Monday, 31 July 2017

A Proposal for the Use of Restorative Justice in Professional Disciplinary Tribunals

A Proposal for the Use of Restorative Justice in Professional Disciplinary Tribunals
Chris LaHatte LLB MMgt (DipRes) FAMINZ (Arb/Med)

Ma te rongo ka mohio
Ma te mohio ka marama
Ma te marama ka matau
Ma te matau ka ora
Through information comes awareness, through awareness comes understanding, through understanding comes knowledge, through knowledge comes wellbeing.
Introduction
It is inevitable that when members of a profession provide professional services, particularly to individuals, that there will be mistakes and errors. It appears to be very well accepted that there should be a means to address mistakes and errors, so that any wrongs which may arise may be explained and if possible corrected. While there is often a possibility of the cnminal justice system intervening in matters of professional discipline (such as theft by a lawyer or sexual assault by a medical professional), many issues which cause harm are not criminal in nature.[1]Those disciplinary procedures are similar to the process of criminal justice with the common features of a victim, retribution and punishment. Most professions in New Zealand have now moved to a disciplinary structure which involves a formal complaint process, an investigation, and when needed, a hearing before a disciplinary tribunal. Complaints against a professional will in most cases come from members of the public who feel that they have been let down by the professional services provider, but can result as an additional consequence of breaches of crlminal law.[2]
Dispute resolution writers have described an expansion of restorative practices into other areas, such as schools, employment disputes, disciplinary action in the military and this paper anticipates a further expansion into complaints against corporate bodies for non-compliance with regulatory schemes.[3]
A [4]number of the professions such as the New Zealand Law Society do offer what is called early intervention , as do places such as the office of the Ombudsman, which use similar techniques to fry to resolve complaints at an early stage[5] . The purpose of this paper is however, to present as an additional tool to disciplinary bodies, the concept of using Restorative Justice as a way of resolving disputes that may be unsuitable for early intervention, of dealing with the issues on a holistic basis, using concepts such as the circle and facilitators.
What is Restorative Justice?
For the purpose of this paper I will outline restorative justice from its origins to the present practice in New Zealand. While it has become a generally accepted concept, not everyone is familiar with the practice and the techniques. Restorative practices are presently found in the sentencing process of the criminal courts of New Zealand, originating from the Family Group Conference which was developed under the Children and Young Persons and Their Families Act 1989, and more recently as part of the District Court sentencing practice. In more recent years it has also become a tool used in primary and secondary schools, particularly with disciplinary and behavioural problems with the children.  
Restorative justice is considered to have originated in Canada in about 1974[6], when probation officers realised that there could be different and better ways of dealing with offending particularly with young people. This developed into what became known as “victim offender reconciliation program” or VORP, a program to bring victims and offenders together with a facilitator or mediator, to talk about the offending and how the hurt could be repaired or reconciled. An American called Howard Zehr became involved from an academic perspective and wrote extensively, including his pioneering text in 1990, book “Changing Lenses: a new focus for crime and justice”. While the Family Group Conference concept was indigenous to New Zealand, it became apparent that it was a form of restorative justice, and one of the judges involved in the youth justice system, Judge McElrea, arranged the first conference to discuss adult restorative justice based on the FGC concept. This led to pilot schemes and more recently to incorporation into standard sentencing practice.
Chris Marshall describes restorative practice as having three core assumptions[7]. The first is a concept of crime as injury more than infraction, looking at the harm to real people rather than an abstract transgression against a code. He considers that there is a key idea, that it has a notion of justice is right-relation and crime is wrong-relation. So there is a need for establishing a right relationship between the parties, of mutuality equality and respect in community. He discusses the concept of restorative justice as repair or healing of relationships, contrasting this with the punitive justice system, pointing out that punishment does little or nothing to heal either the offender or the victim. He emphasises that the relationships violated by the crime are what need repair, and restored to rightness. Neither the offender nor the victim are heard in a punitive justice system, and so restorative justice seeks to repair the harm of crime, by listening to the voice of both the victim and the offender. It is important, Marshall emphasises, to recognise that the principal harm of crime is the loss of trust, which strikes at the network of relationships which form our society. To resolve this he looks at the core business of restorative justice practice, encounter, truth telling, accountability, confession, contrition and restitution.
