ICANN Ombudsman Blog Creating Dialogue Affirming Fairness

April 23, 2012

Public Forum at Costa Rica on 15 March 2012

Filed under: Uncategorized — Chris LaHatte @ 3:33 pm

This from the public forum, and thanks to Kieren McCarthy of . nxt for the posting:-

CHRIS LAHATTE: Hi. My name is Chris LaHatte. I’m the ICANN ombudsman. I’ve met a lot of you already. Like a previous speaker, I will need a translation but this time to New Zealand English, which is different from Australian English.
During the course of this forum I heard a lot of people express unhappiness about many different aspects of things that are happening. And I just wanted to now take the opportunity to remind people that the ombudsman is here. If you feel there has been some unfairness in the decisions that have been made and that if there is as much unhappiness as speakers seem to indicate, then there should be a line outside my office extending right through to this hallway.

But I think in reality, it’s not quite as extensive as that. But please, if you are upset by a decision that’s been made or you think it’s unfair, then do come and see me.
So I just should really call this a commercial break, and my door is always welcome to see any of you.

Thank you.

STEVE CROCKER: Thank you very much, Chris.

April 20, 2012

International Ombudsman Association Conference at Houston

Filed under: Uncategorized — Chris LaHatte @ 9:41 am

I have just attended the 7th Annual conference of the International Ombudsman Association in Houston, Texas. This is an organisation mainly for organisational ombudsman, or as many prefer to say ombuds, being perceived as gender neutral. The conference ran for three days and has about 300 attendees who come from primarily the United States. Because of the emphasis on organisational ombudsman, most of the attendees are from within corporate organisations and typically universities. There were a few international attendees, and a good contingent from the United Nations.

The first day opened with an address from an international authority, Professor David Yamada, who teaches on the subject of bullying and has written many articles and books on the academic study of bullying. Although this applies primarily to organisational ombudsman, he emphasised the role of the ombudsman in dealing with such behaviour. It is not one of the major sources of complaints to my office, although it is quite possible that groups may feel that actions taken by others do constitute bullying.  But as an academic application of the use of ombudsman techniques he gave a thoughtful and useful presentation. His address is at http://newworkplace.wordpress.com/2012/04/17/workplace-bullying-and-the-ombudsman/

The next session was a discussion on the role of the Association. There is a tension between its role seen as primarily for organisational ombudsman and whether it truly can be called an international organisation, particularly reflecting on the small numbers of overseas members and attendees at the conference. There does seem to be a fairly common view that the association should primarily be for  organisational ombudsman, but an equal number appeared to want to be more inclusive. In the previous year a motion to have classes of membership was defeated, and the board of the Association is continuing to consider appropriate ways to encourage membership but also to balance the classes of members and potential members.

Following the session I attended a number of smaller sessions on issues such as understanding cultural patterns across conflict styles, and increasing the utilisation of ombuds offices across global or multisite operations. This last session is of particular interest to the ICANN ombudsman because of our global reach. There was much to think about.

The keynote address on Tuesday was from Michael Dues on the ombudsman’s role in advancing the organisation towards Better Conflict Management. He was formerly an academic in the area of conflict management, and also an ombudsman. Despite an attempt to retire, he is still studying and lecturing on the role of an ombudsman and conflict management, and reflected on the role within the University. He reminded us of the need to maintain collected wisdom from such experienced ombudsman, who can use the academic knowledge and practical application of skills in such an impressive fashion.

The afternoon sessions on Tuesday included a session on the different sectors including international ombudsman. I attended the session to listen to the discourse and stories from colleagues in many varied roles.

Wednesday had two very impressive speakers. The first of these speakers was Sherry Williams from Halliburton. Her background is of a lawyer practising in the employment relations area and then moving to the role of Compliance Officer with Halliburton. She is a strong advocate for the role of an ombudsman in a large multinational company particularly in relation to some of the more difficult problems experienced by her company in the past. She was quite open about the substantial fines incurred by her company for unethical behaviour, but identified the substantial changes made to ethical guidelines and compliance which have greatly reduced problems across the board at Halliburton. Another good example is the greatly decreased costs of employee litigation which she identifies as a key indicator of success, especially in the eyes of senior management.

