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27 May 2013 23:14

ChewbaccaD wrote:It doesn't have to do with the state, it has to do with the fact that I am writing in the United States and thus no UK court has personal jurisdiction for anything I write here. If I visit a country and make a statement that violates their libel statute, I could then be charged and tried as I would be on their soil. They could also make me pay before leaving I believe; however, If I made it back to the US without paying, I would still make a case in a US court for not enforcing the judgment because it is a violation of my constitutional rights to have my freedom of speech abridged in that manner. I looked into this a long time back when dealing with the Landis suit brought by the UCI, and I am pretty sure I found some cases that gave precedent for not enforcing a judgment from another country that is based on a law that violates the fundamental rights of a US citizen. I will look to see what I can find.


Your looking for the SPEECH Act 2010. As I thought, it's about enforcement. The key case is here.

Irrespective, a UK court can bring a case against me if they want, but if I made the statement or wrote it on US soil, no US court will recognize the judgment because there is no personal jurisdiction.


Wrong. they may not recognise it because of the Speech Act, and the First amendment. But it is not automatic, and in any event only creates a 'countersuit', which may or may not itself be mutually enforcable.

Personal jurisdiction is covered by a series of laws - the Brussels convention (ignore Brussels II, that's child support), conflict of laws/private international law, and 'choice of forum' laws. Ain't nothing simple about it.

It would only take about two pages (the header making up most of the first page) to get a case such as that seeking to enforce a judgment in a US court dismissed. I wouldn't even bother consulting another attorney before filing with the court.

EDIT: What I couldn't do is travel to the UK or any jurisdiction that would allow them service of process without the danger of being served and held. However, I would immediately contact the US Consulate wherever that is and let them deal with it because I still made the statement on US soil, and any suggestion the UK had personal jurisdiction would be complete bullsh*t that the US would never recognize.


Libel is not only committed where the statement is MADE, it is also committed where the statement is PUBLISHED. That's the problem.

Because where it is published includes, in the case of an internet site, anywhere in the world it is likely to be read and understood - most obviously jurisdictions that share the language.

And the US Consular services may well get you a lawyer, or even, in extremis arrange flights home - but they won't get anything kicked out of a UK court on the basis you've suggested. UK court won't give a damn.
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27 May 2013 23:18

Zam_Olyas wrote:So American as$es should be okay, what about the rest of us? :p :D Will there be The Clinic members defense fund?


Depends where you are. If you are in a European country, probably covered by the Brussels-Lugano procedures.

EDIT : Sorry, to be clear, the Brussels I Regime and its successors, including the Lugano convention.

A lot of other countries are covered by mutual treaties of recognition.
Sometimes, I wish all the bits of my life had an ignore button...

hrotha wrote:Following pro cycling is like reading A Song of Ice and Fire. You better not get too attached to any of the characters.


Opinions are a bit like a**eholes. Everybody has one, and they are often full of the same thing.
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27 May 2013 23:27

BroDeal wrote:I think I may have been slandered by Wiggins. How do I go about filing suit in the kangaroo courts over there?


Call Tim Herman.:p
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28 May 2013 00:19

martinvickers wrote:em...false. Again, see Sally Bercow.


I was referring specifically to a claim that legal action would be taken against specific members for allegedly damaging the reputation of Sky riders.

It would be fairly easy to defend myself on the basis that I adhered to the rules and regulations set by Future publishing and as such they were at fault, not I.
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28 May 2013 00:23

ChewbaccaD wrote:This is correct in relation to me. There may be countries that would enforce a judgment against a citizen of their country who made a statement on their soil about someone in the UK, but that country needs a new constitution if that is the case because they are providing sh*t protection to their citizens.


But even then the initial approach would need to be made to CN to obtain the IP address and user data of the member in question to establish which country they were a citizen of.

It cannot be assumed that because someone says they are from England that they are actually from England. (Saying that, it can also not be assumed that if they have an English IP address that they are from England).

Its possible they could go to court against the member first but they would at the same time have to obtain an injunction against CN to gain access to their user records.

Whichever way it is done, the logical route is to first approach CN/FP

1) Establish the usernames of the members adjudged to have committed libel.
2) File an injunction against FP to release the IP and details of those user members
3) Get embroiled with FP's legal team
4) Blame it on the moderators

As publisher of the comments, FP does have liability, and generally, but not exclusively action would be targeted at the party that could most afford to pay. As such, by publishing the comments (and not removing them) FP become liable (Truth New Zealand v Holloway - 1960) although US courts have failed to agree on this, Cubby v CompuServe found in favour of CompuServe saying they merely acted as a newstand and couldnt be held responsible for the content on the "shelves". On the other hand, Stratton Oakmont Inc v Prodigy Services, Prodigy were successfully sued for comments on a forum hosted by them.
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28 May 2013 00:28

martinvickers wrote:Your looking for the SPEECH Act 2010. As I thought, it's about enforcement. The key case is here.