It is important to recall some of the things which restorative justice is not. It is not primarily about forgiveness or reconciliation although that can be a result. It is also not mediation, because the emphasis is on conferencing and dialogue. In the context of professional mistakes, there needs to be some understanding of how the errors or mistakes were made, and the offender needs to understand the needs of the complainant/victim in the process. If crime is seen as injury, then negligence or bad behaviour in the context of professional practice, is also likely to cause some injury. The civil law of negligence of course derives from the concept of a civil wrong leading to damages. [8] In the early days of law the difference between criminal and civil wrongs was not so great, and systems of restorative justice were used to restore the relationship between the parties so that the death of a victim would be compensated by payment to the victim's family. Of course, not all disciplinary issues are matters of negligence, but they have in common with criminal justice, a code and breaches of the code alleged by the victim and prosecuted by the professional disciplinary body. In addition, there is often a very close relationship between the professional and their client/patient. It is common to find the term "fiduciary duties" applied to describe aspects of the relationship, and such fiduciary duties clearly carry a close relationship between the parties. So it is likely that the relationship has some history and shared intimacy. Injury to this relationship may therefore have greater significance particularly to the victim, who would regard the breach of fiduciary duty in very personal fashion.
Restorative justice has been described as a compass, and not a map. So, as the result of a conference, the parties could agree to make a proposal to the tribunal to make the formal decision. But it would have to be the tribunal which ultimately made the decision, and therefore the tribunal would need to be prepared to adopt any recommendation reached at a restorative justice conference. Restorative justice is concerned about roles and needs, and so there would need to be involvement but only with the offender, complainant/victim but likely peers who could discuss the standards of performance and where they have failed.
So restorative justice is the alternative to a retributive model of justice. The fundamental premise is that crime (or an offence against a professional disciplinary code) is an injury to people and relationships. There must therefore be a response by addressing the harm caused through dialogical processes that attempt to meet the needs of all involved parties and promote repair of the relationships. There are questions such as who has been hurt, and what are their needs. Who is responsible and what obligations exist? What can be done to demonstrate accountability and promote healing? How can we prevent this happening again? There is a need to promote respect reassurance and repair, and to develop harmony and healing.
Application to Professional Discipline
For the purpose of this paper, I have examined a number of professional disciplinary bodies, although it is not intended to be an exhaustive analysis of all such structures. There are for example a number of smaller professions where it is relatively unusual to impose professional discipline.[9] I have included a table of the bodies where I have made specific enquiries about the use of early resolution/intervention and whether restorative justice is used. I discuss this further in this paper.
Typically, a professional disciplinary body operates from a starting point of a code of ethics.[10] This has been suggested to be the distinguishing mark of a profession,[11] and sets the framework for the expected behaviour. Decisions about the discipline of members will often cite the code of ethics as the basis for the punishments or sanctions imposed where the breach has been proved. This can be usefully compared with a criminal statute, where the state through the criminal courts, can impose a sentence in many forms. And the other typical feature of professional discipline is that there is often a victim. For lawyers and accountants, this may be a client who has lost money due to actions of the professional, for medical professionals, it may be a patient who has suffered injury through inadequate treatment and so on. And just as with the criminal justice system, it is useful to see whether the voice of the victim is heard in the disciplinary tribunals.
Zehr[12] refers to power as an element in restorative justice processes. I propose that in the context of a profession, the holder of knowledge possesses power over the layperson.
Sociological writers have talked about the "aggregation of professional power in its members [13]
Lawyers are sometimes accused of keeping their esoteric and perhaps gnostic knowledge of law and using this to gain advantage. In Webb, Dalziel Cook on Ethics Professional Responsibility and the Lawyer [14] there is a useful discussion on status and power and referring to lawyers occupylng positions of considerable status. Similarly doctors are sometimes seen as holders of special knowledge which they can bestow on grateful patients. This power operates in two ways. The holder of that power and knowledge is considered to have a special responsibility in advice and use of that power, and the sanction can be that of the civil proceeding for professional negligence. But someone in possession of that power, may be considered vulnerable in that the loss of that power by professional discipline, may reduce their standing in the profession, and in the worst examples the disciplinary process will strike them from the rolls of the professional body, therefore ending their career. In this process naming and shaming has a significant factor in imposing professional discipline, and there is a common theme in those processes of seeking suppression of names. Balanced against suppression, it is also common for the victims to want the professional identified as part of the punishment. It is also not unknown for other members of the profession to advocate naming, so the blame does not fall on to their colleagues.
This may be seen as a reversal of the criminal justice restorative justice processes, where often the offender will come from the lowest socio-economic groups, and the victims may see themselves as upright citizens.
