UMASS Center for Information Technology and Dispute Resolution

 

Executive Summary: Draft Proposal for Policy Revision and Dispute Resolution Mechanism for NativeWeb.org

I. Case background and Problem Definition

NativeWeb, http://www.nativeweb.org/, is a non-profit organization providing online opportunities for information dissemination and discussions about indigenous peoples’ issues worldwide.  Amongst other services, NativeWeb ran an interactive message forum[1] and provided hosting for discussion forums by registered NativeWeb users. Disputes[2] repeatedly arose in these discussion spaces, and the use of these spaces was eventually discontinued by NativeWeb.  NativeWeb sought consultation on strategy for re-opening the discussion spaces from the Center for Information Technology and Dispute Resolution, http://www.umass.edu/dispute, at the University of Massachusetts.  There were eleven cases submitted to the Center by NativeWeb.[3]  The Center focused its attention on three cases, specifically those that represent basic or foundational challenges to online discussion forums.[4]

 

NativeWeb reluctantly chose to discontinue use of their message board services due to a series of flames[5] that had become unacceptable to NativeWeb’s board of directors.[6] Discussions on these boards had escalated into arguments over native identity, some  ultimately resulting in threats of physical harm.[7] Members of the NativeWeb board agreed that this dialogue became unacceptable because of these threats and the general tone of escalating discourse.  Concerns also existed that NativeWeb might become involved in situations where it could be held liable for contributing to libel and slander. Finally, by allowing allegedly threatening speech to be posted NativeWeb might be potentially exposed to liability for contributory negligence.

 

Three cases from NativeWeb originated from message board use, and each involved attacks on personal identity and whether an individual or individuals “qualified” as native. The disputes began within discussions of topics considered acceptable and appropriate.[8] The nature of these discussions tended to be more rhetorical or philosophical rather than scientific or factual, thus any so-called correct answer was a matter of opinion. One example was the appropriateness of the contemporary use of the word squaw. This word has had many different uses and interpretations, some of which were deemed inappropriate by certain NativeWeb users. Since no satisfactory conclusion could be drawn in the topic being discussed, the participants, frustrated by a lack of having their opinion accepted as the opinion of all, would begin to personally attack other participants over the legitimacy of these opposing opinions, losing sight of the fact that the purpose of the discussion was to foster dialogue, and not necessarily to resolve questions and seek stipulation to answers.  Relative levels of native identity were proffered in attempts to justify the suggested superior position of an individual or individuals ideas within the discussion. Once these exchanges began, fights would quickly escalate to the point where NativeWeb decided they could no longer be tolerated.[9] While the other cases did not directly involve message board use, they inspired other questions and pointed out potential holes in NativeWeb policy that should be addressed as well subsequently. These cases were also useful in showing other sensitive areas of discussion that could possibly become problematic.[10]

II. Recommended Changes

The following elements are needed to properly shape a solution for NativeWeb:

1. Updated User Agreement:

The updated user agreement should establish rules for members during message board use as well as stipulate member rights and responsibilities more broadly. This policy would take the form of a fair use or terms of service agreement. Site membership will be contingent to agreement to this policy, and membership may be revoked for violation of policy in accordance with stipulated procedures.  The fair use or terms of service agreement specifies rules for membership and the procedures to be followed in order to meaningfully enforce those rules, including things such as assigning personnel informed on the specifics of the rules who are prepared to help address problems as they arise.  It does not speak to the structures and practices within NativeWeb for establishing the exact rule content or the mechanisms for proffering, ratifying, and implementing rule changes and additions.

2. Dispute Resolution Process:

The fair use agreement should include a dispute resolution process for situations in which policy was allegedly violated. It will be the responsibility of the users to understand the elements of due process afforded them by the policy, and should be fairly subjected to this process each and every time.  This process represents a dispute resolution black box, constituted by two prongs, each corresponding to the type of violation: concrete violation of policy, or violation of the spirit of the dialogue. All claimed violations will result in the substance of the reported complaint entering this box.[11] Once in the box, the complaint may be handled in one of two ways, one for allegedly clear violations of policy (black letter law) and the other for so-called gray area disputes – interactions that have not yet and might never breach the black letter law, but because a complaint was entered, perhaps users or moderators could invoke a non-compulsory dispute resolution process to let off steam. This second process would be strictly voluntary and designed to help users with no intent to cause trouble to avoid doing so. There would be no finding of guilt nor any punishment meted out as a result of participating in this process. NativeWeb will need to determine how to best implement this process, many mechanisms for Online Dispute Resolution are available and final determination of what would work best can be made by NativeWeb based on their perception of needs.