Wrong. they may not recognise it because of the Speech Act, and the First amendment. But it is not automatic, and in any event only creates a 'countersuit', which may or may not itself be mutually enforcable.

Also note that the case you cited(http://adserv.stocksite.com/images/pubdocs/mmg/Florida_Final_Judgment_iHub_v_MMG.pdf) is not an appropriate case to address the facts we are discussing in any way.

Personal jurisdiction is covered by a series of laws - the Brussels convention (ignore Brussels II, that's child support), conflict of laws/private international law, and 'choice of forum' laws. Ain't nothing simple about it.



Libel is not only committed where the statement is MADE, it is also committed where the statement is PUBLISHED. That's the problem.

Because where it is published includes, in the case of an internet site, anywhere in the world it is likely to be read and understood - most obviously jurisdictions that share the language.

And the US Consular services may well get you a lawyer, or even, in extremis arrange flights home - but they won't get anything kicked out of a UK court on the basis you've suggested. UK court won't give a damn.


From your link:

Sec. 4102. Recognition of foreign defamation judgments

``(a) First Amendment Considerations.--
``(1) In general.--Notwithstanding any other provision of
Federal or State law, a domestic court shall not recognize or
enforce a foreign judgment for defamation unless the domestic
court determines that--
``(A) the defamation law applied in the foreign
court's adjudication provided at least as much
protection for freedom of speech and press in that case
as would be provided by the first amendment to the
Constitution of the United States
and by the
constitution and law of the State in which the domestic
court is located; or

[[Page 124 STAT. 2482]]

``(B) even if the defamation law applied in the
foreign court's adjudication did not provide as much
protection for freedom of speech and press as the first
amendment to the Constitution of the United States and
the constitution and law of the State, the party
opposing recognition or enforcement of that foreign
judgment would have been found liable for defamation by
a domestic court applying the first amendment to the
Constitution of the United States and the constitution
and law of the State in which the domestic court is
located.
``(2) Burden of establishing application of defamation
laws.--The party seeking recognition or enforcement of the
foreign judgment shall bear the burden of making the showings
required under subparagraph (A) or (B)
.



Here is some case law which forecloses any ability of the UK to enforce a libel judgment related to things said about Sky, Wiggins, or anyone else in the UK who is a public figure. You are a little off on a couple of important points.

Matusevitch v. Telnikoff, 877 F. Supp. 1 (D.D.C. 1995) aff'd sub nom. Matusevitch v. Telnikoff., 159 F.3d 636 (D.C. Cir. 1998)- Judgment was no "recognized where it was entered under libel standards that would be repugnant to the public policies of the State of Maryland and the United States and result in deprivation of plaintiff's First and Fourteenth Amendment rights."


See also:

Bachchan v. India Abroad Publications Inc.,1 the New York Supreme Court refused to enforce a libel judgment awarded in the High Court of Justice in London, England. The New York court ruled that although the United States and England share many common law principles, it would not enforce the judgment in the United States because English courts are not subject to the particular *301 requirements of the First Amendment of the United States Constitution.2 The New York Court ruled the right to free speech guaranteed under the First Amendment would be jeopardized if United States courts honored foreign judgments awarded without considering the protections granted by the United States Constitution.


With these facts:

Ajitabh Bachchan, is a well-known Indian national with connections to high officials in the Indian government. Bachchan brought suit for libel against India Abroad Publications Inc., a New York news service.4 Bachchan sued India Abroad for transmitting an allegedly libelous story to a news service in India.5 The defendant wired the story, originally written by a reporter in London, to a news service in India.6 The Indian news service then distributed the story to newspapers in India and copies of those newspapers were distributed in the United Kingdom.7
On January 31, 1990, India Abroad transmitted the story which quoted an article in Dagens Nyjeter, a Swedish daily newspaper, which reported Swiss authorities had frozen Bachchan's bank account.8 The Swiss account allegedly contained money transferred from a coded account in which Bofars (a Swedish arms company) deposited commissions used for kickbacks.9 Previously, Bofars had been charged with paying kickbacks to officials to obtain a large munitions contract with the Indian government.10 A variety of Indian and other publications connected Bachchan's name with the scandal of accepting kickbacks.11
In the London High Court of Justice, the jury assessed India Abroad 40,000 pounds in libel damages and attorney's fees. Bachchan sought to enforce the English judgment against the New York based India Abroad with a motion for summary judgment in the state of New York.12 India Abroad opposed entry of the English judgment on the grounds that it was granted without safeguards for freedom of speech *302 and the press required by the First Amendment to the United States Constitution and Article I, Section 8 of the New York State Constitution.


Notice that the transmissions went all over the world and still resulted in non-enforcement of the judgment.