This can also be placed in the context of the six vs of victim recovery. Because of the disparity in power and knowledge, and the dependency on trust created by the fiduciary relationship, the victim will be particularly vulnerable. They will often continue to need to use the professional services, and therefore need to feel safe. The professional bodies often emphasise the need for maintenance of high levels of practice. But I wonder whether the reassurance from the professionals, the peers of the offender, would really meet the needs of the victim, and a restorative justice conference may be that opportunity to restore confidence, even if the professional is no longer going to practice, but confidence in the profession itself. The voice of the victim will also be important. The disciplinary process is very similar to a criminal justice prosecution in that the preparation of the case is undertaken by the professional body and the tribunal. As with criminal prosecutions, the needs of the professional body may overtake the needs of the victim.
For example, the prosecution may be seeking to make an example of egregious behaviour but in doing so, may overlook the injury done to the victim. Giving the victim a voice at a conference, and ensuring that they are heard as an equal party at the conference, will help restore the dignity.
Veracity may be even more important with a professional disciplinary tribunal which does not have the same publicity as a criminal court. It would be very easy, I suspect, for a victim to form the view that there was a secret conspiracy of professionals seeking to protect their own. So openness in the process would be critical, and reassurance about the truth of what is happening may best be done in the context of a conference.
The next v, of validation, which is considered to be the other side of voice is the opportunity for the victim to have their say, be listened to and recognised. This may help in opening empathy between the professional person and the victim.
Vindication is critical particularly in issues of professional competence. The victim will want to know who caused the injury and who was taking responsibility. It is important to have acceptance of moral blame by the professional, who must accept that their actions have caused the problem, and moved to a commitment to fix the issue as far as possible. Often the victim will  want to know that the professional will not make this sort of mistake again, so a promise to behave better or avoid repeating the problem will be important.
Working with victims will require that they find value in the process. The comment is often made, "I don't want this to happen to someone else". The professional disciplinary body will also have a strong interest in finding meaning for the process, and may have a strong common interest with the victim, to find value of the process. Although healing for the victim may be more important, reassurances about future competence will also be important for the professional organisation. In a sense, because of the effect of bad actors on a profession, they may be seen as having a victim's role, because it reflects on them when a member behaves badly. So they may need to find a value in the process and look to a healing process.
Perhaps the most important issue to be resolved at the conference will be an examination of the power imbalance, and of the breaches of the fiduciary duties owed by the professional to the victim. For a proud professional person, who will have an intimate knowledge of the particular discipline, to back down and acknowledge their failure will require a substantial adjustment of their worldview.
A further issue at a restorative justice conference is to consider who has a stake in this situation. In most cases there is likely to be a victim, but because of the express desire of the professional bodies to maintain standards, they have a dual role both as the prosecutor, but also as a party affected by the breaches of standards. In a state prosecution of a crlminal offence, in recent times, a victim advocate will represent the interests of the victim. The state prosecutor is there to ensure that the sentencing decision meets the needs of the state. This is sometimes expressed as deterrence. This is different from a disciplinary body seeking to ensure that the high standards of the profession are maintained. So it is my view that at the conference, there should be a person who represents the profession. As part of the repair of the relationships, it will be important for the professional to have a better relationship with their professional body, as well as with the victim. Of course, some of the disciplinary offences may not come with a victim, and in a sense, the professional body could be considered a victim. But the repair of the relationship remains an important issue. Another way of looking at this, would be to consider that the profession forms a community, and therefore using restorative justice in that profession forms a particular type of community justice. Zehr[15] discusses the use of community justice rather than state justice, and talks about the alternatives which are the retributive or judicial models, but does suggest that "community justice offers a wider range of outcomes than does our contemporary retributive paradigms which may be particularly applicable to use in a disciplinary tribunal context
From my examination and enquiries of the use of early intervention or mediation, the next step of restorative justice processes does not appear to have been adopted by any professional bodies. It is difficult to research what happens at the mediations because of the confidentiality. But I have not seen any examples of the use of restorative justice which has recommended a result to the body which has the power to impose professional discipline. I prepared a table based on a question which I posed to the disciplinary bodies, and have included the responses in the table which is attached to this paper. What is interesting is that there seems to be an acceptance of the use of early intervention and possibly mediation, but no use of restorative justice itself. This is not intended to be an exhaustive list of disciplinary tribunals, but does illustrate that if there is acceptance of a mediation approach, then I suggest it is likely that restorative justice may also be a useful tool. In Webb Dalziel Cook[16]  it is anticipated that in the words of the authors "where, previously, the focus of disciplinary procedures was to punish the practitioner in an attempt to protect the public, the Lawyers and Conveyancers Act 2006 is also concerned with reconciliation for the complainant him or herself”

