by Demetrios Vakras
Why we believe Telstra, and/or the legal firm representing Telstra, is complicit with Cripps and/or his legal team in their claim against us:
We believe that the actions taken against us by Telstra show that some connection with Cripps exists, or might exist. We do not know what that association might be. However, we believe that all of the actions taken against us show that something more is happening than what Telstra are openly admitting to. These actions include Telstra disconnecting us from the internet, and the time taken by Telstra to remove ADSL codes (despite repeated requests) which have been preventing another ISP from connecting us to the internet. All of Telstra's actions, whether they be Telstra's own, or undertaken by Telstra after receiving legal advice, have only one beneficiary: Robert Raymond Cripps.
Telstra's solicitors demanded that certain pages of ours be removed. Telstra refused to provide us with an explanation for why they wanted these pages removed; what the problem was with the pages; or whether someone other than Telstra had demand that the specified pages be removed. All of the pages Telstra cited however, had references to Robert Raymond Cripps, Guildford Lane Gallery, or both.
In a subsequent correspondence from Telstra's solicitors from the Sydney law firm "Blake Dawson", it was claimed that content on our sites COULD possibly make Telstra liable to another party. That party is Robert Raymond Cripps of Guildford Lane Gallery. This was only begrudgingly conceded on p.2 of a pdf sent to our solicitors on 12 October 2011. According to this pdf these solicitors' client, Telstra, has no obligation to make this information available to us. The persons ("partner" & "contact") acting for Blake Dawson on behalf of Telstra were Robert J Todd and Julie D Cheeseman (whose names appear on the pdf) respectively.
According to Todd/Cheeseman, our sites had content that they claim IS "defamatory of Mr Cripps". This claim is made on pages 2 and 3 of the pdf. Instead of writing that the content is CLAIMED BY CRIPPS to be defamatory, Telstra's solicitors are stating categorically that it IS. Either Telstra's solicitors are acting on behalf of Cripps, or, they believe that they are a court and have passed a legal judgement.
The Blake Dawson (imaged) pdf (reformatted into a proper pdf) can be found here: "216135964_1_Vakras and Raymonds - Telstra Service Withdrawal - scan Letter to -- Lawyers - 12 October 2011-reformatted.pdf" We are of the opinion that the reason that Telstra did not want to mention Cripps (or want to mention that they were acting on demands made by Cripps' solicitors) is because Telstra (either acting for themselves or on the advice of their legal counsel) were out to protect him and his interests; therefore Telstra were acting on Cripps' behalf for the purpose of denying us more facts (truth) which we might use to "defame" him.
TELSTRA's POSITION FAILS LEGAL TESTS:
1- "Defamation" in England/English colonies (such as Australia) is defined as anything written that causes a 3rd party to think less of the party being written about. HOWEVER, the LEGAL DEFENCE for "defamation", at least in (the English colony of) Australia, is TRUTH. Indeed, the crux of Cripps' claim is one of "injurious falsehood"; that is, he claims that what we write is false, and that it is intended to injure his reputation.
2 -Telstra, on behalf of Cripps, had demanded that we remove pages on which we simply wrote that Cripps is suing us for defamation. Yet Telstra had already been advised by Cripps' legal counsel that he is doing just that; suing us for defamation. Telstra have a huge problem:
A/ Since Telstra has been advised by Cripps' legal representatives that we are being sued for defamation, Telstra already have the defence of TRUTH - they know we are being sued for defamation;
B/ Cripps' gallery itself already posts (posted) on its own website, on other websites, and had listed in the Art Almanac, information regarding our exhibiting in his gallery, again TRUTH: Cripps openly listed us as exhibitors in his gallery;
3 - Under the threat of having our internet disconnected we had removed, under protest, material that Telstra had originally demanded we remove. Telstra's lawyers at Blake Dawson then took exception the word "censored" that was used in place of the removed material. The full text for the censored material was "CENSORED ON DEMAND OF ISP".
However, this exposes Telstra's claim to another problem:
There is no way that a third party reading "CENSORED ON DEMAND OF ISP" can think less of Cripps, though they might think less of the unnamed ISP. As truth is a defence, and Telstra already knows this to be the truth (as it was they who made the demand), then any action by Cripps' legal team against Telstra would fail in court. It would be an expensive endeavour which Cripps would lose and have to pay for. Telstra's reasoning to disconnect us FAILS to satisfy any legal test that could see them become a co-defendant.
