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Wank Plan Goes Wrong: ACS:Law Threatens Slyck.com With a Lawsuit
March 21, 2010
Thomas Mennecke
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It's no secret that ACS:Law has been intimately involved with copyright enforcement against alleged file-sharers in the United Kingdom. At the very least, thousands of letters have been sent to alleged file-sharers, who have been accused of transmitting the copyrighted works of their clients. Similar to the now abandoned practice in the United States, recipients of this letter are requested to settle at a reduced rate, rather than face costly litigation.

ACS:Law has been accused of bullying tactics in its pursuit of alleged file-sharers. There have been many documented cases where recipients of these letters are completely dumbfounded and unaware that any file-sharing took place whatsoever. In response to the lawsuits in the UK, three major discussion threads were started on Slyck.com, where people talk about their experiences and lend help to each other on the legal matters facing them. These discussion threads were targeted by ACS:Law Solicitor Andrew Crossley in a letter threatening a lawsuit against Slyck.com.

In the UK, as part of the Digital Economy Bill debates, ACS:Law has been featured several times in the House of Lords, an unelected part of the legislative body. There has been considerable concern over the actions taken by ACS:Law on behalf of their clients. Two Lords, Lord Clement-Jones and Lord Lucas, have been especially vocal.

Lord Clement-Jones is the current spokesman for the Liberal Democrats in the Lords for Media, Culture and Sport and is an experienced legal professional. He was admitted as a solicitor in 1974 and chaired the association of liberal lawyers from 1981-1986.

Lord Lucas describes himself as a libertarian. He runs an e-commerce business and holds a physics degree. He is an elected hereditary peer, edits the Good Schools Guide, and is a member of the All Party Internet Group in the Houses of Parliament.

The following are some extracts from the opinions of the two Lords, as recorded in Hansard (the official record of UK Parliamentary business - all mentions of ACS:Law can be found here.

Lord Lucas of Crudwell and Dingwall - January 26, 2010: "We must also do something about the quantum of damages that is being sought. In a civil procedure on a technical matter, it amounts to blackmail; the cost of defending one of these things is reckoned to be £10,000. You can get away with asking for £500 or £1,000 and be paid on most occasions without any effort having to be made to really establish guilt. It is straightforward legal blackmail, and we should do something about it by making sure that where damages are asked for, they are, at least for first offenders, at a rational level."

Lord Lucas of Crudwell and Dingwall - March 1, 2010: "This scam works because of the impossibility of producing proof against this allegation. How can you prove that you did not do this thing? You have an internet connection, and they say that it was done over that internet connection. It is no good producing your computer, because you committed the offence using a different computer. It is no good saying that you are a 97 year-old widow and that you hardly know how to use the telephone, let alone the internet, because, nevertheless, you have an internet connection and they say that it was abused. It is extremely difficult to produce evidence to gainsay this. All you can do is deny it, and one of the things that they say in the letter is, "Don't bother to deny this without producing evidence that you didn't do it."

Lord Clement-Jones - March 1, 2010: "However, in the meantime we learn of new entrants to the hall of infamy, such as Tilly Bailey & Irvine-the second law firm which I do not think anybody has mentioned in addition to ACS:Law. We also know more about the firm responsible for the investigations, Logistep. As my noble friend mentioned, the activities of these two law firms and Logistep are an embarrassment to the rest of the creative rights industry. We have seen more letters since Committee stage which demonstrate the methods being used by these law firms, which are of a threatening nature-some six or so pages as a first letter is grossly disproportionate."

Now here at Slyck.com, we're always willing to give everyone the benefit of the doubt, no matter what organization or industry they work for, or what side of the file-sharing debate they're on. We're also no stranger to legal threats. On Tuesday, March 8, 2010, Andrew Crossley used the Slyck contact page to send his first note to us:

"Dear Slyck

Please could you direct us to the correct individual to correspond with, as we have been instructed by our clients to serve you with legal documents.

Kind regards

Andrew Crossley
ACS Law Solicitors"

Fair enough. Upon receiving this note, we responded with the following email on March 9th:

"Dear Andrew,

Thank you for your note. I hope that I can be of assistance to you and
your client. If you have any legal documents you need to forward, please
email them to [tom's email].

Thank you,

Tom Mennecke
Editor, Slyck.com"

Within a few hours, we received an email from Andrew Crossley:

"Dear Sir,

Please see attached. Hard copies will be sent to you in the post. Please let me know of the preferred address to mail to.

This is an urgent demand.

Our legal rights and remedies are expressly reserved.

