Dear all,

I understand that on Thursday afternoon the RIPE Plenary will be invited
to adopt “Code of Conduct v3.0”. Unfortunately I must leave Rotterdam at
lunchtime, so I am writing to share with you my reasons for believing it
should not be approved.

Code of Conduct v3.0 proposes the creation of a new entity, the “CoC
Team” who will be invested with the power to hear allegations of breach
of the Code of Conduct and decide what sanctions, if any, to apply to
the community member in violation.

Planned sanctions include, amongst other things,
1.      Not allowing someone to participate further in RIPE Meetings and/or
other RIPE community spaces, for a set period or an indefinite period
2.      A public reprimand
3.      Requiring that a public apology is made

Denying someone the opportunity to participate in RIPE is clearly a
serious step. Issuing a public reprimand, or requiring a public apology
(i.e. admission of guilt) is potentially seriously damaging to a
person’s reputation. Since a public reprimand might make reference to
the purposes of the Code, including the prevention of sexual harassment
and racist abuse, and assert that the person was found to have violated
the Code, but not necessarily say what the individual is alleged to have
actually done, a public reprimand from the CoC team could have lasting
impact on a person’s career prospects.

It is therefore a matter of great importance to every member of this
community that if such sanctions are ever applied, the most scrupulous
process is used.

Unfortunately, in my view the process set out in Code of Conduct 3.0 is
very far from fit for purpose.

For a start, given the gravity of the intended sanctions, I am stunned
to see that the Code neither requires nor suggests that the CoC Team
should attempt to speak to the accused individual to get their side of
the story. Indeed, there is no requirement that the accused person is
even informed of the details of the allegation against them. A public
reprimand could be the first the subject hears of the matter.

The right to be heard before being punished is not an obscure legalistic
procedural device. It is fundamental to basic fairness.

Granted, a right of appeal has been added to the Code (thank you Daniel
Karrenberg for your urgent intervention!), but I do not think appeal
after the fact is sufficient correction to a basically abusive process.

Although the most egregious, that is far from the only flaw with Code of
Conduct 3.0. It positively encourages anonymous complaints. Complaints
are also encouraged not only from alleged “victims”, but also from
“witnesses”

The Code promises that the identity of the complainant will not be
disclosed to the subject of the complaint, potentially making it
impossible to understand the circumstances or provide an explanation.
The person submitting a complaint is not disqualified under the Code
from sitting as a member of the CoC Team adjudicating the complaint.
Given that the Code also invites witness reports and assures witnesses
that their reports will not be viewed less favourably because they have
made multiple reports, it would be entirely consistent with the Code for
the CoC Team to also act as as a Code of Conduct patrol, making reports
of violations and then sitting in judgement on their own allegations.

Thanks to anonymity, nobody outside the CoC team would even know if this
were occurring.

There are other problems, but this message is already too long.

Throughout the Code, the emphasis is consistently on the CoC Team’s
responsibility to the reporter. There is no such recognition of a
responsibility to the person ‘under investigation’ – by which I mean,
the person who is the subject of the complaint; there is actually no
expectation set in the Code that the CoC Team would actually conduct an
investigation, rather than proceeding directly to judgement on the basis
solely of the information contained in the allegation.

I have described some serious flaws, but in my view, it is not worth
trying to rescue this proposal with patches to each of them. The
document as a whole is riddled with bias, and should be abandoned. The
Diversity Taskforce has demonstrated that it is not an appropriate body
to be undertaking this work.

Any serious attempt to create a process for enforcement of a Code of
Conduct should be predicated on the basis that a grievance and
disciplinary process (which is what this is) owes a serious duty of
fairness to all parties, not only to one side.

Malcolm.

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            Malcolm Hutty | tel: +44 20 7645 3523
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