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Threats and Censorship WIPO Style


Written by Gene Quinn
Patent Attorney & Founder of IPWatchdog, Inc.
Principal Lecturer, PLI Patent Bar Review Course
Posted: April 29, 2014 @ 9:00 am

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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.

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Posted in: Gene Quinn, International, IP News, IPWatchdog.com Articles, WIPO

About the Author

is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103) been recognized as the top intellectual property blog by the American Bar Association. He is also a principal lecturer in the PLI Patent Bar Review Course. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.

 

15 comments
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  1. Gene,

    What WIPO has done here is way beyond the pale. How dare WIPO’s legal counsel threaten criminal/civil action against a U.S. citizen for simply posting what is already out in the public domain!

  2. Gene,

    My thoughts are to you and your family, hoping for a quick recovery.

  3. They should be ashamed.

    Here’s to a speedy and full recovery Gene. From what I hear (once they get through the tough rehab and healing), most folks feel better than they have in years after such an operation.

  4. Gene,

    Unfortunately libel laws in the UK are wide-ranging, extremely complex, very expensive to deal with and unbelievably punitive if you lose. I wish we had the resources not to worry about any of that, but we don’t – so we cannot risk linking to Pooley’s Report, even though we have it. That is a win for WIPO and its tactics. But a lot more people know about what happened to you now and the disgraceful way in which WIPO reacted to your story, which was one any decent journalist with any integrity would have run. That is a good thing. Perhaps someone with a bit of power and influence will have the balls to take things on from here. We shall see.

    Best wishes for a speedy recovery.

    Kind regards,

    Joff Wild
    Editor, IAM

  5. Joff,

    Thanks for your support of Gene here. I’m familiar with how strict and punitive the UK libel laws are, as well as how far some European countries believe their jurisdictional reach encompasses. I’m also thankful we have in the States 1st Amendment free speech rights to prevent government officials from taking the coercive, intimidating, abusive and outrageous course of action that WIPO and Gurry have decided to employ here.

  6. Joff-

    Thanks for writing about the situation. I know what you did has gotten the word out far and wide. For that everyone should be grateful.. I know I am.

    I completely understand why you didn’t publish or link to the complain and exhibits. WIPO is using their size and willingness to fight dirty to circle the wagons around Gurry. It would be one thing to fight against a personal lawsuit brought by an individual (i.e., Gurry) but quite another to fight against an agency of the United Nations. It seems like an abuse of Office to have had the WIPO legal staff make these threats, but the message is clear. Anyone who dares to cross Gurry will have the full weight and authority of WIPO thrust down on them.

    Cheers.

    -Gene

  7. All-

    Things are going relatively well on the rehab front. I was doing outstanding until this past weekend, when I had a relatively minor setback. Getting around good, walking well with a cane, but did something to irritate a nerve or something, so have to take it easy (i.e., no rehab) for the rest of the week. Still, I should be on schedule. About the 6 week mark is when things are supposed to substantially look up from what I hear.

    Cheers.

    -Gene

  8. Infection Avoidance is the KEY with Hips, do not hesitate alerting the Doctor to any hint of a FEVER!

    Thanks for the Light turned on the nest of the cockroach Euro trash.

    ICBP

  9. To all:

    I urge you to write your Congressman/Senator to condemn this blatant and unlawful effort by WIPO at censorship. If a foreign organization like WIPO can freely intimidate, coerce, and silence someone like Gene (and his patent blog) for properly exercising his/its Constitutional First Amendment rights to free speech and freedom of the press through such improper tactics, no U.S. citizen is immune from such egregious intimidation and coercion by other foreign organizations or countries.

    My letter to my local Congressman (Speaker John Boehner) is already in the mail.

  10. The Fox News article was very interesting. “At the time, Gurry had filed a criminal defamation charge with Swiss authorities against his unnamed detractors.”

  11. Mark-

    Yes. I won’t be going to Switzerland, that is for sure.

    -Gene

  12. I look forward to Gene becoming clear from the medications and restoring fully the articles. It is beyond ridiculousness that WIPO would attempt to reach a US blog – even China only seeks to censor within its borders.

  13. Anon,

    Unfortunately, Switzerland isn’t alone in Europe in trying to overreach beyond its borders. At least one other European country I’m aware of with a similar concept of “world wide” jurisdiction when it comes to the Internet is France.

  14. Gene,

    I know you and I don’t always see eye-to-eye (or, well, almost never see eye-to-eye) on these things, but I’m appalled at how WIPO and Gurry have acted here (and wrote up a post along those same lines).

    However, I also wanted to point you to another law that was recently passed that grants you even further protections. The SPEECH Act was passed a few years ago, in an attempt to directly deal with these kinds of matters, making it clear that the US will not recognize bogus defamation claims like these that are designed to stifle a free speech or a free press: http://www.gpo.gov/fdsys/pkg/PLAW-111publ223/html/PLAW-111publ223.htm In the Congressional Record, it is made clear that this act is intended to protect those who publish the works of others, noting that they are protected under Section 230 of the CDA: http://www.gpo.gov/fdsys/pkg/CREC-2010-07-27/pdf/CREC-2010-07-27-pt1-PgH6126-6.pdf#page=3

    I recognize that you have no desire to test this law, but just sharing it with you in case WIPO bizarrely decides to try to take this any further.

  15. Mike-

    I know we don’t see eye to eye on much, but I did see your article on this and really appreciate the support.

    Thanks for the information on the SPEECH Act. Truthfully, I’m less worried about getting sued for defamation than the criminal threats. In the U.S. Gurry would have a significant uphill battle, practically insurmountable, based on the standard for public figures from NY Times v. Sullivan. I suppose he could sue me overseas, but I have no assets there so he would have to eventually come back to the US and seek to enforce a judgment. A lot of hurdles and ultimately I think I would prevail. But as I understand it Gurry has previously filed criminal charges against his critics in Switzerland.

    We will see what happens. I’ve gotten a lot of support, so if Gurry/WIPO does come knocking I will be well defended. So the question now is whether the international community will allow him another term as Director General. If he is given another term that will speak volumes about what the UN deems acceptable and how fragile free speech rights really are globally.

    Cheers.

    -Gene