Guido is wrong here

Some fool lawyer in The Times this morning claims that this blog is published everywhere in the world where it can be read. So presumably she thinks the North Koreans, Chinese and Iranians have legal jurisdiction over this website – as if Kim El John can suppress foreign press reports. There are no physical assets in the UK, there is no digital equivalent of a printing press, no device that can be seized or smashed. All the authorities can do is block access to the server, in the same way that China and Iran block access to the truth. Web users point their browsers at a server in the US and fetch the data back, we do not store published content in the UK.

Carter-Ruck have now instructed Johnsons, a Dublin law firm, and are threatening proceedings here in Ireland, which if they were to happen we would endeavour to fight. Courts in both California and New York have ruled that foreign court judgments involving free speech can be enforced in the United States only if the foreign nation recognises absolute free speech values compatible with the First Amendment – which guarantees that Congress shall make no law abridging the freedom of speech, or of the press. Guido may have to travel to the US to inspect this website’s servers…

The law is indeed that it is where a story is read that matters, not where it was published. Long standing principle too.

52 thoughts on “Guido is wrong here”

  1. No….but an Irish publication which is available in Britain is breaching that injunction in Britain.

  2. They probably can’t “forbid publication”; but they can enjoin the person who put the information up to take it down again, and being found in contempt of court as an individual is not all that fun.

  3. My memory and I’m not a lawyer so don’t take my advice is that it is not the reading that is the problem, so the lawyer is wrong as she claims reading a postcard from Ireland would infringe, but that your computer takes a bunch of bits and “publishes” the page on your desk. Therefore it is published in England on behalf of the foreign writer.

    But I may be wrong…

  4. Irrespective of whether he’s right or not, I think he’s more saying “I’m over in Ireland, you can’t get me, so piss off”.

  5. Isn’t Guido already effectively barred from ever setting foot in the UK by previous examples of much the same thing? In that sense he’s right, as long as he doesn’t do so there’s nothing that the E&W courts can do.

    By the by, having checked what is being superinjuncted here, and leaving aside general objections to the concept, this does seem like one where if we had reasonable privacy laws it would be a criminal offence to report the (non-hypocritical) private activities of consenting adults.

  6. As raised in the comments there, who goes to prison if someone buys a copy of a Scottish newspaper in Scotland and leaves it on a train heading for England?

    And there remains the question – what can anyone actually do about it? The great thing about these superinjunctions is that they are all a bit Streisand.

  7. It is not “published” in England.

    Thro’ the net we are able to look at something that has no physical existence anywhere.

    If I travelled to the USA specifically to read about the antics of this “mystery” couple (I wouldn’t cross the street but for the sake of argument…) the libel law would have zero power.

    On the Net I have travelled electronically to a place outside ordinary space (if not time). I have (electronically and with the swiftness of the wings of thought) journeyed to a place outside the UK to gather the intelligence I seek.

    If for example the French were daft enough to create giant bollards visible across the Channel at Dover giving the identities of these trouble-making homosexuals is that “publishing in the UK”?

    I think not.

  8. If Guido is dragged before the English courts would he be entitled to mention the details of the threesome as part of his defence? and could that be reported by the English papers?

  9. Surely anyone in the UK can read about this on foreign websites? Why would Guido be liable but those sites not?

  10. “Tim Worstall
    April 13, 2016 at 11:36 am

    No….but an Irish publication which is available in Britain is breaching that injunction in Britain.”

    But not in Ireland – where he’s based and where his assets are. And where that injunction has no force.

    The British court can do whatever they want – if the government of the ROI tells them to shove it (as the US government does in exactly these sorts of cases) there’s nothing they can do except drop their judgement and hope he crosses the wrong border when they’re paying attention.

    But – to say he’s breaking the law because the UK considers publishing differently than ROI is . . . a very American thing to do. And while my country is the greatest in the world (America FUCK YEAH! *awesome guitar riff*) these sorts of shenanigans have brought shame upon us – such as when we arrested a couple UK bankers because they were doing something completely legal where they were, but they didn’t take any effort to prevent Americans from (illegal in the US) gambling online.

  11. “MC
    April 13, 2016 at 12:35 pm

    Surely anyone in the UK can read about this on foreign websites? Why would Guido be liable but those sites not?”

    It all comes down to the ‘the courts have made their ruling, not let us see them enforce it’ thing.

    They probably think they have a good chance at convincing the ROI government to go along.

  12. “the British court …to say he’s breaking the law because the UK considers”: you’ve missed half the joy of this. It’s not a matter of Britain or the UK, it’s specifically an English court. The stuff has already been published in Scotland.

  13. The person in contempt of court is surely each individual ‘publishing’ the story on their own computer by viewing a foreign website.

