Threats and Censorship WIPO Style

I recently had hip replacement surgery on April 8, 2014. In preparation for being out for several weeks I wrote a few articles and had a number of guest contributions ready to publish. One of the last articles I wrote in advance of surgery was titled WIPO Deputy Director Alleges Gurry Misconduct. The article was published on IPWatchdog.com just several hours before my surgery. The article explained that the top ranking American Official at the World Intellectual Property Organization (WIPO), James Pooley, had filed an official complaint alleging misconduct by WIPO Director General Francis Gurry. I provided the complaint and the exhibits. I suggested that readers read the documents themselves and form their own opinions.

Additionally, I pointed out that Pooley was not the only individual to make such a complaint. On February 5, 2014, Miranda Brown filed a complaint against the World Intellectual Property Organization with the International Labour Office Administrative Tribunal. Brown, a former Deputy Permanent Representative at the Australian Mission in Geneva, was most recently a Strategic Advisor to the WIPO Director General Francis Gurry. Her complaint sought a full, fair and open investigation into the DNA scandal, which she believes was improvidently quashed by Gurry.

Unfortunately, you will not be able to read the aforementioned article on IPWatchdog.com. After having received threats from the WIPO legal department I removed the article. Nevertheless, FOX News has a nice summary here: Top American official charges U.N. patent organization chief with ‘serious violations of national and international law’. You can see other articles relating to various Gurry scandals here, here, here and here.

On April 11, 2014, I was contacted by Legal Counsel for the World Intellectual Property Organization (WIPO). This struck me as not only odd, but also as a potential misuse of WIPO personnel for personal reasons. The communication, as you will see below, alleged that publication of a complaint of misconduct and exhibits filed by the WIPO Deputy Director was defamatory and criminal under Swiss law. Legal action was threatened unless I immediately acquiesced to the demands. Aside from a not so thinly veiled criminal prosecution threat, was a threat of a civil action that would be brought personally by Francis Gurry. What exactly is a WIPO attorney and the WIPO legal department doing threatening personal legal action on behalf of the Director General as an individual?

Here is the e-mail I received:

I am writing to you in my capacity as Legal Counsel of the World Intellectual Property Organization (WIPO), in relation to a report and its accompanying exhibits (“WIPO Deputy Director General Alleges Gurry Misconduct”) that are posted on your website IP Watchdog.

I should like to express my grave concern over the contents of this report, which is both insulting and defamatory, as it contains false statements that harm WIPO and the reputation of WIPO’s Director General, Mr. Francis Gurry.

As at Friday, April 11, 2014, we have noticed that the Report itself has been removed from the website. We are, however, very concerned to see that the annexes to the Report (the so-called “exhibits”) are still posted on your website.  As you will no doubt know, the said Report and its exhibits or annexes constitute defamatory material which, inter alia, suggest corruption, concern DNA allegations, and are a republication of rehashed allegations.

In addition, I should like to remind you that under Swiss law, the publication of such false and defamatory material could constitute a criminal offence. This is, of course, without prejudice to the laws of any jurisdiction to which you may be subject.

We hereby request that you immediately remove the Report and all its exhibits or annexes from the website.

We hereby further request that you publish an apology to the Director General of WIPO for the publication of false and defamatory material on the website.

Please be informed that if this request is not immediately acceded to, the Director General and WIPO will seek independent legal advise to bring defamation proceedings against you in any competent jurisdiction.

We thank you for your anticipated cooperation.

Sincerely,

Edward Kwakwa
Legal Counsel / World Intellectual Property Organization

I am a believer in the First Amendment and the right of free speech. I know I did not publish anything defamatory, and in fact, in the United States, a public figure like Francis Gurry would have an extraordinarily difficult task to prove defamation under the Supreme Court’s ruling in New York Times v. Sullivan. But given that this threat arrived the day after I returned home from surgery and while I was still taking prescribed pain medication I decided to remove the complaint and exhibits without admitting anything. In my opinion, without the complaint of misconduct and the associated exhibits the article falls apart. Therefore, I deleted the article altogether.

I do not like giving into censorship, and under different circumstances I would like to think that even the threat of criminal prosecution in Switzerland wouldn’t have influenced me. However, while I was recovering from surgery and still on prescribed pain medication it was not the right time for me to be making any legal decisions, let alone decisions that could have potentially had an agency of the United Nations pursuing a criminal prosecution against me in a distant jurisdiction.

While I am regarded as a blogger there is no doubt that in today’s world bloggers play an increasing and important role as a part of the news media. Furthermore, I have been granted press credentials by the White House, the United States Supreme Court and the United States Patent and Trademark Office. I have also received press credentials from various industry organizations and think-tanks, including but not limited to the Association of University Technology Managers, the Biotechnology Industry Organization and the Center for American Progress. For years I have interviewed industry news makers, including elected politicians, appointed government officials, judges and high profile lawyers and CEOs. This attack on me personally by WIPO attorneys, presumably at the behest of Francis Gurry, is mind-boggling.

It is utterly incomprehensible that an agency of the United Nations would threaten a journalist with criminal prosecution and personal civil liability for providing information contained in an official complaint filed by a whistleblower alleging misconduct. More perplexing is that WIPO and Gurry would do this at a time when the United States is moving forward to relinquish control of the Internet. Many believe it is not a good idea for the U.S. to relinquish control for precisely this very reason: censorship. Others claim that by relinquishing control the United States is merely giving up control of assigning names and numbers. But what if the international community were to confiscate your name and number, or simply refuse to issue you a name and number? Censorship of media is wholly unacceptable, but censorship of the Internet threatens us all. It is inappropriate to threaten journalists like WIPO did in this case, but it is particularly inexplicable now when fears of censorship and control of the Internet are openly being discussed. Would this be the future of the Internet under international control?

This censorship by WIPO has already had significant chilling effects. Just recently Joff Wild, Editor of IAM Magazine, came to my defense saying shooting the messenger does not destroy the message. Wild wrote:

As a journalist I find this utterly outrageous. I hope that other people do too. Quinn was not threatened with legal action for any allegations that he made, or for the slant on the story that he wrote around Pooley’s report and exhibits. Instead, he was threatened with legal action for providing a link to them…

Looking at the letter Quinn received, I do not see a request, I see intimidation and threat; an attempt, in other words, to make a story that is undoubtedly very discomfiting for Gurry and others at WIPO go away.

But even Wild, with the resources of IAM Magazine behind him, decided not to publish or link to the complaint and exhibits filed by Pooley out of fear. I can’t say I blame him given I made the same decision. In fact, I well understand why he made this choice. Still, it saddens me. WIPO is succeeding in its effort to suppress the allegations of the Pooley complaint. What an excellent reminder that the rest of the world does not enjoy First Amendment protections like we do in the United States.

Gurry has for months been dogged by scandal and various allegations. Multiple sources have told me he is a bully and that he rules internally by intimidation. By threatening me with criminal and civil prosecution for providing an official complaint of misconduct from a whistleblower it seems to me that WIPO, presumably by and through Gurry, are engaging in the very conduct that has been at the heart of the Gurry criticism.

The question now is whether this censorship will backfire. In meetings that will be held May 8 – 9, 2014, the General Assembly will decide who is appointed Director General for the next six-year term that will being October 1, 2014. Thus, Gurry’s re-appointment as Director General is not a certainty, although it would be naive not to recognize that at this point he surely does have the inside track to another term. But will this latest chapter give Member States pause, or will Gurry be installed at the helm of WIPO once again?

In my opinion, threatening a journalist for merely reporting on newsworthy events should provide sufficient reason for everyone to rethink the allegations and dig deeper for answers.