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Ex-ORBS owner loses defamation suit

Alan Brown forced to pay £12,600

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The ex-owner of the spam blacklisting company ORBS, Alan Brown, has lost the defamation suit brought against him by the former head of Domainz - New Zealand's domain registry maintainer - Patrick O'Brien.

Mr Brown, who had to close ORBS and his ISP Manawatu Internet Service after the suit and two court cases against him put him close to bankruptcy, was ordered by Judge Gregory Ross to pay Mr O'Brien damages of Nz$30,000 (£9,000) plus an extra Nz$12,000 (£3,600) because of his "outrageous" conduct.

Mr Brown said, when asked why he had chosen to represent himself: "At the moment I've got a net worth of about $500. If I could afford $42,000, then I could have afforded a lawyer." He has also said he will launch an appeal if someone provides the funds.

The case was a very important one for several reasons. First of all, and as has been extensively reported by the New Zealand media, it creates a precedent for defamation over the Internet since Mr Brown made the offending comments on an Internet newsgroup.

There have been several such cases in the US already and in the UK Laurence Godfrey famously took both Canadian student Michael Dolenga and ISP Demon Internet to court over libellous comments and won. But this is the first such case in New Zealand.

Not only that but it led to the complete overhaul of the management board of Domainz when several of its number complained that Domainz was funding both sides of the defamation case. It was also the beginning of the end for Alan Brown's ORBS company.

The situation arose when Mr Brown responded to previous arguments in a public forum between Mr O'Brien and a third party. He made a variety of claims at this point and in subsequent postings, including that Mr O'Brien had used Domainz money for his personal gain, did not have the interests of Domainz in mind, had committed a criminal offence, had threatened to silence any criticism and was a "buffoon".

Domainz decided to intervene and sent Mr Brown a lawyer's letter asking for costs and an apology. Once he had received the letter, Mr Brown made a further three posts saying what was going on from his side of things and using the legal defences against defamation as justification.

The judge in the case disagreed entirely and said the Mr Brown had failed to show his comments came from an honestly held belief that they were true. Instead he said they were more of a personal attack. Mr Brown also claimed the legal defence of fair comment, but the judge said that fair comment was based on an informed argument but Mr Brown has made no attempt to separate fact and opinion.

The judge was also unimpressed by the fact that when Mr Brown was offered the chance to apologise, he reacted by making further defamatory allegations. The judge also said that a key motivator behind Mr Brown was the financial welfare of his ISP.

The judge said of comments made on the Internet: "I must say I know of no forum in which an individual citizen has the freedom to say what he likes and in any manner he wishes about another individual citizen with immunity from suit for all consequences." And so he made sure there wasn't.

The defamation case came on top of two lawsuits by rival companies that claimed Mr Brown has wrongly put them on the ORBS spam blacklist. A judge ruled for them in July. ®

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