IT GETS WORSE FOR TELSTRA
The entire argument used by Telstra's solicitors is based on the opening part of their pdf on p.1. This is summarised as unacceptable "content hosted by your client [Vakras & Raymond] on their Telstra Business Broadband service."
THERE IS NO CONTENT HOSTED on Telstra's "Business Broadband service". NONE. ZERO. ZILCH. All of the content was hosted on our own server. Our server is independent of Telstra. Our server, and the content on it pre-existed our Telstra account. Our server does not need Telstra or any other ISP for it to be able to store (host) our content. It is not as if the server requires Telstra for it to exist or to allow us store our content on it. A server is just another computer. Telstra's "Business Broadband service" might have allowed us to store content on their servers, if we had so chosen, HOWEVER WE HAD NOT.
Every subsequent claim against us made by Todd/Cheeseman is inconsistent with the premise used by Telstra to disconnect us.
All English colonies look to England for guidance. The case that guides this colony's laws on internet "defamation" is Godfrey v Demon Internet Limited  4 All ER 342, in which an ISP "could be held to be a liable as a ‘publisher’ of defamatory comments posted on a website which it hosts". (quoted advice from iinet.net.au, 8 June 2011). Telstra are aware that their exposure to liability is predicated solely on Telstra hosting the content. In the Blake Dawson pdf, on p. 2, Todd/Cheeseman actually concede that Telstra do not host the content.
Subsequent English court cases such as Bunt v Tilley , have found that ISPs essentially transmit communications:
"The Court in Bunt was of the view that ISPs do not participate in the process of publication but merely act as facilitators in a similar way to postal services. They provide a means of transmitting communications without in any way participating in that process. "
A brief summary of this case can be found on the WIKIPEDIA:
Telstra had no exposure to liability, since they:
a/ did not host the content;
b/ knew that content, such as our writing that Cripps is suing us for defamation was TRUE.
Telstra acted to disconnect us WITHOUT ANY VALID LEGAL REASON to do so.
MOTIVE BENEFIT AND OPPORTUNITY
Telstra's counsel, although knowing that there were no VALID grounds on which Cripps could successfully make their client (Telstra) a co-defendant, still advised Telstra to disconnect our internet. All of this reinforces our belief that Telstra, and Cripps, possibly via his legal counsel and by means unknown to us, colluded or conspired against us in this matter. And, we believe that the evidence shows that Telstra's counsel advised Telstra wrongly. Telstra did not benefit from this. Cripps did. As to what this connection is , if any, between Blake Dawson solicitors with William Houghton or TaoJiang, or some other party unknown to us who act for Cripps, we do not know.
As Telstra had no valid legal reason for disconnecting us, then the reason for their doing so was for the benefit of Cripps. When Telstra disconnected us from the internet our sites were instantly unavailable on the www. Someone, with this knowledge used this opportunity to hijack the domains vakras.com and leeanneart.com by posing as either one of us, or by claiming to act with our authority. This is a perpetration of a fraud: a criminal offence. This is being investigated by the Victoria Police. Since disconnecting us on 13 October 2011 Telstra has, by their actions (ADSL codes on our line) prevented us from connecting to the internet with another ISP. We believe that Telstra's lack of action is deliberate and intended to prevent our having the internet ability to upload our websites elsewhere. That is, Telstra's actions appear to be intended to prevent us from making our websites available at all anywhere on the www, which is consistent with the domain hijacking that had prevented us from being able to "point" our domain to any new host. We do not accept that any of this could be a giant cosmic coincidence.
(This is how we perceive the following scenarios:
1 - with regards to the domain hijacking
Telstra believe that since the domains vakras.com & leeanneart.com point to a static IP address that was assigned to us by Telstra, that they have a legal right to commit a crime and hijack the domains to prevent the domain from pointing to this IP address;
2 - with regards to leaving ADSL codes on our line
Telstra "own" the physical infrastructure used by all other ISPs (limited exception: Optus owns its own cable network, but still requires Telstra physical infrastructure for regular telephony). This infrastructure includes the physical telephone lines, the exchanges, the mobile phone towers, etc. It appears to us that Telstra believe that they have the legal right to prevent us from using our line to connect to the internet at all. If this is the case, TELSTRA HAVE NO SUCH POWER UNDER ANY AUSTRALIAN LAW TO DO THIS.
