Free speech is a funny thing. A lot of people are for it, as long as it’s for them. An awful lot of people lose interest in principles when someone says something they don’t like. And lots of people who say stuff use NearlyFreeSpeech.NET to do it. So it’s not in any way unusual for us to get complaints, or random demands to remove a web site. Some small fraction escalates to a sternly-worded letter from a lawyer containing such toothy admonitions as, “If you do not immediately comply and confirm to me that you have done so, I will be forced to advise my client to instruct me write to you again.” It rarely goes beyond that, because at the same time they’re writing to us, the good lawyers are explaining to their client that web hosts have federal immunity against that type of lawsuit. Some few do go ahead and threaten to sue us, either because they don’t know better or they figure maybe we don’t.
Some time ago, we received a couple of emails from a private solicitor in the UK. UK lawyers are always more fun because the laws are so different there. (See also “libel tourism.”) They don’t threaten to write another letter. They threaten to sue you for eleventy billion dollars and the kitchen sink if you don’t remove whatever-it-is and take out a full page ad apologizing in the London Times in the next twenty minutes.
But sadly these emails weren’t one of those. They included a copy of a UK injunction mandating the removal of information from a web site that was not hosted with us. The solicitor claimed that a copy of the site had been set up on our service, and insisted that the injunction applied to it as well.
The site in question is about a controversial UK government program, and allegedly — I haven’t seen it — contains contact information for government officials overseeing the program along with the exhortation to contact them to express opposition to the program.
The injunction, in turn, is truly breathtaking in scope. It bars “unknown persons” (i.e. everyone) from publishing the names and official work contact information for those officials. It bans posting instructions on how to find that information. It bans doing these things “anywhere in the world.” It warns that anyone (anywhere in the world) who does this or helps in any fashion will face fines and prison. And, perhaps the most disturbing part, it was issued after hearing only the government’s side. Nobody was present to represent the rest of the world (sounds like a great reason to name “unknown persons” as a defendant to me).
The scope and ex parte nature of the order really concerned us. Fortunately, the usual course of action is for the person who wants a foreign court order enforced in the US to bring it to the relevant US court and go through a process called domestication. That process allows a US court to review the order in the context of US law and, importantly, allows us to weigh in on whether an order ought to be enforceable on us. That hadn’t been done. So we let the solicitor know clearly and politely that domesticating the order in a court with jurisdiction over us would be the appropriate next step. The solicitor nonetheless persisted until we let him know that we did not have the resources to engage in ongoing debate about a matter which, in the absence of domestication, was purely academic. End of story? Not quite.
Today, we received a first for us, a letter from the actual UK Treasury Solicitor’s office, the branch of the UK government charged with suing people on behalf of the rest of the UK government. It largely mirrors the private solicitor’s letter, and was much like most other complaints we receive. Much like most other complaints, they demand that we remove the content they don’t like. Much like most other complaints, they offer a bunch of (generally poor) reasons why we should/must do what they want. Like the first solicitor’s letter, they included a copy of the injunction. Like the first solicitor, they have not made any effort that we are aware of to domesticate it with a court that has jurisdiction over us. What’s different about it is this paragraph, toward the end:
“However, should you choose not to assist us in this matter, we reserve the right to seek an enforcement order. This may result in significant costs, which Defra would seek to recover from you. We note from other correspondence which we have seen that you have ‘limited resources’ and we do not favour this action, given that it may put the very future of your organisation at risk.”
The official lawyers for the UK government are basically saying on official letterhead (even their own filename contains “Letterhead”), “Hey, we heard you’re small. Well, we’re the world’s 6th largest economy, so we can put you out of business with legal bills if you don’t play ball.” Now, it’s not super-unusual to see a lawyer say something menacing about how if they win, you’ll have to pay their legal fees — even though that’s often not true in the US. What’s different here is that they dropped “if we win” and added “we will ruin you.” Stating that if someone doesn’t cooperate, your strategy will be to run up enough legal bills to put them out of business whether you win or not is a little different. It’s the sort of thing you expect to hear from the smarmy thug lawyer for the big bad corporation in a formulaic TV legal drama. We don’t generally see it in the real world from the legal representatives of a developed country.
Fortunately, they heard wrong. Our excellent legal team is ready, willing, and able to vigorously defend us should the need arise.
So, the story so far is that we asked to have the proper legal process followed, and the UK’s lawyers threatened to destroy us. Despite this, we are refusing to censor our member’s site. We steadfastly believe we are under no legal obligation to do so, that we will prevail in any US legal action that arises from this matter, and that any attempt by the UK government to spend us into oblivion will fail. More news as it happens.
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