ShellNews.net: DRAFT AFFIDAVIT OF DR JOHN HUONG: AN UNPARALLELED INDICTMENT OF ROYAL DUTCH SHELL GROUP: AN UNAUTHORIZED PUBLICATION: 7 FEBRUARY 2006
IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR
(CIVIL DIVISION)
SUIT NO. S2-23-41-2004
BETWEEN
1. SARAWAK SHELL BHD (71978-W)
2. SHELL MALAYSIA TRADING SENDIRAN BERHAD (6078-M)
3. SHELL REFINING COMPANY (FEDERATION OF MALAYA) BHD (3926-U)
4. SHELL TIMUR SDN BHD (113304-H)
5. SHELL EXPLORATION AND PRODUCTION MALAYSIA B.V. (993963-V)
6. SHELL OIL AND GAS (MALAYSIA) LLC (993830-X) check
7. SHELL SABAH SELATAN SDN BHD (228504-T)
8. SABAH SHELL PETROLEUM COMPANY LTD (993229) PLAINTIFFS
AND
HUONG YIU TUONG DEFENDANT
I, Dr Huong Yiu Tuong, a Malaysian of full age, of Lot 845, Pujut 4C, Dawai 2, 98100 Miri, Sarawak, do solemnly and sincerely affirm and say as follows;
1. I am a geologist by profession and make this affidavit from personal knowledge, and from documents that I have seen. The facts deposed to this affidavit are true to the best of my knowledge, information and belief.
2. I was employed by the First Plaintiff, Sarawak Shell Berhad for some 29 years from 1974 to 2003.
3. I was dismissed by Sarawak Shell Berhad on 28th May 2003.
4. Complaints pertaining to the alleged wrongful dismissal were lodged with the Labour Office, Miri on 22nd July 2003 and were given approval by Datuk Dr. Fong Chan Onn, the Malaysian Minister for Human Resources to proceed for hearing in the High Court of Borneo in Miri. Sarawak.
5. I brought legal proceedings for unfair dismissal against Sarawak Shell Berhad. The first hearing was held in June 2005. That litigation is currently in progress.
6. The case before The Industrial High Court Miri, Sarawak, Malaysia (in The Matter of Industrial Court No. 8/4-1377/04) is between Sarawak Shell Berhad (Company) and Huong Yiu Tuong (Claimant).
7. Shell Malaysia is a name used to cluster Shell’s business interests in Malaysia and as far as I am aware it is not a registered business name. In addition to the eight companies that sued me are some 10 other companies that are joint ventures involving the Plaintiff companies e.g. Shell Timur SDN. BHD. I do not know why I have been sued for defamation by these eight Plaintiff Shell companies as opposed to being sued by the Plaintiff company which I worked for, or any number up to some 18 Shell companies that operate in the region.
8. It would not be appropriate under the present circumstances to rehearse the full detail of the Industrial High Court litigation. However, since the Plaintiff companies have accused me of making alleged defamatory statements as an act of malice arising from my dismissal, I will deal with the most significant aspects in that regard. I will also provide examples of what I consider to be the real reasons as to why my good working relationship with Shell management for over 20 years soured.
9. This Affidavit is in relation to articles about the multinational, Royal Dutch Shell Group, published under my name allegedly on a website known as “Shell Whistleblower No 2”. The Plaintiff companies contend that the said articles (hereinafter referred to as “the whistleblower articles”, contained defamatory comments.
10. The website on which “the postings” were published was owned at the material time by Mr Alfred Donovan and was operated with the assistance of his son Mr John Donovan. It is my understanding that they have owned and operated Shell related websites since 1997 under various domain names.
11. I understand that all of the Donovan websites and other information published and circulated by them including leaflets distributed outside Shell HQ buildings have contained commentary highly critical of Shell. For example, in one such leaflet bearing a picture of a Shell HQ building flying a skull & crossbones pirate flag, Shell senior managers were described as “masters of double-talk and double-dealing”. I further understand that Shell lawyers first raised the subject of issuing libel proceedings against the Donovan’s over a decade ago, but have never done so.
12. Furthermore, I understand that the domain names used at various times between 1997 and 2003 included: shellshareholders.org; don-marketing.com and shellsucks.info. “Don Marketing” was the name of a sales promotion agency founded by Mr Alfred and John Donovan which had a long trading history with Shell which ended in acrimony.
13. At the time when “the whistleblower articles” were published, the website in question was known principally as “shell2004” but also had a section operating as a new version of the “shellshareholders.org” domain.
14. The website domain names now include: shellshareholders.org; shell2004.com; shellscandal.com; shellnews.net; tellshell.org; royaldutchshellgroup.com; royaldutchshellplc.com; jorma-ollila-shell.com; royaldutchshellnews.com; royaldutchshelldotcom.com; shellsarawak.com and jeroen-van-der-veer-shell.com.