The problems Telstra have with regards to any of these scenarios are:
α/Telstra do not own the IP numbers. Telstra are given custodianship of IP number by APNIC who assigns them to Telstra (http://www.apnic.net). APNIC distributes IP numbers supplied by IANA to the region to which Australia belongs (How do I know? I telephoned APNIC to arrange direct ccustodianship of an IP number);
β/Telstra have no say on Domain Name Registration. Domain Names are ultimately assigned to parties by ICANN, "under contract to the United States Department of Commerce", quoted from http://en.wikipedia.org/wiki/Internet_Assigned_Numbers_Authority;
γ/ Telstra do not actually "own" the lines; these lines are owned by the poeple of Australia, "the Commonwealth", as it was the Commonwealth, which originally owned Telstra (Telecom/OTC, and, prior to that, the PMG) who had paid for and installed the network, as was found in a unanimous verdict by the Australian High Court in 2008, Telstra Corporation Limited v The Commonwealth, refer http://en.wikipedia.org/wiki/Telstra_Corporation_Limited_v_The_Commonwealth#Judgment
Telstra had connected our line to the internet. All other Australian ISPs - except Optus - are dependant on Telstra for the connections between them and their customers in the same way that we were dependant on Telstra to provide us with our connection. In effect, we were, for all intents, an ISP. If Telstra believe that they can disconnect us from the internet, then there is nothing to prevent them from disconnecting any ISP, because Telstra believe that they own the infrastructure which would give them the right to disconnect any ISP if that ISP made available to the www content that Telstra claimed was "unacceptable".)
TELSTRA AND MELBOURNE IT
It should be noted, that we registered a business domain with Telstra as part of the business plan. Telstra registered this domain on our behalf. Telstra are not a domain registrar, but use Melbourne IT to register domains. This means that Telstra have employees who liaise with Melbourne IT. Our domains vakras.com and leeanneart.com are registered with Melbourne IT, and were originally registered with Melbourne IT in 2002. And it was from within Melbourne IT that our domains were hijacked. Again, the matter is being investigated by the Victoria Police.
We believe that it is no accident that all of Telstra's actions have so far benefited Robert Raymond Cripps. To date it has been 20 days inclusive since Telstra disconnected our phone-line from the internet. Telstra's ADSL codes on our line have been preventing our reconnection to the internet via our phone line. Telstra use the euphemism of "suspension", not "disconnection". According to Telstra "suspension" and "disconnection", though achieving the same outcome, are different. Though Telstra did remove ADSL codes from our line eventually, we are yet to be connected to the internet via our phone line Wednesday 2 November 2011. It should be noted that Telstra is the body responsible for connecting us with our new ISP. To date, Telstra have yet to connect us to our new ISP. (Note: late Wednesday, 2 November 2011, we finally had our line re-connected to the www)
CHILLING & MALICE
Our concerns are not just the defamation claim made against us. Within the ambit of this claim additional claims have been made by Cripps' solicitors to CHILL any reference to the court case. We write that we are being sued for defamation, and that Cripps' solicitors have demanded that either the "offending" pages be removed or that our entire sites be completely disabled. And we write that indeed our websites were removed from the www. Considering the defence of TRUTH, it is obvious that Cripps' lawyers know that our writing that we are being sued is true because it is they who have advised our ISPs that we are being sued, and it is these very ISPs who have disabled or pulled our sites who have provided us with this as their reason for doing so. On the grounds of truth then, Cripps' lawyers know its true, but act so as to cause us damage out of MALICE.
As for the legal test of 'will a 3rd party think less of Cripps?' That itself is inconclusive: there are those who believe that for someone to go through the expense of mounting a defamation case against someone, as Cripps has against us, indicates that there must be some basis for them to do so. That is, a third party is just as likely (possibly in some instances more likely) to think less of us than of Cripps.
Conclusion: Cripps' legal team have been using the blanket claim of "defamation" to CHILL, and cause us damage. As there is no legal basis for them to do so, then such actions we believe are conducted out of spite on behalf of their client, Cripps. Such actions are reminiscent of Cripps' conduct during our exhibition. Asked what was racist, he turned and waved his arm around and said "Thiiiiis" pointing to the entire exhibition. Now the same is happening with regards to his defamation claim. What's defamatory? "Thiiiiis", meaning our entire websites. And the reactions of bystanders who might help appears to be identical in both instances.
