Ex Parte Injunction Against Domain Operation or Transfer

What do you do when a website claims that you are an international criminal kingpin, and it’s affecting your business?

Altaf Nazerali, the plaintiff in Supreme Court of British Columbia decision Nazerali v. Mitchell, discovered a number of articles about him on a website, Deep Capture, including allegations of arms trading, ties to the Iranian regime, and that he was part of a criminal enterprise with ties to the Italian and Russian mafias and Colombian drug cartels. The website even claimed he attempted to sell enriched uranium to Al-Qaeda.

The plaintiff was actually in the business of founding, promoting and investing in companies. He dealt with a number of various business partners and investors, and considered his reputation was essential. Several business contacts had searched his name on Google and came across the material, obviously raising some serious concerns.

Background

On September 6, 2011, he contacted the defendant, Mark Mitchell, who wrote the articles on the website, denying he had even been to several of the places mentioned in the article. Mitchell’s response was,

Please note, though, that I mentioned in the story that the descriptions of the meetings were composites of multiple meetings with true locations disguised to hide the identity of sources. So whether you travel to those places is not necessarily important.

My goal, when I first set out to write the story was not to make problems for you. I simply found your life story to be fascinating and tried to learn more. My research led me down the path that resulted in the story that you read on the Internet. I do think the facts are right, but again, I am open to making changes or deletions if it results in a better story that is true.

On September 9, 2011, Mitchell stated,

As for the ongoing Deep Capture investigation, I think that you have seen a lot and can be helpful. One reason why I should have gotten in touch earlier. If you think you are able to provide meaningful information, please let me know, and please give me a general idea what that information would be and how I would be able to substantiate it.

I do not reveal the names of my sources so if you were to become a source, I would be obliged to remove all previous mentions of your name on Deep Capture. Like I said, some facts are more interesting than others, and I’d gladly take your name out of the story altogether in exchange for having you as a source. Let me know what you think.

Despite this no changes were made to the website, so the plaintiff brought an ex parte injunction against:

  • Mark Mitchell, the author of the posts
  • Patrick Byrne, the founder of the website
  • Deep Capture LLC, who operates the website
  • High Plains Investments LLC, which owns Deep Capture LLC, and is operated by Patrick Byrne
  • Godaddy.com Inc., the domain register of deepcapture.com
  • Nozone, Inc., the host of the website, holding the servers with the electronic files in dispute
  • Google Inc. and Google Canada Corporation for search results and page caches

Surprisingly the defendants involved appear to be reputable journalists. According to archives of the website, Mitchell has an MBA from Northwestern University and work experience at the Wall Street Journal and Time magazine, and Byrne has a doctorate in philosophy from Stanford University, with teaching experience at a number of different institutions.

Basis for Injunction

Justice Grauer indicated the plaintiff needed to meet two requirements for an ex parte injunction:

  1. The plaintiff must demonstrate that requiring service of process on the defendants would defeat his rights
  2. The plaintiff must “establish that the words complained of are so manifestly defamatory that any jury verdict to the contrary would be considered perverse”

Grauer J. cited the Ontario Superior Court decision in Canadian National Railway Company v. Google Inc. to support the proposition that a higher hurdle would normally be needed than the normal three-part test in R.J.R. McDonald Inc. v. Canada Attorneywhere a plaintiff must simply show there is a serious case to be tried.
Justice Lederer in CNR Co. cited several cases for this basis, including Canada (Human Rights Commission) v. Canadian Liberty NetRapp v. McCelland & Stewart Ltd., and Henderson v. Pearlman. He stated,

[8] It is not easy to obtain an injunction in response to defamation. We respect the principle of freedom of speech and are careful when asked to limit the freedom of anyone to express their views. This concern for the freedom of expression is itself expressed in the following:

The granting of injunctions to restrain publication of alleged libels is an exceptional remedy granted only in the rarest and clearest cases. That reluctance to restrict in advance publication of words spoken or written is founded, of course, on the necessity under our democratic system to protect free speech and unimpeded expression of opinion. The exceptions to this rule are extremely rare.

(Canadian Metal Co v. Canadian Broadcasting Corp. (1975), 7 O.R. (2d) 261, 55 D.L.R. (3d) 42 at p. 261 quoted in Mcleod (c.o.b. Malask Mcleod Gallery) v. Sinclair, [2008] O.J. No. 5242 at para. 19)

In this context, Justice Grauer noted in obiter that the increased stringency for injunctions in this context was intended to protect freedom of expression, and developed to prevent something from being published. Where the issue was the continued existence of articles on the Internet the stringency should be relaxed.