15. I understand that most of these domain names are in fact all pointed towards a single website and that all of them are registered in the name of Mr Alfred Donovan in the USA at a New York address.
16. It is my further understanding that neither Mr Donovan nor his son John have ever owned or operated a website under the domain name of “Shell Whistleblower No 2”.
17. I have never owned or operated any website.
18. I provided the above information for the sake of clarity in regards to the website in question and will deal further with the website/domain name issue at a later stage in this affidavit.
19. When I started off with Shell all those years ago I was proud to be an employee of what I considered to be nothing less than the best company in the world (at least that was what I was thinking then); an internationally respected brand and an equally respected management. The “Shell” brand had a first rate reputation and the globally famous advertising themes and slogans such as “You Can be Sure of Shell” – all seemed entirely appropriate.
20. Shell’s code of ethics, known as THE STATEMENT OF GENERAL BUSINESS PRINCIPLES (the SGBP) reinforced the projected image of an ethical business pledging honesty, integrity, openness (and respect for people including its employees) in all of its dealings. The SGBP was initiated by Sir Geoffrey Chandler and drafted by Mr. Louis Wesseling in 1976, acclaimed at the 1977 AGM and has been in force since then under the management of successive Royal Dutch Shell Group Chairman including Mr. C A J Herkstöter, Sir Mark Moody-Stuart, Sir Phil Watts and Mr. Jeroen van der Veer.
21. A senior Shell legal official (a barrister and solicitor), Mr Richard Max Wiseman, has had a constant high level presence at Shell throughout the period since the advent of the SGBP.
22. Mr Wiseman served for some time as Secretary to the Committee of Managing Directors of the Royal Dutch Shell Group. He was subsequently appointed Legal Director and General Counsel of Shell UK Limited. He is currently General Counsel of Shell International Petroleum Company Limited. As will be seen, his name crops up many times in matters discussed herein.
23. Mr Wiseman’s comments regarding the legal status of the SGBP are published on the same website as the articles which are the subject of the defamation action by the Plaintiff companies.
24. I have the deepest respect for the noble qualities and values enshrined in the SGBP and wholeheartedly subscribed to these statements which have been endorsed, promoted and supposedly made mandatory by many senior Royal Dutch Shell executives in speeches and company promotional materials directed at the public and various stakeholders. Examples of their fine words are quoted below.
25. “The Group is a decentralised, diversified group of companies with widespread activities, and each Shell company has wide freedom of action. However what we have in common is the Shell reputation. Upholding the Shell reputation is paramount. We are judged by how we act. Our reputation will be upheld if we act with honesty and integrity in all our dealings and we do what we think is right at all times within the legitimate role of business.” – Mr. C A J Herkstöter, March 1997.
26. “Commercial activity not only can be, but should be, undertaken with positive underlying values – ethical and moral… The Statement of General Business Principles constitutes a set of basic core values – honesty, integrity and respect for people… We do not bend these Principles. They are non-contestable and non-negotiable. If an employee fails to uphold these values he or she no longer belongs with us.” - Sir Mark Moody-Stuart, 6th October 1997. (Source: Leaflet headed “THE STATEMENT Of GENERAL BUSINESS PRINCIPLES”, dated 19 October 1998, published on ShellNews.net website).
27. “Our commitment to contribute to sustainable development is not a cosmetic public relations exercise. We believe that sustainable development is good for business and business is good for sustainable development. Last year’s financial results were encouraging, in a very difficult business environment. However, the corporate scandals of the past year underlined that good financial performance must be accompanied by the highest standards of governance. Shell’s Business Principles assurance process ensures we meet and maintain those standards.”: Sir Philip Watts, Chairman of Shell’s Committee of Managing Directors in his Foreword to the Meeting the Challenge—The 2002 Shell Corporate Social Responsibility (CSR) Report.
28. The pledges in Shell’s SGBP were compatible and in consonant with my own personal principles. For many years I felt secure and happy in the belief that I was working for a principled/respected multinational.
29. Unfortunately, a considerable volume of evidence, including admissions by Shell senior management, proves that Shell management has not practised what it has preached in relation to ethical conduct and that consequently my faith in the SGBP was misplaced.
30. Furthermore, contrary to the heavy promotion of the SGBP on a global basis, the aforementioned senior Shell legal official, Mr Richard Wiseman, has stated in writing that the SGBP was not produced for use in the courts. The correspondence in which Mr Wiseman makes this admittance is published on the same website as the articles which are the subject of this defamation action. Being nothing more than a voluntary code, they are legally worthless and therefore amount to empty words. Like a bet placed with a bookie, they are binding in honour only. It follows that if a company operating a voluntary code of ethic based principles is dishonourable, then such codes of conduct amount to what Mr Donovan has described in a published article as a “Confidence Tricksters Charter”. In other words they can be used to project a false image to the public, shareholders, employees, suppliers and regulators.
