I’ve left this alone for a couple of days but to bring everyone up to speed the ongoing saga of J Mark Brewer, the St Stephen the Great charity/charitable trust and SPCK’s former bookshops continues to rumble on unabated, with Brewer continuing to fire off his rather sanctimonious legal threats in the direction of Rev. Sam Norton while studiously avoiding any response to the list of substantive questions I sent him in relation to his attempt to file for bankruptcy in the US under a non-existent business name on behalf of a UK registered company/charity.

It seems that while Brewer’s up for bullying Christian cartoonists and members of the clergy, when it comes to taking on a big bad atheist blogger with a penchant for digging into the detail, like yours truly, he seems to be altogether lacking in intestinal fortitude.

Its also interesting to note that despite being issued with an open invitation to specify precisely what it is in either Dave Walker’s or Sam Norton’s coverage of the SPCK saga, the most that Brewer has managed appears by way of a specific objection is a single reference to the ‘…incompetence and injustice of the people who have taken over the SPCK chain.”

Brewer seems to consider that defamatory: personally I see these comments as no more than an expression of a perfectly reasonable opinion given the situation. Indeed, if Mr Brewer objects to being labelled ‘incompetent’ then I’m quite happy indulge him. Having read the documentation filed in his thus far abortive attempt to liquidate a British company/charity in an American court, if Brewer wishes to rule out the possibility of incompetence as an explanation for poor state of the paperwork then so be it even that does seem, to me at least, to be digging a rather sizeable hole for himself as it looks for all the world that if that apoplication is not the product of incompetence that it must reasonably be considered to be the product of an ill-conceived and fraudulent attempt to avoid any personal liability for the debts of the charity,

And as for ‘injustice’, well I don’t about you but I see that particular word as being entirely appropriate to a situation in which someone is trying to get a court ruling several thousand miles away on the other side of the Atlantic, in order to avoid paying his former employees the £26,000 or so that is still owed to them in wages after paying own law firm nearly £25,000 for consultations relating to the application for bankruptcy, not to mention, of course, the little matter of the $75.000 retainer that this same law firm was/is seeking to secure from the $100,000 or so of assets that Brewer claims is all that remaining to SSG – and let’s also not forget that this comes on top of another $110,000 paid over to Brewer’s law firm between August and September 2007 (with  a balance of $56,000 or so still, apparently, owing) and the $341,000 paid over to the Orthodox Mission Church Fund of Houston, whose sole trustee is, I’m reliably informed, a Mr J Mark Brewer.

I had assumed that lawyers, even in the US, still learned a smattering of Latin but clearly Brewer’s studies never quite got as far as ‘pro bono’.

I have to say that I’m also a trifle puzzled by a couple of entries that appear right at the end of the schedule of SSG’s creditors, one that shows that it apparently owes two of the new companies, set up by Brewer in March 2008 to run the former SPCK shops that he’s decided to hang on to, a little over $201,000 – over $165,000 to the Durham Cathedral Shop Management Co and a little over $35,000 to the Chichester Cathedral Shop Management Co.

How did that happen in the three months between the incorporation of these two new companies and SSG filing for bankruptcy? It seems that there’s yet another question that Brewer needs to answer and as we’re back in Q&A mode for the moment, I wonder if he could also explain why the St Stephen the Great Charitable Trust failed to file its accounts and annual return with the Charity Commission in 2006 and why St Stephen the Great Limited’s accounts and annual return for its first year of operation have yet to be filed with Companies House and are currently listed as overdue.

Getting back to the ‘cease and desist’ thing for a moment, its also worth noting that at least some of the content of Dave Walker’s blog that Brewer demanded should be removed in its entirety, consisted only of reposts of articles first published elsewhere, including some sourced from local newspapers. Needless to say, it doesn’t appear that any of these have received a ‘cease and desist’ e-mail from Brewer.

I also have to wonder whether it makes sense of Brewer to be investing so much time and effort in threatening bloggers when it looks very much as if, on the strength of the documents filed in his application for bankruptcy, he may have rather more pressing matters to attend to…

I declare under the penalty of perjury that I have read the answers in the foregoing statement of financial affairs and any attachments thereto and that they are true and correct to the best of my knowledge, information and belief.

That’s what it says right above J Mark Brewer’s signature on the Statement of Financial Affairs filed with the Bankruptcy Court in Houston, Texas on June 19th 2008, which, as you’ll recall if you’ve been following this story, gives the name of the debtor seeking chapter 7 liquidation as ‘St Stephen the Great LLC’, a legal entity that does not exist.