Justice Lederer in CNR Co. also cited the Ontario Court of Appeal in Barrick Gold Corp. v. Lopehandia to demonstrate the unique factors involved with Internet defamation,

The Internet represents a communications revolution. It makes instantaneous global communication available cheaply to anyone with a computer and an Internet connection. It enables individuals, institutions, and companies to communicate with a potentially vast global audience. It is a medium which does not respect the geographical boundaries. Concomitant with the utopian possibility of creating virtual communities, enabling aspects of identity to be explored, and heralding a new and global age of free speech and democracy, the Internet is also potentially a medium of virtually limitless international defamation. [cite: Matthew Collins, The Law of Defamation and the Internet (Oxford University Press, 2001), at para. 24.02]

[28] Is there something about defamation on the Internet – “cyber libel”, as it is sometimes called – that distinguishes it, for purposes of damages, from defamation in another medium? My response to that question is “Yes”.

[34] It is true that in the modern era defamatory material may be communicated broadly and rapidly via other media as well. The international distribution of newspapers, syndicated wire services, facsimile transmissions, radio and satellite television broadcasting are but some examples. Nevertheless, Internet defamation is distinguished from its less pervasive cousins, in terms of its potential to damage the reputation of individuals and corporations, by the features described above, especially its interactive nature, its potential for being taken at face value, and its absolute and immediate worldwide ubiquity and accessibility. The mode and extent of publication is therefore a particularly significant consideration in assessing damages in Internet defamation cases.

Decision

Justice Grauer held that the words involved in the articles were so manifestly defamatory as to meet the higher threshold, and that the plaintiff met the other tests for an interlocutory injunction.

[15] …The plaintiff’s reputation is indeed likely to suffer irreparable harm. A damaged reputation is almost impossible to rehabilitate, particularly when the instrument of damage is the worldwide web. If however, the defendants ultimately succeed, I expect they will have no difficulty at all in resuming their exposé.

Justice Grauer then continued to consider the appropriateness of this type of injunction being granted on an ex parte basis,

[18] The plaintiff’s position in this regard is based largely upon the technological ease with which those who carry on Internet campaigns can evade attempts to intercept them. The plaintiff submits that if he were obliged to provide notice to all the respondents to this application, then the principal defendants, Mr. Mitchell and Deep Capture LLC, would simply transfer their domain name and website files elsewhere, and carry on what would possibly be an even more aggressive campaign of defamation, or create a parallel website under a different name so as to make the tracking down and removal of the defamatory articles almost impossible.

[19] While there is no reason to suppose that the defendants Godaddy.com, and Nozone, Inc. would do anything to evade enforcement, they would naturally tell their client of any notice given to them, and would not be in a position to prevent any steps taken by Mr. Mitchell and Deep Capture.

[20] I am satisfied on the evidence before me, particularly given the attitude demonstrated by Mr. Mitchell in his communications with Mr. Nazerali, that requiring the plaintiff to give notice to the respondents of this application would likely render the relief he seeks ineffective, and that it is appropriate in the circumstances for this application to be heard without notice.

Justice Grauer expressed some reluctance against enjoining Google Inc., and Google Canada corporation from returning any search results from www.DeepCapture.com because it would effectively shut down the website entirely, but stated,

[23] I note however that it is impossible surgically to eliminate just the offending phrases. Given the pervasive nature of the material concerning the plaintiff throughout the contents of deepcapture.com, the plaintiff’s undertaking as to damages and the temporal limit I have placed on the injunctive relief I am granting, I have concluded on balance that it is appropriate to grant the relief sought in relation to Google Inc. and Google Canada as well. Not to do so might well rob the plaintiff of the value of the relief he has obtained against the other respondents.

Given that the injunction was ex parte, Justice Grauer also granted that the injunctions would expire on December 2, 2011, unless notice was provided to the defendants and extended further by the court. Justice Grauer also noted the right of the defendants to set aside the injunction on two days notice.

Despite the expiration of the injunction earlier this week, Deep Capture still does not appear to be functioning, and no search results from the site are available. What is fascinating about this decision is the ability to deal with cached copies of pages, something discussed extensively here on Slaw before. However, copies of the website are still available on the Way Back Machine.

The injunction sought here also effectively prevented the defendants from transferring the allegedly defamatory material to another server or domain, a broader approach than what has historically been used in online defamation cases, but one which arguably better protects the plaintiff’s rights.

 

 

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