In my research, I found what I consider a useful example of professional disciplinary action where restorative justice could have been used. In this case[17] a midwife was censured and fined and ordered to undergo counselling and mentoring following an affair with the husband of a patient. The relationships in this case went beyond the usual patient/ provider situation because all of the parties were formerly friends. The midwife was then asked to look after the pregnancy of the couple, but during the course of the care, commenced an affair with the husband. So the relationships were more complicated, but the report refers to breaches of trust and the effect on the parties. This was a particularly complicated case which included an appeal to the High Court, and referring back to the tribunal to reconsider some facts. The initial decision was 29 October 2015, and the final decision was issued 23 December 2016. Clearly the effect on the parties would have been considerable because they would have had this hanging over their heads from the time of the offence in June 2013 to January 2014. I venture to suggest that a reference to a restorative justice process would have the potential to deal with the issues far more efficiently and without the exhausting tribunal and court process.
There was no criminal element in the behaviour of the parties, but the midwife accepted that her actions amounted to professional misconduct and that she should be disciplined. Much of the decision is concerned with adherence to the Code of Ethics and The Midwives Handbook for Practice. This case illustrates the role of the profession beyond that of the prosecutor, in maintenance of appropriate ethical standards. But in a situation where the professional was contrite and accepted the consequences of her actions, restoration of the relationships should perhaps have been a priority. The tribunal did refer to a "journey to rehabilitation" but was also concerned about a penalty to send a message to the public and other midwives about conduct. I can only speculate as to what would have happened if there had been restorative justice used rather than a penalty hearing. In a situation where the misconduct was admitted, the path through the tribunal and High Court must have been excoriating.
Conclusions
My proposal is therefore to recommend to disciplinary bodies that as part of the toolkit in dealing with their members, that there should be use of the restorative justice process. This
would require consent, of all the parties affected, which if they are already using mediation, would not be a new step. It would also require a buy in from the committee or tribunal which imposes the discipline.

