Having just seen a demand that WWDC adopt a formal Code of Conduct for its attendees this year (rdar://25791520 if you want to dupe it, though please give this post a read first), I thought I’d write a little to express my thoughts about the Code of Conduct phenomenon (in more than 140 characters, since that seems somehow inadequate).

Let me start by saying that it has always been the case that most conferences reserved the right to eject you if you were in some way disruptive. As private events, they’re within their rights to do so (at least in Common Law countries), and if they have the appropriate wording in their Terms & Conditions they may not even have to refund your money.

Let me also say that I am not in favour of allowing harrassment or other bad behaviour by conference attendees, and I realise that there will be situations (e.g. where there are children present) where the organisers might want to draw attention to the fact that attendees should keep to their best behaviour.

So what is this Code of Conduct thing about? Well, a fair overview is this FAQ by Ashe Dryden, and there’s an example of the kind of thing we’re talking about on this website. To save time, I’d recommend that you go and read those now, then come back if you’re still interested in what I have to say.

OK, you’re back. So why would anyone object to these things?

Necessity.

We’re grown-ups, right? We should all, by now, know how to behave around other people, and for those who don’t, we already have a set of rules that we’ve collectively agreed upon that cover the worst kinds of harassment and bad behaviour, namely the law, plus — as I already mentioned — most conferences already reserve the right to remove you if you’re being disruptive.

I accept, for what it’s worth, that some people might find an explicit set of rules reassuring. Others, me included, do not. Quite the opposite, in fact, for reasons I’ll elucidate below.

Natural Justice

It’s commonly asserted that a problem with leaving this up to the law is that the police “don’t have a great history of responding positively”, that complainants may not wish to involve the police and that as a result it might be better for conference organisers to deal with things themselves.

Except… conference organisers are not trained to deal with these types of situations. A lot of this is going to boil down to one person’s word against another, and it’s very easy to allow your own personal biases to determine your response. Police officers are trained not to do that (not always successfully, for sure, but they are at least trained); of course, that does sometimes make people unhappy when they complain to the police, because the police don’t seem to believe them — but that’s a misunderstanding. The function of the police is not to believe or to disbelieve, but to investigate, and where there is evidence, to bring it before a court for prosecution.

That courts of law require high standards of evidence — at least in Common Law countries — is undeniable, and that’s because we’ve collectively agreed that the principle should be that people are innocent until proven guilty.

This is particularly important in some of the areas we’re concerned with here, because of the reputational impact on people subject to allegations of sexism, racism or (worse) sexual assault, and the notion that the response to allegations of that nature might be decided by conference organisers on the basis of a low standard of evidence, without any right of appeal, really worries me.

I know it’s also asserted that “false accusations are… incredibly rare”. I’m happy to believe that. But there is a whole grey area of allegations that might seem true from a certain point of view that isn’t necessarily shared by all parties, and there are even situations where the accused and accusing parties simply don’t know themselves what happened.

Out-of-Venue Activities

Ashe Dryden asserts that a “code of conduct should apply to any event where your attendees may congregate”. This seems generally problematic.

Certainly there are situations where conference organisers might need to get involved; I accept that. But it seems hard to justify extending the Code of Conduct to all activities outside of those organised by the conference organisers.

So, for instance, if someone misbehaves in a bar right outside the conference venue, where there are a lot of conference attendees present, it is totally appropriate for conference organisers to have words with that person. Or, actually, for anyone present to have words with that person. But unless they have broken the law, or upset the bar owner, you won’t be able to ban them from hanging around in that bar, even if you kick them out of your conference. And, furthermore, to the extent that you feel the Code of Conduct may constrain their behaviour, it certainly won’t if you have invoked it to bar them from the rest of your conference.

Equally, it seems preposterous to argue that the Code of Conduct should extend to a shopping trip to a supermarket half way across town. Or to e.g. a group of attendees who decide to visit a strip club (not my cup of tea, but some people clearly enjoy that kind of thing, and it’s very likely effectively banned in the code of conduct you were thinking of using).

And then there are all kinds of questions about whether the Code of Conduct protects people who are not conference attendees at all, or indeed how it protects people who are conference attendees against those who are not (hint: it doesn’t).

Scope

What should be banned? http://confcodeofconduct.com suggests that “harassment includes offensive verbal comments related to… technology choices”! So you could, in theory, be evicted from a conference for making rude remarks about PHP (or, I suppose, for calling someone an idiot for using it). That seems a step too far, for sure.

In fact, while we’re about it, what constitutes an “offensive verbal comment”? Does it have to meet a reasonable person test? Would it be inappropriate to reproduce the cartoons of the Prophet Mohammed? In all circumstances? Are you sure? Does the whole of the community agree? Or if not, does everyone agree to compromise somehow?

And what exactly is “harassing photography”? Some people are very sensitive about having their photograph taken (even accidentally), and others much less so. Who decides? Is there a right of appeal? How many photographs does one have to take before it becomes harassment?

It’s also worth reflecting that quite a bit of that code of conduct would ban many well-respected and enjoyable comedy acts outright.

Again, please don’t misunderstand — I am all for conference staff taking someone aside and explaining that they’re upsetting someone, asking them to please be sensitive to that person’s concerns, and even if necessary warning them that they will be ejected if they continue with their behaviour. What I’m trying to tease out here is that there is a lot of subjective judgement involved, and attempting to codify this in a Code of Conduct is fraught with danger.