  14. I don’t see how Tim’s original argument applies. If it did apply, then the injunction would have to be enforceable in Scotland also, which it clearly isn’t.

  15. How are the details of a superinjunction disseminated? They can’t be sent to every single local newspaper or magazine surely? So if one was to publish something that happened to be subject to a superinjunction then would a defence not be “sorry, didn’t know that such a thing existed?”

  16. Sounds like the time the US stole some money from a Danish cigar shop when it tried to buy Cuban cigars from a German. The transaction was in US dollars so the US decided to invoke its counter-terrorism powers.

  17. As Gareth, I think Guido himself is in The clear as he did not publish in England.
    However, anyone in England who accessed his blog has created a copy on their own computer, hence publishing it and are hence in breach of the injunction.

  18. My computer publishes nothing. It’s all virtual reality. It connects with a piece of hardware in a foreign country outside the jurisdiction of the English courts. Software then translates zeros and ones into English or another language. I then read the article but that is in the USA or ROI it is not on my hard drive. What I am reading is something that is physically in the ROI or USA. I can access it. But it is not published because it is ephemeral of itself.

  19. Glendorran, I think Guido specifically wrote that they’d been sent a copy of the superinjunction.

    I think the celeb’s lawyers send them out to a standard list of media types. What I don’t know is whether they specify who it is when doing so, otherwise I suppose the papers could claim they thought that was some other couple.

  20. GlenDorran raises an interesting point.
    Unless the injunction is served on me I have no way of knowing what I am forbidden from publishing. In this case I knew that some celebrity was alleged to have a connection with some exotic sex, but had no idea which one.
    Since celebrities having exotic sex are two a penny, how was I to know which one had an injunction to prevent publication?

  21. “I then read the article but that is in the USA or ROI it is not on my hard drive”

    Wrong – your computer HAS downloaded the article to a temporary cache. This can be erased (if you know how to), but it does exist, nonetheless. Little snippets like this are what forensic experts look for when equipment is seized after police raids.

  22. You can be imprisoned for viewing certain materials on your digital device. By downloading you are making. But it is not the publisher who gets banged up.

  23. Guido isn’t permanently in Ireland (unless very recently). I saw him in London a few weeks back, large as life, twice as fat, and insufferably pleased with himself, as ever.

  24. @Agammamon>
    “They probably think they have a good chance at convincing the ROI government to go along.”

    Good luck with that, seeing as we haven’t had a government for the last 7 weeks.

  25. Is it not a guiding principle that one should do whatever one can to frustrate and circumvent anything Carter Fvck require you to do?

  26. Bloke in North Dorset

    I think Tim D is correct, but IANAL, as that some Ryssian oligarch sued another one liable for an article that was published in England.

  27. Bloke in Costa Rica

    I think Paul Power raises an interesting point. The injunction does not apply to Scotland. A paper in Scotland has published the names and details of the case on their website. It is entirely possible—easy, even—for persons in England and Wales to view that website and discover the worst-kept secret in recent memory. Are the editors of that newspaper liable if they venture into England or Wales? If so, that’s fucking stupid. If not, then why should Paul Staines be liable as an Irish citizen, disseminating the information from Ireland? Is it one law for the big boys and another for bloggers?

    And let’s say a website tries to do geo-fencing. Say I’m physically in England, but I use an anonymous proxy in Latvia to view the site. Are the website operators still liable? Because if so, then the injunction has indeed become applicable globally, at which point it’s time to start killing judges and QCs.

    There is a long-standing principle in Common Law that when a statute becomes sufficiently ludicrous it threatens the entire legal corpus it is deemed void. It’s like cutting an infection out before it kills the host.

    Probably the best approach right now is for everyone in England and Wales is to do an “I am Spartacus” deal and publish the story.

  28. Bloke in Costa Rica, the Sunday Mail didn’t put the story on their website, only in the print version. That was how they they steered clear of the injunction.

  29. Dave

    “this does seem like one where if we had reasonable privacy laws it would be a criminal offence to report the (non-hypocritical) private activities of consenting adults.”

    Why don’t you give us a lost (I bet it’s a long one) of all the things people do of which you disapprove. You could try to make them.all illegal. That’s the idea here isn’t it; if you don’t like I take it illegal.

  30. “Alastair Harris
    April 13, 2016 at 2:37 pm

    You can be imprisoned for viewing certain materials on your digital device. By downloading you are making. But it is not the publisher who gets banged up.”

    This is a good point. If its considered ‘published’ because its on a computer in England, its not *Guido* who published it there but the guy who went and downloaded it. Guido didn’t ask him to. Guido just failed to stop this guy from doing so and I don’t see why Guido should have a duty to do so, especially for someone living in another legal jurisdiction.