3. Mechanism for Policy Enforcement:

NativeWeb would also have to create a physical mechanism[12] for implementation of each stage of policy enforcement – specifically complaint handling and case management. As it specifically applies to the message boards, this policy would have to include some form of moderation. Moderation could be full time active moderation,[13] or based on a user initiated complaint process that will ultimately be developed by NativeWeb. The recommendation is to have moderators present, and to reserve the right but not the obligation to monitor all posts. If a moderator notices a problem as determined by NativeWeb and articulated in final policy, he or she may actively pursue a resolution within the confines of the discussion space, but mainly policy will be triggered through a user initiated process. An email address should be made prominently available that users could use to contact NativeWeb moderators regarding alleged policy violations or other problems. Users either involved in a dispute or outside users who observe a dispute should be able to invoke the process. All posts should be permanently archived in a log, even if they have been deleted from public view by a moderator. This will help NativeWeb investigate complaints.

III. Recommendations for Policy Enforcement[14]

1. Initial actions for processing complaints:

As soon as a problem comes to the attention of NativeWeb[15] a moderator should attempt to resolve the problem by highlighting the offensive[16] portions of text and explaining why they do not coincide with the nature of discussion that NativeWeb wishes to foster. NativeWeb should not simply delete posts immediately due to concerns with claims that NativeWeb is acting as censor and stifling free speech. If the text in question surpasses a threshold level of policy violation to be determined by NativeWeb, they should not hesitate to remove offensive text from public view in order to minimize legal liability; however, NativeWeb should go out of its way to leave text available whenever possible to allow for greater freedom of discussion. It would be ideal if text that must be removed is not removed until the dispute resolution process has run full course. There will be some inherent level of liability for any course of action NativeWeb pursues. It is up to NativeWeb to determine how the benefits of a free discussion may or may not outweigh the costs of increasing liability. For disputes that continue beyond the initial warning from the moderator and cannot be resolved by a moderator working directly in the forums, the resolution should proceed according to method described in the policy. This process would likely be facilitated through email, initially by a NativeWeb representative, and possibly concluding with direct communication between those involved in the dispute.

2. Handling complaints for text that does not clearly violate policy:

Some complaints will be filed for speech that does not violate the written law of the policy but falls into an area between speech that constitutes a clear violation and speech which is completely acceptable. An example might include a situation where someone is making vast generalizations about another group, and though unacceptable language and overt racism are not present, users may get the sense that a larger conflict will soon break out.  A moderator or user will report the potential for a problem through the standard process for lodging a complaint. If no policy has been specifically violated, it is recommended that the dispute be mediated by a multipartial mediator.[17] One possible course of action is that the mediator informs disputants of exactly why the behavior or speech may lead to further tensions, and offer them the opportunity to engage in a voluntary mediation process in order to resolve the proto-dispute and relieve some building tension before it becomes a full blown dispute. If policy has not been violated, no text should be removed during this process.

3. Mechanism to deal with individual established violations:

This part of the policy pertains to individual users who try to create problems within the message board system. If policy is violated and claims made, participants should be informed by email about the nature of the violation, specifically what portion of the policy was allegedly violated and how best to avoid this in the future – as well as steps to be taken with regard to the present instance.[18] In the event that they ignore the email and continue to cause disruptions, their account may immediately be suspended. This should be followed by another email accompanying the beginning of the suspension explaining the suspension and asking for a response. If no reply is received, the account should be reactivated after some set period of time, possibly 30 days. If at that time trouble persists and still no response or acknowledgment has been received, the account should be permanently deleted. If during any of these stages a response is received, and the policy continues to be violated, the account should be deleted immediately. Otherwise, offenders who respond and participate in an exchange with NativeWeb moderators should be offered the opportunity to explain themselves, and or apologize as well as assure the moderator of rehabilitation.

4. Mechanism for resolving a multiparty dispute:

For disputes involving two or more participants, where each person may ultimately be liable for violating policy, the same initial step should be made informing the users of the specifics of the violation. Any party who persists in the dispute should also be subject to the potential suspension and permanent banning of account privileges outlined above. If a dispute arises between two or more individuals that does not violate the letter of the law as outlined by the agreement, but still is offensive and unwanted on the message board space, NativeWeb should employ the previously mentioned methods for dealing with non-explicit violations.