There is a real question as to how this process would actually work. Obviously there would need to be a filter process so that only appropriate cases were referred to a restorative justice result. I anticipate that the common use of early intervention would quickly identify appropriate cases. Then once the parties reached an agreement to hold a conference, an appropriate facilitator would be brought in to arrange for the conference and undertake the usual preconference preparation. The result of the conference would then be sent to the disciplinary body, who would have a report as to the outcome, and be able to consider the recommendations.
Such a process would engage both the victims affected by the professionals, the professional body itself, and the person being disciplined, in a way which I hope would maintain faith in the profession in a way which was less damaging but more inclusive, and with listening to all of the voices affected by the issues.
Bibliography
Todd, S, Hughes, J, Smillie, Hawes, C, Beck, A, The Law of Torts in New Zealand 3rd Edition,
Wellington, Brookers 2001
Webb, Dalziel Cook on Ethics Professional Responsibility and the Lawyer 3rd Edition Lexis
Nexis Wellington 2016
Zehr, Howard: Changing Lenses Restorative Justice for Our Times (25th Anniversary Edition)
Herald Press Virginia, United States (2015)






[1] There is of course a crossover between the criminal justice system and professional discipline, where the professional is dealt with under both systems. It is common for a professional convicted of a crime to be then disciplined by their professional body, which is not double jeopardy, but based on breaches of standards of the profession, rather than a breach of the criminal law. See for example Daniels v Thompson [1998] 3 NZLR 22, which is the leading case on the conflict between processing offences under the criminal law but also prosecuting other forms of remedy such as professional discipline or civil proceedings for damages.
[2] There are specific provisions in most codes of conduct which require the professional to report criminal prosecutions upon conviction. See for example the New Zealand Law Society http://www.legislation.govt.nz/regulation/public/2008/0214/latest/DLM1437811.html#DLM 1437811 and New Zealand Institute of Chartered Accountants https://www.charteredaccountantsanz.com/memberservices/member-obligations/codes-and-standards.
[3] See for example Chris Marshall, Restoring What? The practice, promise and perils of restorative justice in New Zealand Policy Quarterly Volume 10, Issue 2 May 2014, where he suggests this as a further expansion of restorative justice.
[4] https://www.lawsociety.org.nz/for-the-community/lawyers-complaints-service/How-you r-complaint-is-processed where the Lawyers Standards Committee may try to resolve matters by negotiation, conciliation or mediation.
[5] See for example reports from the office of the Ombudsman where he refers to a stronger focus on early resolution and more flexible practices http://www.ombudsman.parliament.nz/ckeditor assets/attachments/479/inside the office of the ombudsman.pdf?1493954285
[6] Chris Marshall op cit

[7] Op cit
[8] Todd, S, Hughes, J, Smillie, Hawes, C, Beck, A, The Law of Torts in New Zealand 3rd Edition, Wellington, Brookers 2001 in Paral.1.2 pg 4 discusses the relationship between tort and crime
[9] for example, for AMINZ, referring to the annual reports which mention disciplinary functions, in the 2016 annual report there were 3, one of which went to the tribunal, and in 2015 there was 1.
[10] see for example the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, for chartered accountants, https://www.charteredaccountantsanz.com/member services/memberobligations/codes-and-standards and there are many other examples.
[11] It is beyond the scope of this paper to go deeply into the nature of a profession, and for the purposes of this study, it is proposed that the essential elements of regulation, autonomy, status and prestige, and power are common to most professions. See for example Jackson, J.A. Professions and Professionalization (2010): Volume 3, Sociological Studies,. Cambridge: Cambridge University Press, pp.23-24
[12] Zehr, Howard Changing Lenses Restorative Justice for Our Times (25th Anniversary Edition) Herald Press Virginia, United States (2015) at Page 58
[13] See Hall, R- Theoretical Trends in the Sociology of Occupations (1983) 24 Sociological Quarterly 5, 11
[14] Webb, Dalziel Cook on Ethics Professional Responsibility and the Lawyer 3 rd Edition Lexis Nexis Wellington 2016

Monday, 8 May 2017

Legal Aid

Like many lawyers in the litigation space, I used to undertake work on legal aid. From 1978 when I was admitted to the bar, legal aid grew to a substantial part of many lawyers practice, including mine. It was very simple initially, because in criminal legal aid, the judge would often assign people on the spot. It later grew into a more sophisticated model, where the applicant needed to complete a form. The legal profession supported the use of legal aid, and set up committees of volunteer lawyers who would process the applications for legal aid, particularly in civil cases and family cases. These were unpaid positions, and the lawyers would use their own local knowledge to quickly process large numbers of applications. I was a volunteer on such a committee in Auckland for some years.

