Re. OpenCon statement - update 4

This article represents the fourth update in a series regarding a public statement made by the organisation, OpenCon. Here are parts One, Two, and Three, each of which present an important piece into this ongoing saga. I am continuing to make these correspondences a matter of public record in order to provide as much documentation and transparency into the nature of the incident (from my side), and as a matter of accountability. You can find this latest full response from OpenCon here, without my comments.

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Dear OpenCon,

Thank you for your message.

I would like to reply to a number of your points as I do not feel they accurately describe the situation. They are also deeply inconsistent with your previous correspondences with me on this matter. I will continue to make these correspondences publicly available until this incident is resolved. As before, my responses to your comments are inline below in bold.

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Dear Jon,

We write further to our previous correspondence on this matter.

In 2018, we questioned you about a report that had been made to the Code of Conduct committee regarding an allegation of sexual harassment that was made against you. You admitted to that sexual harassment, and you acknowledged that it was not acceptable.

For the sake of clarity and as you will understand, sexual harassment is unwanted behavior of a sexual nature which violates someone's dignity, or makes them feel intimidated, degraded or humiliated. It is not what is intended, but how the recipient feels that is the test.

However, we should note that the sexual harassment in this case could quite equally be capable of meeting the definition of sexual assault as set out in part 1, section 3 of the UK Sexual Offences Act 2003, in short, touching another person sexually without their consent.

You confessed to the behavior in question, and you also accepted that such admitted behavior is a breach of the Code of Conduct. As a result, we informed you that you would be removed from the OpenCon community and disallowed from participating in future events in-person or online. These are all possible sanctions that are permitted by our Code of Conduct, which you agreed to be bound by when you registered for OpenCon in 2016, and you accepted those sanctions when confronted with the report of your behavior. We were under no obligation to keep the news of your removal from the OpenCon community confidential.

You have said before that your motivations for the ban and public statement were based around ‘multiple incidents’, yet now you refer specifically only to one from more than 3 years ago? Could you perhaps explain this contradiction and inconsistency to me, because it lies at the heart of the issue here?

Furthermore, additional information has come to my attention since our last exchange. On October 15, 2018* (i.e., one month before you banned me from OpenCon), you published an article stating the following: “Following the 2016 OpenCon meeting, we became aware that OpenCon’s code of conduct was not supporting the community in the way we feel is necessary. We heard informally that behavior that violated our code of conduct and negatively impacted participants had occurred, but we were unable to confirm key details surrounding the specific behavior and the individuals affected. No reports were filed by participants that year (or previously).”

Given that the last OpenCon I attended was in 2016, does this mean that zero formal reports have actually ever been filed against me? And that the only reporting was done long after the last event I attended and up to two years later, informally and possibly anonymously, hence the substantially delayed timing of your privately notifying me of your awareness of the incident and the subsequent ban? And that all of your actions were based on these informal reports with “key details” missing and unconfirmed, outside of your formal CoC reporting process? Is this why it is still taking so long to find the relevant details that you need to justify making such a harmful public statement (i.e., ‘the statement’) about me three years after this one incident happened?

In November 2018, as we've already covered, I did admit to a non-specific allegation that you recounted to me. I have already mentioned that your description was non-specific and therefore I assumed it was the incident that I have previously related to you. I confessed to the behaviour that I was aware of, by assumption. This was necessary because of the almost complete lack of relevant information you provided to me. However, again the non-specific nature of what you told me makes it very hard to confess to something specific.

As before, I have stated exactly what my past behaviour for this isolated incident constituted. One time at OpenCon 2016 I touched an individual inappropriately while dancing and inebriated at a public party, by running my hand down their side. I considered the individual in question to be a friend and colleague, but clearly over-stepped a boundary. It was not my intent for this in a ‘sexual’ way at all, but it was still a stupid mistake and should not have happened. I have never denied that or tried to hide the fact. You are correct in asserting that I felt that action was unacceptable, and I still do. Shortly after the incident, the individual I interacted with sought to address the issue directly with me. We resolved and closed the issue, moved on, and continued to interact as colleagues for some time after. I remain grateful to this day that they did this, and gave me the opportunity to apologise and learn from the incident. Admitting our mistakes, publicly when necessary, and striving to grow from them is how we mature into responsible adults as part of a healthy society.

That one act to which we both now refer does not constitute sexual assault, as per the same Act you mention (UK Sexual Offences Act (SOA) 2003). I would advise you to consider the linked Explanatory Notes of any UK Act that you are considering to avoid drawing inaccurate conclusions. The Explanatory Notes for the SOA are freely available online here.

Two years after this incident, you decided to intervene, even after I informed you that it had been privately resolved. The other individual did not need your intervention, presumably did not request it after such a long period of resolution, and was more than capable of dealing with my stupid drunken antics without you. Did you involve the individual I interacted with in your decision-making process? Not only was your intervention unnecessary, but also completely undermined and degraded the mature and compassionate behaviour of that individual that led to the private resolution of this incident. That you then made a public statement illustrating your personal intervention on this matter, while wilfully and explicitly ignoring the prior actions of that individual, is a classic example of moral grandstanding.