And in italics, underneath the statement signed by Brewer, it goes on to say…

Penalty for making a false statement: Fine of up to $500,000 or imprisonment for up to 5 years or both.

Oh dear – I guess I’m not the only one whose going to asking some searching questions about the content of Brewer’s application for bankruptcy.

To finish up I want to bring this post full circle be returning to Sam Norton’s correspondence with J Mark Brewer on the subject of libel and, in particular, to Brewer’s most recent response, which contains not only glaring factual inaccuracies but which substantially misrepresents the actual legal position in which Sam finds himself in order to try to press home a threat that is entirely without merit.

To sum up the story so far, Sam Norton responded to Brewer’s first cease and desist e-mail by asserting his belief that any content that he, or Dave Walker, had published in regards to Brewer. SSG and SPCK was true or amounted to fair comment, at which he also went to invite Brewer to indicate specifically which statements and/or posts he considered to be untrue and defamatory – there are few other aside in Sam’s response which you can read by following the link at the start of this article, but those are the key points that gave rise to this response from Brewer:

RE: your cease and desist request to me

Sir

Neither English nor American law permits you to engage in what you term “fair comment” with respect to a private company, nor with respect to a private individual – namely, me.

Wrong! In the US, the common law principle of fair comment has been almost entirely superseded as a defence in libel actions by the Actual Malice standard laid down by the US Supreme Court in New York Times Co vs Sullivan (1964) but it still exists albeit that the fair comment defence only ever applied to opinions expressed about public figure and public officials. Fair comment is, however, still very much a live defence in English law and takes no account of an individuals public or private status – the test for fair comment in English law is simply that a statement expresses a view that a reasonable person could have held.

Brewer is also attempting to suggest that the actual malice standard does not apply here as he is a private individual going about private business, in which case to sue successfully for libel in the US he would only have to show that Sam or Dave had been negligent in publishing untrue information or comments and not that they had done so out of malice.

However, for this to be an effective threat, Brewer is relying on bloggers not being aware of of the principles laid down in Della-Donna vs Gore Newspapers Co (1986) and affirmed in relation to internet discussions in Thomas vs Patten et al (2005), which, in the matter of the controversies surrounding SSG/SPCK and his recent threats of litigation agaunst bloggers, makes him a limited purpose public figure for the purpose of defamation actions- and that means that he would have to show actual malice if he does take threats into court.

To clarify this, if its shown that a) a public controversy exists; b) that the [would be] plaintiff played a central role in the controversy; and c) the alleged defamation was germane to the [would be] plaintiff’s involvement in the controversy, then the [would be] plaintiff is a limited purpose public figure and must prove actual malice in order to sue successfully for libel.

Obviously the law does not allow one to cloak his conduct with such sophistry and then go about defaming someone.

Given that Brewer managed to get a clear error of fact and an error of law into the first sentence of his response I think its well worth taking his opinions of what the law does or does not allow under advisement.

Your unreasonableness in the face of my request that you stop defaming me is appalling. Your persistence in doing so without even seeking to know the truth, by talking to me for example, proves that you are in fact acting out of complete malice. Libel with malice, a malignancy of heart, is intolerable in civilized societies.

Never mind the sanctimonious rhetoric, the facts are that Brewer has been asked to identify the specific statements or comments he considers to be defamatory or untrue with the offer that Sam would review anything that Brewer specifically challenged. That Sam has declined to remove content from his blog wholesale and in the face of vague assertions and incoherent threats proves only that he is satisfied, on the information he has, that the content to which Brewer is objecting is substantially true and/or fair comment.

Mr. Walker is in no way a victim of anything done or not done, said or not said by me. I have no idea what you are on about in saying such a thing. I cannot fathom your judgmental presumptiveness in telling me to apologize to him.

Really? Well here its worth reiterating the point that much of what Dave Walker posted consisted of reposts of articles first published on other sites plus comments and emails sent to him by former employees of SPCK/SSG. What this means, if you read the majority judgement in Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) is that Section 230 of Title 47 of the United States Code (47 USC § 230), part of the Communications Decency Act is applicable and this holds that neither Dave or Sam can be held liable for reposting content provided for publication by third party provided that they don’t incorporate defamatory comments of their own into the text if commenting on the republished material in the same post. Fisker’s need to exercise a modicum of caution but merely reposting content is pretty much in the clear.

