Re-Saving AFRINIC from itself by Katim Seringe Touray - ITREALMS

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"WE are writing to address our claim for libel regarding an article titled ‘Saving AFRINIC from itself by Katim Seringe Touray - ITREALMS,' authored by Katim Seringe Touray.

This article was initially published on the ‘ITREALMS’ website on 7 April 2023, and is still accessible as of the date of this letter which is publicly made available at the above URL.


2. It is deeply concerning that the article contains numerous factual errors and fails to include relevant information that was provided to you prior to publication. Cloud Innovation and any company under it acknowledge the media's right to publish any story they choose but expect articles to be both factually accurate and reflective of the information provided.

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Saving AFRINIC from itself by Katim Seringe Touray - ITREALMS

Dealings with AFRINIC:

3. The authors has mentioned in paragraph 13 and 14 on the allegations of Cloud Innovation’s abuse of court proceedings and also the impropriety regarding dealings with AFRINIC appear to stem from matters concerning Cloud Innovation's acquisition of IPv4 addresses from AFRINIC between 2013 and 2016 referred to as 'the Block'. Despite the assignment of the Block being deemed unremarkable, AFRINIC later made several attempts to reclaim it. Consequently, this has resulted in prolonged litigation in Mauritius, the country where AFRINIC is based.

4. A concise overview of the litigation unfolds as follows:

i. Commencing around March 2021, AFRINIC persistently (and unlawfully) threatened to terminate

Cloud Innovation’s membership, potentially resulting in the Block returning to AFRINIC’s jurisdiction. These threats stemmed from AFRINIC's disapproval of certain website content hosted on servers, utilizing leased IPv4 addresses from the Block, operated by third parties. Cloud Innovation contested AFRINIC's actions, asserting that no contractual term allowed AFRINIC to regulate website content. Cloud Innovation perceived AFRINIC's actions as a retrospective attempt to influence and control the Block for ulterior motives.

ii. Despite Cloud Innovation's objections, AFRINIC proceeded with efforts to revoke its membership. In response, Cloud Innovation promptly secured an urgent interim injunction from the Mauritian
Supreme Court on 29 March 2021, preventing such revocation.

iii. Subsequently, AFRINIC attempted to 'suspend' Cloud Innovation's membership, prompting another court order on 13 July 2021, in the form of a mandatory injunction, compelling AFRINIC to reinstate Cloud Innovation's membership. Despite assurances from AFRINIC's CEO on 15 July 2021, to comply with the order, AFRINIC failed to reinstate Cloud Innovation's membership.

iv. Cloud Innovation initiated separate contempt of court proceedings against AFRINIC for breaching the undertakings. As a result, AFRINIC temporarily reinstated Cloud Innovation's membership, leading to a suspension of the contempt proceedings.

v. On 25 November 2021, AFRINIC withdrew its undertakings to the Court, alleging a breach of cross-undertaking by Cloud Innovation. Subsequently, on 1 December 2021, AFRINIC once again threatened to revoke Cloud Innovation’s membership.

vi. To safeguard its interests, Cloud Innovation sought urgent injunctive relief on 3 December 2021, to prevent AFRINIC from revoking its membership. The court granted the order, preserving Cloud Innovation’s membership. AFRINIC attempted to challenge the order, alleging an abuse of process by Cloud Innovation. However, in a judgment dated 19 July 2022, the Mauritian Supreme Court dismissed AFRINIC's application, affirming Cloud Innovation's legitimacy and rejecting claims of vexatious litigation.

5. AFRINIC has also been barred by the Mauritian courts from conducting board elections without court permission and oversight. A garnishee order was issued against AFRINIC on 23 July 2021, to provide security for Cloud Innovation’s costs. It's important to clarify that this was not a freezing order, and AFRINIC's assets were not frozen, as suggested in the article. Instead, a specific sum was ringfenced to ensure Cloud Innovation could recover costs if awarded. However, the Garnishee Order was subsequently set aside by the same court on 15 October 2021.

6. More recently, following a judgment from the Supreme Court of Mauritius on 12 September 2023, AFRINIC has been placed into receivership. The Court has prohibited AFRINIC from relocating outside of Mauritius to evade court jurisdiction. Additionally, the Official Receiver has been appointed as the Receiver of AFRINIC to safeguard its assets until a proper board is constituted through an election.

Despite a complex procedural history evident from numerous court filings, the essential decisions pertinent to Cloud Innovation’s claim are summarized above.

7. As previously explained, Cloud Innovation's acquisition of IP addresses was routine and consistent with similar acquisitions by its competitors. AFRINIC's subsequent legal troubles stem from its unlawful attempts to interfere with Cloud Innovation's business and its failure to comply with court orders.

