Print 10 comment(s) - last by Master Kenobi.. on Mar 7 at 2:20 PM

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.

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i think the joke is on the court
By andylawcc on 3/6/2008 7:23:09 PM , Rating: 3
How can the judge make such injunction against wikileak, and then reverse its discussion after meeting with the "phalanx of industry lawyers from the EFF, ACLU, Public Citizen, and a number of other civil rights groups"

RE: i think the joke is on the court
By TomCorelis on 3/6/2008 7:24:18 PM , Rating: 3
Because they were not present at the original ex parte hearing.

RE: i think the joke is on the court
By i3arracuda on 3/6/2008 9:21:59 PM , Rating: 4
Because they were not present at the original ex parte hearing.

For what it's worth, I was going to guess someone in the gallery called "Shenanigans!"

RE: i think the joke is on the court
By Samus on 3/7/2008 1:58:18 AM , Rating: 3
Quite obviously nobody at Julius Bear used the Chewbacca defense.

RE: i think the joke is on the court
By Lifted on 3/7/2008 8:29:53 AM , Rating: 2
Defense? Julius Bear is the plaintiff.

RE: i think the joke is on the court
By Etsp on 3/7/2008 10:51:56 AM , Rating: 3
That is part of the whole "Chewbacca Defense" (Quote stolen from wikipedia)
Ladies and gentlemen of this supposed jury, Chef's attorney would certainly want you to believe that his client wrote "Stinky Britches" ten years ago. And they make a good case. Hell, I almost felt pity myself! But, ladies and gentlemen of this supposed jury, I have one final thing I want you to consider. Ladies and gentlemen, this is Chewbacca. Chewbacca is a Wookiee from the planet Kashyyyk. But Chewbacca lives on the planet Endor. Now think about it; that does not make sense!
Gerald Broflovski
Damn it!
He's using the Chewbacca Defense!
Why would a Wookiee, an eight-foot tall Wookiee, want to live on Endor, with a bunch of two-foot tall Ewoks? That does not make sense! But more important, you have to ask yourself: What does this have to do with this case? Nothing. Ladies and gentlemen, it has nothing to do with this case! It does not make sense! Look at me. I'm a lawyer defending a major record company, and I'm talkin' about Chewbacca! Does that make sense? Ladies and gentlemen, I am not making any sense! None of this makes sense! And so you have to remember, when you're in that jury room deliberatin' and conjugatin' the Emancipation Proclamation, [approaches and softens] does it make sense? No! Ladies and gentlemen of this supposed jury, it does not make sense! If Chewbacca lives on Endor, you must acquit! The defense rests.
As you can see, if the prosecution used it, it would make even less sense and thus, be that much more effective. =Þ

Last Minute Save by Elite Unit?
By King of Heroes on 3/6/2008 10:35:39 PM , Rating: 2
<Wikileaks_Army> "Carrier has arrived!"

*advancing Julius Baer Brood is beaten back by the swarm of unleashed Legal Interceptors*

By TomCorelis on 3/6/2008 10:58:01 PM , Rating: 2
I love it!

RE: Last Minute Save by Elite Unit?
By DASQ on 3/7/2008 12:31:12 PM , Rating: 2
A single Carrier rarely turns the tide of battle.

By Master Kenobi on 3/7/2008 2:20:16 PM , Rating: 2
Indeed. A full squad of 12 carriers has arrived.

"We are going to continue to work with them to make sure they understand the reality of the Internet.  A lot of these people don't have Ph.Ds, and they don't have a degree in computer science." -- RIM co-CEO Michael Lazaridis
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