
>  
>

Given the staff policy, as you mention below, would this be considered
not serious and not subject to zero tolerance (not that I always agree
with notions of zero tolerance - too absolutist for my tastes) according
to staff policy?


> 3. Why is the issue of jurisdiction mentioned in the blog? How is the
> issue of jurisdiction addressed in the anti-harassment policy for the
> board and the ICANN staff? What would have been the outcome of this
> case if it had been weighed according to the internal anti-harassment
> policy?
>
>  
>

I should imagine that ICANN would have its rules.  Jurisdiction should
only come into if a locale has a higher standard that we do or that they
define something as a crime that we think is ok.

(of course this might mean we should not go to countries with onerous
laws against women or the LGBTQI population)

> 4. Does the overall language in this blog strike a fair balance
> between the gravity of the alleged harassment case and the breach of
> confidentiality?
>
>  
>

By calling it a breach of confidentiality, he elevates the importance of
protecting the accused over the rights of the victim.   I do not think
this was appropriate and that it is unbalanced.

> 5. How has the Ombudsman weighed these two issues (alleged harassment
> and the breach of confidentiality)? And to what extent should they be
> separated and addressed individually?
>
>  
>

Makes sense to address them separately.  Especially if they are separate
complaints.

> I look forward to hearing your thoughts and comments on this important
> matter and I hope that as the NCUC we can be part of the process to
> develop the necessary policies and procedures.
>
>  
>

Thanks for asking the questions.

