ShellNews.net: ROYAL DUTCH SHELL PLC DOTCOM, THE ULTIMATE INTERNET GRIPE SITE: Sunday Sept 4, 2005 18:15 PM ET
By Alfred Donovan
The Internet provides a low cost platform for anyone, even of modest means, to reach a global audience. It is the high-tech equivalent of having a soap box at “Speakers Corner” in London’s Hyde Park – that long-established bastion of free speech.
The net gives ordinary mortals the opportunity to publicly criticise the rich and powerful on what are known as “gripe” sites.
Some sites even legally use a dotcom name identical to a target company’s trademark. This is a remarkable development. It is based on a loophole which requires that the gripe site must be non-commercial with no subscriptions and no advertising involved.
To avoid being classed as a “cybersquatter”, the gripe site must be active with no attempt made to sell the domain name, especially to the company holding rights to the corresponding trademark/company name. I have operated Shell related gripe sites for several years and have never offered or sold any domain name to anyone.
There have been important recent developments in case law regarding gripe sites. One such decision is in respect of a website founded by me which operates under several Shell related domain names, all pointed at a single site. It amazingly now contains over 5500 pages of news, information, revelations, leaked documents etc – all relating to Shell. A vast archive of additional confidential Shell documents will be published in due course when the relevant source gives authority for their release into the public domain.
In May of this year Shell International Petroleum Company Limited launched proceedings against me on behalf of the Royal Dutch Shell Group via the World Intellectual Property Organisation (WIPO) in respect of three domain names. The most notable being royaldutchshellplc.com which happens to be the precise dotcom name of the recently unified Royal Dutch/Shell company, Royal Dutch Shell Plc. Shell management neglected to register the dotcom name for their new $200 billion dollar company when only they knew what its name would be: this constituted a truly spectacularly blunder.
Naturally they were astonished to discover that their oldest adversary (in more ways than one) had beaten them to the dotcom name by the time they get round to trying to register it. More information about the unsuccessful proceedings launched by Shell is given below.
First I should explain why my son John and I have a gripe against Shell. For over a decade Shell was a major client on an international basis of a sales promotions company my son and I founded. Shell enjoyed the fruits of our creative ability until they started stealing our ideas. One of our promotions, Shell Make Money, was named in 1999 in a Sales Promotion magazine as being the promotion of the Millennium. It boosted Shell gasoline sales by 30% in every Country in which we ran it for Shell.
We tried very hard to have our initial grievances dealt with by Shell management without having to resort to court action but were fobbed off and subjected to a deluge of threats. Shell stole and used other ideas, one after the other, that we had put forward it confidence. We sued them in the High Court many times and have not lost a single case. What we did not anticipate is that Shell would use underhand methods in defending the claims, including its admitted reliance on undercover agents, who indulged in deception and fraud while engaged on clandestine missions against us on Shell’s behalf.
Such activity completely undermined the most recent High Court case (the SMART case). As a result, although Shell paid all of the legal costs as part of a compromise settlement, my son received a substantially smaller secret payment than he would have otherwise found acceptable. He did so because his key witness was traumatised after having his house burgled and Shell related documents examined. Burglaries were also carried out at my sons’ house and even at his solicitors’ home, all with a similar sinister pattern of activity. Shell denied having any connection with the witness intimidation and the burglaries. Shell did think it appropriate to carry out its own investigation at Shell-Mex House because it was evident that a person who made threats against us had knowledge known only to Shell insiders. In fact his disclosure of Shell's future plans to aggressively combat the SMART claim subsequently proved to be 100% accurate. That fact lent credibility to his threats.
We found it particularly frustrating that Shell management’s actions were so far removed from the pledges of honesty, integrity and openness in Shell’s ethical code – its Statement of General Business Principles - which were promoted in multimillion dollar global advertising campaigns e.g. Profits and Principles. It should have been “Profits and No Principles”.
We therefore used our creative and marketing expertise in a variety of ways to campaign against Shell management’s unscrupulous behaviour.
For many years as part of out campaign we warned far and wide about a deeply ingrained corporate culture of deceit and cover-up at Shell – we wrote to every UK MP, government departments, major Shell shareholders including the Dutch royal family – but our repeated attempts to set alarm bells ringing were ignored. (The subsequent reserves scandal proved that we were absolutely right about Shell management.)