The second impressive speaker was Johnston Barkat who is an Assistant Director General at the United Nations where he is in charge of their ombudsman and mediator teams. He began by telling us about 2 current areas where their teams are working, Sudan and the Middle East. He shared the story about an Israeli teacher who became distressed at the rhetoric about war between Israel and Iran, and started a Facebook page where he reached out to the Iranians and sent a message that he did not want war and that he loved Iran. The posts have gone viral and shared by Iranians who have started their own Facebook pages with the same message. So in the middle of all of the sabre rattling people are reaching out to each other for peace. Johnston then developed this to a challenge for ombudsmen to reach out and start their own initiatives within their own practice. He argued that we must reach out rather than be proactive in our search for fairness. Altogether this was inspiring and something of a wake up call.

The afternoon brought an introduction to the Culture Bump programme.  This can be seen in full at http://culturebump.com/index.php but is a programme to educate people about cultural differences. At ICANN we have the world talking to us and awareness of different cultural responses is critical to our communication. I hope to introduce this in some fashion, and will consider how to do so.

In between the sessions I met many wonderful colleagues-you know who you are! The networks of friends and colleagues will be of huge advantage for peer support and understanding. All in all this was a most successful conference.

April 13, 2012

Internet Law-internet.law.nz Judge David Harvey

Filed under: Uncategorized — Chris LaHatte @ 4:58 pm

I recently bought the third edition of Judge David Harvey’s text on New Zealand Internet law. It might be thought that such a text is too narrow in the context of an international office such as the ICANN ombudsman, but in fact there is much covered which is international in scope. Without wanting to say that New Zealand is a pioneer in the use of the Internet, it is fair to say that New Zealanders have been heavily involved in Internet issues from very early days and contributed very substantially to development of policy and law in this area. Judge Harvey lectures at the University of Auckland Law School on the topic of IT law, no doubt something of a contrast to the diet of crime which he oversees at the Manukau District Court in South Auckland. He developed the text of the purpose of this course, and has now reached the third edition. He somewhat modestly says that the text covers selected issues, although my study of it shows a somewhat more comprehensive cover, both of immense value to New Zealand lawyers and to international practitioners as well.

He begins by discussing online information and research together with a discussion of evaluation of the value of online materials, issues in relation to freedom of access to legal resources and importantly discusses how to authenticate and evaluate online material. He then goes on to consider the thorny question of jurisdiction, with a useful analysis of the international jurisprudence and the approach taken by United States, Canadian and New Zealand courts.

Perhaps of direct relevance to me this is discussion of Internet governance and the role of ICANN. I suspect due to limitations of space, the role of the ombudsman has only a cursory mention in a diagram. In addition the unique multi-stakeholder structure supporting ICANN is only briefly discussed. In my view the structure would be a valuable addition to the first part where he discusses Internet governance, because the evolving structure of ICANN and supporting bodies is a real live demonstration of a working model of Internet governance. And perhaps because of further limitations of space, institutions such as the IGF –( Internet Governance Forum) and the role of the Internet Society (ISOC) and the ITU are not covered in any detail at all. This is a pity because the opening part of the chapter has a fascinating discussion of the theoretical approaches and the diverse political opinions ranging from the libertarian to the strict control theories. Application of those theories to what is happening in all of the Internet governance bodies would be, I suspect, the subject of a text on its own merits.

Judge Harvey discusses criminal law in the context of computer crime, mostly with a New Zealand emphasis but of course the issues are again international in concept. He does discuss some of the international law, which is unavoidable in the subject. Again, I suspect due to lack of space, issues such as the use of bot nets and phishing, which have complex jurisdictional problems in enforcement, are not discussed. Those forms of international computer crime do reach New Zealand, but are very difficult to prosecute because the offenders are seldom in New Zealand. This is no different from most other countries in the world, where such offending occurs, because of the difficulties of penetrating the anonymity under which these crimes are committed.

