Office of the Ombudsman
Case 13-00058
In a matter of a Complaint by AB
Report dated August 2013
Introduction
This investigation has become a complicated mixture of a complaint about comments made on an ICANN mailing list, which on further investigation also resulted in a complaint about an election process, from the person the subject of the mailing list complaint. I deal with those separately, but the two matters are to some extent intermingled. The second complaint however appears to have resolved by other means.
I quote, with redactions to avoid identification of the individuals and organisation, the message which was posted on the mailing list.
“Having worked with the (name of body) and the (government department) in the past, and having maintained a relationship with senior members of each subsequently, I'm certain that whatever CD is up to is unlikely to be consistent with the public interest in public health in the (name) market of ideas and names.
C has always struck me as one of the least intelligent, and least principled persons to have ever been on the (name) Council.”
The complainant found this offensive and asked for the posting to be removed from the archive because it breached the relevant rules of procedure. I have not identified the rules of procedure from the supporting organisation, again because it identifies the individuals without difficulty. The complaint was made on behalf of the person identified.
Facts
The essence of the complaint is whether the comments made are offensive, and whether they should be removed. I understand the comments have already been removed in any event. So the issue is whether it was appropriate for the comments to have been made and whether they are offensive.
Investigation
It is my common practice on issues involving personalities to strongly urge the parties to join in a mediation. The first part of my investigation therefore consisted of an attempt to persuade the person who made the statement, to join in such a mediation. This was a protracted exercise, because the statement maker did not focus on the specific issue, and chose only to respond to certain parts of my enquiries. This is a pity, because of people do not engage in the process, it is difficult to achieve a resolution that restores some degree of harmony within the supporting organisation.
The statement maker was invited to retract and apologise for the statements, by a community leader, in a message which said as follows:-
“Upon the request of XY, Chair of the (Organisation), your posting rights to the (name) mailing list and (name) wiki have been suspended.
Per the Chair, your account can be reactived if the following conditions are met:
1. You apologize for the (date) comment to the aggrieved party CC'ing the Chair and Secretary of (name);
2. You re-apply for unaffiliated (name) membership following the proper procedures; and
3. (name) review this case and reach a consensus.
Please also find attached a copy of the (name) Code of Conduct for your review.”
Regrettably, there has been no apology, although the membership issue appears to have been resolved by other means. His initial response was to question who had make the complaint, and when and where. I then specifically put the comment to him, identified by date, person and place. He declined to discuss the matter, and I was not able to persuade him to join a mediation. His primary response was that he thought that there was no complainant, but subsequently would not engage in a discussion about the comment posted on the mailing list, nor would he discuss whether the offensive comment was something which should be removed or apologise. This effectively frustrated any attempt to reach a more conciliatory settlement of the issue. I therefore notified him that I would prepare a formal report about the complaint and send him a copy in due course.
For the avoidance of any doubt, I consider it quite clear that the comment made was offensive by any standard. There is no doubt that on many mailing lists, there is often robust discussion about the issues currently before the organisation. But there are specific rules about content and standards of behaviour, which have been in place for some time.
Jurisdiction
This is a matter where I clearly have jurisdiction. An unfairness results when someone is offensively criticised in a mailing list within part of an ICANN supporting organisation. The unfairness is compounded when the statement maker refuses to engage in a conciliatory process.
Reasoning
The complainant’s issue is the statements made on the mailing list were offensive. The identification and investigation of this as being offensive was not difficult. Normally, as I have cited earlier, a mediation or conciliation process should resolve issues like this. Comments made in the heat of debate are sometimes inappropriate, but usually the parties can be persuaded to withdraw and apologise. I am conscious from my work as a mediator, that parties under stress sometimes act inappropriately. I would have liked to investigate whether there was some stress factor which influenced the statement maker to make the offensive comments. I am confident that if there had been some explanation based on some background, that the complainant would have been satisfied with a retraction and apology. The statement maker however has chosen not to engage in the process. I have little difficulty therefore in finding that the statements were offensive, and hopefully by now removed. The resulting suspension of the statement maker is understandable in the light of such refusal. I do not consider that the suspension was unfair and no circumstances. I would strongly suggest to the statement maker, that engaging in the mediation process would be more productive in the future. It may be that he has some views about the mediation process, but he is also aware of the standards of behaviour expected, when making postings on this mailing list.
Result
As a result of this investigation, I consider the reaction of the organisation in suspending the posting privileges was an appropriate response and not unfair. I will be posting this report on my website, because it is appropriate to remind those within the ICANN world, that there are standards of behaviour and that they should be respected. It is also important to note that such interpersonal criticism is in my view, best resolved with a mediation process, where the parties can engage in constructive discussions, and apologise where needed. It is important to be inclusive, but where there are breaches of the standards of behaviour, then sanctions do need to be made.
Chris LaHatte
Ombudsman