(A word of caution when reading the ruling in Batzel vs Smith – the case did generate a minority dissenting opinion which suggests that merely selecting content for republication would disapply the protections offers by s230 and this appears after the majority ruling, so don’t scroll right to the end of the document for the judgement in this case as if you do you’ll be reading the dissenting opinion and getting an incorrect reading of the law as it currently stands)

I reiterate my demand that you stop your defamatory blogging and invasion of my privacy. If you do not, I will seek redress in the courts of the country where I live – the United States. As your solicitor will have told you, you are subject to jurisdiction here as you knowingly libeled me on the worldwide web, you know me to be a resident of the USA and you know and intend to injure me where I live in the USA.

As tempting as it might to label this an empty threat, it does indicate the one option that Brewer does have open to him – he could file a defamation action in Houston and rely on the prohibitive costs of legal representation and logistical difficulties of defending a case in a foreign court preventing Sam (or Dave) from defending the case, giving him an eacy and uncontested route to a default judgement. For this reason, if a blogger finds themselves on the wrong end of a threat of a SLAPP action it is always worth making the Electronic Frontier Foundation aware of the situation. Texas, unfortunately, does not appear to have anti-SLAPP provisions in its civil code.

Your solicitor also will have told you that you are subject to service of process for a suit in the United States under the Hague Convention. You will then have to answer for your conduct in the venue where you intentionally caused me harm. I hope you understand this.

Brewer is referring here to the Hague Convention on Foreign Judgments in Civil and Commercial Matters which allows for civil and and commercial judgements handed down in one country to be enforced by the courts in another if both countries are signatories to the convention. This, of course, cuts both ways, particular if, as seems possible, the primary purpose of Brewer’s bankruptcy application was to try to get the vast bulk of the debts run up by the St Stephen the Great Charitable Trust discharged by a US bankruptcy court before any of its creditors could obtain a judgement against the Trust in the UK and establish whether or not Brewer is personally liable for its debts as one of its trustees, which seems possible as SPCK’s agreement to transfer its former bookshops to SSG was with the charitable trust and this was not, and still is not, an incorporated body.

As mentioned previously, if an employment tribunal or court decides that the Charitable Trust has liability, having been the employers, then the way is open for any awards of compensation for unpaid wages to be applied personally and without limitation against Brewer and the Trust’s other trustees, a prospect made all the more likely as the ‘directors’ of the fictitious SSG LLC given in the bankruptcy application are J Mark Brewer and Phillip Brewer, the same as the unincorporated St Stephen the Great Charitable Trust and not J Mark Brewer, Sandra Brewer and Ellen Brewer, the director of the incorporated, limited liability, St Stephen the Great Ltd.

Taken together all this seems to indicate that Brewer is unaware of Denis Healey’s First Law of Holes – when in one, stop digging. Not only are his overblown efforts to shut down debate by threatening bloggers fueling the growing ‘Streisand Effect‘ surrounding this issue but, on a careful reading of the judgement in Thomas vs Patten et al, its also negated his claim that this is an entirely private matter and raised the bar for a successful libel action in the US to that of proving actual malice.

Although personally an atheist, I’m certainly not ignorant of the Bible – the King James Version is one of the great works of English literature even if, like me, you consider it to be a work of fiction – and having noted that Brewer has teken to incorporating Biblical quotations in his cease and desist e-mails, I think it only appropriate that I should end this article with a quotation for Brewer to chew on.

Even a fool, when he holdeth his peace, is counted wise: and he that shutteth his lips is esteemed a man of understanding. — Bible, ‘Proverbs’ 17:28.

UPDATE

Another recipient of one of Brewer’s ceast and desist e-mails has broken cover with another interesting development. Unlike Dave Walker and Sam Norton, who received vague threats of litigation that demanded that all content relating to Brewer, SSG and SPCK should be taken down, the UK Christian Bookshops Directoty were notified of five specific pages that Brewer wants removed including, bizarrely, a page that does nothing more than ask for financial donations to help support some of the ex-SPCK employees who lost their jobs in the upheavals that followed in the wake of SSG’s efforts to impose a unilateral variation in the terms of their employment.

In Brewer’s alternate version of reality, it seems that even a bit of modest fundraising to support people who’ve lost their jobs is allegedly ‘defamatory’ even if the only use to which its been put to date was to help to cover the travel expenses of a couple of ex-employees so that they could attend an informal get together in Esher.

It’s not often that I find myself in agreement with Ruth Gledhill, but yes, there does seem to be more than a hint of the Basil Fawltys when it comes to their preferred ‘style’ of management.