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Fighting the other guy’s war… March 31, 2008

Posted by WorldbyStorm in Blogging, Irish Politics.
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There is a problem with the nature of the internet, particularly the unpleasantly named Web 2.0. For those who have use or have access to sites there is the opportunity to use them as and when the mood strikes. Which is unbelievably dangerous because it engenders a sense of importance, which can be illusory, and immediacy, which is very poison.

I’d echo entirely Conor’s words on Dublin Opinion about the recent problems over at Politics.ie, not because I’m a wimpish blogger, or middle-class bottling it in the face of power, but simply because they are right.

P.ie has become a bear pit in regard to all things Ahern and Tribunal. Words were allegedly put in the public domain that have now impelled a legal company into action with charges of defamation.

The possibility of such words being written was obvious, the response inevitable. And that David Cochrane has been, to some extent, caught in the crossfire is unfortunate.

But this is the real world where chances are a legal firm will be first to up the ante – particularly if they think that it is themselves who have been impugned.

To read this then as some sort of attack on Politics.ie with the motive of ‘chilling’ conversation on the topic of the Tribunals or Ahern is nonsense. To see that then as the rationale for a broader campaign to defend ‘free speech’ is near-risible. To then, as some (assiduously hunting with the hounds and running with the hare) suggest conspiracy – or rather air the idea that some are saying it is only to dismiss it while simultaneously spreading it yet further is … well, it is what it is.

In a situation like this there is one solution. The problem is dealt with as it by separate legal teams, because that’s the only way it can be dealt with. No public campaign on the internet is going to change this issue. No appeal to a gallery that will melt away at the first hint that this will incur either financial or other penalties. No dubious relocations whose efficacy has yet to be proven in Irish law.

It requires first and foremost cool heads, restraint, and the sort of compromise that is one aspect of the nature of the legal system. Particularly when what we’re talking about are commercial entities.

But restraint is not the nature of the internet, of boards, or whatever. In an echo of the supposedly ‘legacy’ media, immediacy is all. What is written takes on a life of its own. The ‘campaign’ becomes all, in a perfect simplification. We’re all ‘meant’ to rally to Politics.ie (best of all someone started a P.ie ‘pledge’)…

Nevermind that Politics.ie closed down discussion of the Tribunal and Ahern. Nevermind that they weren’t asked to in the original letter, and were questioned as to why they did so in the second letter. Nevermind that apparently they are going to reopen it as soon as it suits. Not the solicitors. I think the actions were understandable, but developed into the wrong response. So why on earthy would I or any thinking human being pledge ‘support’? Or as a poster on P.ie put it;

I support Dave Cochrane. I don’t support those who persist in putting his site and personal finances in jeopardy especially those mouthing off when service of legal action may be imminent.

My thoughts entirely.

Addendum: I note that Adam Maguire got some unkind words directed at him for daring to express his (entirely moderate) opinion about the matter on Newstalk today. That’s pretty unfair to, as anyone who has met Adam will confirm he’s a good observer of all things internet. Slightly entertaining was the confusion of him with Damien Mulley who is also guilty of thoughtcrimes… albeit ones that date back some time now…

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Comments»

1. Garibaldy - March 31, 2008

The solicitors are acting in their own interests. But it seems to me not beyond the bounds of possibility that the person who brought it to their attention was doing so as part of an agenda that went beyond the good name of the solicitors.

2. WorldbyStorm - March 31, 2008

Maybe, but to what end? Shut down discussion of Ahern and the Tribunal. We can do it to our hearts content on this site, or any number. Take the heat off Ahern? Hardly likely, if anything this will play badly with any number of people far beyond Ahern haters who will believe its part of a concerted campaign. And all this in the context of increasingly bad press for Ahern with the SBP and the IT both calling for his resignation at the weekend. This isn’t going to help, it might even make things very slightly worse for him.

3. Starkadder - March 31, 2008

I reckon Irish website moderators will be nervously checking
their sites for posts that might incur legal problems for the
next few months.
Remember when Boards.ie banned discussion of
that concert where there allegedly problems?