avri

> Best,
>
>  
>
> Corinne
>
>  
>
>  
>
>
> On Wed, Mar 30, 2016 at 3:52 PM, Ayden Férdeline <hostime at gmail.com
> <mailto:hostime at gmail.com>> wrote:
>
>     Hello, all-
>
>     Shared without comment: Chris LaHatte, the Ombudsman, has
>     published a post on his blog in relation to the alleged incident.
>
>     https://omblog.icann.org/index.html?m=201603.html
>
>     Kind regards,
>
>     Ayden 
>
>     On Thu, Mar 24, 2016 6:36 AM, Padmini pdmnbaruah at gmail.com
>     <mailto:pdmnbaruah at gmail.com> wrote:
>
>         Dear Stephanie
>         You are very spot on when you say more work needs to be done.
>         I do believe there is an absolute vacuum on procedures for
>         sexual harassment that are impartial, diverse and reflective
>         of fairness. Therefore, on issues like say privacy,
>         confidentiality, definition alone, there are significant
>         lacunae. That is what I meant.
>
>         Padmini Baruah
>         V Year, B.A.LL.B. (Hons.)
>         NLSIU, Bangalore
>
>         On Thu, Mar 24, 2016 at 11:03 AM, Stephanie Perrin
>         <stephanie.perrin at mail.utoronto.ca
>         <mailto:stephanie.perrin at mail.utoronto.ca>> wrote:
>
>             ICANN's expected standards of behaviour are not fulsome, I
>             agree, but they do cover inappropriate conduct.
>             https://www.icann.org/resources/pages/expected-standards-2012-05-15-en
>             In particular, the following (bullet 3) section covers how
>             we treat one another at ICANN (including at meetings):
>             *
>             *
>
>                 *Treat*** all members of the ICANN community
>                 *equally,* irrespective of nationality, gender, racial
>                 or ethnic origin, religion or beliefs, disability,
>                 age, or sexual orientation; members of the ICANN
>                 community should treat each other *with civility* both
>                 face to face and online. [emphasis added]
>
>             Not a great deal of detail, but "equally", particularly
>             when accompanied by the following recital, goes a long way
>             to addressing gender bias and inappropriate behaviour, as
>             does the expression "with civility".   The redress
>             mechanism is the Ombudsman.  The 2005 RMAF
>             https://www.icann.org/en/system/files/files/rmaf-08feb05-en.pdf
>             (Results-based Management Accountability Framework)
>             details how the model is expected to work.  You might not
>             think it is adequate, fair enough, but it is not accurate
>             to say there is nothing, in my view. We need more, that's all.
>             I am not criticising here, just trying to provide
>             background documents.  As the statement says, more work on
>             policies and procedures needs to be done, and we in NCUC
>             will help with that work.
>
>             Cheers Stephanie
>
>             On 2016-03-24 1:05, Padmini wrote:
>>             Thank you for this clear statement, and the support for
>>             many of the issues I raised. 
>>             I would just like to put on record that the phrases
>>             “_substantive due process_” and “_evidentiary burden
>>             being met_” have been echoed by me vocally and repeatedly
>>             throughout the entire process, both to the ombudsman and
>>             to many of you. I am a student of the law, and have these
>>             principles, including natural justice well drilled into
>>             my head. If there wasn't a failure of process, and such a
>>             short time span to engage with the issue at the site of
>>             the cause of action arising itself [given that the
>>             conference was in Marrakech for 5 days], I might not have
>>             taken these steps that I felt constrained to later.
>>             Just pointing out, there is no trial, no court, and my
>>             statement is my own, which I can back up with evidence. I
>>             do not understand why issues of unfairness of procedure
>>             are being raised when there is /no procedure in the first
>>             place/.
>>             I would really appreciate it, generally, if that were
>>             acknowledged.
>>
>>             Thanks everyone.
>>
>>             Padmini Baruah
>>             V Year, B.A.LL.B. (Hons.)
>>             NLSIU, Bangalore
>>
>>             On Thu, Mar 24, 2016 at 10:26 AM, Stephanie Perrin
>>             <stephanie.perrin at mail.utoronto.ca
>>             <mailto:stephanie.perrin at mail.utoronto.ca>> wrote:
>>
>>                 Thank you very much for publishing this statement.  I
>>                 think it is very helpful, and indeed crystallizes
>>                 some of the issues. 
>>                 Stephanie Perrin
>>
>>
>>                 On 2016-03-23 22:44, Rafik Dammak wrote:
>>>                 STATEMENT OF THE NONCOMMERCIAL USERS CONSTITUENCY
>>>                 EXECUTIVE COMMITTEE (NCUC-EC) ON SEXUAL HARASSMENT
>>>
>>>                 Accusations of sexual harassment at ICANN 55 raise
>>>                 two issues, which must be kept distinct. One is
>>>                 whether this particular incident constituted sexual
>>>                 harassment and if so, what would be an appropriate
>>>                 response. The other is whether ICANN needs to be
>>>                 better prepared to handle situations like this with
>>>                 well-defined policies and procedures. We believe
>>>                 that these two issues are being confused.
>>>
>>>                 With regard to the alleged incident, there is very
>>>                 little objective evidence, and the community is
>>>                 grappling with this issue in the absence of a clear,
>>>                 commonly accepted definition of sexual harassment.*
>>>                 We hope that this question is resolved fairly and
>>>                 proportionately through further investigation and
>>>                 verification rather than through allegations in
>>>                 public forums and email lists.
>>>
>>>                 With regard to the second issue, we strongly agree
>>>                 that action needs to be taken and look forward to
>>>                 assisting the staff and the board with the
>>>                 development of appropriate policies and procedures.
>>>                 Since NCUC is a rights-focused stakeholder group,
>>>                 the Executive Committee takes a principled stance
>>>                 toward the issue and requests that any sexual
>>>                 harassment policy must:
>>>
>>>                  a) be developed in an atmosphere of impartial, open
>>>                 discussion in which all viewpoints can be heard and
>>>                 respected;
>>>                  b) be based on clear, unambiguous definitions of
>>>                 sexual harassment that can be readily understood and
>>>                 applied by all ICANN participants;
>>>                  c) respect the privacy, procedural and substantive
>>>                 rights of both the accuser and the accused
>>>
>>>
>>>
>>>                 * A typical definition of SH from U.S. law is:
>>>                 “Unwelcome sexual advances, requests for sexual
>>>                 favors, and other verbal or physical conduct of a
>>>                 sexual nature constitute sexual harassment when
>>>                 submission to such conduct is made either explicitly
>>>                 or implicitly a term or condition of an individual's
>>>                 employment, submission to or rejection of such
>>>                 conduct by an individual is used as the basis for
>>>                 employment decisions affecting such individuals, or
>>>                 such conduct has the purpose or effect of
>>>                 unreasonably interfering with an individual's work
>>>                 performance or creating an intimidating, hostile, or
>>>                 offensive working environment. (29 C.F.R. § 1604.11
>>>                 [1980])
>>>
>>>
>>>                 _______________________________________________
>>>                 Ncuc-discuss mailing list
>>>                 Ncuc-discuss at lists.ncuc.org
>>>                 <mailto:Ncuc-discuss at lists.ncuc.org>
>>>                 http://lists.ncuc.org/cgi-bin/mailman/listinfo/ncuc-discuss
>>
>>
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>>
>>
>
>
>
>     Ayden Férdeline
>     +44.77.8018.7421 <tel:%2B44.77.8018.7421>
>
>
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