By John Donovan of royaldutchshellplc.com
There has been some discussion on our Shell Blog about the right to freedom of speech on the Internet. A regular contributor “motivaman” has referred to decisions by the U.S. Supreme Court upholding this fundamental right.
Readers may be interested in comments made by Shell on such matters.
In unsuccessful proceedings Shell brought against us in 2005, in respect of the domain name royaldutchshellplc.com, Shell stated in a submission to The World Intellectual Property Organisation:
“The… Group… have been aware of the site since the beginning and whilst they would not endorse or agree with many of the comments made by the Respondent on the website, they have taken the view that the Respondent is entitled to express his opinions and to use the Internet as a medium for doing so.”
The Shell statement no doubt takes into account applicable Supreme Court decisions. Such rights obviously extend to all Internet users.
In November 1998, Richard Wiseman, the then Legal Director of Shell UK Limited., authored the following related article for a Shell magazine. We obtained it following an application under UK freedom of information law, the Data Protection Act. Parts were censored by Shell lawyers
FUEL FOR THOUGHT
DEFENDING THE COMPANY’S GOOD NAME AND REPUTATION
There has recently been some publicity surrounding a writ issued against Shell UK by Mr John Donovan, director of a company called Don Marketing, who claims that his company invented the SMART loyalty programme and that he or his company should be compensated for its use. Shell UK is strongly defending the claim, having carefully investigated and discussed it with Mr Donovan and his solicitors. Mr Donovan has been making a number of unpleasant allegations in public and in the press, and has been handing out leaflets to staff.
Shell UK Legal director Richard Wiseman explains.
Mr Donovan and his companies have made several claims against Shell in the past. For good economic reasons, these cases were settled before they reached court. At that time, both parties agreed that there should be no further public debate about these matters – an obligation which Shell UK has consistently honoured, but which Mr Donovan has not.
However, we feel that the current case cannot be concluded satisfactorily except by allowing it to go all the way to court. We are vigorously defending the writ Mr Donovan has issued about SMART, and counterclaiming against him for failing to honour his previous agreement. We expect the case to go to court next year.
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Shell UK could ask the courts for an injunction to prevent Mr Donovan and his father from making any further unpleasant allegations.
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But with Mr Donovan already alleging that we may have taken all sorts of measures to try to keep him quiet, we know this could give give him an opportunity to try to present himself as a ‘David’ fighting a ‘Goliath’.
In general, most companies like ours can see only too well that libel proceedings may attract far more publicity than the original allegations ever had or would be likely to have. An example is the recent “McLibel” case which tied up McDonald’s for years. Any case we brought would not necessarily be the same, but it can be a major business diversion for no real gain to the company. And people don’t always remember who won.
One of our colleagues who has been smeared by Mr Donovans assertions
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who has since moved on to another job with Shell. The hurtful allegations being made against Andrew in public leave him in a difficult position. Shell UK is satisfied that he has done nothing wrong, either in relation to this claim or any previous claims. We are confident that he has acted properly throughout.
Mr John Donovan is one of a number of people who from time to time have approached us to suggest marketing concepts. Generic concepts in marketing are often quite common and not original in themselves. The basic concept for the SMART scheme had already been around for some time before Mr Donovan approached us. Where a scheme actually developed may seem to have some resemblance to unsolicited material from third parties, allegations of this sort can be complicated to refute.
However, I am satisfied that the SMART scheme was developed entirely independently of Mr Donovan, and we believe this will become clear when the case goes to court.
WE ARE VIGOROUSLY DEFENDING THE WRIT MR DONOVAN HAS ISSUED ABOUT SMART AND COUNTERCLAIMING AGAINST HIM FOR FAILING TO HONOUR HIS PREVIOUS AGREEMENT. WE EXPECT THE CASE TO GO TO COURT NEXT YEAR.”
A lot has happened in the ten years since the article, including the Shell reserves fraud. Consequently there is not much of a Shell reputation left to defend.
Wiseman headed the legal team, which dealt with all our six High Court actions against Shell. He failed to disclose in the SMART discovery the above article which was material to the main claim and highly material to the Shell Counterclaim. Neither we, nor more importantly, the Judge, were aware of Mr Wiseman’s published comments. Shell would not have been able to censor any of the content. We had already issued a libel action against Shell, which they subsequently settled, in respect of posters put on display at the Shell Centre containing defamatory comments about us. If we had been aware of the Wiseman article, we would have issued appropriate proceedings against him and Shell.
Wiseman admitted bending professional rules and using an undercover agent, Mr Christopher Phillips, who was caught red-handed examining private mail in our offices. Ironically Wiseman is now the Chief Ethics & Compliance Officer of Royal Dutch Shell Plc. It must be a case of poacher turned gamekeeper. His appointment to that position speaks volumes about Shell.
Mr Wiseman has always denied any connection with other sinister activities directed against us, which were investigated by the Police, and an internal investigation carried out at Shell-Mex House. In addition to being besieged by undercover agents posing as journalists, a series of burglaries were carried out at the home of our key witness, at my lawyers home, and at our own home. Our documents were examined and tampered with. No valuables were stolen. We were also bombarded by threats.
Two years later the Sunday Times newspaper revealed, in a front page story, Shell’s close association with a private spy firm which engaged at the behest of Shell, in exactly the type of sinister operations which had been directed at us. Shell and the spy firm shared key common directors and shareholders.
We found out from Shell discovery documents that “Andrew” Lazenby, the Shell manager mentioned by Wiseman in his article, was prepared to engage in illegal acts on behalf of Shell. It was evident from his diary that he was a disgruntled employee who recorded his intent to set up a personal business while at Shell and exit the company at the age of 35, presumably on the basis of building up sufficient funds in the meantime. He had an offshore bank account into which funds were paid. Lazenby also had a close relationship with an agency – Option One – to which all of our confidential ideas were funneled. They even miraculously won a major contract in a tendering process in which they did not participate. This was akin to a horse winning a race in which it did not run.
During the subsequent High Court trial, a senior Shell manager, Frank Leggatt admitted under cross-examination that the actions of Andrew Lazenby in respect of the SMART tender had not been proper. This of course was a huge understatement. Members of the general public reading the evidence would find it difficult to avoid the conclusion that Lazenby was a ruthlessly ambitious, disloyal and greedy individual with no scruples.
Despite Wiseman’s bravado in the article, when the case eventually got to trial, Shell offered a compromise settlement which we declined. Shell made a further settlement proposal just before the climax of Lazenby’s cross-examination under oath. Shell paid all my legal costs and I received a totally inadequate secret payment. I will explain in a follow-up article why I accepted. The terms of what was described as a peace treaty were so secret, that they were not disclosed even to the Judge.
Two years later Wiseman breached the terms of the peace treaty and the rest is history, including multi-billion dollar losses by Shell arising from our intervention in the Sakhalin 2 project. In another Sakhalin related debacle, a leaked email from “General” David Greer published on our website ended with his resignation as Deputy Chairman of Sakhalin Energy. It has been suggested that the leak came from an even higher-level source who wanted to see the back of Greer.