| SUMMARY AT some time after the end of the Lipstadt Libel
Action in London, in a transparent attempt to
counter the effect of David Irving's large
and comprehensive website
dossier on the trial, which includes all
pretrial matters, pleadings of all parties,
interlocutory hearings, and the full verbatim
transcripts
of the trial, the Defendant Deborah Lipstadt
opened on her University website a special web page
on Holocaust Denial. In blithe disregard for the laws of copyright, a
court order, and personal and intellectual property
rights, not to mention the Digital
Millennium Copyright Act of 1998, she created a
one-sided collection of documents, namely all the
defence files, including the reports of her hired
Expert
Witnesses, regardless of whether or not they
had been introduced in court (many were not, as
they were subsequently withdrawn), and vast
tranches of documents to which she and her lawyers
had been allowed privileged access under the
Supremed Court Rules of Discovery. Defendants are allowed such access on the basis
of what is known in English law as an "Implied
Undertaking" not to disclose them to others. In
law, as the relatively recent Harriet Harman
case established, such documents remain privileged
unless and until they come into the public domain
by virtue of being "mentioned or quoted in open
court." Absent such mention or quotation, (unless
privilege is waived), under the Supreme Court Rules
they can be used only "for the purposes of the
litigation." Under the terms of a very explicit Order made in
October 1999 by Master Trench, a High Court
judge, Mr. Irving voluntarily allowed Lipstadt's
London firm of lawyers Mishcon de Reya complete
access to all his private diaries, which contained
millions of words. Mr Irving allowed the lawyers,
under the protection of this Order, to remove all
his diaries and make copies. Master Trench ordered
specifically that all such copies of the diaries
were to be returned to Mr. Irving at the end of the
trial, or (if he accepted, which he did not)
certified as destroyed by the defendants. A total of only twelve sentences from these
private diaries were ultimately mentioned or quoted
during the trial. These were was all that the
defendants found was even remotely of use to their
case. Clearly these twelve brief passages could not
provide the defendants with legal justification to
publish the entire corpus of the diaries, even if
copyright considerations did not also apply. Falsely believing that they could do what they
like outside the jurisdiction of the British High
Court, Lipstadt or her lawyers or witnesses however
made private copies of the Irving papers which they
have meanwhile circulated and published. A graver
Contempt
of a Court Order can hardly be conceived. Thus
Kenneth Stern, of the American Jewish
Committee, published in a newspaper article some
highly tendentious extracts relating to a visit by
David Duke to Mr. Irving with early
manuscript chapters of his unpublished memoirs
requesting editing suggestions. Lipstadt has gone further, publishing on her
website thousands of pages of the documents
obtained by way of the U.K. Discovery procedure
from Mr Irving's files, including many of his
private letters to others (which remain his
copyright, of course), and hundreds of complete
pages of the diaries. Only a tiny fraction of these
items was mentioned or quoted in the trial
proceedings, as the transcripts
show. To resolve the situation, as a first stage Mr.
Irving invited
Emory University, which is responsible for the
upkeep and content of the Lipstadt website, to take
immediate remedial action to halt this egregious
violation of his copyrights and the breaches of
privacy which publication of these documents
involves. Each day that Mr Irving's rights are
violated augments the damage and consequent cause
for action. The University is currently refusing
to comply. The fact that the publication places Lipstadt in
gross contempt
of a UK High Court order is of no concern of the
Atlanta (USA) university, but it will concern her
if she comes within the jurisdiction of the court,
as it is open to Mr. Irving to apply ex parte to a
High Court judge -- it will ideally be the same
Mr Justice Gray who presided over the libel
action -- for her immediate committal for contempt.
It will similarly concern the partner of her London
lawyers, Mishcon de Reya, who was responsible for
having facilitated the contempt.
 Note
that in Jan 1999 Prof
Deborah Lipstadt asked the British High Court to
forbid this Website to publish her legal documents
in the libel action | [we complied at
once]
| 
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