4. chekov - March 31, 2008

You’re pretty far wrong about a few things.

Relocating the servers to the US does one thing – it makes it next to impossible for the servers to be siezed. Had the servers remained in Ireland, it would have been a relatively straightfoward task to get a court order to sieze the servers in order to extract information to identify the defamers. Even if DC had cooperated and given them whatever he could, they’d still probably go after the servers, to send them to their own expert security dudes.

If the servers were seized, bertie’s lawyers, and the garda, would have access to the entire information store of politics.ie – which contains enough information to identify a large number of posters as well as their private messages to one another (along with whatever else sits on that sever). That information could be tremendously politically valuable to whoever had it. Given the track-record of Irish courts and the complete lack of meaningful privacy accountability in such situations, there is a high probability that that information would find itself into a few nooks and crannies in the government and the security services. I’m sure that, if they can’t already do it, a few people would like to be able to link a few dissident republican usernames with their real identities.

Such a seizure would also destroy user-trust in the system and would be greatly damaging to its credibility.

So, even if it doesn’t help him much in a libel action, it certainly helps to protect the information from falling into hostile hands. There are other good reasons for such a migration, but I can’t go into them for reasons of prudence.

I also think several of your other conclusions and arguments are wrong, but that’s enough for one post anyway.

5. WorldbyStorm - March 31, 2008

Two thoughts chekov. Firstly I’d defend his policy, and have already, twice, not to give out usernames. So that’s entirely moot to this discussion

Secondly I used the phrase of dubious utility regarding relocation. I don’t know. Neither in truth do you, since it has yet to be put to the test in the Irish legal system.

As regards seizure of servers, well, yes. Perhaps but on foot of this particular letter? Most unlikely on the terms in which it was couched, and particularly unlikely as regards the second letter.

Moreover vague hints as to darker powers and secret knowledge really isn’t much use here. There is a legal system, and we may like or dislike it, but it works in predictable ways. One of those is that DC had (or would have) to put up his own legal team to counter any moves. I’d dislike seeing the scenario you propose being tested in that way, but tested it would be and frankly I think it highly unlikely that it would go the way you suggest.

As regards dissident republicans, well, again frankly I’d be doubtful that the security services don’t already have that information or means to tap in. I wouldn’t like it but my working assumption on the net is that they have the ability to discover identities if they really want/need to. I think that’s a pretty good working assumption.

As for my conclusions and arguments being ‘pretty far wrong’, they’re based on a reading of the situation. Of course they can be wrong, but so far I’ve seen little including dark hints to indicate conclusively that that’s the case in terms of the broader argument I’m making.

6. Damien Mulley - March 31, 2008

Kinda funny too that they attack me while Dave asked me to blog about what was happening to get wider attention for it. Kind of sums up the lack of brainpower on that site.

7. WorldbyStorm - March 31, 2008

Remember Damien, every word you say – whatever the context – will be held against you… :)

8. neeettt - March 31, 2008

What is not being discussed anywhere since this happened are ANY exptrapolations from the following: This has already been published in a national newspaper. I’m sure it’s what the heavy hand is determined to put an end to.

“And what are we to conclude if the evidence of Mr. Ahern and others appears to be not only at variance with the documentary evidence BUT AT VARIANCE IN PRECISELY THE SAME WAY? Will there be any possibility that this is not entirely a coincidence?”
Gene Kerrigan / Sindo / 23 March 2008

Personally as someone who did a lot of journalistic type stuff on net over quite a period I think the whole thing – particularly the demand to reveal the 1st life identities of posters – reeks of deliberate chilling of free speech. I also note according to politics.ie that the late late show online archive of the recent programme on which Eamonn Dunphy referred to Bertie as a Perjurer has had a chunk of it removed. He was waving around the above article during the course of that show.

9. WorldbyStorm - March 31, 2008

Wait a second. You can say that here. You can set up your own boards on any number of sites dedicated to doing that. Who is stopping you? As regards RTÉ… I’d like to hear RTÉ’s explanation for that.

