Smoke and Mirrors

One of the more notable (and sensible) silences in the blogosphere around the time that the whole Usmanov issue kicked off was, of course, that of Paul Staines (aka Guido Fawkes) who – to credit him with a modicum of intelligence – wisely chose to lie low rather than pipe-up and risk re-opening the sorry tale of how, for all his bluster and defiance about libel on his own blog, he went running to his own lawyers like a rat with its arse on fire when a number of bloggers got wind of an Guardian article about one of his [allegedly] less salubrious adventures in student politics.

Be that as it may, I did spot this post over at Guido’s a short while ago, which (as a techie) I found more than a little curious.

Geek Note : Service Interruption Possible

Guido is doing a full dress-rehearsal of his host mirroring system today. There should be no noticeable interruption to the blog. The Californian server’s 70 megabytes of contents were mirrored on a back-up server in an entirely different legal jurisdiction yesterday.

The intention is to switch servers seamlessly, see how it performs under the traffic load, then switch back to California – without losing a single comment. Isn’t technology wonderful?

So anyone thinking of wielding a legal hammer, better get a bigger hammer.

And the purpose of all this is?

You see – for those who don’t know – Guido hosts his blog on the Blogger platform, which is owned by Google and based (serverwise) is Southern California – the relevance of which will become plain in a moment.
Now, other than as a routine backup, the only real reason any blogger would have for going to thetime and trouble of setting up a blog mirroring system of the kind he describes is if you were somehow concerned that the kind of stuff you’re posting is likely to get you hammered with the kind of ‘takedown notice’ that resulted, in the Usmanov case, in the ISP that hosted Craig Murray’s blog (plus Bloggerheads, Bob Piper, and Boris Johnson) pulling all the sites offline and cancelling the account they were hosted in.

Now it’s perfectly reasonable to worry about that if you’re hosted in the UK, or anywhere else in the EU, where such notices are, if not, enforceable at least leave ISPs and hosts open to getting sued for libel over your content. But if you’re hosted in the US – as I am, and Blogger certainly is – then such notices are a complete irrelevance as they’re both unenforceable and US law (specifically s230 of the Communications Decency Act) ensures that ISP cannot be sued for libel (or anything else for that matter) over the content of a blog they only host and have no input into.

So there’s absolutely no reason whatsoever to use such a mirroring system if you’re hosted in the US, because the only thing you could use such a system to try and get around doesn’t apply to US-hosted blogs.

In short, it looks to be the usual over-hyped but worthless bullshit in much the same  way that Guido’s posturing about his Nevis registered off-shore company, which owns the copyright on his blog isn’t worth the pixels its written in UK law, as would-be litigants have the option of suing either (or both) the publisher or the author.

The Nevis thing might conceivably keep him out the firing line when it comes to the antics of some of comment trolls, but it won’t keep him out the mire if he’s the one who drops the bollock and lands himself a libel action and even this whole business of having to put up a bond in order to be able to sue a Nevis registered company may not hold up if he winds up in a UK court – there’s no guarantee that a such a legal requirement in Nevis law would be accepted or enforced by a British court.

I’m guessing that the purpose of all this is simply to try and deter potential litigants by making it look both prohibitively expensive to target Guido and suggest, at the same time, that he may not be worth suing due to lack of personal assets (which with Guido’s background are likely to offshored anyway).

Frankly if someone wants him badly enough, none of that will make the slightest difference under current UK laws and even if he has stashed his cash offshore, losing a case and winding up with a award of damages against him would only leave him the option of coughing up or playing dumb and finding himself on the way to a bankruptcy court.

For the bluster and bullshit, Guido’s no less at risk of landing himself in court than any of the rest of us, which is precisely why – on the few occasions he has been called out – his immediate response has been to run for cover and remove the ‘offending’ content.

  • John Lettice

    Mind if I just stick my oar in here? It’s perfectly feasible for a US publication or host to be sued here in the UK on the basis that the material is published to a UK audience. This happened to the WSJ a while back, and maybe it could happen to Google.

    Nor is hosting in the US entirely without disadvantages of its own. Claims of breach of copyright accompanied by a DMCA take-down are a ready route for suppressing stuff there, and you’ve also got the spooky stuff that means the FBI can go running all over your data and the host isn’t even allowed to tell you about it.

    Lovely world. There is no ‘safe’.

  • It is – as you point out – swings and roundabouts.

    What you gain by hosting stateside in terms of the 1st amendment are all too easily lost if you get into strife over copyright, plus there’s the good old Patriot Act, but in the specific context of libel the situation in the US is rather better than it is over here.

    While you can still be sued here even if publishing in the US, if you host over there you have the choice of whether to stand and fight or back down if you do receive a complaint, whereas the situation over here means that choice is too often taken away from you by the ISP under threat that it gets to take the legal bullet.

    There is – as you say – no safe but there are options to minimise your risks as much as possible.

  • Also, seeing as he doesn’t control the Blogger server or the DNS record, what he is proposing (something like either DNS-based or BGP hot failover) is technically absurd.

  • Although, I suppose, he could be referring to order-order.com pointing to either 5thnovember.blogspot.com or some.other.site, in which case he’d get back up as soon as the dns propagation completed.

  • That, with a wordpress blog and either its blogger import function running on a cron job or a bit of RPC code tossed into the template to do real time updates seems most likely.

  • GW

    Of course I am being cynical, bur I suggest that dodgy plaintiffs might find it easier, and more cost effective, to pay a chav or two to perform surgery on the bloggers fingers and wrists with iron bars.

    No legal recourse, but it might be far more satisfying !!

    Yup ! You and I can just see Guido trying to blog with his hands and arms in plaster casts.

  • I wonder if you read the comments. There was this rather interesting exchange which may go some way to explaining his intentions:

    Legal Eagle said…

    How does the location of your servers effect your personal legal position Guido? You can still be sued as an individual or be prosecuted for contempt regardless so long as you personally remain on these shores.

    Guido Fawkes Esq. said…

    Examine your premises.

  • Perhaps this commendable desire to make sure that a backup of Guido Fawkes’ blog could be rapidly available in a different legal jurisdiction was prompted by his Schhhh, Ssshhh, Schillings post the day before, in which he posted a photo naming the minor Royal involved in the alleged blackmail case, although this was by no means a “scoop”.

    If Guido Fawkes had been subjected to the same sort of Schillings / Usmanov shyster threats, would you have rallied to support in the same way a for Craig Murray, Time Ireland, Bob Piper, Boris Johnson etc ?

    Libel actions or threats of action are not the only real worries for
    UK political bloggers.

    Guido Fawkes actively solicits “whistleblower” tips etc. from Government insiders. Guido could potentially fall foul of the complicated new “encouraging or assisting” inchoate offences, which have been introduced in the new Serious Crime Act 2007, which, for some reason abolished the ancient Common Law offence of incitement.

    These specifically apply to the Official Secrets Act, behind which the Government hides so much that is politically embarrassing, under false claims of “national security”, or even, these days, under the mask of “health and safety”.

    The same applies to all the bloggers who promised to publish the “Blair / Bush memo”, and to the increasingly rare profession of investigative journalism.

  • Hello Ministry

    Just to let you know that that passage you let me use by permission …

    Its up at http://www.biologicalfeatures.blogspot.com

    I’ve put a link back to you( well I will be doing the moment I edit it) so please go and have a look

  • Good point, WTWU.