Gradually legal aid became more political, and we began to hear criticism of lawyers on a gravy train. However there were always challenges with legal aid because the hourly rate was sadly neglected for many years (no politician wanted to give lawyers for money) and some enterprising lawyers used the system with some efficiency, which is not a criticism, to earn reasonably good incomes from legal aid.

Political interference then brought in the very unbalanced report from Dame Margaret Bazley, in 2009, which was a singular lack of any empirical evidence attacked the operation of criminal legal aid particularly in South Auckland. Based on this report, legal aid was restructured and made considerably more difficult to obtain. For lawyers for the first time there was a process to obtain a provider contract, so that the lawyer had a formal contract with the then Legal Services Agency. Things grew worse, and the agency was swallowed up by the Justice Department to become a unit subject to bureaucratic control of senior Justice managers.

The abject failure to increase rates was then compounded by a very lengthy application process, which all lawyers had to complete to obtain a contract. Many lawyers who did not do much legal aid did not want to go through the lengthy process and dropped off. This is confirmed by statistics which show the number of family law providers has dropped from 1850 in 2007 to 942 in 2016 (and will have dropped further by now). There are smaller towns in New Zealand where it is now impossible to find a family law legal aid provider. And yet, many moved to smaller towns because the cost of living is smaller, because of their reduced incomes. So the average income in those small towns would make more people eligible for legal aid, but the government has manoeuvred the legal aid system to a point where lawyers are no longer interested.

I am not sure that the New Zealand Law Society has been very effective in negotiating with the government on these issues. I suspect part of it is that the politicians just refused to listen to the views of the lawyers. A number of judges have also expressed concerns about the number of self represented litigants, and the greatly increased cost of litigation where an unskilled party is involved.

So when I returned to practice after my previous role, I thought I would obtain a provider contract. Sadly, I have been defeated by the system. Despite having been a provider from 1979 until 2011, I was unable to successfully navigate through the system to obtain a contract. I sent a substantial amount of material to Legal Services, but apparently took too long to complete the forms. I will continue to do pro bono work, but choose not to do so on grounds of legal aid, because I decline to complete the forms again. While the staff at Legal Services were polite, they have obviously been given a straitjacket for new providers, which I cynically wonder is designed to weed out too many applicants.

Wednesday, 1 March 2017

Access to the Internet and Human Rights

Most of what we conventionally accept as human rights are issues which are very old within the societies which recognise such issues. Rights such as the right to a fair trial, or the right to freedom from want can be traced back to Greek and Roman philosophers in Western culture, and recognised in other ways by Chinese and Indian scholars.

The concept of the right to access to the Internet is a radical new idea, if only for the reason that such access has only been possible since the invention of the Internet. Of course, what has accelerated this issue as it least in part social media. Platforms such as Twitter and Facebook have become an essential part of many people's lives. The tremendous growth in the use of smart phones means that these and other social platforms are now ubiquitous. Some who thought access to the Internet was never possible, connect via smart phones from villages in the remote parts of Africa and India, relying on solar power to keep the phones charged. Even in failed states such as Somalia, somehow the cell phone companies have continued services enabling those with access to smartphones to then access the Internet.

In a number of countries such as New Zealand and South Korea, there is specific government policy to move government services online rather than maintain offices and call centres. It goes beyond social media, because most banking is now online and shopping online has become very common. Once government services are provided online as the 1st point of contact, then it must be essential that the government ensures that citizens who require access to the government services have an appropriate method of doing so online. As well as the use of a smart phone or a desktop computer or perhaps a tablet, the more itinerant citizens may need use in places like public libraries. But I have seen beggars on the street using a smart phone.

So access to the Internet has become such an essential part of the lives of many people that some say that this has created a new human right. In the New York Times there is a report of a case before the United States Supreme Court on how access to the Internet is such an important right, that even where a judge has attempted in a lower court to restrict access, the Supreme Court judges find that this may be an undue restriction on the US Constitution 1st amendment rights. While this is not specifically called a human right, and if successfully upheld, would be a constitutional right, it is my view moving to one of those fundamental human rights.

