from the where-to-start? dept
So, we're always interested in hearing about other similar threats, and here's a doozy that gets more ridiculous the further you read. It starts off with just such a libel tourism attempt, but then devolves into a true comedy of threats and errors, involving misaddressed threats, ridiculous claims of confidentiality and implied threats of copyright lawsuits on publishing the letters that reveal this comedy of errors. Make sure you read through the whole thing.
It starts out with a NY-based company, GDS Publishing, who was apparently upset about the complaints about its telemarketing practices found on the website 800notes.com, specifically calling out the NY-based phone number (212 area code) used by GDS. After GDS complained to Julia Forte, who runs the site, she removed the comments that violated the site's terms of service, but left plenty of the other (non-violating, but still complaining) comments up, which GDS apparently did not appreciate. It then had a UK law firm threaten to sue her in the UK under UK libel laws. Now, it is true that GDS's parent company is based in the UK, but Julia and 800notes are in the US, and thus protected by Section 230 and the libel tourism law. And, while it doesn't even matter, given 800notes' status, this was about actions by the subsidiary, which is incorporated in New York, and all of the actions and complaints concerned that NY company (using a NY phone number).
Already, this seems like a classic case of over-aggressive lawyering, perhaps from someone unaware of the SPEECH Act, or from someone who simply hoped to intimidate an American website into compliance. However, the story gets even more ridiculous. First, the lawyer in question, one Leigh Ellis of Gillhams Solicitors LLP in the UK, apparently made a typo when copying the email address of Ms. Forte from the whois page for 800notes, resulting in him sending the initial complaint to a totally different Julia Forte (who happened to be a lawyer) based in NY, rather than the 800notes Julia Forte (who happens to live in North Carolina). Oops.
After the NY lawyer Julia Forte told Ellis of his mistake, rather than recognizing that he made a mistake, Ellis appears to have both emailed the same (wrong) Julia Forte again, and interpreted the email from the NY lawyer Julia Forte to mean that the North Carolina 800notes Julia Forte was denying her association with the site -- even though the NY lawyer Julia Forte told Ellis that he had the wrong email address. So, instead of correcting the mistake and emailing the correct Julia Forte, he sent a letter to 800notes' webhost, SoftLayer Technologies (pdf), claiming that the content on 800notes was defamatory, and saying that Forte "has informed us that she is not associated with the Website," and asking SoftLayer to confirm that Ms. Forte really is the account holder, and also demanding that SoftLayer take down the content GDS doesn't like, or face defamation charges itself.
Ah, the comedy of errors. Of course, it was the wrong Julia Forte who accurately denied being associated with the website. The correct Julia Forte has no problem standing behind her site. Thankfully, SoftLayer is well aware of the legal issues involved here, and well aware of Section 230 and the SPEECH Act that protects it, as well as Julia Forte, so it passed along the letters to Forte's lawyer, Paul Levy. If only the comedy of threats and errors ended there. But, it did not...
Levy responded in great detail to Ellis (pdf), highlighting the specific legal realities of Section 230 and the SPEECH Act, as well as detailing Ellis' own mistakes in emailing the wrong person. You should read the letter. It gets better and better as it goes along (or just skip to page 3):
Of course, such things are simply not legally binding, leading Levy to (1) question whether or not Gillhams is charging GDS Publishing by the hour and (2) highlight how Gillhams appears to have misstated its own confidentiality clause and gotten confused over who might hold any copyright (and, thus, license-rights) to the letter in question. His response is here (pdf), though I'll restate the relevant paragraphs:
My question about whether you have been charging GDS Publishing by the hour is relevant because, in the criticism of your conduct that I am drafting for publication, I am trying to figure out whether your misadventures in trying to send correspondence to Forte, and your subsequent threats directed to SoftLayer, reflect only incompetence, or rather reflect an effort to run the meter at your client's expense. I'd be grateful, therefore, if you would respond to my question.As Levy notes in his blog post on the whole situation: "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."
Finally, I note your email referring to confidentiality notices that are contained in your emails. Even if the emails purported to forbid publication, such notices do not override fair use. Sad to say, however, you have misstated the fine print in your own emails. I invite you to re-read that text. The disclaimer says that the emails "may" contain privileged or confidential information, not that they do. I see nothing in the emails that merits treatment as either privileged or confidential in any event. Moreover, they instruct the recipients not to disseminate the emails if they are NOT the intended recipients. By negative implication, these notices tell the intended recipients that they ARE free to disseminate the emails. Your office deliberately sent the emails to me, thus effectively giving me permission to publish them.
Your letter also states that your "clients" are reserving their rights about the publication of your letter and emails. However, I see no reason to believe that your clients own the copyright in your letters. The owner would be you and/or your firm. If you choose to try to enforce the copyright by raising a claim of infringement, you will have to do so in your own name.