31. In the latter connection, Shell emphasised to the US Securities & Exchange Commission (the SEC) as part of Form 20F Declarations (signed by senior Shell executives) submitted in respect of Shell’s hydrocarbon reserves, the reliance that could be placed in the SGBP for “Risk management and internal control”.
32. I am a deeply religious man and attend Church every Sunday. My social work includes hospital visits and serving the needy, the poor, the aged and the abandoned. Currently, I am a District Fellow for dedicated humanitarian services of Lions Clubs International in District 308-A2 and a Director for Education. During the school holidays, I conduct Leadership Camp for primary and Secondary School Students free. I care for my fellow human beings and in 2003 offered my services, again free of payment or compensation, to help in an Iraqi water irrigation project. I have evidence of the relevant email correspondence.
33. It is not my nature to reveal my humble contribution to the service of mankind. However, under the current circumstances, I am forced to defend myself from serious accusations made against my character when terms such as “recalcitrant attitude”, “malice”, “vendetta”, “scurrilous”, etc are used to describe me and my alleged actions. This is uncalled for especially when such defamatory words emerge from a learned lawyer who is currently legal manager for Shell Malaysia. These unfounded accusations will be fully addressed.
34. In 1997, while fulfilling the role of Production Geologist for the Kinabalu Field project in Malaysia, I raised safety, geological and reserves issues concerning Field Development with my managers. This included faulty design in relation to the integrity of the platform which rendered it unsafe and liable to sink at the material time. I discovered the conductors piled, stopping short in the soft sediments. Indeed the first production well experienced total mud loss when drilling below conductor shoe. This necessitated continuous pumping of seawater that fluidised the surrounding sediments below the platform. As a result further drilling progress was not possible in the second well and the problems were remedied by costly cementation work.
35. In this connection I note that a fatal accident Public Inquiry is current underway in Scotland in respect of admitted breaches by Shell of Health and Safety regulations relating to the Shell Brent Bravo Platform. Shell has already been fined a record sum of £900,000 UK pounds in respect of that matter after two Shell contractors tragically lost their lives.
36. While still Production Geologist for the Kinabalu field I put into writing my moral reservations regarding Shell filing a formal declaration – a Form 502F – containing potentially misleading data about hydrocarbon reserves in relation to the field reservoir. This dubious information was used to seek funding from Shell shareholders. I wrote in one internal Shell document in 1997: “Do you want to tell your investors that the volume carried in the ARPR (Annual Review on Petroleum Reserves) is suspected because a change in reservoir work will be expected! How can we live a day with a free conscience by getting the money from our investors through the 502F when our depositional model work is in question?”
37. Ethical accountability at the workplace was poor due to dysfunctional criteria used in the reward system and associated scorecards. For example, at a team meeting I shared and explained the problems the Kinabalu project faced. When the team leader realised the seriousness of the issues I had raised, he said, "let us not talk about this because it will affect our variable pay". In an email to the project team, I subsequently asked, “Can you tell me honestly if our working relationship is affected because I was pushing too hard for proper homework to be made? As far as I am concern we owe the company a duty of care and I am not going to give a dime about any colleague whose individual agenda supersede that of the corporate objectives.”
38. My warning in relation to providing misleading information to Shell shareholders regarding safety, geological and hydrocarbon reserves was not welcomed by Shell management.
39. On reflection I believe that it was at that juncture that I realised for the first time that Shell management’s pledges to uphold the code of ethics enshrined within the Statement of Shell Business Principles were hollow. Subsequent events have only reinforced that conclusion.
40. Shell has subsequently paid USD150 million dollar fines imposed by the SEC and the UK Financial Services Authority after these financial regulators found Shell guilty of providing misleading/false filings in respect of claimed hydrocarbon reserves. Shell is also being investigated by Autoriteit Financiele Markten for alleged insider trading in the Netherlands and the US Justice Department is still considering bringing charges for fraud against former and current Shell directors. Both investigations are in respect of filing false declarations with financial regulatory bodies pertaining to hydrocarbon reserves.
41. Shell has also settled related class action lawsuits brought by shareholders. The fines and settlements have already cost Shell shareholders approximately USD240 million while at least one other class action lawsuit from institutional shareholders (US Pension Funds) claiming billions of US dollars is pending. The relevant case has been given permission to proceed by a US Federal Judge.
42. In July 2002, not long before I was dismissed, I produced a “30 seconds asset integrity documentary” video in which I included a hypothetical helicopter crash. The work was rejected by the Asset Integrity Steering Committee as being “overly sensitive”.
43. Upon the completion of that project, I was tasked to close out earlier audit findings concerning helicopter flight services where I had raised the issue of Shell Helicopter safety. I was at the time a Shell Asset Integrity Engineer (an assignment into which I had been sidelined/demoted as a consequence of the previously mentioned Kinabalu events).