And again, none of this deals with the basic political fact that Ahern is on his way out. He’s toast, he’s history, his rep is in much much worse form than it was even twelve months ago…

10. neeettt - March 31, 2008

well they certainly stopped that bunch of people in p.ie from starting to pull on that piece of thread and really that’s mostly what they were doing. I could cut and paste some of it with the solicitor bits chopped out but I won’t. I wouldn’t do it on any site I had any time for. So there you go. My free speech. it’s been chilled.

RTE won’t be telling anyone why about the late late I suspect. John bowman looked like he could faint when the FG head on the panel mentioned what Dunphy had been saying. I’d like to stay up late to see if the section of the late late has been cut from their repeat due on soon. If it is that’s a news story! Maybe we can complain to the BCI !!!

Lovely country – the bertie soap opera conquers all

11. Garibaldy - March 31, 2008

I was thinking it was a chance to embarass and get at Libertas, or distract it, rather than to defend Bertie.

12. Starkadder - March 31, 2008

That’s a scary possibility, Chekov-the possibility of the government gaining access to all the confidential info on P.ie or other web-servers.

While it’s very unlikely to happen for the reasons WBS outlined, we
know from things like the 80s phone-tapping scandal that some
people would have no qualms about such an action.

Having said that, I think we should ditch any “conspiracy”
theories about the legal action unless we have proof.
I suspect Ahern & his inner circle have other things on
their mind than P.ie at the moment.

13. Damien Mulley » Blog Archive » DublinOpinion thinks Politics.ie has damaged blogging in Ireland. - April 1, 2008

[...] coverage so far is unsurprisingly on the Cedar Lounge. Digg it! | Reddit | Del.icio.us | Stumble Upon | [...]

14. chekov - April 1, 2008

“dubious utility regarding relocation. I don’t know. Neither in truth do you, since it has yet to be put to the test in the Irish legal system.”

Removing a risk in an uncertain situation with significant downside risks is very useful, ergo relocating has at least some practical utility. Whether Mr. Cochrane is acting in order to remove this risk, or he has some other motive, I don’t have a clue, but it is an indisputably useful thing to do. There is no uncertainty as to the fact that the Irish courts do not have the power to physically access servers that are located in the US – they don’t. This risk is removed from play.

Some of my other disagreements:

“In a situation like this there is one solution. The problem is dealt with as it by separate legal teams, because that’s the only way it can be dealt with. No public campaign on the internet is going to change this issue. No appeal to a gallery that will melt away at the first hint that this will incur either financial or other penalties. No dubious relocations whose efficacy has yet to be proven in Irish law.”

Why? This assertion seems to me to fly in the face of sense. Firstly, legal dealings are more like poker-matches than gentlemens’ agreements. Entering into negotiations with a solicitors firm who claim that you have defamed them is essentially an admission of defeat. Before actually taking an action such as this, they are going to ask themselves:
* how great was the damage to our reputation?
* what impact will this action have on our reputation?
* what is our chance of winning?
* what rewards will we gain in compensation for the damage to our reputation?

If these assessments do not turn out positive, they probably aren’t going to pursue it anyway. Unless DC has lots of money, I can’t see how it would make much sense for them, especially since the actual damage to their reputation is probably negligible. I don’t know how much a jury would award to a company who were libeled by an inference made by a new anonymous poster on a bulletin board thread that was read by, I dunno, maybe a couple of hundred people before being removed. There’s gotta be a significant chance that it wouldn’t be an enormous pay out.

In those circumstances, publicising the threats and thereby indicating to the company that pursuing the case runs the risk of causing much more significant damage to their reputation. Corporate lawyer types are probably aware of the spectacularly disasterous McLibel trial and are a bit wary of the unknown capacities of internet activism, even if these capacities are mostly imaginary. It’s not a course of action that I think is particularly wise in this particular circumstance, but it is at least a reasonable enough strategy to follow in the circumstances.

