Cathy Gellis Wins Pro Bono Victory Against U.K. Defamation Subpoena

I've previously praised Cathy Gellis, who helped provide pro bono representation to an anonymous satirical blogger menaced by Charles Carreon, and who has guest-blogged here about the Prenda Law debacle.

Time for more kudos.

Last week Cathy — again offering her valuable services pro bono — won a hard-fought free speech battle and succeeded in quashing a subpoena that sought to unmask an anonymous blogger. The blog — the St. Lucia Free Press — wrote critically about the development of a local resort and made accusations of misconduct. One executive — Oliver Gobat — asserted that the St. Lucia Free Press coverage was factually mistaken and defamatory to him. Did he sue in St. Lucia? He did not. You go to St. Lucia to vacation. To find a friendly forum for a defamation claim, you go to the United Kingdom, that haven for libel tourism and abusive defamation laws.

Mr. Gobat wanted to uncover the identity of the person running St. Lucia Free Press. The ISP is in Northern California. So Mr. Gobat sought and obtained from a court in the United Kingdom a discovery order in a rather abbreviated proceeding, then used that foreign court order to purport to subpoena the ISP here in California to discover the blogger's identity.

Cathy Gellis filed a petition and supporting papers seeking to quash the subpoena, attacking (amongst other things) the adequacy of the UK process, the validity of the UK court order in America, and the insufficiently established proposition that the St. Lucia Free Press comments were defamation. Mr. Gobat's lawyers' response was a model of blustering entitled outrage, demanding sanctions against Cathy and excoriating her. How dare she!

She dared, and she won. After Cathy's reply, and a lengthy hearing at which the judge (to quote Cathy) "took the better part of the hour expounding on all the due process problems requiring him to quash the subpoena," the judge quashed the subpoena. Far from granting Mr. Gobat's attorneys' demand for sanctions, the judge granted fees and costs to Cathy.

This is a big win, and an important one. The St. Lucia Free Press may yet have to address, in court, whether its words about Mr. Gobat were false and defamatory. There's nothing wrong with that. But the sequence of events here was very troubling. The United States has emerging legal norms protecting anonymous bloggers and requiring plaintiffs to demonstrate their case has merit before unmasking them. But what happens if a litigant can evade those norms by running to a notorious libel-tourism haven like the United Kingdom — with its increasingly problematical approach to speech and its distinctly pro-plaintiff libel laws — and get a discovery order that they can then enforce in the United States via subpoena? There must be a process to challenge foreign discovery orders so that U.S. courts do not become mere conduits for foreign censorship. Cathy succeeded in using one such process.

As I've said before, our legal system has its good points, but it is also deeply flawed. It permits censorious abuse without imposing adequate consequences on the abuser. It can be ruinously expensive to be a defendant whether or not a claim has merit. Whatever theoretical defenses our laws may provide, only one thing is practically sufficient to defend freedom of expression: the continued willingness of lawyers like Cathy Gellis to step up and offer pro bono services to people who can't afford to defend themselves. She has my thanks and admiration, and I hope she has yours. Kindly spread the word.

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Comments

  1. Walls says

    In all my years of practice, I have never seen a brief containing the word "heresay" before today.

  2. MDT says

    Just a note, the judge's quash order contains Ms. Gills address and phone number un-redacted written in pen. Perhaps it's her office phone #, but most of the court documents I've seen displayed on here via link have such things redacted. Just mentioning.

  3. Pablo says

    It must be ridiculously awesome to take a case like this pro bono, only to have your fee picked up by the censorious asshat. You'd have to giggle for a week straight.

  4. says

    Excellent and heartening news. I live under UK law and our problems with libel law are well documented and do make one blog rather carefully!

    There is another side of the coin, whereby our government allows unilateral extradition to the US with no possibility of consideration of the alleged offence under UK law. This is particularly troubling with respect to cases where capital punishment is an possible outcome (we don't do this) and where "national security" is used as a blanket.

  5. says

    Nice work, Cathy!

    In all my years of practice, I have never seen a brief containing the word "heresay" before today.

    It's when you testify that someone told you about something unorthodox.

  6. Earle says

    dw • Oct 24, 2013 @9:35 am

    What are the chances that the cost order will be enforced?

    It would be the sweetest irony should Mr. Gobat argue that the UK court lacks jurisdiction to enforce a cost order.

  7. Owen says

    The Opposition from Grobat…I hate motions like that. The whole thing is full to the brim of self-satisfied rancor and groundless self-assurance. Reading it makes you grind your teeth.

    (And the worst part about it is, if you're not the same kind of person with absolute confidence in your opinion, somewhere deep in your gut you have a twinge that seems to say "Maybe he's right…?")

    It's wonderful to see it all thrown back into the author's face. I wish the judge's Order had more of an explanation.

  8. Malc. says

    @Dave Fernig: Extradition from the UK to the US is not permitted in a capital case unless the US authority (state or federal) agrees to drop the death penalty. See Soering v United Kingdom 161 Eur. Ct. H.R. (ser. A) (1989).