A very useful chapter discusses online business relationships. Some might say that the existing law of contract and agency substantially covers this area, but Judge Harvey identifies some important international conventions such as The United Nations Convention on the International Sale of Goods and the UNCITRAL Model Law on Electronic Commerce and the important influence of the United States legal developments on formation of contracts through issues such as shrinkwrap. This chapter is followed by an equally useful discussion of copyright, perhaps being brought home to New Zealand with the attempted extradition of Kim Dotcom, presently a resident of New Zealand until the FBI persuade a New Zealand judge otherwise.

In this discussion of the text I have omitted some of the other useful chapters, not because they are less important, but are perhaps more relevant to indigenous New Zealand law. The analysis and discussion would be of interest to any international IT lawyer however.

The scholarship and analysis on this text are a little unusual, in that he takes the trouble to consider and describe the theory behind the legal principles. Many texts leave this for more academic studies, which makes his discussion valuable to the academic, as well as the practitioner. This significantly adds value to the discussion, particularly in a field where the whole concept of the Internet is still only under 20 years old, and the application of the enormous body of older jurisdiction to such a radical change in the way in which we deliver information does require such an analysis. Just as an example, any lawyer would immediately understand a concept such as offer and acceptance, but unless they are particularly adept at IT skills, may not have any concept of the way in which delivery of an offer or acceptance can be radically changed through use of the Internet.

The text may be bought from LexisNexis in New Zealand and overseas but not through Amazon and because the publishers are not as up to date as their author, it cannot be bought as an e-book, which is a pity.  But even in book form I recommend this text to any IT lawyer.

 

 

 

 

April 4, 2012

New Case Report

Filed under: Uncategorized — Chris LaHatte @ 1:45 am

Office of the Ombudsman

Case 12-00052

In a matter of a Complaint About Inappropriate Advertising

Report dated              8th April 2012

Introduction

This investigation stemmed from a complaint made by a person attending the ICANN 43 Meeting at Costa Rica. While the names of the parties have been widely circulated, I do not think it is necessary to add them to this report.

Facts

The essence of the complaint is that a display prepared for the Prague ICANN meeting 44 used a postcard sized picture as part of a display in a way which was offensive to women. The display kiosk was a light-hearted approach to advertise the forthcoming meeting, and asked passers-by to select a number of options for what they wanted to see in Prague. People were invited to choose a number of options including culture, museums, food, beer and one card which said “girls”. All of the postcards had stylised drawings. The object of the cards was to assess in a light-hearted way, what participants in the meeting wanted to see at Prague.

Investigation

The investigation began because I was approached by a person who was seriously offended by the objectification of women which he had observed at the kiosk. The investigation therefore was relatively simple because I went to the kiosk and obtained a copy of the postcard.

Issues

The issue which I was required to investigate was whether the postcard and the use were offensive because of the presentation of “girls” as somehow being available as a commodity, and what should be done about the display.

Jurisdiction

This is a matter where I have jurisdiction to consider the complaint and specifically the issue of unfairness. Article V of the ICANN Bylaws state in Section 2 that “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.” And from the standards of expected behavior[1] “Those who take part in ICANN multi-stakeholder process including Board, staff and all those involved in Supporting Organization and Advisory Committee councils undertake to: (among other matters) 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.” The result is that the Ombudsman is the appropriate person to investigate these matters.

Facts

The complainant says the use of the postcard was demeaning to women and an unnecessary objectification of them.

Resolution

As it turned out, when I received the complaint, I approached the organisers who were operating the kiosk and explained why the use of the postcard was thought inappropriate by the complainant. After some discussion, they understood the way in which this was seen, from another perspective, and quickly agreed to remove the postcards as an option in the kiosk display. What they saw as a light-hearted tribute to attractive woman in the Czech Republic, they then were able to see as offensive to others. Because they were so ready to perceive and accept the alternative view, it was not necessary to take any further action. I reported to the complainant and closed the file, as no action was required.

 

Chris LaHatte

Ombudsman

 

 

 



[1] http://www.icann.org/en/about/transparency/expected-standards-10jan08-en.htm

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