[bestbits] CIS Response to the ICANN Ombudsman's Office

[Sunil Abraham]

*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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