WikiLeaks in the clear for now, with a little help from its friends

Outmatched and outgunned, Bank Julius Baer announced Wednesday that it dropped its lawsuit against whistleblower site WikiLeaks, halting a series of legal proceedings that took the site’s US domain name offline for two weeks.

In court filings posted yesterday, Julius Baer gave no explanation for its choice to dismiss the suit, only noting that it reserves the right to pursue its claims in another court, including an “alternate court, jurisdiction or venue.”

The domain name was taken offline mid-February after lawyers for Bank Julius Baer held an ex parte hearing that forced WikiLeaks’ U.S. domain registrar, DynaDot, to delete the domain's DNS records after talks to remove a series of leaked documents failed. The move sparked an outcry amongst legal observers and human rights groups who, concerned about violations of the First Amendment and the court’s suppression of free speech, feared the dangerous precedent that would be set if the case went unchallenged.

Lawyers for Julius Baer maintained that all it wanted to do was have its documents removed, and that moving to close the site was a last resort after other solutions failed.

Two weeks later – one week ago Thursday – a phalanx of industry lawyers from the EFF, ACLU, Public Citizen, and a number of other civil rights groups announced that they would intervene in the case. The following Friday morning, Judge White reversed his prior injunction after four hours of legal deliberations, and the domain was restored to an operational state.

Paul Alan Levy, of the Public Citizen Litigation Group, attributes Julius Baer’s decision to drop the case on a couple of factors:

  • An “enormous public outcry” against the “excessiveness” of relief granted to the plaintiffs, which sought to knock an entire web site offline in order to remove one set of confidential documents. Many compared the unusual legal request to shutting down an entire newspaper just to pull one article: to the Judge’s credit, says Levy, the courts undertook “a meticulous review of the various considerations at stake,” including a four-hour legal argument that is “extremely unusual in an age when federal judges are overwhelmed with cases.”
  • Had the bank proceeded further, it might have faced penalties under California’s anti-SLAPP statute, which prevents companies from suing an organization for the purpose of suppressing protests or free speech. If the anti-SLAPP statute was successfully invoked, Julius Baer might have been forced into paying defendants’ legal fees, among other penalties. “Only by dismissing its suit before any SLAPP motions were filed,” said Levy, “did the bank avoid getting stuck in court in a hopeless situation … I know that the Bank was aware of this problem because I called its lawyer on Monday and pointed these rules out.”

Legal analysts also pointed out a number of other weaknesses in the case, including the courts’ failure to adhere to strict rules on restricting First Amendment rights, and jurisdictional issues related to the fact that one foreign entity (Julius Baer, based in Switzerland) is suing another foreign entity (WikiLeaks has no official country, executive staff, or leadership structure – only a list of advisors) in US courts; the registrant of the domain name, John Shipton, is a citizen of Australia and currently resides in Kenya.

“We voluntarily backed out at this point but retained the right to pursue it further if the bank decides they want to do that,” says Julius Baer spokeswoman Jenna Agins.

Shipton’s attorney, Roger Myers, says his client does no business in California and has little control over the documents posted to WikiLeaks.

“[Julius Baer would] have to come up with a theory about who they could sue, and why, in California,” says Myers.

“And I don't know why [Apple is] acting like it’s superior. I don't even get it. What are they trying to say?” -- Bill Gates on the Mac ads
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