[IRPCoalition] Fwd: CIS Response to the ICANN Ombudsman's Office re. sexual harassment

[Marianne Franklin]

Dear IRPC

Have taken another liberty of forwarding the response from the Centre 
for Internet and Society to the ICANN Ombudsman regarding sexual harassment.

These matters affect us all so how ICANN has been handling this case, 
and responses to their take on the matter, is of interest.

best

MF



-------- Forwarded Message --------
Subject: 	[bestbits] CIS Response to the ICANN Ombudsman's Office
Date: 	Wed, 20 Apr 2016 16:55:03 +0530
From: 	Sunil Abraham <sunil at cis-india.org>
Reply-To: 	Sunil Abraham <sunil at cis-india.org>
To: 	bestbits at lists.bestbits.net, ncuc-discuss at lists.ncuc.org, 
NCSG-DISCUSS at listserv.syr.edu



*_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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