The case of the day is EFF v. Global Equity Management (SA) Pty Ltd., (N.D. Cal. 2017). No, you are not experiencing déjà vu— this is the same case we saw on Wednesday. As you will recall, Global Equity had gotten an injunction against the Electronic Frontier Foundation in a South Australian court requiring EFF to remove a supposedly defamatory post from EFF’s “Stupid Patent of the Month” section on its website. EFF had defaulted in the Australian case, and it then brought an action in San Francisco seeking a declaration that the injunction would be unenforceable in the United States in light of the SPEECH Act. In the decision I covered on Wednesday, a magistrate judge held that the court lacked personal jurisdiction over Global Equity despite the fact that Global Equity had sent demand letters to EFF in California and had obtained an injunction whose effects were felt primarily in California, where EFF did business. I suggested in the prior post that the judge’s finding was puzzling. EFF sought a de novo review by the district judge.
The judge found that the court did have jurisdiction. I won’t review that part of the decision. On the merits of the SPEECH Act issue, the court held that Australian law provided less protection for EFF’s speech than American law, because it (apparently) countenanced a prior restraint of speech, which is almost always absolutely forbidden by the First Amendment. In addition, the court agreed with EFF that Global Equity would not have won had it sued in California. Many of the statements (e.g., opining that Global Equity’s patent was stupid, that Global Equity was a patent troll), some were not even alleged to be false, and on the single statement that didn’t fall into these categories, which was an instance of alleged trade libel, Global Equity had alleged neither malice nor special damages.
There was one other point of particular interest to Letters Blogatory readers. Apparently, EFF was never served with the case-initiating documents, but only with the injunction. It’s not clear, but it seems that the injunction was what we would call a preliminary injunction or a temporary restraining order, meant to apply during the pendency of the case. The judge concluded that the Australian court lacked jurisdiction over EFF because of the lack of service of process. I don’t think this is right: in US practice, it’s common to obtain TROs or preliminary injunctions before service of process can be effected, and no one says that the court lacks jurisdiction for that reason alone. But this point wasn’t crucial to the outcome of the case.