A dissection of the legal cart00ney

As you know, one of my upstream ISP's got a letter from an English solicitor threatening to sue them if this site was not taken down. So here's my take on their letter:

Upon viewing the sites evidence-eliminator-sucks.com, badtux.org, and badtux.net, it is immediately apparent that these contain material which is gravely defamatory of our clients.

FALSE. There is not, and has not been for some time, any material on badtux.org or badtux.net that even *MENTIONS* their clients. But then, all lawyers are professional liars.

Indeed it is apparent both from the name of the evidence-eliminator-sucks site and from its contents that the sole purpose for its existence is to conduct a defamatory campaign against the good reputation of our client and their product(s).

That assumes that their client had a good reputation. Which they don't. Their reputation is lower than a snake's belly, and sinking fast. In addition, their own lawyer doesn't know if they have one, or more, product(s)?!

Given that RHS is itself an internet sales company, you will appreciate that the existence of existence of such a site, whose address is thrown up every time a potential customer does a search for RHS's own web page and/or product, has a grave impact upon RHS's trading reputation and goodwill and is undoubtedly affecting sales of its products.

Wow, great endorsement of this site, TLT Solicitors! I'm glad to hear that I'm affecting sales of RHS's products. If they quit acting like irresponsible paranoid freaks and started acting professional, maybe that wouldn't happen, but whoa, they're Brits in the new world order, act responsibly? Act professionally? No way, they just want to sue everybody else for the consequences of their irresponsibility!

As for their trading reputation and goodwill, their trading reputation and goodwill is about the same as for any other spammer -- i.e., lower than a snake's belly. All I do is point out their actions, such as spreading browser hijack viruses around, spamming the USENET on a regular basis, and threatening people with jail if they don't buy Robin Hood Software's bloated spamware.

This site also contains material personally defamatory of Mr Churchill. It is also causing grave damage to the personal and professional reputation of Mr Churchill.

What "personal and professional reputation"? How can you damage something that doesn't exist?! Mr. Churchill's reputation is as a paranoid conspiracy-theory-seeing spammer nutcase. That is apparent from viewing the contents of his very own website. If Mr. Blow of TLT Solicitors wants to sue someone for harming Mr. Churchill's reputation, he needs to sue Robin Hood Software for posting paranoid-delusional rantings!

You will no doubt be aware that you are considered to be a publisher under English law of defamation [...](see Godfrey -v- Demon Internet Ltd [2001] QB 201).

Uhm, no. The publisher of the site is BadTux Enterprises, with a known fixed address of P.O. Box 10083, Scottsdale, AZ 85271. The ISP in question is no more culpable than the phone company. Not a single byte of my site resides on one of their servers, and not a single byte of my site has *ever* resided on one of their servers. All they do is accept bytes on one ATM connection from U.S. West, who is my actual Internet connectivity provider, and forward bytes to another ATM connection. They are no more the publisher of my web site than the backbone provider that hauls it across the Atlantic to the UK. This is totally different from the Demon Internet case, where Demon Internet refused to remove a post criticizing Lawrence Godfrey from one of their own servers. Under English law, an ISP is responsible for the contents of their own servers. But under no stretch of the law could the Demon Internet case be extended to stuff that isn't on the ISP's servers, and, indeed, isn't even connected to the ISP's network other than in the ISP's role as a forwarder of packets from one ATM connection to another.

As for the possibilities of enforcing a U.K. decision upon a U.S. service provider, good luck. The United States has exercised its sovereignty rights here. Just a little legal note before we begin: The applicable U.S. law is the Communications Decency Act of 1996, and, specificationally, section 230(c), which reads (in part): "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Given that the information originated on my own network, not on theirs, this would appear to give them Section 230 immunity from prosecution in a U.S. court. Applicable case law would be Zeran v. America Online, Inc., which was affirmed by Gucci America v. Hall Associates(2001), which specifically lays out that Internet service providers are immune from tort action for libel or other tortable offenses that do not originate from employees of the ISP, except insofar as said actions involve intellectual property (in which case the provisions of the Digital Millenium Copyright Act with its takedown notices etc. applies).

In other words, under U.S. law, the original takedown notice was purest bullshit. There's ample case law such that any 1st year law student could have it thrown out of any U.S. court "with prejudice" (i.e., cannot be re-filed again) at the initial hearing.

Unless this site is removed within the next 48 hours we have instructions to commence legal proceedings in the UK for defamation against you.

Cost your clients more money, you mean? Given that any judgement in a U.K. court isn't going to be enforcible in the U.S. because it violates U.S. law, you won't be able to collect a plugged nickel. All you're going to do is cost your idiot clients more money.

Your clients could have gotten rid of the site by just agreeing to my settlement offer -- take all mention of myself off of their site, and I'd take down the evidence-eliminator-sucks.com site. They refused, and hired a solicitor to make groundless legal threats. So be it. All that you have accomplished by your irresponsible threats is to further harm your client by making sure that this site is mirrored at five or more sites all around the Internet, beyond my ability to remove it even if I desired to do so. I should file a complaint with your local legal board that you have harmed your clients' interests.


John Bryant
Last modified: Tue Jul 22 13:03:01 MST 2003