The case of the incredible, disappearing website
There's a moral in here somewhere
An online art news site, operated by a poacher-turned-gamekeeper in the illicit art trade, has been disappeared from the web, following a court injunction issued by a state court in Ohio.
James E Ferrell, founder of propane distributors FerrellGas, and Bruce Ferrini, an art dealer, sought an injunction against Michel van Rijn after he breached the terms of a gagging order. In 2002, van Rijn undertook not to mention Ferrell, his companies, or his associates at the Cleveland Museum of Art, including Katharine Lee Reid, director, and Michael Bennett, curator.
In 2003, however, van Rijn ran a story on his site in which he linked to a piece on the NYTimes.com website. Although he did not explicitly mention Ferrell, Reid or Bennett, the story on NYTimes.com did.
In February 2003, the lawyers descended, and van Rijn was ordered to remove the story. He complied, but continued to argue that he should be allowed to publish because the only reference to Ferrell, Reid or Bennett was through the link to the NYTimes website. The legal battle went on for 17 months.
It should be noted, that the US courts would not have had jurisdiction over van Rijn's site, but for the gagging order he signed. He hosts it on servers in his London home, and the Dutch ISP XS4All provides the co-location service.
But, on 4 October 2004, in a fit of pique, van Rijn published all his background research on the story. In so doing, he unquestionably breached his gagging order. His lawyer quit the case the same day.
The court allowed him some time to find new counsel, but by 25 October the fight was over. The US District Court of the Northern District of Ohio, Eastern Division, issued an injunction ordering that van Rijn remove the story, and all references to Ferrell, Reid and Bennett within 12 hours.
Defeated, van Rijn says he then complied with the injunction. Ferrell's lawyers dispute this, see update at bottom of page.
This should have been the end of it, but Network Solutions was instructed to remove the site from the DNS register. The domain www.michelvanrijn is currently on registrar lock, and cannot be accessed.
Van Rijn has written to the court and to Network Solutions with an undertaking not to re-publish the material. At the time of writing, he has had no response from the Court; and Network Solutions says that its hands are tied until the plaintiff's lawyers instruct them that the site can be reconnected.
Mark Weston, head of the IP/IT/Ecommerce Group at law firm Matthew Arnold & Baldwin, explains that NSI reserves the right to protect itself when it acts as a registry of domain names, and that the terms of the court order would probably have them worried.
"The court order binds everyone involved in publishing the website," he says, "including NSI. But the injunction is limited in scope."
This Court GRANTS Third-Party Plaintiff’s request for an injunction completely barring Mr. van Rijn from publishing his website at its current location, or at any subsequent web address to which he attempts to move, until he removes all references, articles, and links relating to those individuals about whom he is prohibited from referencing.
Weston continues: "The important part here is that Michel van Rijn is prohibited from publishing until he removes the offending material. If he has removed it, and given an undertaking that he will not re-publish it, then there is no reason for Network Solutions to continue blocking his site. At the moment, he can't even use it to publish family photographs."
Network Solutions told us that it couldn't comment on specific accounts, but issued a statement of its policy:
"When Network Solutions receives legal orders to turn down and/or lock the domain we must comply. We cannot turn a site back up and/or unlock it until one of two things happens (as noted in our service agreement):
1) Network Solutions is directed to do so by the judicial or administrative body
2) Network Solutions receives notification by the registrant and the other party contesting the registration and use of our domain name registration services that the dispute has been settled".
Mark Weston argues that it may be a breach of van Rijn's rights for the site to continue be blocked in this way, regardless of any gagging orders he might have signed.
"If he [van Rijn] can prove he has taken this material down, then they have gone way too far," he concludes.
Van Rijn has registered a new domain and his art news site is back on the web at www.michelvanrijn.nl.
At the time of writing, neither Ferrell nor his lawyers had replied to our emails requesting comment. ®
Lawyers acting for Mr. Ferrell contacted The Register following publication of this article. They had this to say:
Mr. van Rijn has not removed from his website all of the prohibited content as required by the Court's October 29, 2004 contempt/injunction order, and the injunction therefore remains in place. Mr. van Rijn's non-compliance is detailed in a pleading which we filed with the Court yesterday.
Network Solutions, LLC has stated that it will not reinstate the van Rijn .com site "until such time as we receive an order or other communication from the United States District Court for the Northern District of Ohio certifying that [Mr. van Rijn has] complied with its various orders." Reinstatement, therefore, awaits only Mr. van Rijn's demonstration to the court that he has fully complied with the October 29, 2004 order.
The case continues.
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