NEWS
Britain: Billionaire battleground
26 May 2011
BY JUDITH TOWNEND

A US-based billionaire is using English courts to force American online publishers to expose the identity of users. Judith Townend reports

The High Court has given permission for an American hedge fund manager to serve disclosure orders on three US-based online publishers.

Earlier this month Mr Justice Tugendhat ruled that the operators of WordPress, Wikipedia and the Denver Post could be served with the forms, known as Norwich Pharmacal orders (NPO), in the US — by email.

The billionaire claimant, Louis Bacon, founder and chief executive officer of Moore Capital Management LLP, with offices in both the US and UK, was represented by 5RB barrister Matthew Nicklin, instructed by the London based law firm Schillings.

According to the Guardian newspaper, a spokeswoman from Schillings said that the case was brought in the UK high court rather than a US court, because Bacon had pursued a similar case against a UK-based website host, justhost.com, in 2010.

Bacon claims that the sites have published defamatory material about him, submitted by various anonymous users, including “gotbacon” and “TCasey82”.

Bacon, who was born in the US and owns residential properties in London, the Bahamas and in Colorado, is worth $1.7 billion according to the Forbes World’s Billionaires List, which lists his wealth at number 736 overall and at number 261 in the United States.

According to the Forbes entry, updated in March 2011, Bacon moved back from London to Long Island in New York, where he owns “luxury” properties, including 145-acre Robin’s Island in Peconic Bay. It reports he recently put his property in the Bahamas on sale at $35 million.

Bacon’s estate, Point House Lyford Cay, has proved a goldmine for scandalmongers. In 2010, 54-year-old Dan Tuckfield was found dead (from natural causes) in the financier’s hot tub and Bacon’s “unseemly slanging match” with his neighbour, fellow billionaire Peter Nygard has garnered a string of lurid headlines. In separate proceedings, the hedgefunder and the Canadian fashion mogul are suing each other in the Bahamas Supreme Court. The neighbours’ feud has been at the centre of much online speculation. During a police raid of Bacon’s estate officers confiscated speakers directed at Nygard’s property. According to the Tribune, a Bahamian daily newspaper, Bacon’s estate claimed the acoustic devices merely redirected noise emanating from Nygard’s property and the country’s Minister of National Security later denied speculation they were military grade ultrasonic speakers.

Bacon wishes to use the Norwich Pharmacal orders, named after a House of Lords case in 1974, to force the site publishers to disclose user names, addresses and IP addresses so he can pursue defamation proceedings.

In the judgment, available online, Mr Justice Tugenhat acknowledged: “The difficult question raised by this application is: can a defendant domiciled in the United States of America be served by means of email with a claim form issued in England?”

The judge, without disclosing details of the allegedly defamatory material, found Bacon’s case “passes the threshold of being a good arguable case in defamation” and concluded that civil procedure rules allowed him to order service on the US defendants.

But, he added: “In future claimants should put before the court evidence as to whether that method is permitted by the law of the country in which the claim form is to be served (or a good reason for not doing so), since if it is, service by an alternative method will be unnecessary.”

The Denver Post LLC, publishers of the Denver Post newspaper and its site, and Wikimedia Foundation, the publishers of Wikipedia, could not be reached for comment. Paul Kim, VP User Growth, Automattic, Inc., which publishes WordPress told Index on Censorship:

Our standard response to subpoenas is to forward them to the affected WordPress.com users and give them 10 days to decide if they want to attempt to quash the subpoena.

If they decide not to fight the subpoena, we will release the requested information as required by law.

Automattic has since confirmed that it has “not released any data and are requesting a US subpoena before doing so”.

In correspondence the Wikimedia Foundation said:

Per recent coverage of this issue in the Guardian, you will see that the Wikimedia Foundation has indicated it would comply with an order that is served in the US.  In this case, we have received this order in the US, and we will comply.  We do not typically recognise foreign subpoenas unless we determine there is a serious threat to life or the safety of an individual or group.

We’re not able to comment further on this or other legal situations, however we can say that we take legal matters seriously.  We will comply with requests to release information when we are legally required to do so.

The ruling is timely, as questions are raised about whether Twitter, based in the US, will disclose the identity of users who appear to have contravened the terms of numerous anonymous privacy injunctions obtained in UK courts.

Judith Townend is a freelance journalist and PhD candidate based at City University London. Her blog meejalaw covers digital media law

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