Visa Threatens Public Intelligence Hosting Provider Over “Confidential” Document

To view a copy of the threat, please click on the image above.

Public Intelligence

On June 15, 2010, our site’s main hosting provider LeaseWeb BV, which is located in the Netherlands, received a legal threat from representatives of Visa International Service Association.  The threat was sent from the Brussels office of Jones Day, the eighth largest law firm in the world, by a Mr. Sébastien Evrard and claims that our publication of a document titled “Visa International Service Association Response to South African Banking Enquiry” is an “unlawful use” of “copyrighted, confidential, and proprietary material”.  However, the document they are referring to is not confidential at all.  In fact, it is openly available on the website of the South African Competition Commission “a statutory body” of the Government of South Africa empowered to “investigate, control and evaluate restrictive business practices, abuse of dominant positions and mergers in order to achieve equity and efficiency in the South African economy”.  A list of submissions by major banking and credit providers on the site openly offers the document for download. At the top of this page, there is a notice regarding confidentiality:

The Banking Enquiry depended entirely on the voluntary submission of information by all interested parties and their willingness to have the significance and reliability of that information tested in co-operation with the panel and supporting staff of the Enquiry.

Access to Submissions Received

As the Enquiry was on-the-record, the Enquiry undertook to make all submissions received available to stakeholders and the general public subject however to the restrictions on disclosure of confidential information provided for in the Competition Act.  Accordingly, sections of any submissions over which confidentiality has been claimed cannot be made public and any such sections have either been blacked out in the submission or have been separately lodged with the Enquiry by the relevant stakeholder.

This is followed by the list of submissions from various companies where there are examples of documents that are unavailable for download with a note beside them indicating they are “confidential”.  However, no such note exists beside the document that was published on our site and, in fact, it remains available to download.

A notice at the top of the very same page states that the South African Competition Commission, to which Visa willfully and voluntarily submitted its documentation, is a public and on-the-record commission.  Moreover, the Commission’s site states that its work and documentation is intended to be available for open review to members of the general public.  Such documentation, by its very nature, is incapable of the same restrictions that copyrighted works are entitled for the very simple reason that it constitutes the official governmental business of the South African people.  That is, in order for the South African people to be able to review their government’s affairs and participate in its activities they must be able to freely disseminate and reproduce materials that are its official concern.  Indeed, this is encouraged by the South African Competition Commission website.

To this end, we make such materials available in the hopes of helping to spread awareness of the issues and information that they contain.  Often our dissemination of works available elsewhere online has helped to facilitate wider access and informed significant investigations.  This was demonstrated recently when our publication of BP’s Oil Spill Response Plan for the Gulf of Mexico was used as a source in articles by Newsweek, Mother Jones, Vanity Fair, the Huffington Post, and a large number of other publications.  We do not profit from the reproduction of such works and, in fact, both lose money and risk greater loss of money through our site’s operations.  This is despite the fact that many online megacorporations enjoy the ability to freely copy and disseminate copyrighted works en masse.  For an example of this irony, you need only understand that the very same “confidential” document that resulted in this threat is also available from Google Docs, cached in both image and PDF form.

To make matters worse, the law firm which issued the threat, Jones Day, has a history of similarly abusive practices.  According to the Citizen Media Law Project at Harvard University, Jones Day sued the website in August 2008 for simply linking to the official Jones Day site.  It alleged that the site had “infringed and diluted the firm’s service mark and violated state trademark and unfair competition laws by using the word ‘Jones Day’ when referring to the real estate transactions of Jones Day attorneys, linking to its site and using lawyers’ photos from its site.”  The firm maintained that these activities created a false impression that Jones Day was affiliated with or sponsored  An excellent post by Paul Alan Levy at the official blog of Public Citizen, which also helped with litigation of the case, described Jones Day’s actions as a strong contender for “grossest abuse of trademark law to suppress speech the plaintiff doesn’t like”.  Levy ended the article by saying that it “appears that Jones Day is a serial abuser of the trademark laws to suppress commentary that it does not like.  Bullies like this need to be resisted.”

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