And it isn't "may" its mandatory they do not recognize:

Two distinct subsections make up the grounds for non-recognition of foreign judgments in CPLR section 5304. Subsection (a) “is explicitly mandatory and precludes recognition of foreign judgments on certain constitutional grounds, i.e. if the procedures pursuant to which a foreign judgment was rendered are not compatible with the requirements of due process of law....”17 Subsection (b) grants the court discretion and states that a foreign judgment “need not be recognized if,” inter alia, “the cause of action on which the judgment is based is repugnant to the public policy of this state.”18 The Bachchan court noted that even though subsection (b) of CPLR 5304 purports to allow the court discretion, if the judgment was awarded under foreign laws which do not meet United States Constitutional standards, the court is compelled to reject the judgment under subsection (a).19 Therefore, if the judgment was obtained under laws repugnant to the First Amendment, subsection 5304(a) mandates non-recognition of the judgment.

Limitations to the Enforcement of Foreign Judgments in Libel, 19 J. Contemp. L. 300, 302 (1993)


In this instance, we are talking about "public figures" as defined by US case law as: (note that Sky and Wiggins or any other rider would be considered "public figure[s]." If you want the case law on that, let me know.)

New York Times Co. v. Sullivan. In Sullivan, the Supreme Court ruled that in order to safeguard freedom of speech, public officials are to be held to a higher burden of proof in defamation cases than private citizens. In order for a public official to recover for defamation, the official must show by clear and convincing evidence that the statement was published with “ ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” The Supreme Court required this higher burden of proof because of a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” The Sullivan Court reasoned, “erroneous statement is inevitable in free debate” and should be protected to allow freedom of expression to have necessary “breathing space.”


So you completely fail the Sullivan test (note the burden of proof is on the accuser, NOT the person who made the statement like the idiotic UK laws--that BOP being that you have to prove I knew the statement was false. Good luck with that as it is an almost impossible standard to overcome), and will not see a single cent of judgment because the judgment CLEARLY repugnant to our constitutional freedoms. No way around it.

As for jurisdiction, I was incorrect about that. I did not realize that the transmission MIGHT give personal jdx, so I'd still fight it. I should have consulted that attorney I said I wouldn't...
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28 May 2013 00:35

Libel Defence

A person can claim defence that - he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement

By posting on CN within the CN Terms and Conditions, on a heavily moderated forum, it would be a fair claim to make that you had no reason to believe your comment was defamatory.
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28 May 2013 00:39

martinvickers wrote:Libel is not only committed where the statement is MADE, it is also committed where the statement is PUBLISHED. That's the problem.

Because where it is published includes, in the case of an internet site, anywhere in the world it is likely to be read and understood - most obviously jurisdictions that share the language.

And the US Consular services may well get you a lawyer, or even, in extremis arrange flights home - but they won't get anything kicked out of a UK court on the basis you've suggested. UK court won't give a damn.


But for a suit to take place there is required to be a common ground.
a) The nationality of the publication
b) The residence or nationality of the person alleged to have caused defamation
c) The residence or nationality of the plaintiff

Jurisdiction has to be established, and this is not always possible. For instance, who holds Jurisdiction over a Brit, alleged to have been libeled, by an American posting on an Australian hosted forum?

There was of course the recent case where Jimmy Hill sued, not the fans making the comments, not the owner of the forum, not even the users ISP's but the websites main sponsor, Courage.

On that basis, if you have any issue with anything written on the forum, I suggest you sue the rather attractive young lady who apparently lost 3 stone in less than a month.
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28 May 2013 01:04

It does cut both ways.

I'm sure Sky wouldn't want Ashenden being called as a witness.

Or deposing Sky cyclists about various activities.

Or a subpoena for blood profiles.

Skybots can control a forum. They can't control a court of law.

They'd have a hell of a time not allowing Ashenden testimony or coming up with a reason not to provide blood profiles.

Wiggins did state that they should be made public.

Or maybe you'd just show the jury a video of Froome. Before and after.

Perhaps place a set of scales in the court room. Have the Sky cyclists weight themselves. That would be interesting.

God. It would never even get that far.
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28 May 2013 03:17

ultimobici wrote:To the first bolded statement, what the hell has that to do with anything except to be offensive?

As for the second, you could say that you believe something until the cows come home. Saying you believe something is not libellous. Not hard is it?


This thread is offensive.

However, his comment was quite entertaining.

This is not twitter, this is a forum where folks spout off opinions on all sorts of things. Folks get into debate mode ... quite entertaining. Most posts (most) would not really make it into the world of libel.
JimmyFingers wrote:Look I no way dispute Wiggins ... he is doping, he's at it all the time, and has been for years.
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28 May 2013 03:52

ultimobici wrote:Nothing libellous there at all. He was merely expressing his opinion, hence the use of the expression "I say they're...."

