by Paul Alan Levy
GDS Publishing, a New York company that puts on seminars and published magazines, has threatened to take down the consumer commentary web site 800Notes.com for having allowed its would-be customers and its former staff to post warnings about its business practices. But instead of simply suing in New York, or threatening to sue there, GDS has hired an English firm to send its cease and desist letters and to threaten to initiate litigation in England. If the firm is serious — and the sloppiness with which it has handled the matter suggests that the job may not have drawn its full attention — this could be the first application of the libel tourism bill that was enacted earlier this year.
On several occasions, a GDS executives has written to Julia Forte, who operates 800Notes.com, complaining about specific postings. On some of those occasions, Forte decided that the postings violated site policies and removed them. Without agreeing generally to removal of anything to which GDS objected, Forte invited the GDS manager to report posts that he deemed abusive so that she could decide whether or not to remove them.
Shopping a libel threat to England
This response was apparently not enough for GDS. It hired a law firm to threaten Forte with a libel suit, and to demand that she preserve any identifying information she might have about the posters of critical posts. In an apparent effort to avoid the constitutional and statutory protections for free speech and for the hosting of online comment, however, it was GDS’ English parent company that hired the lawyers, who duly threatened to sue Forte in England.
This choice may not have been a wise one. For one thing, Forte has no assets in England and she is not subject to being sued there. A suit against Forte in England can affect her if GDS gets a judgment and then enforces it in the United States.
But US enforcement of such foreign judgments would be forbidden by the recently enacted libel tourism law, the SPEECH Act. This new law doesn’t just protect against judgments procured without meeting the high First Amendment requirements for libel judgments against the authors of allegedly defamatory comments. It also protects the hosts of web site message boards against being held liable for the content of messages that third parties post to message board.
Gillhams Solicitors -- a study in careless work
The choice also seems questionable because the English lawyer that GDS hired, Leigh Ellis at Gillhams solicitors llp, hasn't been very careful. He apparently got Forte’s email address from the 800Notes WHOIS record but copied it incorrectly, and so sent his complaints to the gmail address of a New York lawyer named Julia Forte, instead of to the North Carolina resident Julia Forte who runs 800Notes. New York lawyer Forte told Ellis that she had nothing to do with the web site and that he had the wrong email address. Instead of re-checking the email address, Ellis decided to escalate the conflict by writing to SoftLayer Technologies, the hosting service from whom Forte gets her server space. He faulted Forte for renouncing responsibility for 800Notes even though the WHOIS plainly showed that she was responsible for it. His letter referenced several explanatory attachments that were not, in fact, sent.
Of course, SoftLayer is also protected by the SPEECH Act, and in fact in passing the
letter on to me, SoftLayer remarked on the SPEECH Act’s protections. Irony alert — it was a threat of litigation by a different English firm against SoftLayer, based on criticism of a cellphone seller on 800Notes, that inspired me to suggest that the libel tourism bill include a specific provision requiring compliance with section 230 before judgments against interactive computer service providers could be enforced in the United States.
I have explained to Ellis in some detail the reasons why neither Forte nor SoftLayer can be held liable for defamation, and how section 230 protects them as well.
Gillhams Claims Copyright Protection for Its Correspondence Threatening Litigation
Ellis, apparently, embarrassed by my explanation of his mistakes, has threatened a copyright claim against me if I publish his correspondence.
Of course, the posting is fair use, even apart from the technical flaws in Ellis’ claim. This sort of foolish threat did not earn John Dozier any plaudits from the public, and I have explained to Ellis how wrong he is, on a technical level as well as based on copyright law.
Ellis says that his clients have reserved their rights to sue for my publication of his letters and emails. I invite Ellis to bring suit here in the United States and show us that he is right. Ellis is also invited to use the comment feature to reply.