Contributor, The Volokh Conspiracy

Hamad bin Abdullah bin Khalifa al Thani is a member of the royal family of Qatar, and co-owner and chief executive of Qatar Investment & Projects Development Holding Co. (QIPCO). He is not Hamad bin Abdallah bin Thani al Thani, who was apparently convicted in Czech court of sexually abusing underage girls. (For the rest of the post, I’ll call the two Khalifa and Thani.)

In 2015, though, an anti-Islam blog called the Muslim Issue, hosted on WordPress.com, and allegedly having 15,000 to 35,000 visitors per day, erroneously included Khalifa’s picture, together with his title as CEO of QIPCO, in an article about Thani. (I’ll call this “the connection to Khalifa,” since this controversy isn’t about the post as such, but rather about the post’s erroneously linking the Thani conviction to Khalifa.) The blogger quoted an article from the Prague Daily Monitor, which just referred to a “Prince Thani,” but then added the wrong picture and professional title. Some late 2015 comments to the post noted the mistake, though it’s not clear whether the site operators saw the comments then.

This year, Khalifa’s lawyers sent a takedown demand to the (unidentified) blogger, and when that didn’t yield results, sued the blogger for libel (QIPCO v. Doe (W.D. Wis.)). And indeed falsely suggesting that X committed a serious crime that was really committed by Y can be defamation (especially once the speaker is on notice of the error).

The question is what remedies Khalifa would have. The most familiar remedy is to sue for damages and use the threat of massive liability to pressure the defendant into removing any connection to Khalifa from the story. But the defendant might feel secure about his anonymity or lack assets and thus not worry about the enforceability of the damages award.

Another possible remedy is an injunction against the defendant requiring the defendant to remove the connection to Khalifa, following a trial at which the connection was proven false and defamatory. But that might take many months or even years, during which Khalifa’s reputation would be unfairly damaged and the injunction might not be easily enforceable, if the defendant remains anonymous. To quote one of plaintiff’s papers,

It will no doubt take many more months for Plaintiffs to identify Defendant, if they are able to do so at all. In the meantime, Plaintiffs have high profile events and media coverage occurring, which have already prompted individuals to research Plaintiffs online, resulting in the discovery of the defamatory article at issue in this case. Most urgently, Plaintiffs will be loaning priceless art and jewelry to a well-renowned museum in Venice for a five month exhibit. Plaintiffs are concerned that this high profile exhibit and related media will result in more research into His Highness personally and QIPCO, and will falsely link their good reputations with heinous crimes they are not associated with in any way. The harm created by this false connection will be immediate, irreparable, immeasurable and, frankly, catastrophic for the Plaintiffs.

Instead, Khalifa opted for a combination of two remedies which I’ve noticed emerging as a new trend in a good deal of libel litigation. First, he sought a temporary restraining order and a preliminary injunction, to be issued before trial. (I’ll discuss the temporary restraining order and the preliminary injunction together, just referring to both as “preliminary injunctions.”)

Second, he argued that the order should be legally binding on Automattic (which runs WordPress) and not just on the defendant. Automattic, as I understand it, will usually remove material that had been specifically found to be defamatory by a court, just as a matter of its own ethical and business judgment; but Khalifa sought to compel Automattic to do that.

And on both points, the district court has agreed with Khalifa, at least so far. Let me discuss each item in turn, and then turn to a third question (why Wisconsin?).

1. Preliminary injunctions in libel cases. Throughout much of American history, dating back at least to Brandreth v. Lance, an influential 1839 New York decision, injunctions in libel cases have been seen as unconstitutional “prior restraints” on speech. In recent decades, the tide had shifted in some measure, and most courts that have considered the matter have upheld injunctions that (a) are issued after a trial on the merits, and (b) specifically prohibit just the statements found to be libelous at trial. If speech is found to be unprotected against a damages award — and even against criminal liability, in those states that have criminal libel laws — then it’s unprotected against an injunction as well.

But, generally speaking, courts have refused to allow preliminary injunctions. Such injunctions might seem narrower, because they are temporary, lasting only until trial. Yet they are also based not on a final finding on the merits by a factfinder (often a jury), but just on a preliminary decision by a judge, based on mere anticipated likelihood of success on the merits. Thus, for instance, the California Supreme Court in Balboa Island Village Inn, Inc. v. Lemen (2007), concluded:

We hold that, following a trial at which it is determined that the defendant defamed the plaintiff, the court may issue an injunction prohibiting the defendant from repeating the statements determined to be defamatory. (Aguilar v. Avis Rent A Car System, Inc. (plurality opinion) [“Once a court has found that a specific pattern of speech is unlawful, an injunctive order prohibiting the repetition, perpetuation, or continuation of that practice is not a prohibited ‘prior restraint’ of speech…"].) Such an injunction, issued only following a determination at trial that the enjoined statements are defamatory, does not constitute a prohibited prior restraint of expression. “Once specific expressional acts are properly determined to be unprotected by the first amendment, there can be no objection to their subsequent suppression or prosecution.” (Tribe, American Constitutional Law; Redish, The Proper Role of the Prior Restraint Doctrine in First Amendment Theory [“in certain instances prior restraints are appropriately disfavored … because of the coincidental harm to fully protected expression that results from the preliminary restraint imposed prior to a decision on the merits of a final restraint…. Such interim restraints present a threat to first amendment rights … that expression will be abridged … prior to a full and fair hearing before an independent judicial forum to determine the scope of the speaker’s constitutional right."].)

Likewise, the Kentucky Supreme Court held in Hill v. Petrotech Resources Corp. (2010), that “defamatory speech may be enjoined only after the trial court’s final determination by a preponderance of the evidence that the speech at issue is, in fact, false, and only then upon the condition that the injunction be narrowly tailored to limit the prohibited speech to that which has been judicially determined to be false.”

The district court, nonetheless, has issued a preliminary injunction, ordering the removal of “any text or photos that insinuate that plaintiffs Qatar Investment & Projects Development Holding Company W.L.L. (QIPCO) and His Highness Sheikh Hamad bin Abdullah bin Khalifa al-Thani are connected to the charges against Hamad bin Abdullah bin Thani al-Thani.” This isn’t the only court to have done so, to be sure; and I should also note that so far, nobody seems to have raised to the court the objection to preliminary injunctions that I outline above. (The defendants haven’t yet filed any papers on the merits, and the arguments raised by Automattic deal with other matters.) Still, I assume that the court must be aware that injunctions in libel cases are at least highly controversial, and raise potential First Amendment problems.

My guess is that the court wasn’t much detained by the problems here, because there is so little controversy about the facts: The connection drawn by the post between Khalifa and Thani seems clearly wrong. And perhaps the Balboa and Hill courts’ concerns about speech-restrictive orders entered before a “final determination” “that the speech at issue is, in fact, false” are less serious where there appears to be no real dispute that the speech is indeed false. Maybe that’s sensible on facts such as these, given the plaintiff’s interest in protecting his reputation (which libel law is supposed to substantively respect). Still, this development seems worth further thought, especially since approval of preliminary injunctions in libel cases can easily slip down to much more controversial factual disputes.

2. The injunction also binds Automattic, Tumblr and Twitter. (The posts from the Muslim Issue was also reposted on the Muslim Issue Tumblr and Twitter accounts.) But Automattic, Tumblr and Twitter aren’t listed as defendants — and, to my knowledge, weren’t served with the complaint before the injunction was issued, and thus had no real opportunity to intercede beforehand and object to the injunction. Automattic had indeed learned of the case because they had been subpoenaed to provide any contact information for the Muslim Issue blog; but they assert that they weren’t properly informed about at least some of the proposed orders in time to object to them.

Moreover, the plaintiff’s position seems to be that the injunction requires Automattic to remove all blog posts that repeat the allegations, including posts on other blogs (What Is Islamophobia And Is It Real? and Lake Malaren) that copied the post from the Muslim Issue. The authors of those blogs likewise haven’t been listed as defendants, and to my knowledge weren’t served. (I’ve seen no record of such service in the court docket; I e-mailed plaintiff’s lawyer to ask about that, but haven’t heard back.)

Now I appreciate the plaintiff’s view of this: Once the post is found to be libelous (setting aside the preliminary injunction concerns I discussed above in item 1), why not order everyone to remove it? Maybe the plaintiff won’t be able to track down the author’s identity (at least for a long time), and thus won’t be able to force the plaintiff to promptly remove the material — but why not require the hosting companies to remove all copies of the material?

The problem, I think, is that Automattic, Tumblr and Twitter have their own First Amendment rights to distribute material, and the two other blogs have their own First Amendment rights to reprint material. Before those rights are cut off, they have a First Amendment and due process clause right to themselves be heard on the matter.

A bookstore can’t be ordered to remove an allegedly obscene book, and an art gallery can’t be ordered to remove an allegedly obscene painting, without an opportunity to first challenge the finding of obscenity. See Quantity of Copies of Books v. Kansas (1964) (plurality op.) (“in not first affording [the bookstore] an adversary hearing, the procedure leading to the seizure order was constitutionally deficient”). Likewise, a hosting company can’t be ordered to remove an allegedly defamatory post without an opportunity to first challenge whether it is indeed defamatory. And a court can’t order the removal of a post on blog B (here, for instance, Lake Malaren) without giving that blogger an opportunity to first challenge that proposed removal.