Although I respect the anonymity of the person who reported this incident, I doubt that the report regarding this 2016 case that was filed much later on was actually by the person I interacted with. Given recent events, I have a strong reason to believe that it was filed by someone who was not directly involved in this situation and was simply a witness. It is hard for me to understand how the supposed motive of ‘protecting the victim’ was fulfilled by their substantially delayed action, as well as your own. It resembles more of an attempt to target me personally, rather than for any form of justice. With this in mind, did you check the validity of any reports made against me? At this stage, I am still yet to see any evidence, or even information about the evidence, that you presumably have, in order to justify the statement. Was the other individual even aware that a report involving them had been filed, or were the event consulted, so long after the incident and its resolution had taken place?

You are in no absolutely position to try and redefine or reinterpret the law. By your view, any interaction or behaviour that could be interpreted by anyone ‘sexually’ constitutes sexual harassment or assault, even if those behaviours are not directed at them. In the latest version of your CoC, you explicitly define “sexual harassment” to include such minor behaviours as “Looking at someone in a way that makes them uncomfortable”, relying on increasingly diverse and minor ‘infractions’ to justify its existence. In doing so, you dilute the precision and legal definition of the term to render it essentially meaningless and useless, especially given the enormous complex realities surrounding human interaction. Your views and actions here are exceptionally damaging to victims of serious sexual misconduct by equating all of these behaviours under the same blanket terminology, and sets a dangerous precedence for the future of any community that you are part of, or lead. At the present, it seems like your behaviour is more aligned with someone with political motivations and virtue-signalling, rather than a genuine intent to protect or empower women.

You also state that “We were under no obligation to keep the news of your removal from the OpenCon community confidential.” Can you please provide me with a copy of the 2016 CoC to which I agreed, and where it states this? The version I can see that is publicly archived says nothing about this sort of sanction. In fact, your own public statements seem to indicate that you added the following element to your CoC in October 2018, one year before you made the public statement, and two years after the incident: “In certain circumstances, we may disclose that a named individual has been removed from the community; however, we are unlikely, as organizers, to disclose the detailed specifics of a report in order to protect the identity of the person making the report and respect their privacy.

I did not attend OpenCon 2018, did not agree to this version of the CoC, and therefore it does not apply to me. I did agree to the Open Con 2016 Code of Conduct, and the sanctions by consequence, but did not agree to a delayed and vague public statement about myself and my actions being released. Is it now the case that attendees at OpenCon must adhere to all future versions of the CoC, including any sanctions you choose to retroactively impose upon them?

You have complained about the announcement, which was made on our website www.opencon2018.org on 31 October 2019 (the 'Statement'). The Statement read as follows:

"The OpenCon Code of Conduct Committee has decided to remove Jon Tennant from the OpenCon community and disallow his participation in future OpenCon events—in-person or online."

Your correspondence makes several assertions about possible legal claims against OpenCon and a number of its members. Although you promise to "illustrate" these claims with "public documentation", you have not set them out in any detail. Where possible, we have provided a response to your perceived claims in this letter. Where your threats of claim against individuals are made without basis, they could well amount to further incidents of harassment.

Your correspondence appears to allege, inter alia, that the OpenCon Statement is defamatory and breaches your right to respect for a private and family life under Article 8 of the ECHR.

For the record, we deny that the Statement is defamatory. The Statement is true - we note that, although you have suggested that the Statement carries some possible "innuendo" meaning, you do not say what this meaning might be. If you wish for a response in that regard, you will need to set out the false innuendo meaning that forms the basis of your claim.

I have made no ‘threats’ against individuals, or against OpenCon. What I have done is civilly notified you of the laws that you are culpable in violating, of which there are many, and the damage that you have done, which is great. Apologies for not setting out the potential legal actions against OpenCon in detail, I thought I had. To be clear, if legal action is taken, it will be on the following grounds:

  • Withholding information from a data subject regarding a claim, not withstanding your right to conform to confidentiality requests (ICO and GDPR);

  • Violating my privacy (Human Rights Act (HRA));

  • Not conforming to your own Code of Conduct with consistency, both in respect to your treatment of myself and also your response to how OpenCon members have behaved.

To be clear, I am still asking OpenCon for information on the allegation(s) you have against me. I of course understand the need to withhold any party of this information that would identify the person who made them. As I have noted before I have already filed a case with the ICO (Information Commissioners Office) to obtain this information due to your ongoing inability to comply with the recommended GDPR and Data Protection Act guidelines.

Applying Hanlon’s Razor, I have extended to you a courtesy that you did not to me, and have not assumed malicious intent with your statement. However, I refuse to believe that you were naïve enough to think that making such a public statement would have no ramifications. I have given you ample time and opportunities to demonstrate your intent. However, at the present, I am still waiting on you to provide me these answers.

I have also told you directly on a number of occasions that, as a direct consequence of your public statement, several individuals have made defamatory statements about me in public. Because your public statement was so vague, it allowed others to fill in the gaps with their own interpretations, virtually all of which were radically different from the truth. I have also recently become aware that at least one of these individuals has been privately attacking me within the OpenCon community since at least February 2018. Whether or not this is related to the strange timing of your ban and public statement currently remains obscure to me. That same individual continues to make violent defamatory public accusations against me, with the explicit intention to cause me reputational harm, and these are still being shared extensively within the wider community.

