A quick at look at the website of Schillings, the legal firm responsible for the [temporary] removal of Bloggerheads et al turns up a number of case studies that are particularly illuminating as to what they reveal about the manner in which the firm operates.
Take, for example, this illustration of how they dealt with a group of animal rights activists.
Animal rights activists claimed that our client was supporting testing on animals. The activists threatened to publish the names and addresses of all our client’s shareholders (many of whom were individuals) on a website with an exhortation to third parties to pressure the shareholders to sell their shares. Our client, a major plc, wanted to protect its shareholders, and its own reputation.
Within 5 hours of being instructed, we obtained a “John Doe” injunction preventing anyone from publishing the shareholders’ details.
Working with our client’s communications team, we ensured the injunction was widely publicised so the activists could not claim they did not know about it.
We served the injunction on ISPs and search engines meaning that they would have to take down any information posted by the activists.
None of the information was ever published.
The obvious opening question is that of whether or not the unnamed company actually does support testing on animals, Schillings doesn’t say, which makes it difficult assess the merits of the activist’s proposed actions in terms of whether they legitimate cause for protest.
Next there’s the question of this business of having obtained a list of the company’s shareholder, which I would came directly from Companies House and is, therefore, a matter of public record.
So the grand plan here, which brought the company out swinging was to publish the contents of a public document with the suggestion that people visiting the site might like to write to a few of the names on the list suggesting that they might wish to offload their shareholding in the company, in response to which Schillings state that the company wished to protect its shareholders and its reputation, which is fair enough if the contention that it supports animal testing is false, but not if its true because that would then be no more than a matter of concealing the truth for the general public.
All of which brings us to Schilling’s preferred solution, which is blanket pre-emptive strike to preclude anyone from publishing the shareholder’s details – does that include Companies House, not to mention the various on-line credit reference agencies and other business information providers who might carry information identifying particular individuals as holding shares in the organisation.
No doubt, Schilling’s justification for this course of action is the risk of harassment, and yet nothing that the activists appear to be proposing is either unlawful or, necessarily going to lead to these shareholders facing undue harassment, what they’ve obtained is a global gagging order on the premise that there’s a possibility that someone might be harassed, which seem akin to arresting someone on the wait out to the pub because they might get drunk and be a bit disorderly later in the evening.
Case study number two is no more encouraging:
Our client was a multinational mining company. It won a hotly contested bid for rights to exploit an African ore field. One of its unsuccessful rivals, in an attempt to derail our client’s contract, placed false stories in local newspapers and websites that our client had paid massive bribes to secure the contact. An influential European-based industry blogger picked up on these stories and called our client with a view to getting its side of the story before publishing. If the blogger ran the story it would get picked up in the mainstream and trade press. What could they do to stop this?
Working in tandem with our client’s PR advisers we held numerous discussions with the blogger. We persuaded him that the story was untrue and stemmed from someone with an obvious axe to grind.
The blogger realised he wouldn’t be able to defend a defamation claim and so decided not to publish the allegations.
Similar discussions were held with local websites who also refrained from publishing the claims.
So we have false claims of bribery being pitched to local African newspapers by a disgruntled competitor and a responsible blogger taking the time to check his sources before he posts anything.
So far so good, in fact on the face of it there appear to be two possible stories here, the one about allegations of bribery and the other about a dirty tricks campaign mounted by a rival. One, the company would obviously not like to see in the print, the other would dump on the competitor from a great height, so you’d think their interests would lie in getting story number two over, even at the expense of disclosing that they had been accused of bribery.
But no, instead the bug guns are brought out to kill the story completely – and noticably, nowhere in the case study does is state that the company took any legal action against the newspapers who printed these allegedly false stories.
Now I don’t know about you, but to me the account given in the case study fails to give the impression of complete innocence on the part of the client company that Schillings would no doubt prefer you to take away from it, because having been falsely accused of bribery by a competitor, most people’s instincts would be to wheel out the big guns in order to get a bit of payback by exposing their rivals dodgy business practices, not try and hush the whole thing up completely, which rather creates the impression that something in all this is a tad lacking in versimilitude.
Then there’s the case study that one or two other bloggers have hit upon.
The internet attacker
Our client was the founder and CEO of a financial services company. An anonymous source created a website which accused our client of assault, various financial crimes and unethical behaviour. We suspected that the source was a disgruntled former business partner, based both in the USA and the UK, but we could not initially prove this.
The internet is not lawless. All the laws that apply to traditional publications apply, plus new regulations have been created. In this instance we:
Applied to Court for a “Spartacus” order requiring the source to identify himself or his ISP and webhost to identify him; and
Contacted the host, ISP and various search engines advising them that even though the allegations had physically been posted in the US they were defamatory under UK law as they could be accessed here
Search engines and ISPs removed the material.
Once the source was outed and starved of the oxygen of publicity, he quickly settled to avoid a defamation claim.
They make it all sound so simple. However from my experience of dealing with US-based ISPs and search engine providers I have to question quite the extent to which this case study presents an accurate account of the sequence of events, because that experience suggests that its actually much more likely that the source of information was the first to cave in, having been identified by the ‘Spartacus’ order, after which ISP’s and search engines would have responded by removing the material in question.
Freedom of speech is particularly sensitive issue over the big pond and few of the big hosting companies and, especially search engine providers, are inclined to back down to a threat of litigation in the UK courts without it first being established that a libel has actually occurred, either by way of a judgement or by the defendant settling out of court. Being seen to shoot first, as has occurred with Fasthosts in this current case, is a damn good way for a hosting company to see its customer base begin to rapidly dwindle over the pond.
Of course there is the possibility that the account given is correct, but that’s likely only if the alleged libels were of such an obvious and egregious nature that it was entirely evident that there was possibility of protection under the First Amendment.
What’s most noticeable here is that in none of these case studies does it appear the assertions given by Schillings about their client’s good reputation and standing were actually put to the test before a court.
Yes, they did go to obtain the John Doe injunction in the first case study, but the nature of the injunction suggest that the application was not contested. In the second case study all the action is out of court and based on threats of litigation, so we’ll never know whether this is entirely on the level and, of course, even if ity is, in jealously protecting its own reputation, the client company has also concealed from its own industry press, any information about the alleged dirty tricks campaign it was subject to by a rival.
This raises a rather intriguing possibility. What would happen if, on being outbid for contracts by a different company, the company that Schilling claims spread false stories about its client, pulled same stunt again, only on this occasion the allegations were picked up and published in the industry press before the big guns could be wheeled out to kill the story.
Is there not the possibility that out second hypothetical victim might be in a position to argue that by killing the first story, Schilling’s client might be liable for some of the damage they’ve incurred because concealing information, in this case, has meant that the company was not forewarned of the risk and, therefore, in a position to prepare accordingly?
Whether that would fly in court is open to question, but it would be damn interesting to see it if would.
And, of course, the fact that case study number three, the source settled out of court to avoid a defamation claim does not, of itself, prove that the information they posted was definitely untrue or defamatory. They could quite easily have settled simply due to their being unable to sustain the costs of a case or because, even if what they alleged was true, they lacked the documentary proof to back up their claims under a burden of proof that requires them to prove the truth of the information they provided, while the plaintiff need only deny everything and prove nothing.
Libel lawyer’s websites… they leave a nasty taste in the mouth.