  31. Gunker
    “April 13, 2016 at 3:01 pm

    @Agammamon>
    “They probably think they have a good chance at convincing the ROI government to go along.”

    Good luck with that, seeing as we haven’t had a government for the last 7 weeks.”

    Yeah, we haven’t had a government a couple times in my lifetime – somehow, even though open air parks and monuments needed to be sealed off, people still got arrested for federal crimes while the government was’ shut down’.

  32. “Bloke in Costa Rica, the Sunday Mail didn’t put the story on their website, only in the print version. That was how they they steered clear of the injunction.”

    Same with the National Enquirer. They prevented people in England from being able to access the US version of their site.

  33. @Tel

    Same with the National Enquirer. They prevented people in England from being able to access the US version of their site.

    I had no problem accessing National Enquirer from England and reading who it was – no proxies, VPNs or other “hacks” used.

    Weather yesterday was cold, wet and windy – a candle in the wind would be vulnerable unless protected from exposure.

    P

  34. The courts aren’t obliged to be daft. Guido’s site is aimed at a UK audience and everyone who cares knows it. His testimony to the Leveson enquiry is a matter of public record.

    I don’t see how there can be any action in Ireland, but he can be summonsed for contempt of court in England, and the summons can be served overseas. I suppose that sooner or later the courts would lose patience with his not turning up and order his arrest whenever he sets foot here. IANAL.

    Meanwhile, and digressing wildly, I read in Pink News that David Furnish thinks he should have a different title from hoi polloi, in the interests of equality.

  35. Well we know Tim knows everything about everything, but I assume that Staines has taken his own independent legal advice?

  36. Re SJW’s point “Guido’s site is aimed at a UK audience and everyone who cares knows it.”
    Does this thinking apply to the BBC World Service? Must English courts apply foreign censorship laws to it ? Its output is certainly aimed at other countries’ populations.

  37. Pcar

    I had no problem accessing National Enquirer from England and reading who it was – no proxies, VPNs or other “hacks” used.

    Care to share at all?

    I had presumed National Enquirer was checking IP blocks before redirecting to a separate page for UK consumption?

  38. Here in Ireland, the technical name for an overseas summons is ‘piece of paper’.

    Does this thinking apply to the BBC World Service? Must English courts apply foreign censorship laws to it ? Its output is certainly aimed at other countries’ populations.

    No one has to obey any court of law, except in so far as it has the power to force compliance. If Guido is willing to stay in Ireland, he can ignore English court rulings.

  39. France has strict privacy laws. Suppose the BBC World Service was thought by a French court to have broken one of them. And suppose a French judge issued a European arrest warrant for the BBC employees responsible. What should an English court do?

  40. Does anyone think that libel law needs an update for the digital age? Would this be better than frotting about tax, or Polly?

  41. PF

    Care to share at all?

    As posted on a similar thread a few days ago:

    google: national enquirer [words]

    words eg betrayed, cheated, cheating, [celebrity name], husband, pjs yma

    Click: Cached

    To demonstrate how ridiculous the injunction is:
    google: pjs yma

    Cached – also works for most UK Court imposed ISP blocked sites eg The Pirate Bay

    I had presumed National Enquirer was checking IP blocks before redirecting to a separate page for UK consumption?

    Correct

    Unusually, I feel sorry for the Beckhams as everyone I’ve asked thought it was Mr Beckham.

    P

  42. Pcar

    Got it – thanks…

    I don’t use google (I prefer Startpage or DDG), and the proxy / highlight options don’t quite work the same as “cached”.

  43. Well, I was getting redirected to the National Enquirer UK site every time. And now any sort of enquiry to Google involving this no longer brings up any Nat Enq results.

    I’m not disagreeing that it’s all ridiculous. I’m just pointing out that NE are obviously trying to play (or making a pretence at playing) by the rules, whereas Guido isn’t (and good for him).

  44. Pcar

    Actually, (for me) google.com simply redirects to google.co.uk (maybe IP blocks again?).

    Startpage is better in the sense that it’s a proxy in itself for google, and based in Holland I think(?), so google doesn’t know who or where the search is really coming from, hence no location based censorship on the results.

    From there, sure, a simple free (and separate) proxy for the site (such as NE) itself, but which takes nothing once you have one or two (different location proxies) tagged in favourites?

  45. PF

    You need to edit url to google.com a couple of times. Then google accepts it, or there may be a “Use google.com” link bottom right.

    Or: To force Google to stay at google.com simply type Google.com/ncr

    HTH

    P

Leave a Reply

Your email address will not be published. Required fields are marked *