44. I raised the issue of helicopter safety after my research revealed a number of serious incidents, including red warning lights flickering in flight; a series of unstable or aborted flights and violent vibration. These incidents which had not been officially reported occurred during the ferrying of Shell contractors/employees to and from offshore platform locations. The incidents understandably caused considerable stress to passengers and crew.
45. I gathered documentary evidence including feedback from Shell employees who worked in Logistics and as Offshore Installation Managers. In the midst of the data gathering, a Shell helicopter, though a different type, crashed in the North Sea killing all passengers and crew on board. That tragic event increased my anxiety for all Shell personnel using helicopters.
46. A feedback email I received revealed that passengers were ordered to board flights after repairs had just been carried out, without being informed that they were in effect “test crews”. The relevant person stated in his email: “I am not familiar with aviation procedure for testing aircraft after repair. However, I believed there should be more thorough & stringent test done before accepting the passengers.”
47. As the relevant internal correspondence will show, my concerns were again not welcomed by management. Shell commissioned DuPont to make a study to report on health, safety and environment. The findings contained in the Management Summary of that report said, Shell is a “good news company” and that the “messenger of bad news” will be punished.
48. That was prophetic because not long after I was again transferred out of the Asset Integrity team and punished because I was not helping Shell to generate good news creatively. To do so, I would have had to act in breach of the Shell Statement of General Business Principles; something I was not prepared to do.
49. In June 2005 one of the same Shell helicopters experienced difficulties as it approached the B11 gas field (offshore Sarawak) for landing on the helideck. Split seconds before landing, the helicopter was diverted and crashed into the sea. Thankfully the accident did not result in any fatalities. It could easily have ended in a tragedy claiming many lives and destruction of national assets.
50. Despite repeated pleas by me, Shell management refused for a number of years to give me a job description even though the Company was in 2001 certified with an ISO 9001 for Human resource Product and Services. It was witnessed by the same Malaysian Minister of Human Resource during a related award ceremony. Such reasonable requests were repeatedly ignored.
51. This was an issue of fundamental importance to me for a number of reasons: it was an indication of whether my job was an established budgeted position approved by Exploration and Production Business Council (EPBC); it would have provided the basis on how I would relate to my colleagues i.e. my position within the company, and my job specification in relation to my work and job competency. Instead I was left without the security and comfort of a permanent role with associated responsibilities, accountability and prospects of career progression.
52. Shell Management attitude was unsettling and caused me a great deal of stress. I felt humiliated at being treated so shabbily after working diligently for almost three decades. As far as I am aware all other fellow employees had job descriptions, except me. This affected my self-esteem. It was demoralising and demeaning which affected my good medical health record which I had enjoyed for more than 2 decades of my working life.
53. I believe that Shell management treated me this way in the expectation that I would either resign or adopt a servile attitude, including turning a blind eye to management violations of the Shell Statement of General Business Principles. I believe that this was the fundamental reason why Shell management was hostile towards me. I was even told by two well engineers that their team leader had instructed that I was “not to walk along his corridor”. Such unprofessional childish nonsense was totally out of order because my operational geological work required me to discuss matters face-to-face with his engineers. It was also humiliating in the extreme that the Team Leader conveyed his instructions via individuals I had to work with. That was insulting to me and highly embarrassing for staff involved.
54. Such shabby and inhumane treatment was inflicted on me after I had consistently promoted and protected Shell’s best interests during my work. My adherence to the ethical codes enshrined in the Statement of General Business Principles; the Health, Safety and Environmental policy guidelines: and the Human Resource Policy and Procedures Manual were not appreciated. Instead I was abused and crucified by Shell’s management and its officials.
55. I believe such actions were in violation of all ethical norms and constituted serious breaches of my Human Rights under the UN Universal Declaration of Human Rights – rights which Shell purports to support.
56. The current defamation law suit against me by EIGHT Royal Dutch Shell companies also constitutes a breach of my rights to freedom of expression and freedom of conscience accorded to me and fellow human beings under the aforementioned United Nations Declaration.
57. The fact that it was deemed necessary for EIGHT Shell companies to collectively sue one unemployed Malaysian seems to be a classic case of overkill. It would have already been an uneven struggle even if only one such company had directed its wrath (and retribution) against me.
58. In July 2003 I wrote an email bringing to the attention of senior Shell executives, Sir Philip Watts, Mr. Dominique Gardy and Jon Chadwick, an outline of the “Train of Events Leading to The Termination”. After nearly 30 years of working for the company, I did not even receive the courtesy of a response or even an acknowledgement. The email was simply ignored. That was 6 months before Shell announced the first write-down of some 20 percent of proved reserves in what became known as the Shell reserves scandal and subsequently as a reserves fraud with five consecutive downgrades.