And these circumstances do not appear to be ones in which a duel of legal teams would be a fair fight. A high-profile legal firm versus a guy who runs a website?

15. chekov - April 1, 2008

“That’s a scary possibility, Chekov-the possibility of the government gaining access to all the confidential info on P.ie or other web-servers.”

Unless you take significant precautions, it is a safe bet to assume that all your online interactions are available to anybody who really wants to know them. I’m always amazed at the amount of ill-judged information that people publish on places like politics.ie in the mistaken belief that they have any meaningful privacy.

16. Donagh - April 1, 2008

I agree with Chekov, it seems highly unlikely that they would plan to bring an action against David as it would blow up in their face, from a publicity point of view. Also, from the little I know about such things they never sue people who have no money, which is why in internet related cases they usually go after the ISP rather than the alleged offender.

But that said, such a correspondence, and a tense phone call which cited the Secretary General of Fianna Fail as the person who instigated this thing, that’s very intimidating.

Clearly, David is a better bluffer than I imagined.

17. soubresauts - April 1, 2008

Yes, Chekov has made some useful points above.

I would just add the following:

In the Politics.ie thread which caused all the trouble, the opening post was by “saul of tarsus” on Thursday night at 9:55 pm. In my opinion that post wasn’t dramatically different from much of what has been printed in newspapers in recent days. The third post in the thread, by a Fianna Fáil person called “baldur0300″ at 10:02 pm, stated:

“From a completely impartial point of view, you’re alleging something that will get this site sued!! I suggest a mod deletes this immediately.”

Well, the mods were slow to delete it, and you know the rest.

18. Tuppenceworth.ie blog » Internet Libel, Again - April 1, 2008

[...] everyone’s going crazy about [...]

19. WorldbyStorm - April 1, 2008

Honestly Chekov, you think two commercial organisations, which is what at the end of the day P.ie and the solicitors are, are equivalent in their legal dealings to the scenario you propose above. One of David (ahem) and Goliath. That’s untenable. They’ll do a deal and it won’t be poker or anything like it. DC had already gone half the way to dealing with the issue by pulling the offending material. The username side simply demonstrated how little the other guys knew/understood the terrain they were on. Now if it were the CLR vs the solicitors you might have a point, or indymedia, but no disrespect to DC, but his operation is a little bit different. It’s not just ‘a guy who runs a website’. It’s someone pivotally involved in political campaigning (on the right I might add), someone who has… well, media interests if you want to put it that way. And this sort of thing was easily predictable.

Again, and I don’t want to sound dismissive, this is precisely the problem with all this discussion. Huge candyfloss propositions are being constructed around almost nothing. An existential crisis for Irish blogging (albeit P.ie isn’t a blog and has bar a short period never attempted to be one) is presented when the opposite is a rather more banal and mundane issue of one company, company note, not the individuals who day in and day out are subject to abuse and rumours of the wildest and most peurile sort (and remember I’m no fan of the protagonists). What we come down to is a letter requesting two things which was put up on the web. And a further letter which they specifically didn’t want publicised put up on the web. Two can, and have been, playing hardball on this.

And no disrespect, I think you’re trying to have your cake and eat it. On the one hand you present this as some significant crisis with terrible terrible consequences, on the other you argue that the solicitors might skulk away anyhow ‘they probably aren’t going to pursue it anyhow’. It can perhaps be one, it can perhaps be the other, but it can’t logically be both.

But that’s beside the point. Even companies have a right not to be defamed. This could all have been dealt with out of the light of day, and had it gone to the the actual threat you propose of servers being nabbed, usernames being forced up, then DC would be entirely within his rights to call for the sort of support (which however inefficient) would be gladly given by any of us.

20. chekov - April 1, 2008

“It’s someone pivotally involved in political campaigning (on the right I might add), someone who has… well, media interests if you want to put it that way.”

Hmmm. The probability that politics.ie earns enough money to sustain a legal team is about zero. I have absolutely no clue whether DC has independent sources of funds, but unless he does, regardless of his media profile or anything else, it is a duel that is totally asymmetric on the legal front.