    [Yes, I know the UK has updated its extradition treaty so that the US only has to assert that it would quite like the person in question, but that's an ECHR ruling, which stands.]

  9. perlhaqr says

    Wow. That judge laid quite a handprint upon the visage of Gobat and his lawyers.

    And yes, Pablo, I hope Ms. Gellis buys something really nice, decorative, and durable with her fee, so she can have it around her house or office for years to come, and smile every time she sees it. :D

  10. Stephen H says

    The problem here isn't with the UK court any more than patent trolling is something that arises solely because of East Texas. Both are issues with the nature of the modern economy, and in this case with the Internet.

    We have this means of instant global communication, and laws that vary from country to country and county to county. Of course people are going to seek the most "friendly" jurisdiction they can find in which to prosecute a case. Unless and until laws surrounding international (and domestic) relations can be normalised to some extent issues like this will continue. Courts will continue to disagree with one another because they are operating under different premises, and within different cultural and legal frameworks.

    To blame "the UK judge" or those "silly British rules" is to totally ignore the real problem. The fact that the UK sees fit to weight free speech against the rights of a person who may be defamed in a different way to the US (which allows "copyright" holders to close down websites entirely on the basis of "infringement") is not the problem, and the real problem won't be solved simply by shifting the blame to "their rules".

    I am pleased to hear of the court victory; not so pleased about the thin-skinned colonial mentality displayed in the article announcing it.

  11. Bruce says

    There has been very little notable libel tourism here in Australia since the Bruce on Games (a different Bruce) efforts of a couple of years ago and it was more the incompetence of the plaintiffs that ended that in favour of the good guys (IMO) than any changes in our legal outlook.

    I am incredibly frustrated by the succession of Attorneys General that want to sell us out and import the shitty parts of US law for copyright, rolling over and handing data to the NSA on request, but don't consider that speech laws could use some movement into the new world. It is giving us the worst of all worlds.

    Well played Cathy Gellis.

  12. Rob says

    To blame "the UK judge" or those "silly British rules" is to totally ignore the real problem. The fact that the UK sees fit to weight free speech against the rights of a person who may be defamed in a different way to the US (which allows "copyright" holders to close down websites entirely on the basis of "infringement") is not the problem, and the real problem won't be solved simply by shifting the blame to "their rules".

    I am pleased to hear of the court victory; not so pleased about the thin-skinned colonial mentality displayed in the article announcing it.

    Would you like some cream for your butthurt?

    It is in fact your silly laws – which mainly benefit the thin-skinned that you seem to have a problem with – that allow libel tourism to happen in the UK; I don't see how that can be effectively argued. Yes, our copyright laws are also absurd, but that really doesn't really have anything to do with this specific issue, and is nothing but a red herring.

  13. Stephen H says

    Would you like some cream for your butthurt?

    It is in fact your silly laws – which mainly benefit the thin-skinned that you seem to have a problem with – that allow libel tourism to happen in the UK; I don't see how that can be effectively argued.

    Rob, you have jumped to your own totally erroneous conclusions about my nationality, and figured you'd throw an insult in for good measure. Does it help? You missed the entire point of my post, so there must have been a good reason to just whine rather than exchanging ideas.

    If you have something useful to add, go right ahead. But don't just blithely throw inaccurate insults at others for pointing out that this story is pointing the bone in the wrong direction.

  14. Graham says

    Well I am a UK citizen, and i have to say the state of our Free speech, Defamation and libel laws are truly an embarrasment. We could do with something similar to the first amendment. Shame it seems to be going the other way.

    You can keep your copyright and Emenent domain laws tho :D

  15. Stephen H says

    Stephen H., actually I thought that it was you that had missed the point of your comment.

    SPQR, I'm happy to discuss the details of the article or my comments. I appear to have offended people by suggesting that silly laws in one place are in some way offset by silly laws in other places. That was in some ways a red herring that should not have been included, but it was also an illustration that claiming "our laws are better than your laws" is a somewhat fruitless exercise.

    Regardless, arguing over what the British law makers should change their laws to say does not solve the problem, which is one of an international economy and international communications. Lacking international laws/rules, this kind of incident will continue to occur.

    Again, ignoring red herrings I suggest that Popehat would better spend its words on the broad issue rather than the individual case. I'm happy to discuss whether that is a reasonable perspective for me to take.

  16. MikeP says

    Notwithstanding those seeking to defend UK libel laws, libel tourism to the UK is a recognised issue with our laws as they stand.

    And the draconian and one-sided nature of these laws hasn't just become an issue since the internet age. Scallywag was an excellent satirical magazine in the same vein as Private Eye, but much bolder. 20 years ago, they made the accusation that the then-Prime Minister, John Major, was shagging a Downing Street caterer. They were shut down over this alleged libel.

    Some years later, it turned out that he was playing away. Not, as it happens, with a caterer. But with the fragrant Edwina Currie.

    So the only falsehood was the identity of the recipient of Mr Major's attentions. Trouble is, no-one at the time would have believed he was shagging Currie. It was one heck of a shock when it came out.