The New York Times article is here https://www.nytimes.com/2017/02/27/us/politics/supreme-court-north-carolina-sex-offenders-social-media.html?_r=0



Tuesday, 7 February 2017

Disputed Domain Names

There is a well-established body of decisions about the conflict between owners of trade marks and the use of a domain name which appears to conflict with the trademark. The ICANN UDRP system enables trademark owners to make a claim through dispute resolution providers such as the World Intellectual Property Organisation (WIPO) to make a claim that the owner of the domain name must transfer the name to the trademark owner.

On the face of it, you would think that once you establish the trademark, that the domain name should be transferred. In a recent decision CIA. Industrial H. Carlos Schneider v. WHOIS Privacy Service Pty Ltd. / Domain Admin, Ashantiplc Limited which can be found here http://www.wipo.int/amc/en/domains/search/text.jsp?case=D2016-2167  there was a majority decision refusing to transfer the name.

The majority decision was not as strongly in support of refusing transfer as the third member of the panel. They went through the usual exercise of establishing that the trademark owner/applicant did have a legitimate interest in the domain name, but found that the respondent had not registered in bad faith and that the name was not being used in bad faith (See, e.g., Telstra Corporation Limited v. Nuclear Marshmallow, WIPO Case No. D2000-0003; Control Techniques Limited v. Lektronix Ltd, WIPO Case No. D2006-1052).

Interestingly, there was a minority decision from a very senior arbitrator Hon Neil Brown QC who
the trademark owner has neglected to renew the name, and only made the application to have the name transferred, almost a decade later. There is a line of authority which considers that the equitable doctrine of laches applies to such applications, which is that if you sit on your remedies, then you are likely to be rejected. The panellist delivered a strong decision about delay, emphasising the failure to renew for a very substantial period of time. The lawyer for the respondent, John Berryhill PhD will no doubt be carving another notch in his belt, but the decision was in reality fairly predictable.

For those who want a detailed analysis, I would always recommend the text on Domain Name Arbitration by Gerald M Levine, which interestingly has a foreword by the Hon Neil Brown QC,

Thursday, 2 February 2017

When You Need To Talk To Someone

I have recently volunteered to act as one of the members of the friends panel for the Arbitrators and Mediators Institute of New Zealand. The link for this is here
http://www.aminz.org.nz/Category?Action=View&Category_id=989

The purpose of the panel is really to enable our members to have someone to talk to on a confidential basis. It is a form of professional support, and we are there to listen. Sadly, some of our members find it difficult to find someone to talk to, and this can lead to problems with those difficult files or personal issues.

I am humbled that I have been chosen to be part of the members of the panel. As a mediator I strive for empathy, and this will continue as a friend on the panel. I hope that any of our members can feel free to contact me just to talk, perhaps have a quiet coffee and I will be there to listen.

Monday, 30 January 2017

Restorative justice On the Internet

One of the issues about the practice of an ombuds is how to resolve conflict which results in harm to one party. In particular the issues of cyber bullying, and harassment of any nature undertaken online, create particular problems in terms of resolution.

The concept of restorative justice, perhaps best-known in the work of Howard Zehr and others, does deal with the issue but on a personal level in a restorative justice circle. The very nature of such a circle is the personal relationships which develop between the parties and the facilitator, which enable some resolution. Particularly when you need to deal with cyber bullying, where it is very easy to go online and say harmful things about another person, actually being in the same space as the victim, so that the bully can understand the harm, is a very powerful tool.

Typically an ombuds will deal with such incidents in person, although restorative justice does not appear to be commonly used as part of the dispute resolution process. It may not even be appropriate for the ombuds to facilitate a restorative justice circle, although finding a facilitator would not be a problem. But I found that as the ICANN ombudsman, so much was done online that forming a restorative justice circle would have been impossible. When a harmful incident took place at an ICANN meeting, there would not commonly be time to set up a restorative justice circle within the very limited timeframe, between 4 to 9 days of the actual meeting. After the meeting, the attendees disperse to their homes around the world and of course establishing a restorative justice circle then becomes physically impossible.