Yours faithfully,
Andrew J. Crossley”

At this point we stopped communicating with Andrew. Attached to the email was a letter threatening a lawsuit against Slyck.com for defamatory comments made in the forum (download the letter and the supporting document here). The letter threatening a lawsuit was a preaction letter requesting that Slyck take action against the following threads:

“We have evidence to believe that the forums hosted by your website http://www.slyck.com (“Slyck”) contains serious, untrue and defamatory comments towards our law firm, the principal of our firm, employees and Clients of our firm. In doing so, defamatory comments are being communicated to thousands of people throughout the world, posing a serious threat to the reputation of our firm, various individuals in our firm and our Clients. The defamatory threads are as follows:

viewtopic.php?f=66&t=44092
"The official ACS:LAW/Davenport-Lyons lawsuit discussion"
viewtopic.php?f=66&t=31051
"legal action for downloading Dream Pinball (Davenport-Lyons)"
viewtopic.php?f=66&t=39877
"Just got a letter from Davenport Lyons RE-Colin Mcrae Dir"

Claiming they “are not against freedom of speech”, ACS: Law demanded the following action from us:

"1. Slyck acts quickly on this defamation complaint by removing from publication in their entirety the defamatory threads to prevent further harm to our clients business.

2. Slyck undertakes to actively monitor and delete any newly published defamatory content relating to this firm or our Clients."

We were requested to remove these threads by 4:00 PM GMT, March 12, 2010. The total number of posts on the three discussion threads total 10,328 at the time of this writing. Although ACS: Law is a UK firm, they claimed jurisdiction over a New York City, USA-based website with the following rationale:

"A defamatory statement is published at the place where it is read, heard or seen, and not where the material was first placed on the internet. In internet cases, therefore, provided a small number of people have access to the material on the internet in England, the English courts will have jurisdiction to hear the claim against an a foreign defendant (Spiliada Maritime Corp v Cansulex Ltd [1987] A.C. 460)."

In ACS:Law's supporting document, 11 posts from the forums were provided as evidence of defamation. Here are two of their examples:

- "ACS Flaw translates an ACS article, says ACS are "not the best at getting things right", and describes the ACS 5 Point Plan as AC's "wank plan"."

- "Hickster calls TT a "wanker"." (Editor's note: "TT" refers to Terence Tsang, employee of ACS:Law.)

With communications between Mr. Crossley and Slyck.com cut off, Andrew sent us another message via the contact page on March 10:

"I have written an email to Thomas Mennecke, at [tom's email], but have not received a reply. This is now very urgent and I would appreciate a reply. My legal rights and remedies (and that of my clients affected by your forum postings) are expressly reserved."

After Andrew contacted us on March 8th, all user accounts and IP addresses associated with Andrew Crossley were banned from the site. Andrew Crossley emailed us again, motivated in part that we had not responded to his March 9 email, and because we banned him.

"Dear Sir,

You have failed to acknowledge or respond to my emails, although I see you have "banned" me from your forum.

You remain at risk of action being taken for the continued threats and
defamation published about my firm and my clients on your website. Please
address these concerns by return.

Yours faithfully,

Andrew J. Crossley"

Slyck rejected the threat. We immediately began researching relevant legal precedents, rulings, and laws that apply to US citizens and that protect our Constitutional freedoms online. Of particular importance is Section 230 of the Communications Decency Act of 1996. In the United States, if not elsewhere, you cannot bring a defamation case against a publisher for the actions of a third party. These protections offered under Section 230 were greatly strengthened in 2006 in the Barrett vs. Rosenthal case.

A recent New York State bill signed into law, called the "Libel Terrorism Protection Act", protects New York residents, journalists, bloggers, etc. from foreign defamation/libel verdicts. The New York law prohibits foreign courts from enforcing defamation charges unless that country has the same level of free speech protection as the United States. A similar law also exists in California and several other states, and is expected to be signed into law on the national level soon.

Knowing that Slyck.com is protected by the US Constitution, Section 230, the Barrett vs. Rosenthal decision, and the Libel Terrorism Protection Act, among many others, we contacted our friends at the EFF (Electronic Frontier Foundation) on March 9th. They immediately took an interest in the case, and on March 11, responded to Mr. Crossley's complaint:

"After reviewing your letter and the cited content on slyck.com, it is clear that you have not articulated a cognizable claim and our client therefore does not intend to remove any material from its website in response to your threats."

"Second, in any case, the statements to which you object (identified in your "Schedule A") do not appear to be defamatory in nature and therefore are protected under the First Amendment to the United States Constitution. The statements are at worst hyperbolic opinions and therefore cannot be found to be defamatory. An online poster calling your firm's "5 Point Plan" a "wank plan" or stating that he or she hopes that you "choke on your mince pie” hardly subjects the speaker to legal liability."

"Third, even if your claim was actionable in the U.K., the judgment could not be enforced in the United States. Foreign judgments are unenforceable in the United States if, for example, they are inconsistent with the values enshrined in the First Amendment. See Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 433 F.3d 1199 (9th Cir. 2006). The posted speech is obviously protected under U.S. law and any attempt to enforce a judgment to the contrary against my client will be futile."

After that, it was the last that we heard from Mr. Crossley.

In light of these allegations and threats from ACS:Law, a whole new credibility is given to the many Internet headlines that combine the words "ACS:Law" and "bully". There's no doubt that ACS:Law tried to prevent Slyck.com and its users from exercising their First Amendment right to free speech. Such an effort illustrates the unfortunate lengths taken by some under the pretense of copyright enforcement.

Extra links:

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