Legal Certainty

You might think that having a Code of Conduct would create some legal certainty for organisers when they do decide to act, but if they use the one at http://confcodeofconduct.com they could be in for a nasty shock. For instance, as it’s currently worded, it bans “offensive verbal comments related to… sexual images in public spaces”, rather than banning sexual images in public spaces as I’m sure its author intended. Granted, it says “harassment includes…”, so we can be certain that the definition is not exhaustive, but in cases where contracts are unclear, Common Law takes the view that they should not be interpreted in a way that favours the party that drafted them. My guess is that in court you’d find that they chose to use the legal definition of “harassment” (whatever that may be) and then added in anything in the “includes” list, in which case if you evicted someone for “following” and that person sued to recover their conference fees (and potentially travel and legal expenses), you might well find yourself out of luck and out of pocket.

Maybe that’s an argument for getting a lawyer to look over them, but IMO, it would have been much better to just put into the Terms and Conditions that the organisers reserve the right to eject attendees for behaviour that the organisers determine to be detrimental to other attendees or to the conference as a whole. I think you’d also want to make it clear what the procedure for doing that should be — who had the right to make the decision(s), whether there was an appeal process, under what circumstances attendees’ money might be refunded and so on. And on that subject, trying to keep hold of the entire conference fee whatever is probably a bad idea; the attendee’s credit card issuer is very likely to side with them, so if you’re going to try to keep hold of it you’ll only want to do so in cases where you have solid evidence of their misbehaviour.

Protecting “Unpopular” People

Some people may be unpopular, or may hold views that are unpopular. You can certainly discuss this with them in advance if you think it will be a problem, and ask them not to raise their unpopular views at your conference. If they aren’t relevant to the conference itself, they might even agree to that.

Anyway, there are two problems here; the first is that some people appear to claim that the mere expression of a view with which they strongly disagree is some form of harassment, in and of itself. Indeed, there have even been demands to ban certain people from certain conferences on the grounds that people are aware that (or think that) they hold certain views, even if they have promised not to express them at the conference.

The second problem is that unpopular people (or those with unpopular views) are far more likely to be the targets of false — or at least questionable — allegations. I don’t want to pick individual people as examples, so I’ll stick to generalising here: if a well-known feminist makes a joke about men, it’s quite unlikely that anyone will complain, and even if they do, quite unlikely that anyone will do anything about it. If, however, a similar joke about women was made by a man, I would expect there to be complaints, and I would expect that Something Would Be Done. (I’m not trying to be anti-feminist here; I’m just observing that, right now, at least in tech. circles, a fairly muscular form of feminism is popular, and making any remark that conflicts with or disagrees with that is not.)

It’s also worth reflecting that the first problem includes things like the views Roman Catholics or Muslims hold about homosexuality, which certainly for some people meet the definition of “offensive verbal comments related to sexual orientation”. While one might argue that people who hold those views should keep them to themselves for politeness’ sake (and indeed most do), if someone knows that they hold those kinds of views, they might be tempted to try to goad them into expressing them in order to trigger the Code of Conduct and get rid of those people from the conference.

The irony here is that the intention of advocates of Codes of Conduct is generally to protect minorities, but that in practice they may in some cases achieve the opposite.

Protecting the Expression of Unpopular Views (in some cases)

Sometimes it might actually be appropriate to prioritise freedom of speech over someone else’s right to not be offended. Sometimes it’s better to let people debate points of view that they may find challenging or even downright offensive.

I grant you that at most technology related conferences, this won’t be relevant, but I find Ashe Dryden’s assertion that this point can be addressed by stating that “free speech laws do not apply to harassment” overly simplistic, even leaving aside the obvious point that the United States Constitution, wonderful as it is, doesn’t actually apply over most of the surface of the Earth. It occasionally does all of us good to hear views we don’t like or agree with, even views we find offensive, if only because it makes us think.

(FWIW, I can imagine that this might become a problem if you wanted to have a conference talk or panel about gender politics in technology, which is something of a live issue at the moment; it’s very likely going to involve, one way or another, things that someone or other feels are “offensive verbal comments related to gender”. If you think not, imagine inviting e.g. Milo Yiannopoulos to debate with Brianna Wu, assuming you could get them to sit on the same stage.)

TL;DR

All of this is only my opinion, and hopefully I’ve explained above why I think this way.

• Organisers certainly should have procedures to deal with poor behaviour by attendees, or with situations where one attendee is upsetting another somehow.

• It would be wise to put these procedures in the Terms and Conditions.

• It would be wise to train conference staff to follow these procedures (e.g. insisting that they report complaints up the chain to organisers until they reach someone you trust to deal with them sensibly).

• Trying to codify what constitutes good or bad behaviour creates problems, and it’s probably better to use very general language in your Ts & Cs, instead of trying to write an explicit Code of Conduct.

• If someone breaks the law, or is alleged to have done so, you really should consider letting the police deal with it, whatever your opinion of their effectiveness might be.

• Attendees outside of your venue will be exposed to people who are not at your conference and are not subject to your Code of Conduct at all anyway (this potentially includes anyone you kick out for violating your Code of Conduct). As such, Codes of Conduct do not “protect” attendees. At best, if carefully drafted, they may protect conference organisers from future lawsuits.

• Whether you have a Code of Conduct or not, you should consult a lawyer to avoid creating problems for yourself down the road.

• There is nothing wrong with telling your attendees you expect them to behave themselves, drawing to their attention the fact that there are children present, telling them that you expect them not to stream pornography over the conference WiFi and so on. This is not the same as having a formal Code of Conduct.

Still TL;DR

Codes of Conduct mainly protect the conference organiser (and only if they are carefully worded); they don’t protect attendees. Defining what is and is not acceptable is hard, and boils down to subjective judgement anyway. Better to put procedures in place, stick them in your Ts & Cs, and train conference staff appropriately.