59. After being dismissed on what I consider to be false grounds (hence my case for wrongful dismissal) I carried out some research into the experiences of other people and companies who have had dealings with the same senior Shell management that has been at the helm of the Royal Dutch Shell Group during my own unfortunate experiences.
60. While “surfing the Internet” in the spring of 2004 I stumbled across a remarkable website then operating under the domain name of “shell2004.com”. This site had apparently been launched in January 2004 just before the Shell reserves scandal made news headlines around the globe.
61. Shell2004.com contains thousands of web pages all relating to the activities of Shell. The site is owned by Mr Alfred Donovan, an almost 89 year old Englishman and is jointly operated by his only son Mr. John Donovan. There is a Shell Breaking News section updated several times daily plus articles relating to Shell. It also features leaked Shell internal documents. The shellshareholders.org section of the same website contains Mr Donovan’s biography setting out his life story and the long business relationship that he and his son had with the Royal Dutch/ Shell Group.
62. The section of the website containing his biography includes what is described as “Pre-Publication Correspondence” which took place in or around November and December 2002. The correspondence was with Mr Richard Wiseman, the aforementioned Shell Legal Director and now General Counsel of Shell International Petroleum Company Limited. Basically Mr Donovan supplied to Mr Wiseman a 103 page draft manuscript of his biography which was in turn circulated by Mr Wiseman to the most senior executives of the Royal Dutch Shell Group and a firm of London solicitors acting for the Group, DJ Freeman (now known as Kendall Freeman).
63. The senior Royal Dutch Shell executives who received copies included Sir Philip Watts, the successor to Sir Mark Moody-Stuart as Group Chairman of the Royal Dutch Shell Group; Group Managing Director, Mr Malcolm Brinded and Sir Mark Moody-Stuart, who was still a Director of The Shell Transport and Trading Co plc.
64. Also published in the “Pre-Publication Correspondence” is a reply letter from Mr Colin Joseph of DJ Freeman dated 6 December 2002 which threatened proceedings if the manuscript was published.
65. Mr Alfred Donovan has confirmed to me that the manuscript, as per the draft shown to Shell, was subsequently published on his websites, initially in 2003 on the website known as “shellsucks.info”, and subsequently from January 2004 on shell2004.com. It has remained on the shell2004.com site for two years.
66. Far from suing Mr Donovan, Shell stated the following in a domain name legal Complaint filed in May 2005 with the World Intellectual Property Organisation (WIPO) in relation to his website: “The Complainant and the Group it represents 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.”
67. Furthermore, on 11th November 2005, Mr Richard Wiseman sent a revealing email to Alfred Donovan in which he made the following comments in relation to the Donovan website: “The extraordinary tolerance shown to your internet activities ought to demonstrate better than anything else the fact that we are uninterested in, and unmoved by, your current activities. It is true that when your comments to "Tell Shell" overstep the bounds of honest comment and become vituperative or defamatory, we remove them.”
68. Firstly, the “tolerance” includes the “whistleblower articles” which are the subject of this litigation which remain published on the Donovan website, where they have been on permanent display for the last 18 months despite my request for their removal. The Royal Dutch Shell Group has not taken any action against Mr Alfred Donovan in respect of the articles for which the Plaintiff companies are suing me.
69. Secondly, Mr. Alfred Donovan, who is a creative gentleman, took it upon himself to post the same articles on to Shell’s Internet forum for open and lively debate, “Tell Shell”, as referred to by Mr Wiseman. “TellShell” is a feature on the main portal website for the Royal Dutch Shell Group, “shell.com”. All three “whistleblower articles” were posted by him on Tell Shell on 19th October 2005, where they have remained accessible globally up to the current date. The site was last checked on 3rd February 2006. The articles can immediately be found by entering “Whistleblower” in the “Tell Shell” internal search facility (not the shell.com search engine). I understand that the said articles have also been published by Mr Donovan on other websites including his new site which operates under the domain names of “royaldutchshellplc.com” and “tellshell.net”.
70. Thirdly, Mr Wiseman admitted in his email that Shell has deleted postings by Mr Donovan which are “vituperative or defamatory”. Apparently this description does not apply to the “whistleblower articles” on Shell’s own website, shell.com.
71. The relevant correspondence between Mr Alfred Donovan and Mr Wiseman is published on the Donovan and Mondaq websites.
72. The domain name Complaint filed under US jurisdiction by Shell International Petroleum Company Limited on behalf of the Royal Dutch Shell Group with the WIPO was in relation to Mr Donovan’s registration and use of Shell related domain names on his website. The domain names included royaldutchshellplc.com, which is the dotcom domain name of Shell’s unified company: Royal Dutch Shell Plc.
73. For the record, an illustrious three person WIPO panel gave a unanimous verdict against Shell rejecting two out of the three grounds on which Shell based the proceedings.