Hypocrisy. Cripps would have you believe that he is really against censorship. In 2010 GLG had an open invitation to artists to exhibit on the theme of censorship:
screenshot url: http://www.artreview.com/profiles/blogs/artist-call-out?xg_source=activity
|CRIPPS' OBJECTIVE it appears to us, is intended to keep us off the www. It is not a matter of defamation, but that the claim of "defamation" is being used as an effective weapon to achieve these ends. The removal of our sites means only that this case can hang over us indefinitely, as long as it achieves the aim of keeping our sites off the www. To proffer one example of the kind of action (ab)used to achieve an intended ojective of the kind I refer to:
"In 1985 Avon Lovell published a book entitled The Mickelberg Stitch. It argued that the prosecution case against Ray, Peter and Brian Mickelberg -- sentenced to prison for swindling gold from the Perth Mint -- was based on questionable evidence. The book sold rapidly in Perth until police threatened to sue the book's distributor and any bookseller or other business offering it for sale. The Police Union introduced a levy on its members to fund dozens of legal actions against Lovell, the distributor and retailers. The defamation threats and actions effectively suppressed any general availability of the book. Over a decade later, none of the suits against Lovell had reached trial, but remained active despite repeated attempts to strike them out for lack of prosecution. [6. Avon Lovell, The Mickelberg Stitch (Perth: Creative Research, 1985); Avon Lovell, Split Image: International Mystery of the Mickelberg Affair (Perth: Creative Research, 1990).]" source: http://www.bmartin.cc/dissent/documents/defamation.html
Though moot, one of the false claims made by Telstra's legal counsel to justify our being disconnected was that material that we removed was reposted elsewhere.
To repeat, Telstra's claim (made by their legal counsel) is false.
The original Telstra email listed a number of urls which they claimed contained "unacceptable" content (wihtout citing what contnet was "unacceptable"). The elements referring to Cripps, or Guildford Lane Gallery in those urls, were removed. After this, another correspondence was received from Telstra which listed another set of urls, and had highlighted passages that Telstra claimed had to be removed. Under protest we complied with the removal of those passages. In the final correspondence, Telstra listed a number of additional urls, not previously listed, which this time included our entire domains.
Among the pages claimed by Telstra (on behlaf of Cripps/Cripps' counsel) to have contained "unacceptable" content was my page www.phantastart.com/vakras/directory.html , which appears in the screenshot below alongside the Blake Dawson pdf which lists this url:
According to Todd/Cheeseman, this page, without a solitary mention of Cripps or Guildford Lane Gallery, was "unacceptable" and constituted, in part, the grounds for Telstra to justify disconnecting us from the www.
With regards to phantastart.com/vakras, this site, and pages within it was already in existence and had not been modified or altered since the email addressess were updated 2 weeks before the Todd/Cheeseman claim.
Vakras.com and leeanneart.com were removed from the www by Ilysis (trading as MYOB) in May 2011 and remained unavailable for around 5 days. As a consequence, our art was unavailbable on the internet. To make our works available a version of our sites was hosted within 24 hours in a new "shell" domain created to host/mirror the missing sites: phantastart.com.
Thus another version of the sites always existed as:
(since our disconnection with Telstra, our domains are now also mirrored on another "shell" site, cyberrefugee.com as well)
In addition, with regards to vakras.com, it exists in 3 versions:
1 - the MAIN Flash site, vakras.com, which can be navigated via computers and non-Apple mobile devices;
2 - the html site, vakras.com/demetrios, which was created in the year 2000 for slow bandwidth (dial-up modems). This site was rebuilt with an entirely new graphic interface in 2009 because the Flash site did not work on any mobile devices. Since Android 2.1 all non-Apple mobile devices can now access the Flash site. However, Apple still does not allow Flash to work on iPads, iPhones and iPods.
(The explanations for the existence of these versions can be found within the sites:
3 - a Greek-language version, vakras.com//ellenika.
It could be argued that Telstra did not know. However, they were not interested in knowing. Telstra were interested only in justifying their actions - or having their legal counsel justify their actions - by whatever reasoning they hoped they could get away with. The scope of their demands betrays this. In an earlier correspondence (by email) Telstra demanded that all links that lead to anything about Cripps be removed. Links on our pages might lead to a third party unrelated to us. This is why, in the Todd/Cheesman pdf, "vakras.com" and "leeanneart.com" were declared to be unacceptable content, because you could, by going to our sites, eventually find your way to something within the site - or even off site - that might refer to Cripps.
"those who most loudly proclaim their championship of our rights appear to be the most silent"
I don't think that many readers actually really understand the situation. If you link to our pages or sites, or even to pages or blogs written elsewhere that refer to Cripps, then Telstra might come after you too, regardless of where in the world you are! Australians, who should be the most concerned, appear to instead be the least concerned. And those who most loudly proclaim their championship of our rights appear to be the most silent.
related: conspiracy to commit fraud