It just gets tiresome that "evidence" such as the size of a person's forehead or the like is trotted out as proof of doping. I'm all for scrutiny of all and any participants in cycling be they on a bike or behind the scenes, but many of the things presented as absolutes here are at best a stretch, more often just plain barking.


Don't make fun of phrenology ... it's serious stuff!
JimmyFingers wrote:Look I no way dispute Wiggins ... he is doping, he's at it all the time, and has been for years.
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28 May 2013 04:02

A couple of final points ...

Enough from the lawyers :D So many opinions masquerading as facts :p

Enough about Sally. A bit of a different case, given her name, the allegations, and the method/venue. A bit of a difference in her suggesting what she did (:eek:) and someone called Meatpuppet, BroDeal, the Hog, or whatever, saying these cyclists dope, given cycling's history and the performances seen.

Anyhoo, I'm not debating squat, just pointing out the ridiculously obvious,

Good night, and good luck.
JimmyFingers wrote:Look I no way dispute Wiggins ... he is doping, he's at it all the time, and has been for years.
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28 May 2013 04:51

UK libel laws, protecting scumbags like Sir Jimmy Savile since 1843.
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28 May 2013 08:12

TheGame wrote:But even then the initial approach would need to be made to CN to obtain the IP address and user data of the member in question to establish which country they were a citizen of.

It cannot be assumed that because someone says they are from England that they are actually from England. (Saying that, it can also not be assumed that if they have an English IP address that they are from England).

Its possible they could go to court against the member first but they would at the same time have to obtain an injunction against CN to gain access to their user records.

Whichever way it is done, the logical route is to first approach CN/FP

1) Establish the usernames of the members adjudged to have committed libel.
2) File an injunction against FP to release the IP and details of those user members
3) Get embroiled with FP's legal team
4) Blame it on the moderators

As publisher of the comments, FP does have liability, and generally, but not exclusively action would be targeted at the party that could most afford to pay. As such, by publishing the comments (and not removing them) FP become liable (Truth New Zealand v Holloway - 1960) although US courts have failed to agree on this, Cubby v CompuServe found in favour of CompuServe saying they merely acted as a newstand and couldnt be held responsible for the content on the "shelves". On the other hand, Stratton Oakmont Inc v Prodigy Services, Prodigy were successfully sued for comments on a forum hosted by them.


That answers it for me. Thanks!:)

They would fail on obtaining my identity. They would need a Norwegian court to order the release of my IPs identity. For that to happen the plaintiff would have to argue successfully that I have broken Norwegian rules, which are quite expansive when it comes to free speech and rights of publication.

If they knew my identity, I believe they would still fail since I live in Norway and have no connection to the UK. Hence any case against me would need to go through a Norwegian court.

As for liability of the publisher, that is also quite small in Norway when it comes to free speech on their "premises". And I think the UK system should be the same, it only hasn't been struck down yet by a ruling in the ECtHR.

Anyway I think sky are clean, so my only fear would be hoggy suing me.:eek:
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28 May 2013 09:16

BroDeal wrote:Should be good for a laugh when the mighty British military is sent to the U.S. to enforce a judgement.


Even better when send to my mighty country
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28 May 2013 10:45

BroDeal wrote:UK libel laws, protecting scumbags like Sir Jimmy Savile since 1843.


Indeed, this is a really good take on that subject: http://blog.indexoncensorship.org/2012/10/05/jimmy-savile-abuse-libel-privacy-censorship/

Calling UK libel laws "idiotic" is really inaccurate, they are oppressive and idiotic.

How can stupidity like this be tolerated: http://www.indexoncensorship.org/2012/10/five-ludicrous-libel-cases/
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28 May 2013 11:20

ChewbaccaD wrote:Indeed, this is a really good take on that subject: http://blog.indexoncensorship.org/2012/10/05/jimmy-savile-abuse-libel-privacy-censorship/

Calling UK libel laws "idiotic" is really inaccurate, they are oppressive and idiotic.

How can stupidity like this be tolerated: http://www.indexoncensorship.org/2012/10/five-ludicrous-libel-cases/


Robert Dee the tennis player, holy crap that is beyond funny -
Idiotic is the word for sure. :o

I never realized foreign countries were making use of our dumb laws.
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28 May 2013 11:42

sublimit wrote:Robert Dee the tennis player, holy crap that is beyond funny -
Idiotic is the word for sure. :o

I never realized foreign countries were making use of our dumb laws.


At least there is an exception for statements of public interest, so speech against politicians is protected. The problem is that large corporations can squash any criticism based only on the threat of extended and expensive legal proceedings.
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28 May 2013 19:41

When is the Sky suit being filed against the Clinic?
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28 May 2013 19:42

thehog wrote:When is the Sky suit bring filed against the Clinic?


Tuesday?

....
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