Office of the Ombudsman
Case 12-00154
In a matter of a Complaint by AB
Determination dated 25th September 2012
Introduction
The office of the Ombudsman has jurisdiction to consider issues of unfairness between ICANN and supporting bodies. In investigating a complaint that such unfairness exists, my practice is to look first at whether mediation is possible, or other dispute resolution techniques. However in some cases this is an appropriate, and in this case this would not have bee possible. I have therefore proceeded to prepare a report, which in any event is the request by the complainant.
Facts
The complainant made contact with the office of the ombudsman to say that he had received a spam email from the former CEO, and that the email was unwelcome and sent to him personally, which he considered intrusive and unnecessary. The complaint was made promptly and said
“I wish to file a formal complaint about the below SPAM originating from ICANN's servers. Since Mr. Beckstrom has left yesterday it is clear that he cannot have had access to ICANN infrastructure any longer. If however this were the case, one would have to consider YET ANOTHER serious breach. In any case I do not wish to receive communications of any kind from this person, Mr. Beckstrom. Please confirm receipt of this complaint, commence an investigation and advise me of the outcome.”
He later said that “A *FORMER* staff member, sent a very irrelevant and unsolicited email to a large number of recipients, probably to the list of all email addresses he ever had collected, by whatever means, thus targeting individuals who most certainly did not wish to receive emails from him and in particular not at the addresses used.”
He also commented that the email was sent to his professional email address, not the one that he used for ICANN purposes.
Jurisdiction
In any complaint I must consider whether I have jurisdiction under my bylaws and framework to undertake such an investigation. In this case there is little difficulty in finding jurisdiction because it certainly would be regarded as unfair to send spam, or unwelcome emails, to supporting persons of ICANN from ICANN itself. In considering this issue of jurisdiction, I am not prejudging an issue of whether or not the email sent was in fact spam. I have assumed that there is something which the complainant considers unfair and proceeded on that basis.
Investigation
To undertake this investigation I sought comments from the complainant because I was anxious to ensure that this was a serious incident of unwanted email. The complainant said on a number of occasions that he was offended by receiving the email and that it was inappropriate of ICANN to permit this to be sent through the ICANN mail server. I also asked the complainant to comment on why he thought that this was spam and why he thought it was unfair that the email had been sent. At that stage of the investigation I was unsure as to the number of addressees, although the complainant was quite adamant that he considered this spam and unwelcome. I attempted to engage in a discussion about why this was spam, under the ordinary definitions, but he declined to comment other than to say was spam because it was unwelcome and too widely broadcast.
The next part of my investigation was therefore to find out the extent of the publication and determine how widely distributed this had been. I therefore discussed this with ICANN staff to find out the background behind the sending of this email. My enquiries showed that this email had originated during the CEO’s final days at the Prague meeting, in the context of many documents being produced, many formal meetings and farewells and a complex handover. My enquiries showed that the email had been sent to between 50 to 60 people, who were regarded as key people in relationships with ICANN. I was told that the CEO had a strong desire to say something about his successor and wanted to pass this on to those key people. There were about 5 groups, and the email was actually tailored for each one. The email was sent out over the period of June 30 to July 1, although some were delayed apparently due to some errors in the draft which had to be corrected. This meant that some were actually sent the following day, which was of course after Mr. Beckstrom had completed his term. This appears to explain why the complainant in this case received an email on the 2nd July.
Reasoning
After discussing this matter with the ICANN staff, it is clear that this email was in fact not spam in the common meaning of the term. Spam is usually considered bulk emailing sent indiscriminately to very large numbers of recipients. By way of contrast, 60 emails specifically tailored for groups of recipients is hardly unusual within a large organisation such as ICANN. I have no difficulty in considering this to be an appropriate use of the ICANN email system, particularly when it is coupled with a short (understandable) delay, carrying this over to the day after the former CEO’s appointment finished. If there had not been the delay, then the email would have been sent before the CEO formally completed his contract. The delay was not any fault on the part of the CEO, who had simply asked his staff to prepare and send the email.
The other limb of the complaint was that this email was sent to the complainant’s professional address rather than the one he used for ICANN purposes. It is difficult to say how this could be unfair, although I did specifically ask the complainant to comment on this aspect. If it had been sent to his ICANN email address, then there would be nothing at all unusual about such an email.
Of course, it can be irritating to receive unwanted messages. The complainant has made it clear that this was a message he did not want to receive. He may have had particular views which did not coincide with the former CEO, but I find it difficult to find unfairness in sending such an email, which was intended to make a courteous farewell and introduction to the new CEO.
In considering this matter I have also looked at the contents of the email, the subject of the complaint. It does not appear to be anything controversial save for a conventional message of the sort which would be expected from a senior executive completing a contract, and thanking participants and staff. This also assists in my finding.
Finally, I record that I sent a draft of this report to the complainant, but the complainant did not add anything. I have also sent a copy to the ICANN staff who were responsible for the email, and who also did not add anything.
Result
As a result of this investigation I do not uphold the complaint, and it is therefore not necessary to refer this matter to the ICANN Board for any further action.
Chris LaHatte
Ombudsman