Cloud Innovation never intended to destabilize or cause the collapse of AFRINIC. AFRINIC's issues originate from its own misconduct and mismanagement.

8. Furthermore, the assertion regarding Regional Internet registries (‘RIRs’) serving as bookkeepers was initially affirmed by Dr. Robert Blokzijl, who characterized RIRs as such, as evidenced. This perspective was further popularized by Mr. Randy Bush, who expressed similar sentiments during the Ripe 69 Cooperation Working Group session. It is important for your audience to understand that the notion of RIRs functioning as bookkeepers is widely accepted.

Irrelevance and Harmful Impact of Politicized Statements on Our Legal Dispute and Reputation:

9. By referencing to paragraph 16 to 20 of the Article, these statements are not only irrelevant to the legal matters at hand but also serve to unfairly politicize and distort the nature of the litigation involving our company. By injecting political rhetoric and international relations into a straightforward legal dispute, the article diverts attention from the actual issues being adjudicated and misleads readers about the true nature of our legal case. This manipulation of context not only confuses the audience but also unjustly frames our company within a broader, contentious geopolitical narrative that has no bearing on the specifics of our legal situation.

10.The Article’s assertions, linking our litigation to China-Africa relations and US-China tensions, are baseless and misleading. These statements create a false impression that our legal actions are influenced by, or are a part of, international political strategies, rather than being a legitimate pursuit of justice based on concrete legal grounds. This mischaracterization can lead stakeholders, including clients, partners, and investors, to question our integrity, motivations, and the legitimacy of our business practices.

11.Moreover, the Article’s inflammatory language and politicized framing can cause significant harm to our company’s reputation. Reputation is a critical asset for any business, directly impacting customer trust, investor confidence, and overall market perception. The unwarranted political associations can lead to a loss of business opportunities, as potential clients and partners may distance themselves to avoid perceived entanglement in international controversies. This could result in substantial financial losses and long-term damage to our brand.

12. Furthermore, the prejudicial nature of these statements can affect our ongoing and future business relationships. Existing partners may reconsider their association with us, fearing reputational damage by proxy. Potential partners and clients might be deterred from engaging with us, believing the misrepresented narrative. This not only jeopardizes current projects but also hampers our ability to secure new contracts and expand our business.

Imputations:

13. The “Words Complained Of” meant and would be understood by the ordinary reasonable reader to mean, that, Cloud Innovation and any company under him:-

a. Abuse of court proceedings by Cloud Innovation; and

b. Irrelevant statements are not only to the legal matters at hand but also serve to unfairly politicize and distort the nature of the litigation involving Cloud Innovation. (‘the Imputations’)

14. The unfounded allegations against Cloud Innovation, insinuating the misuse of Mauritius court proceedings to defend their rights and also to politicize the matter between Cloud Innovation and AFRINIC mentioned in the Article are entirely false and without merit. The Imputations are highly defamatory of Cloud Innovation and have caused and are likely to continue to cause serious harm to its reputation.

15. In view of the above and pending a final judgment bringing to the finality of the dispute with AFRINIC, it is clear that the Article as styled is designed to be defamatory amounting to libel, but also tantamount to acting in contempt of a number of court orders and decisions delivered to date.

16. The causation of serious harm is a matter of obvious inference, having regard to the facts and matters set out below:-

a. the extremely serious nature of the allegations;

b. the allegations strike at the core of Cloud Innovation’s integrity and probity as a business entity; and

c. the ‘grapevine effect’ whereby a substantial, but necessarily unquantifiable, number of third parties will have heard or read your allegations against Cloud Innovation in consequence of the original publishes repeating and/or re-publishing the words complained of.

Pre-publication conduct:
17. Neither the website nor the authors contacted Cloud Innovation, nor either of his referenced businesses in the Article, for comment prior to publication. Had the Website or the Authors provided Cloud Innovation with an opportunity to comment before publication, he would have clarified that the allegations against him were false, as explained above. Cloud Innovation 's perspective could have been included in the Article, thereby ensuring that the website adhered to two of its "core journalistic values" of accuracy and fairness.

18. At the very least, this approach would have introduced some semblance of balance to the Article, which the current online version lacks. As you can understand, the failure to solicit comments from Cloud Innovation will significantly weaken any public interest defence that the website may seek to invoke."

*Contributed by George Ang Mun Yew, Legal and Compliance Officer, for and on behalf of Cloud Innovation Ltd and could be reached via a.yew@larus.net or tech@cloudinnovation.org.