The success of a gripe site depends on the subject and content and whether that information is of continuing interest - otherwise the site is likely to be a one hit wonder. Once a visitor has been exposed to the basic content, why bother to visit again? To take the genre forward, in January 2004, I launched a new type of gripe site which is news based. As a result the content on the site is topical and changes several times every day.
We publish all news major stories about Shell – whether positive or negative. We also publish our own news stories and special reports - as per this article. (I had no idea that the serious ethical flaws which we had identified within Shell management would manifest themselves so spectacularly within days of the launch of the website, when news of the reserves scandal first broke.)
The news element provides a hook which brings a vast number of visitors to our site every day – we have, as indicated, had several thousand visitors in a single day. Many no doubt use services such as Google New Alerts. One thing is certain – they must all have an interest in Shell or otherwise they would not return. Our visitors include Shell shareholders, current and former Shell employees, rival oil companies, NGO's, journalists, lawyers, spies, and people and companies suing Shell – in other words the whole spectrum of individuals from all walks of life interested in Shell or our activities for one reason or another.
For the first few months of its existence Shell management tried to ignore that the gripe site was in operation but I knew due to Shell internal email which fell into my hands, that it was being discussed at the very highest levels of Shell. My published comments were the subject of email discussion between Shell Legal Director Richard Wiseman, Royal Dutch Shell Chairman Jeroen van der Veer and Group Managing Director Malcolm Brinded.
ROYAL DUTCH SHELL AND FREEDOM OF SPEECH ON THE INTERNET
The site created a real predicament for Shell management which pretends to be a supporter of free speech and of the UN Declaration of Universal Human Rights, including the right to freedom of expression. Shell has sent out very mixed signals as will become evident.
Shell had itself set up an Internet facility called TellShell.com which was supposed to provide a forum for open and lively debate about Shell activities. However Shell exercised censorship by deleting postings and substituting an explanation of removal for legal reasons. Subsequently Shell censored the censorship notices – the current policy is apparently to remove any offending posting without leaving any trace that it ever existed on the site, which itself has been buried deeper and deeper in the labyrinth of Shell’s own website.
The phoney war ended in respect of my gripe site when eight Royal Dutch Shell companies collectively obtained a Malaysian High Court Injunction against a Shell whistleblower, Dr John Huong, in respect of information published by me under the name of Dr Huong. Shell subsequently threatened Dr Huong with imprisonment in relation to his postings on my site, party in an effort to put pressure on me to remove them without suing me directly.
Shell subsequently issued proceedings against me via the WIPO in respect of three Shell related domain names: royaldutchshellgroup.com; tellshell.org and royaldutchshellplc.com - the latter no doubt being the real target of the action.
The WIPO domain name dispute resolution facility provides a level playing field for dealing with such disputes but, as I will explain, the process is fatally flawed.
The WIPO provides a model response which was absolutely invaluable to a layman such as me.
Each part of the WIPO procedure has a deadline. For example, as the “Respondent” I had to supply a response to Shell (the “Complainant”) within a specified number of days.
Case decisions are made by an appointed WIPO panel. Both sides are able to suggest names from a list of approved panellists. We ended up with an international panel of three eminent lawyers to decide the case.
Michael Cover is a British solicitor who specialises in Intellectual Property law covering trade mark infringements, domain name disputes, passing off, copyright etc and is also an experienced arbitrator and mediator.
Diane Cabell, an American lawyer, is one of the worlds leading authorities on Internet law. Since 1997 she has been the author of many major publications relating to Internet law. Diane is currently Corporate Counsel of Creative Commons and previously held a senior legal position at The Berkman Center for Internet & Society at Havard Law School.
Daniel J Gervais is a Canadian Professor of Technology Law. Professor Gervais held senior legal positions at the WIPO in Geneva for several years and is the author of a host of major publications relating to the Internet and associated law. He acted as the presiding panellist in the WIPO Shell case.
Shell basically contended that the domain names are (a) identical or confusingly similar to Shell's registered trademarks (b) that I have no rights to the domain names in question and (c) the names were registered and used in bad faith.