74. As a result, Mr Donovan retains ownership of all Shell related domain names which Shell attempted to seize.
75. The panel consisted of (1) Mr Michael Cover, a British solicitor who specialises in Intellectual Property law covering trade mark infringements, domain name disputes, passing off, copyright etc; (2) Ms Diane Cabell, an American lawyer, who is one of the worlds leading authorities on Internet law. Since 1997 she has been the author of many major publications relating to Internet law. Diane Cabell is currently Corporate Counsel of Creative Commons and previously held a senior legal position at The Berkman Center for Internet & Society at Havard Law School. Daniel J Gervais is a Canadian Professor of Technology Law. Professor Gervais held senior legal positions at the WIPO in Geneva for several years and is the author of a host of major publications relating to the Internet and associated law. He acted as the presiding panellist in the WIPO Shell case.
76. The following is an extract from the panel’s decision: - The use of a domain name to criticize a company is prima facie fair use. The Respondent is entitled to use the Internet to use his free speech rights and express his opinion in this way, subject to other laws of course (copyright, libel, etc.). However, by reflecting the exact trade names of the Complainant and using the exact name of a facility specifically designed to send messages to or post messages about the Complainant, the Complainant argues that Respondent’s intent is to tarnish the mark. The distinction between constructive criticism and tarnishment can be a difficult one to draw. In this case, there is no evidence that Respondent’s actions are for “commercial gain” or that they are intended to tarnish the Complainant’s mark as required by paragraph 4(c)(iii) of the Policy. The Respondent does own some shares of stock, but the impact of his activities on the value of such shares is presumed by the Panel to be remote. The Panel thus finds that the Respondent has a legitimate interest in the domain names.
77. The following is an extract from Mr Donovan’s submission to the WIPO as the “Respondent” in the proceedings: “There are no current legal proceedings between the Complainant and the Respondent. However, eight companies within the Royal Dutch Shell Group have obtained a Malaysian High Court Injunction in respect of webpage’s on the Respondents web site. The Injunction is against Dr John Huong, a Malaysian former Shell geologist of almost 30 years standing. His “whistleblower” disclosures were posted by the Respondent on his website. The Injunction is totally at odds with the claims by the Complainant about the Groups benevolent attitude to the Respondent in respect of his postings on his web site. With all due respect, the “Group” seems to be facing in two directions at once. “ (The underlining is mine)
78. Basically Shell lawyers completely twisted their case in knots by pretending to the WIPO that Shell is favourably disposed to freedom of speech on the Internet, whilst failing to inform them that at the time when it it made the statement, it held a High Court Injunction over postings published under my name on the same website. That must be a prime example of deceit and hypocrisy.
79. I contend that the information set forth in Mr Donovan’s published manuscript cannot be compared with a newspaper clearing an article with Shell’s media department before publication. In this case, a complete manuscript was sent prior to publication to a senior legal official of Shell, Mr Wiseman, who in turn circulated it to the senior partner of DJ Freeman Solicitors, Mr Colin Joseph, and several of the most senior Shell executives. That to my mind adds considerable weight to the veracity and credibility of the content. I understand that Mr Wiseman even sought permission from Alfred Donovan on behalf of Sir Mark Moody-Stuart for a copy of the manuscript Sir Mark had received to be passed on to Sir Mark’s son, Mr Tom Moody-Stuart, a practising barrister. Mr Alfred Donovan has copies of the correspondence.
80. I arrived at the conclusion that what was stated in the manuscript must be fundamentally true or otherwise Shell or one of the other parties involved would have instituted legal proceedings to prevent such publication. Most of the manuscript was about Donovan dealings with Shell, not about Mr Donovan’s life story, interesting and moving though it is.
81. For the record, the following are extracts from notices directed at Shell which are prominently displayed on the gateway web page to the Donovan website: -
“Shell is of course free to issue libel proceedings if anything published herein is untrue”.
There is also displayed an: “OPEN INVITATION TO PUBLISH, UNEDITED, ANY RESPONSE SHELL WISHES TO MAKE TO ANY ARTICLE PUBLISHED HEREIN”
82. The Shell senior executives to whom Mr Donovan refers in his manuscript, which covers a decade long period, are the same individuals involved in the reserves scandal and named as Defendants in the pending US Class Action lawsuit which accuses them of fraud and other misdeeds relating to the reserves scandal. They are also the same executives involved in my case.
83. At least one other US class action lawsuit making similar accusations against the same Shell executives has already been the subject of a multimillion dollar (USD) settlement by Shell. This was an action brought by US employees of Shell in relation to their pension fund.
