The Volokh Conspiracy

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Free Speech

Roman Polanski Can't Block Site


From the WIPO Arbitration & Mediation Center Administrative Panel Decision in Polanski v. Uziel (Arbitrators Brian J. Winterfeldt, Warwick A. Rothnie & Marie-Emmanuelle Haas), decided two weeks ago but just posted on Westlaw:

In 1977, the Complainant [film director] was arrested in the United States and charged with unlawful sex with a minor. The Complainant pleaded guilty, but fled before being sentenced. He remains wanted by the United States criminal justice system.

Since that time a number of women have come forward alleging that the Complainant sexually abused them. The Complainant denies these allegations and says he has never been prosecuted, let alone convicted, in relation to any of these allegations.

A film directed by the Complainant, D'après une histoire vraie had its premiere at the Cannes Film Festival in May 2017. It subsequently featured in three further film festivals in Switzerland, Brazil, and Bulgaria early in October 2017 before its commercial release in Paris, France on October 30, 2017.

The disputed domain name was registered on October 31, 2017. Since at least November 3, 2017, it has resolved to a website. The website is headed 'Silence is the Enemy'. It referred to the (then) recent allegations against Harvey Weinstein and then notes that another 'famously infamous man of the movies is again in the spotlight'. The website then explained that the Complainant appeared on October 30, 2017 at La Cinémathèque Francaise as the guest of honour for the launch of a month long retrospective of his oeuvre.

Initially, the website then stated that two named women had recently come forward to make allegations against him. The text included hyperlinks to press reports of the allegations. This text was shortly after replaced with text linking to the allegations against the Complainant by five or six women.

Then, the website set out some paragraphs including quotes allegedly made by the Complainant. The website then continued: 'We can't bear the thought of another woman's or girl's innocence taken away by him. Age and prison time do not cure pedophilia. Polanski has a long history of rampant sexual abuse.

We want to hear your stories about Roman Polanski and other predatory men who have been using their positions of power and influence to sexually abuse and harass women.

This site is dedicated for all the other victims of Roman Polanski, who were afraid to tell what happened years ago—but now, can tell their story knowing that it will not go unheard and will be shared to give others courage around the globe to put Roman Polanski in jail where he belongs.

This unspeakable behavior towards women has to stop. All tips, once verified will be sent to law enforcement authorities and with permission will be shared anonymously on this site.'

Provision was then made for the submission of information.

After a description about the mission of those behind the website and a further call to action, the website included a 'Donate Here' link. This link links through to the Respondent's Real Women Real Stories Patreon account. Over time, there have been 89 subscribers who have donated to this account.

The footer of the webpage included links to the Respondent's 'Real Women Real Stories' YouTube account, Facebook page, and Twitter account….

The actress in the video subsequently gave an interview, which was also posted as a video on YouTube, in which she stated that she wished she had never spoken out as a result of the personal and professional toll she has suffered. However, the interview makes it clear that she did not retract her allegations. In addition, one of the women first named on the Respondent's website subsequently stated on Twitter that she had been repeatedly harassed by the Respondent to provide a video-ed interview of her claims.

The Respondent appears to have been variously a high tech entrepreneur, a hedge fund manager, an art collector, and now describes himself as an executive producer, an investigative journalist, and a former modelling agent. The article about him on Wikipedia claims his documentary films have grossed more than USD 50 million worldwide.

He founded the Real Women Real Stories YouTube channel in March 2016 (although prior to that, the channel had different names).

The description of the channel says the channel 'enables women to raise their voice on what they feel needs attention'. There is a very large number of videos on the channel. Many of them, but not all, describe claims of a sexual abuse nature. When the Complaint was submitted, this channel had 213,000 subscribers and some 59 million views.

In an interview published online in 'L'Obs', the Respondent admitted he had posted on Twitter offering USD 20,000 for a 'tip' strong enough to incriminate the Complainant. The Respondent also admitted that he did not have the funds himself to pay that amount but claimed, if the information were sufficiently compelling, he would be able to get it funded. In the interview, the Respondent also claimed that the testimonials he had received had all been unpaid….