5. Mechanism for dealing with repeat offenders:

A final scenario is that in which users comply with NativeWeb immediately when told they are allegedly violating policy but in the long term[19] repeatedly violate policy. In this case, upon crossing some threshold number of policy violations to be determined by NativeWeb, users may be permanently banned. Users will likely dispute this, therefore some appeals process should be in place.

6. Appeal Process:

Users should be allowed to appeal through email within 30 days of having their account suspended or removed. The appeal must show NativeWeb that the user was both unaware that policy was being violated, and that the intent of their contributions to the message board fell within what is allowed by policy, i.e. that the user believed he or she was following a legitimate thread of conversation and that the violation of the agreement was innocent and accidental. If the user is able to show this to the satisfaction of a NativeWeb moderator, with discretion fully in the hands of this representative, the policy violation can be discarded with regard to continuation of the user’s account. Failure to make a satisfactory appeal will result in the process moving forward as planned. Any user accused of any violation should have the right to make an appeal after NativeWeb makes a ruling. The appeal should be directed to a different person than the moderator who initially found the user at fault in order to be a fair process.

IV. Outcome

Once a more comprehensive user agreement is created, including a full policy regarding how disputes will be resolved, and a mechanism has been created for implementing the new policy, NativeWeb should be able to resume full use of its message board space with minimal future problems, and a greatly decreased risk of legal liability arising from problems arising within their hosted space.


 

[1] An interactive message forum is a web based application that allows users to carry out asynchronous conversations with each other by posting their thoughts in a forum and replying to the posts of others.

[2] Disputes here includes verbal arguments taking place both in the NativeWeb forums and through other outside mediums of communication, as well as threats of physical harm to participants and their families, and allegations that responsibility for previous physical harm fell on individuals involved in the dispute.

[3] Summary provided by NativeWeb in 2002 detailing the 11 cases – and the three specifically implicating discussion space content and practice.

[4] Primary cases from Dispute Resolution Summary of interest to this project were cases 2, 4, and 7.

[5] Flames are particularly aggressive online communications which tend to

[6] The process by which the board of directors determined acceptability was ad-hoc, and determined through consensus of the entire board.

[7] Language taken from Dispute Resolution Summary, further elaboration not available.

[8] There were at this time no predetermined standards for what constituted permissibility; however, the consensus of the board was that the discussions had previously been ok, but that they currently were not. The problem being addressed by The Center is where this line should exist, and how best to keep participants in the discussions from crossing that line.

[9] NativeWeb has not established a clearly articulated standard for what constitutes appropriate v. inappropriate discussions but rather determined on an ad hoc basis that such a distinction does exist, and that the discussions in question fell clearly on the inappropriate side.

[10] This proposal and accompanying policy is only intended to address issues arising from message board use. Other areas of potential liability encountered in the management of NativeWeb may not be covered by the policy drafted herein.

[11] Complaints shall be defined as reports made by users who believe that some policy has been violated or that they have in some way been offended as users.

[12] A standard of practices and procedures ultimately run by human beings working on behalf of NativeWeb.

[13] Full time active moderation is when there is a moderator constantly monitoring all posts, and each and every post is read either before or very shortly after it is publicly posted.

[14] All initial courses of action by NativeWeb should be subject to appeal by the alleged policy violator. The recommendation for an appeals process appears at the end of this section.

[15] NativeWeb will need to determine how it wishes to receive notice of problems, either through email or a web based form that can automatically forward offensive text as well as the location of the text and who wrote it. This will be a user initiated process, though at times a NativeWeb moderator may discover a problematic discussion firsthand.

[16] Text will be considered offensive if it clearly can be shown to violate some portion of the NativeWeb user agreement.  Some text may not clearly violate this, but will still cause discomfort for users. This will be referred to as text falling in the gray area and will be addressed later.

[17] A multipartial mediator is someone who is more than impartial because he or she can instill a sense of trust and understanding with all parties involved, rather than the cool detachment of someone who is strictly impartial.

[18] NativeWeb will need to determine what the proper course of action should be for punishing someone who is found in violation of policy.

[19] The length of this term should be defined by NativeWeb. Perhaps 2 violations per month is acceptable, perhaps 2 violations per year. This is a matter of practicality, and NativeWeb should define and redefine this as necessary.

© 2003 Center for Information Technology and Dispute Resolution