84. There are also lawsuits in progress in Malaysia against Shell which have been brought by its former employees. One High Court case involves a group of 399 former Shell employees known as “Team A”. Their action relates to deductions made by Shell to their Employee Providence Fund. A Judge has already ruled that the deductions were “unlawful”. Shell has appealed that decision apparently in an attempt to exploit a legal loophole relating to time limits. This appears to be a ploy by Shell to evade its moral responsibilities to its former employees. News reports related to this distressing case are published on the Donovan website.
85. Current employees and employees who had resigned after 1997 were persuaded by the company to opt for a Defined Contributory Scheme (DCS). The relevant employees wrongly thought that Shell management was acting in their best interests. It turned out however to be a detrimental move for the relevant employees and a financially beneficial manoeuvre for Shell. Eventually the company paid an ex-gratia payment plus adjustments for the DCS holders in early 2004 provided they were willing to sign off a letter of undertaking not to pursue legal action against the company in future.
86. In a related question and answer leaflet, published by Shell, employees such as me, who have been dismissed, would not be entitled to receive any such ex-gratia payments, nor the adjustment paid to other employees. Therefore, the representation by Sarawak Shell Berhad to me of the alleged benefits in the Defined Contributory Scheme and my subsequent dismissal under the most extraordinary circumstances has caused me to be prejudiced and to suffer financial loss and financial insecurity.
87. I too have been severely penalised by what I consider to be completely improper decisions made in respect of Shell employee pension funds. The Malaysian people are by nature (in my humble assessment) fairly docile, dedicated and basically decent human beings. The fact that several hundred hard-working and loyal Shell employees felt compelled to institute legal proceedings against their former employer speaks absolute volumes. I am truly appalled by the Royal Dutch Shell Groups’ unscrupulous heartless treatment of the sick, elderly and dying, as reported by the Malaysian news media. I believe that such conduct is indeed evil and in line with Shell’s management actions in other Countries e.g. Nigeria, Africa, South America, Nicaragua, Caribbean, USA, Canada, Russia, Vietnam, Philippines, Papua New Guinea, County Mayo in Ireland, etc
88. Reading the biography/manuscript and other information on Mr Donovan’s website, including numerous newspaper articles about the reserves scandal, combined with my own experiences with Shell and information gained from other sources, were ALL part of the thought processes which led me to reach further conclusions about the ethical conduct of Shell senior management.
89. I was unaware that I was working for a multinational which had engaged in such despicable behaviour, around the world, including the activities in Nigeria which Shell has admitted i.e. feeding the endemic violence and corruption. Shell has plundered more than $30 bn USD in oil revenues from Nigeria in cooperation with a series of corrupt regimes over recent decades, while leaving the local population to live in fear, abject poverty and a hellishly polluted environment. The one constant element has been the involvement of Shell. When I read that Shell management has bought a fleet of luxury jets to transport themselves it makes me feel ashamed to have been an innocent accessory to these evil multinational crimes.
90. Currently, I have encountered technical problems in searching the shell2004.com website for information. Google provides a search facility built into the shell2004.com web site. Although very useful as a tool to carry out research relating to the content of the site, it provides a limited service due to technical problems. I have been informed by Mr John Donovan that a new dedicated search facility may soon be installed which will enable visitors to facilitate a search of every web page (over 7,500) and every PDF file – several hundred more pages of information. In other words, if the word “evil” is entered, every publication of that word on the entire website will be listed. This will be an invaluable resource to anyone carrying out research about Shell.
91. As the shell2004.com web site is far and way the single most important source of information relevant to my defence of the action brought by the Plaintiff companies, I would seek the right under the circumstances to supply further information at the appropriate time.
92. I have provided three annexes (A-C);
93. Annex A deals with Mr Donovan’s manuscript submitted to Shell which has been published on the Internet since 2003, originally on a website under the domain name of shellsucks.info and subsequently under the domain name of shellshareholders.org;
94. Annex B contains examples of newspaper headlines (some with brief extracts from related articles) and information featured on the Donovan website and/or elsewhere BEFORE the publication of the three “whistleblower articles” (described as “ internet postings” in Shell’s Affidavit) on the Donovan website, under my name, on the10th, 13th and 16th June 2004;
95. The raw draft correspondence I supplied to Mr Donovan in or around June 2004 drew on all of the information categories in annexes A & B above.
96. Annex C contains examples of newspaper headlines (some with brief extracts from the related articles) and information featured/found on Donovan website domains and/or elsewhere AFTER the three “whistleblower articles” were published by the Donovan’s under my name on their website. This additional information further justifies comments made in the three “whistleblower articles”.
97. The headlines and brief extracts give some idea of the global dimensions of the firestorm of adverse publicly generated by the Shell reserves scandal and the affect it has had on the reputation of the Shell brand and on working ethos/culture of Shell management. The full articles provide evidence that a host of major media organisations have published or broadcast information which have described the activities of Shell management in terms just as forthright (and on occasion more forthright) than the terms used in the “whistleblower articles”. This was the case both before and after the articles in question. Because of concerns over the length of the Affidavit I have only provided a limited selection of the web page content. Likewise, I have only provided a limited number of headlines. There are several thousand on the Donovan websites.