To win its case Shell had to succeed in proving its case on all three grounds. The panel decided for Shell on the first test (a) but against them on both (b) and (c): the end result being a unanimous verdict in my favour.
I am of course greatly indebted to the illustrious panel and understand that it is an important decision. It has already been quoted in a subsequent WIPO case. I have to say that the WIPO process is vastly superior in terms of justice and fairness then was evident in the SMART High Court trial which ended in facial circumstances.
I have one other person to thank, apart from my son John, who drafted the response to Shell’s claim. As a result of an article in the Wall Street Journal under the headline “Shell Wages Legal Fight Over Web Domain Name”, I was contacted by a lawyer from Washington DC who shall remain nameless. It was probably the closest I have come to divine intervention. Quite frankly I would have almost certainly lost the case but for his kind help provided entirely without charge. Hence I will no longer be able to make cracks about greedy lawyers. The relevant gentleman provided examples of case history covering gripe sites which we inserted into the response to the WIPO. It has only become clearer in subsequent weeks that he is perhaps the foremost US lawyer in the field of gripe sites.
The fatal flaw in the WIPO process for a “David” up against a “Goliath” is that if the giant in the dispute loses a WIPO case it can still, if it chooses, go to court and use the usual formula of draining the resources of a financially weaker opponent by appealing any decision which goes against it until “David” is forced to give up the fight, irrespective of the merits of the case.
Leaving that possibility to one side, the WIPO case was undoubtedly an unmitigated disaster for Shell. In an effort to impress the WIPO, Shell stated in its submission that it recognises my right to air my opinions about Shell on my website, thus undermining any action it might have otherwise wished to take in future about my publishing exploits. The statement has also undermined its case against Dr Huong. Shell cannot continue to face in two different directions at once.
It also slipped up by making defamatory comments about my son and I in its submission to the WIPO. This was in direct breach of the SMART peace settlement which Shell had previously contended was still in force despite its repudiation of the agreement in 2001, as a result of another breach by Shell.
Shell also completely twisted itself in knots by pretending to the WIPO that it is favourably disposed to my freedom of speech on the Internet, whilst failing to inform them that at the very time it made the statement, it held the aforementioned High Court Injunction over postings published by me on the same site under the name of Dr Huong. That must be a prime example of deceit and hypocrisy by a multinational giant.
The following is the statement made by Shell International Petroleum Limited in its submission to the WIPO on 18 May 2005.
"The Complainant and the Group it represents have been aware of the site since the beginning and whilst they would not endorse or agree with many of the comments made by the Respondent on the website, they have taken the view that the Respondent is entitled to express his opinions and to use the Internet as a medium for doing so."
The following is an extract from the relevant High Court documents lodged in Malaysia relating to Shell’s High Court Injunction/Restraining Order against Dr John Huong, a Shell whistleblower in respect of his comments published by me, Alfred Donovan, on the same web site, under his name: -
“On 10.6.04, the Defendant published on the internet website “Whistleblower No 2” various false, malicious and defamatory statements of and concerning the Plaintiffs and each of them”
It remains a mystery why Shell has taken an entirely different view regarding the right to freedom of speech on the Internet in respect of Dr Huong, its former loyal and devoted employee of 29 years – a respected geologist, compared with its recognition of my rights to free speech on the net. Eight companies within the Royal Dutch Shell Group collectively obtained a High Court Injunction to silence Dr Huong. The Injunction remains in force. I am not sure if it is a racial or ageist motivated issue behind the otherwise inexplicable decision to sue him, but not me, for articles published by me on my website. Dr Huong is 48 year old Malaysian. I am an 88 year old Brit.
Anyone who has any idea or rational explanation for Shell's two faced conduct is welcome to write to me: email@example.com
David Morris and Helen Steel, collectively known as the "McLibel Two" as a result of a campaign which had a devastating impact on McDonald's, have argued that because multinational giants are more powerful and influential than many Countries they, like national governments, should not be allowed to sue for libel. Their argument does have merit but I nevertheless take the view that any published allegations against big business should be well founded.
Disclaimer: The information/commentary in the above article should not be considered as legal advice or as being legally correct. The author is not a lawyer.
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