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Posted Sunday, March 21, 2004 • HELP MR IRVING'S LEGAL BATTLES click

to Legal Situation caused by Lipstadt's illegal postings of documents on her university website


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Witnesses, regardless of whether or not they had been introduced in court (many were not, as they were subsequently withdrawn), and vast tranches of documents to which she and her lawyers had been allowed privileged access under the Supremed Court Rules of Discovery.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.continue



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]

Parent index: David Irving's libel action against Penguin Books Ltd & Deborah Lipstadt

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