It is conceivable that such a circle could be established using the correct platform. There are a number of different software platforms where parties can participate with a live view of each participant. Although it would not be as effective as being in the same room, being able to actually see the reactions of the participants may be useful. Of course, this would not need to be limited to a restorative justice circle meeting on ICANN issues, but may be of wider application. I would be curious to know if anyone has attempted such an exercise.

This year I will be undertaking restorative justice training at Victoria University under Prof Chris Marshall. This is a part-time evening course, and I hope to gain some insight into online applications as well as the wider training itself. I would be interested to receive feedback.

Tuesday, 17 January 2017

New Zealand Domain Name Disputes

The New Zealand Domain Name Commission has published disputed domain name decisions relating to the .nz space for many years. It was therefore interesting to read the three December decisions which while based on the New Zealand policy, will be no surprise to those who follow the UDRP decisions issued by WIPO.

The first two decisions were relatively routine because they were attempts to use well-established trademarks to register a domain name. In both cases the respondent did not take any steps to defend the claims, and it was inevitable that the names would be transferred back to the trademark holder. There appears to be a certain level of naïvety in relation to attempts to use such domain names, because whether under the New Zealand policy or under WIPO decisions for UDRP cases, a clear violation of the trademark will always result in a transfer. So it is the expected outcome that
ritzcarlton.co.nz, ritzcarlton.nz and wisesmaps.co.nz were transferred respectively to the Ritz-Carlton Hotel Company, L.L.C. and to NZ Directories IP Limited (publisher of Wises directories and maps).

The third decision in relation to a domain which is newplymouthnz.co.nz was actually defended. The principles used to decline the transfer and dismiss the application will be familiar to those who follow UDRP decisions. Mr Pulford, the respondent, had registered the domain name on October 10, 2003. The complainant, the New Plymouth District Council, owned a number of domain names which included newplymouthnz.com, and 6 other domain names, all of which resolved to their website. The council asserted that it had been using a website for at least 13 years, and the domain name was used on all their forms and stationery. Many local authorities appear to use the 2nd level domain of .govt.nz, so this council is a little unusual in its use of that name. Nothing comes of this  however.

Mr Pulford is a resident of New Plymouth and said in his response that he had previously used the domain name for a number of purposes including businesses which he had run in the city. The problem arose because he had some sort of disagreement with the council, and then directed the domain name to a website which included material which upset the council. The council claimed the material was defamatory and unauthorised. The website contained a photograph of a council employee and comments about several council employees and former employees. The council attempted to negotiate with Mr Pulford to ask him to remove the website content, but his response was that he had no intention of doing so would not stop using this domain name.

The council claimed that their business was disrupted because they could not set up a new website, which was delayed a few months, because the council was concerned that the public would access Mr Pulford's site rather than the official council site. This problem became exacerbated because Mr Pulford then changed the direction so that the site pointed to a pornographic website.

The very experienced panellist, Clive Elliott QC, gently chided the council for the quality of its submissions. He pointed out that a complainant must establish the requisite rights, and commented that he expected that they would have better articulated the basis on which the rights were claimed. He reminded them that the online forms stressed the need to provide supporting evidence of the use of an unregistered mark or of the reputation of the mark or name. He also suggested that because publication of previous decisions had been made for many years, this should help articulate any cases based on the precedents. This comment was necessary because he then went on to say that the council appeared to have assumed that because it was the local authority in New Plymouth, that this established the relevant rights in this domain name. He cited a number of DRS and UDRP decisions which make it clear that the legal authority of a geographic area does not have an exclusive right to that name, even though they may be able to claim a trademark. However in this case such evidence was entirely absent and no rights could be established in relation to this name. So it was not necessary to consider whether this was an unfair registration under the New Zealand policy.

In an interesting twist, even though he rejected the argument for the council, he did consider that the direction to a pornographic website may have been an unfair use of the domain name, in the sense of disrupting the business of the council, but for the finding that the council had no rights to the name anyway. So if Mr Pulford had restricted the redirection of the name to the website critical of the council he would have been on safer grounds. Although this comment would be considered obiter, or not binding as a precedent, it is something of a warning.