Roman Polanski cannot block

From the decision of the Administrative Council of the WIPO Center for Arbitration and Mediation in Polanski v. Uzziel (Arbiters Brian J. Winterfeldt, Warwick A. Rothnie & Marie-Emmanuelle Haas), decided two weeks ago, but just posted on Westlaw:

In 1977. Complainant [film director] was arrested in the United States and charged with illicit sex with a minor. The prosecutor pleaded guilty but fled before sentencing. The United States criminal justice system is still looking for him.

Since then, numerous women have come forward claiming that the prosecutor sexually abused them. The complainant denies these allegations and says he has never been prosecuted, let alone convicted, of any of these charges.

The film directed by the Appellant, Based on a true story had its premiere at the Cannes Film Festival in May 2017. It subsequently appeared at three more film festivals in Switzerland, Brazil and Bulgaria in early October 2017 before a commercial release in Paris, France on October 30, 2017.

The disputed domain name was registered on October 31, 2017. It has grown into a website since at least November 3, 2017. The website is entitled ‘Silence is the enemy’. He made reference to the (then) recent allegations against Harvey Weinstein, then notes that another ‘famously infamous movie man is back in the spotlight’. The website then explained that the plaintiff appeared on October 30, 2017 at French Cinematheque as the guest of honor on the occasion of the opening of a month-long retrospective of his work.

Initially, the website then stated that two named women had recently come forward with allegations against him. The text contained hyperlinks to newspaper reports about the allegations. This text was shortly thereafter replaced by text linking to allegations against the plaintiff by five or six women.

The website then released some excerpts including quotes allegedly made by the prosecutor. The website then continued: ‘We can’t bear to think that he has taken away another woman or girl’s virginity. Age and time in prison 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 used their positions of power and influence to sexually assault and harass women.

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

This unspeakable behavior towards women must stop. All tips, once verified, will be forwarded to law enforcement and will be shared anonymously on this site with permission.’

Then provision was made for submission of information.

After describing the mission of those behind the site and a further call to action, the site included a ‘Donate Here’ link. This link goes to the respondent’s Real Women Real Stories Patreon account. Over time there were 89 subscribers who donated to this account.

The footer of the website contained links to the Respondent’s ‘Real Women Real Stories’ YouTube account, Facebook page and Twitter account….

The actress in the video then gave an interview, which was also released as a YouTube video, in which she stated that she wished she had never spoken out because of the personal and professional suffering she had endured. However, it is clear from the interview that she has not retracted her accusations. In addition, one of the women first named on the defendant’s website subsequently stated on Twitter that the defendant repeatedly harassed her into giving a video interview with her allegations.

The interviewee appears to have been a high-tech entrepreneur, hedge fund manager, art collector, and now describes himself as an executive producer, investigative reporter and former modeling agent. His Wikipedia article claims that his documentaries have grossed more than $50 million worldwide.

In March 2016, he founded the YouTube channel Real Women Real Stories (although before that the channel had different names).

The description of the channel states that the channel ‘enables women to raise their voices about what they think 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. At the time the lawsuit was filed, this channel had 213,000 subscribers and about 59 million views.

In an interview published online in ‘L’Obs’, the defendant admitted to posting on Twitter offering $20,000 for a ‘tip’ strong enough to incriminate the plaintiff. The defendant also admitted that he himself did not have the means to pay that amount, but claimed that if the information was convincing enough, he could obtain the funds. In the interview, the respondent also claimed that all the testimonials he received were unpaid….

The Panel applied the Uniform Domain Name Dispute Resolution Policy:

Paragraph 4(a) of the Policy states that, in order for the defendant to be dispossessed of the disputed domain name, the plaintiff must prove each of the following:

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

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

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

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

[I]there can be no objection to criticism or complaint or a place for whistleblowers only that the content allegedly tarnishes the reputation of the trademark owner. The point of such a site, if it is indeed for that purpose, is to expose some (alleged) defects or irregularities by or complaints against the owner of the trademark. The aim is to expose the fallacy of the reputation associated with the trademark.

It is not the Commission’s role, nor within its capacity, to decide whether a criticism is right or wrong; the question before the panel is whether the disputed domain name is really being used for the purpose of fair use….

[A]n attempt to cash in on the reputation associated with a trademark may disqualify reliance on fair use…. [But] the present case is very different: on the face of it, the website appears to be seeking information about the plaintiff with the intention of debunking allegations of his alleged wrongdoing.

Evidence shows that the Patreon account—for Real women, real stories—the account attracted some limited funds from 89 subscribers. The evidence does not reveal how much the defendant earned from advertising on the YouTube channel. However, as Plaintiff points out, Defendant was aggrieved that the steps Plaintiff took with Google to block such advertising on Defendant’s channel cost it advertising revenue….

The defendant says that these funds were requested to finance the making of his films and the maintenance of his websites. All in all, the Council considers that this practice does not deprive the defendant of the right to file a claim for fair use in this case; in short, they don’t appear to be an excuse for cybersquatting. First, the content of the website, and thus the YouTube channel, appears to be directly related to the stated purpose. In addition, Real women, real stories The website features a large number of videos in which women appear to voice their genuine complaints and experiences. The panel does not feel that it can dismiss the website or YouTube channel as false or mere excuses.

The offer of a $20,000 payout suggests ‘checkbook journalism’ and the admission that the defendant personally does not have the money to pay for it is troubling. These are not the claims on the website. Moreover, it is not clear from the ‘confession’ referred to by the plaintiff that the defendant made the offer without a genuine belief that the money would be found. The defendant also denied that any of the statements on his site were actually paid for and there is no evidence before the panel to contradict that claim.

The Commission does not find that these commercial aspects negate the defendant’s apparent belief that the criticisms or complaints against the plaintiff are sincere and, as already noted, do not turn the scenario into an excuse for cybersquatting….

[Moreover, i]It seems highly unlikely that anyone arriving at a website to which the disputed domain name points would mistake it for a website operated by or with the approval of the plaintiff….

The disputed domain name is not identical to the plaintiff’s name. Nor is his full name. On the contrary, the plaintiff’s last name precedes the term ‘i met’. Although at the beginning of this century there was a practice among some ‘technologically oriented’ people to use ‘and meth [name].com’ as a kind of business card, the meaning conveyed by such names is equally applicable to persons who have met the name of a person or persons. Accordingly, the risk of implied (wrong) affiliation is reduced….

[O]n balance, the Panel finds that the Respondent has successfully demonstrated that its website is for criticism or ‘whistleblowing’ rather than a pretext for cybersquatting. Accordingly, the manner of use qualifies as fair use for the purposes of the Policy….

In light of the complainant’s failure to satisfy the second requirement under the Policy, the complaint must be dismissed. Accordingly, the Council will only consider the third request to a limited extent.

According to the third requirement of the Policy, the plaintiff must prove that the disputed domain name was both registered and used in bad faith by the defendant. These are conjunctive requirements; both must be satisfied for a successful appeal…. In view of the conclusions drawn in Sect [above]it follows that the panel finds that, according to the record in this proceeding, the defendant did not register the disputed domain name in bad faith….

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