These statements included severe accusations of being a sexual predator and rape, which you did not deny or counter any of. Your silence on this matter in public implied that that you validated each one, given the context in which they were made around your statement. Your silence on this matter to me personally when I have discussed them with you in private implies that you believe these accusations, and have already cast your judgement, as demonstrated by your subsequent actions, or lack thereof. I first alerted you to this fact almost 3 months ago now, and that the impact this was having on my physical and mental health was severe and traumatic. To this day, you have ignored this completely.

My points about 'defamation by innuendo' were not related to your statement, but the other directly related comments on Twitter (which you did not correct). Here, I am again at a loss, as you have now confirmed that the ban and statement is about one specific, minor, and isolated incident, and yet have allowed these individuals from your community to express stronger and far more severe claims. Your statement, when you shared it on Twitter, facilitated every single one of these accusations, and their associated losses and damages. Hence, libel by innuendo. That is, unless you want to make an explicit statement that OpenCon does not support or endorse those related accusations made by other members of your community.

Stating publicly that I intend to take legal action against individuals “without basis” does not even come close to constituting harassment. It is actually so far from harassment that I have been pushed to take legal action to defend myself, and I am surprised and quite worried that you have written this. In addition, the 'threats' are not without basis. As you should be aware, most UK Acts have in them an 'out of court resolution' stage, part of which encourages complainants to take steps to settle out of court. Warning someone of intended legal action is part of out of court resolution. I gave OpenCon notice that these proceedings were being initiated, to give you the opportunity to explain to me whether there was a relationship between these individuals and their false accusations, and the nature of your own behaviours, or not.

Over a period now of more than 3 months, your statement and the associated defamatory accusations statements have motivated countless public interactions as a direct assault on me. I have informed you about the numerous serious negative impacts of this on my personal and professional lives, which have only worsened since then. This is an unequivocal example of targeted harassment against myself, and violates a number of cyberbullying laws, as I previously related to you. Defending myself from that using appropriate legal mechanisms is obviously not harassment.

Allow me to clarify something critical here. I was not making idle threats “without basis” about taking legal action against those specific individuals and their defamatory publications, and have now initiated relevant legal processes. After three months, you have taken no action against these behaviours, and indicated to me that you refuse to accept any responsibility in facilitating them. As a direct consequence of this apathy and inaction, and the fact that these behaviours continue unchecked, I have been forced to pursue appropriate legal routes.

The first step of this is to attempt to resolve these incidents with civility out of court; in this case, this has entailed me sending each of those individuals who made criminal allegations against me in public a formal cease and desist letter. Each of these letters includes thorough documentation of their numerous libellous statements, substantial evidence that their statements are completely false and misleading, and evidence for the combined losses resulting from their actions (along with your own). It also gives them the chance to publicly apologise for their lies, as well as an opportunity to participate in a mediated and protected forum to discuss these issues further, should they wish.

We also deny that the Statement breaches your right to respect for your private and family life. There is no reasonable expectation of privacy in the information contained in the Statement, so there can be no claim for a breach of your Article 8 rights. Even if there were an expectation of privacy, the Statement goes no further than is necessary in the circumstances and its publication is fair, accurate, and justified in the public interest.

I do not think I have implied that the OpenCon statement is defamatory; indeed, it is so vague as to not possibly be defamatory, but your point about it breaching Article 8 of the HRA is correct. It may be that the initial release did not breach Article 8, but that your response in seeing how it was received, and not removing it, was the breach.

I am not sure what you mean about 'reasonable expectation of privacy in the information contained in the statement'. The HRA operates from a perspective that all rights are assumed, and claims are made when they are broken or if an organisation is in violation of them. The opposite is to suggest that I expected you to publish the statement online, which I did not. Indeed, you only notified me after the fact, and I was never made aware beforehand that the statement existed or would be made public. The accuracy of the statement does not constitute a basis for publicity. 'In Public Interest' also does not make sense in this situation, unless you wish to elaborate further.

We hope this resolves some of your questions.

Regards, Nick

Yet again, your message resolves none of my questions, which I have communicated now to you very specifically on a number of occasions over an extensive period of time. I continue to await your specific responses to these questions, as well as all others which I have since raised and you have avoided answering.

Without diminishing my responsibility in this isolated incident and for which I have made amends and apologised to the concerned person, it seems to me your actions here are tantamount to using a nuclear weapon on a fly. I await to hear your motivations and justifications for the damage you have done to my life.

You have still not responded meaningfully to my legal request for my personal data, instead simply sending me details of my own applications to OpenCon. Your behaviour here would constitute a bad joke, if it was not so harmful. As before, I am awaiting the data that I have legally requested, or at least a time-frame in which you intend to provide it to me.

Regards,

Jon


*Please note, this originally incorrectly said October 30 2018 and provided the incorrect link. This has now been amended.