The district court’s position here appears to be that Automattic, Twitter and Tumblr are “aiders and abettors” of the original blogger’s defamation, because their platforms are used to publish it. But such arms’ length relationships generally shouldn’t qualify as aiding and abetting, I think, especially when it comes to free speech cases — intermediaries should indeed have their own day in court, rather than be treated as mere aiders and abettors of the original author. (Readers who follow Internet law will recognize that this is the very issue now before the California Supreme Court in Hassell v. Bird.)

Indeed, the district court’s position seems particularly inapt in the U.S. Court of Appeals for the 7th Circuit (where this case is being litigated), which considered the issue in Blockowicz v. Williams (7th Cir. 2010). As Automattic argued in trying to free itself from the injunction,

In Blockowicz v. Williams, 630 F.3d 563, 568 (7th Cir. 2010), the court examined exactly the situation at issue here: whether a nonparty internet host could be required by an injunction to take down website content of a third party. The Blockowicz trial court refused to enforce an injunction against Xcentric, the website [RipOffReport] host. The ruling was upheld on appeal. The court found that Xcentric did not fall within Rule 65. “Actions that aid and abet in violating the injunction must occur after the injunction is imposed for the purposes of Rule 65(d)(2)(C), and certainly after the wrongdoing that led to the injunction occurred.” With respect to Xcentric’s post-injunction actions, the court found that “the fact that Xcentric is technologically capable of removing the postings does not render its failure to do so aiding and abetting.”

Although it is true that Xcentric was not named in the injunction at issue in Blockowicz, and non-party Automattic has been named here, the critical holding of Blockowicz is directly on point: Rule 65 can only enjoin non-parties in certain limited situations. Simply, Automattic does not fit into any of the limited exceptions to this rule.

Plaintiffs here, as in Blockowicz, have not alleged any post-injunction activity by Automattic that would indicate “active participation.” Automattic has removed posts three times pursuant to the TRO and has complied with two subpoenas issued by Plaintiffs. Automattic’s actions have been and continue to be independent of defendant and do not constitute aiding and abetting. See Regal Knitwear Co. v. NLRB (1945) (“The courts … may not grant … an injunction so broad as to make punishable the conduct of persons who act independently and whose rights have not been adjudged according to law.”).

Plaintiffs also have not alleged that Automattic is in privity with defendant. Indeed, Automattic is not an officer, employee, or attorney for defendant, and has never represented itself as or acted as defendant’s agent or servant. Like Xcentric in Blockowicz, Automattic has done nothing “since agreeing to the Terms of Service with [defendant], which [Automattic] did before the injunction was issued and before the statements at issue were even posted.”

The district court disagreed, reasoning that Blockowicz doesn’t apply when the injunction expressly names the third party (here, Automattic); but I think Automattic is right that this is a misreading of the logic of Blockowicz. Automattic appears willing to remove material voluntarily, out of respect for the court order — but I think it’s right that it shouldn’t be legally bound to do so, in a case where it has not been made a defendant. (Even if it is made a defendant, an injunction against it might be precluded by the federal 47 U.S.C. § 230 intermediary immunity statute, but that’s a separate argument.)

3. Why Wisconsin? Finally, why is this case being litigated in federal district in Wisconsin? There’s no reason to think that the author of the Muslim Issue is in Wisconsin, and plaintiff has no special connection to Wisconsin, either. In the words of the judge,

As [Magistrate] Judge Crocker previously noted, “plaintiffs have pled the most tenuous of possible connections by the Doe defendant(s) to this district.” So far, plaintiffs’ investigation has unearthed two possible locations for defendant, neither of which
are in this district: New York and the United Kingdom. So it appears that venue is likely improper here. But it is not clear where proper venues lies, so the court will not order plaintiffs to show cause why this case should not be transferred to a proper venue — yet. Plaintiffs are forewarned that the court is likely to issue such an order in the future.

Here’s my guess, and it’s only a guess: The lawsuit was brought a year and nine months after the original post. That is within the Wisconsin three-year statute of limitations for defamation, but outside the New York one-year statute of limitations. That would explain why the lawsuit wasn’t brought in New York; and of the states that have a two-year-or-longer statute of limitations, Wisconsin might have been the most convenient for the lawyers for various other reasons.

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So an interesting case, I think — not just on its own facts, but because it seems to follow a new template for libel litigation, quite different from the familiar “sue them for damages” tradition in libel lawsuits against the established media. Maybe this is good and maybe it’s bad, but if it’s allowed it’s likely to become even more common.