“On the one hand you present this as some significant crisis with terrible terrible consequences, on the other you argue that the solicitors might skulk away anyhow ‘they probably aren’t going to pursue it anyhow’. It can perhaps be one, it can perhaps be the other, but it can’t logically be both.”

I actually didn’t present this as some signficicant crisis because I don’t think it is a significant crisis. I’m especially unexcited by the novelty factor of a solicitor’s letter alleging defamation on the internet. I simply pointed out that Mr Cochrane’s actions are not entirely incompatible with a reasonable strategy in the circumstances.

21. WorldbyStorm - April 1, 2008

You don’t know that, and neither do I. But as for a legal team, well even just legal advice, or go to a someone who specialises in such things. That’s purely common sense. If one does it for purchasing a house, it seems odd not to do so, even as a preventative measure when running a website which might be open to such matters.

Hard not to take your comments in 4 – not least about destroying credibility – as pointing to potentially such a crisis, after all, what would a chilling of speech on Ahern/Tribunal/Any other business be but a crisis? I’d see it as such.

22. chekov - April 1, 2008

“You don’t know that, and neither do I.”

What don’t I know? I’m being very clear about what I’m saying and am pretty sure that it’s all pretty straightforward and uncontroversial from a security point of view.

“But as for a legal team, well even just legal advice, or go to a someone who specialises in such things. That’s purely common sense.”

How do you know that legal advice is not being followed? I mean legal advisers, if they’re any good, are sometimes going to advise people to ignore threats.

“Hard not to take your comments in 4 – not least about destroying credibility – as pointing to potentially such a crisis, after all, what would a chilling of speech on Ahern/Tribunal/Any other business be but a crisis? I’d see it as such.”

The risk of the legal firm going after the hosting company and getting unmediated access to the data on the server would be critical for politics.ie, but I am not of the opinion that it would necessarily have anything at all to do with a chilling of free speech on Ahern / Tribunal / anything else. I mean, as an occasional browser of the site, as far as I can see, the stuff on the tribunals is a bunch of people who are seriously embedded in the various political parties fighting with each other about, emmm, everything and anything, and I can’t see anybody considering it to be a realistic threat to any vested interest.

23. WorldbyStorm - April 1, 2008

Sorry Chekov, that was in relation not to security, but the second issue address in 22.

According to Dan Sullivan legal advice wasn’t sought or taken by DC. I take Dans word for it. It is very possible what you say might well be the advice, or alternatively that the advice might be to say ‘tell them you’ve sought our advice and this is it and if they want to take it further we’ll all see them in court’. But that’s an imponderable.

Finally, I – not unusually – actually agree with your third point pretty much in its entirety. Which is why, like you and soubresauts and starkadder, if it came to a direct threat to the servers, or the data, I would be entirely supportive of preventing that from being handed over, again, not because it’s earth-shaking, as you say, but simply because it’s not right for the state to take it.

24. Irish Election » Libel and the Irish Internet - April 1, 2008

[...] want to rehash the origins of the story nor can I do much better than Fergal over at Tuppenceworth, Worldbystorm at the Cedar Lounge in encouraging sense and a bit of reason in appraising [...]

25. Starkadder - April 10, 2008

Politics.ie just gets weirder-now a poster has had his
posts deleted “on the advice of the Gardai”:

http://www.politics.ie/viewtopic.php?t=33754&postdays=0&postorder=asc&start=0

The poster was allegedly harassing another poster.

All these “allegedly”‘s..it’s starting to sound like “Have I got
news for you”.

26. WorldbyStorm - April 10, 2008

Hmmm… it’s an interesting question. If a comment contains a previous comment ‘deleted on the advice of the Gardai’ … well shouldn’t that be deleted too?

Weird stuff…

27. Pirates dot ie - Insane in the Mainsail « The Irish Pirate Review - April 16, 2008

[...] It is not for us to fight another pirate’s private war against the landlubbers.  Well, perhaps… And some villainous landlubbers might even hold [...]


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