98. As already indicated the information and articles had a major bearing on the comments about Shell attributed to me in the “whistleblower articles” published on the Donovan website under my name.
99. They cover issues relating to Shell and its management including tainted gasoline; banned chemicals, a cover-up mentality; greed; reckless flaring, arrogance; ruthlessness; lies; fraud, deception; misrepresentation, dishonesty; corruption; conspiracy and support of injustice in countries in which they operate; victimisation of employees; unethical conduct; intimidation of employees; empty pledges (the SGBP); breaches of health and safety issues; pollution and despoliation in areas in which Shell operates, etc.
100. Eighteen months later, having spent a huge amount of time and other resources on further research, I came to the conclusion that the comments made in my name about the conduct of Shell’s activities in various countries around the world were well founded. Frankly it is sickening to know that evil is perpetrated by a multi-national company whereby for example, as also previously mentioned, the poor are exploited in Nigeria, forced to live in a horrifically polluted environment and robbed of basic human dignity, while disgraced, dishonest Shell senior directors are given multi-million USD payoffs. Having learned so much more about the disgraceful activities of Shell, I feel ashamed and betrayed.
101. However, for the reasons which I explain below, the majority of the terms and phrases to which the Plaintiff companies object were not in fact originated by me.
102. Mr Alfred Donovan and his son John have already confirmed in published articles their role in what they have described as “co-authoring” (with me) the “Whistleblower No.2” articles on shell2004.com, which are the basis of Shell’s defamation action against me. Mr Alfred Donovan has also correctly stated that he, not I, was the publisher of ALL the “Whistleblower No.2” articles.
103. Mr Alfred and John Donovan have also correctly claimed in their articles that the majority of the allegations cited by the Plaintiff companies in their legal documents were either quotations from allegations/comments about Shell management previously published by the Donovan’s and/or new commentary authored by them.
104. For some unknown reason, Shell appears disposed to suing me, but not Mr Alfred Donovan who re-published the very same articles in their entirety on his website and even on Shell’s own portal website. Mr Alfred Donovan has speculated in widely circulated articles that this may be because he is a white European, whereas I am not.
105. Shell Chairman Lord Oxburgh was profiled in “The Other Shell Report 2004”, entitled “Lessons not Learned” on page 8. It stated that to the date of publication, “Lord Oxburgh has failed to report anything back to the South Durban community” for the promises he made “to bring their concerns to the Shell board of directors”. According to the report, Mr. Jeroen van der Veer left “behind a mess” (page 17 of the report) in Curacao, Netherlands Antilles. This area is populated by predominantly dark skinned citizens located thousands of miles from South Africa. This is in striking contrast to the emphasis given to health, safety and environmental issues in respect of the Geelong refinery in Australia. I find these varying standards in the application of SGBP apparently dependent on the nationality (and possibility the pigmentation of local populations) to be of great concern, especially on “Compliance”, a new feature highlighted by Mr. Jeroen van der Veer in August 2005.
106. The apparent discrimination is also in contravention of the UN Declaration of Universal Human Rights which Shell purports to support.
107. Mr. Alfred Donovan has pointed out in the same vein that Shell settled a retirement funds related class action law suit brought against it by its American employees, while it has for years, dragged out retirement fund related lawsuits brought by its Malaysian former employees.
108. If there is any substance to Mr Donovan’s speculation, then we would have to add “racist policies” to the descriptions listed above.
109. Although I am reasonably fluent in spoken English, I am less competent in written English. I did correspond by email with Mr Alfred Donovan and have spoken by telephone to him briefly from time to time, but mostly to his son John. This is because Mr Donovan senior has poor hearing due to his advanced years (he will be 89 years old in April 2006).
110. From the email correspondence and the telephone conversations, Mr Alfred and John Donovan composed the finished articles which were then published under my name. I have never met either individual. I never had any editorial authority in relation to the published introductory email or the three “Whistleblower” articles described as “internet Postings” and/or “Instalment one, two and three”, published on shell2004.com under my name. Mr Alfred Donovan published the three “whistleblower articles” on his website.
111. At the material time I relied upon the expertise and experience of Mr. Alfred Donovan as to what was proper to publish. I would compare this to submitting a letter for publication to a newspaper. I would expect the newspaper editor/publisher to vet the content and make any amendments at their discretion as the publisher has ultimate legal responsibility for what is published.
112. I had no input over the design, layout, colours, font type or size, or title of the web pages on which the relevant articles were published (which the Plaintiff has complained about) nor on the web site/domain name chosen by Alfred Donovan for publication of the articles. As indicated, he had at least two Shell related domain names in operation at the material time.