The panel applied the Uniform Domain Name Dispute Resolution Policy:

Paragraph 4(a) of the Policy provides that in order to divest the Respondent of the disputed domain name, the Complainant must demonstrate each of the following:

(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and

(iii) the disputed domain name has been registered and is being used in bad faith.

The panel held that element (i) was satisfied, but went on to conclude:

[I]t cannot be an objection to a criticism or grievance or whistleblower site merely that the contents are alleged to tarnish the reputation of the trademark owner. The point of such a site, if genuinely for that purpose, is to expose some (claimed) shortcoming of or wrongdoing by or grievance against the trademark owner. The objective being to expose the wrong-ness of the repute associated with the trademark.

It is not the Panel's role, nor within its capacity, to rule on whether the criticism is right or wrong; the question before the Panel is whether the disputed domain name is being genuinely used for a fair use purpose….

[A]n attempt to cash in on the reputation associated with a trademark can disqualify reliance on fair use…. [But] the present case is very different: on its face, the website appears to be seeking information about the Complainant with the intent of exposing claims of his alleged wrongdoing.

The evidence shows that the Patreon account—for the Real Women Real Stories—account did attract some limited funding from 89 subscribers. The evidence does not disclose how much the Respondent has earned from advertising on the YouTube channel. As the Complainant points out, however, the Respondent was aggrieved that steps taken by the Complainant with Google to block such advertising on the Respondent's channel did cost him advertising revenue….

The Respondent says these funds were sought to fund the making of his films and maintenance of his websites. On balance, the Panel considers these practices do not disentitle the Respondent from claiming fair use in this case; in short, they do not appear to be a pretext for cybersquatting. First, the content of the website and for that matter the YouTube channel appear to be directly related to the claimed purpose. In addition, the Real Women Real Stories website contains a vast number of videos in which women appear to air their genuinely held grievances and experiences. The Panel does not consider it can dismiss the website or the YouTube channel as shams or mere pretexts.

The offer of a USD 20,000 payment suggests 'chequebook journalism' and the admission that the Respondent does not personally have the money to pay it is troubling. They are not claims made on the website. Moreover, it is not clear from the 'admission' relied on by the Complainant that the Respondent made the offer without a genuine belief the money would be found. The Respondent also denied that any of the testimonials on his sites had in fact been paid for and there is no evidence before the Panel contradicting that assertion.

The Panel does not consider these commercial aspects negate the Respondent's apparent belief that the criticisms of or grievances with the Complainant are genuine and, as already noted, they do not render the scenario to be a pretext for cybersquatting….

[Moreover, i]t appears most unlikely that someone arriving at the website to which the disputed domain name resolves would mistake it for a website operated by or with the approval of the Complainant….

The disputed domain name is not identical to the Complainant's name. Nor is it his full name. On the contrary, the Complainant's surname is prefaced by the phrase 'i met'. While there was a practice among some 'tech minded' people at the start of this century to use the 'i met [name].com' as a kind of calling card, the sense conveyed by such names is equally applicable to persons who have met the name person or persons. Accordingly, the risk of implied (mistaken) affiliation is reduced….

[O]n balance the Panel finds that the Respondent has successfully demonstrated his website is for the purposes of criticism or 'whistleblowing' and not a pretext for cybersquatting. Accordingly, the manner of use qualifies as fair use for the purposes of the Policy….

In light of the failure of the Complainant to satisfy the second requirement under the Policy, the Complaint must fail. Accordingly, the Panel will give only limited consideration to the third requirement.

Under the third requirement of the Policy, the Complainant must establish that the disputed domain name has been both registered and used in bad faith by the Respondent. These are conjunctive requirements; both must be satisfied for a successful complaint …. Given the conclusions reached in section [above], it follows that the Panel finds that, on the record in this proceeding, the Respondent did not register the disputed domain name in bad faith….