The domestic dispute over the Cayman Islands court system’s new restrictions on photocopying public records has ballooned into a potential international incident. The publisher of a U.S.-based offshore financial news site is reacting strongly against a policy that he believes targets him.
David Marchant, the publisher of Miami-based financial news site OffshoreAlert, is planning to make Cayman’s court records policy the focal point of his opening address Monday at his upcoming OffshoreAlert North America Conference, which will draw hundreds of industry professionals and journalists from 25 countries.
“The new policy rolls back decades of transparency at the court and appears to be directly targeted at OffshoreAlert, which has been publishing publicly available Cayman court filings on a weekly basis,” Mr. Marchant wrote in an email blast Wednesday to 9,000 subscribers in 100 countries. “When a judge punishes such activity, instead of encouraging it, you know a jurisdiction has serious problems.”
The Cayman court system – headed by Chief Justice Anthony Smellie – recently began to restrict the photocopying of public records by citizens and the media. Mr. Marchant said his researchers were barred from their usual practice of photocopying and publishing local court writs earlier in the week, thus restricting knowledge of business dealings in the Cayman Islands.
“The court is not a private company,” he told the Compass on Thursday. “Their salaries are paid for by the public. They do not own these documents, and the general law is that there is no copyright on public documents. The documents are owned by the public. These people who work for the court need to wise up.”
The Cayman Islands Judicial Administration responded to an inquiry by the Cayman Compass on Wednesday, claiming officials were rectifying “unintentional departures in practice over time.”
People can still access and take notes on court records after paying a $20 inspection fee. Obtaining photocopies – for an additional fee of $20 per document plus $0.50 per page – is allowed for “any legitimate purpose,” including investigative journalism, with prior approval from the clerk of court.
What is prohibited, according to the statement from the court administrator, is the “wholesale reproduction” of records:
“The rules of court were never intended to allow the wholesale reproduction by photocopy of every record, thereby enabling the documents themselves to be available by paid subscription to another provider, all under the guise of transparency, as mentioned in your story in [Wednesday’s] edition of the Compass. This amounts to the unauthorized sale of those documents for profit.”
The new policy, which was issued with the approval of Chief Justice Smellie, is a significant departure from previous practice. Financial Services Minister Wayne Panton said he was only aware of the issue through the media, but he thought it would be best for public records to remain available for copying unless there is a compelling reason to restrict their use.
“Overall, it’s going to be better for the media and for everyone else to have unfettered access to public records,” he said when told of the court’s statement.
The court also claims that publishing public court documents online could constitute a violation of copyright for both the parties who filed their lawsuits and for the government as a whole:
“To allow this to continue unchecked would be tantamount to allowing an abuse of the process of the court and a breach of the copyright of the persons who paid for the creation of the documents that they file with the court for the purpose of access to justice. It would also allow the ongoing breach of the Crown’s copyright in the judgments of the Courts.”
Minister Panton, who is a former partner at Walkers law firm, said, “If a record is part of the public domain, I wouldn’t think on the face of it there is an issue of copyright. It seems to me to be a slight contradiction.”
Mr. Marchant said Thursday that he had never heard of that justification for clamping down on public access to documents. He had previously said that he felt unfairly targeted by the court’s decision to disallow the photocopying of official court records.
If it’s an issue of breaching copyright, Mr. Marchant said he would welcome arguing that in a judicial setting.
“If the court thinks we’ve done something illegal, sue us. I’m in the United States. I have substantial assets. Sue me. Why don’t they sue me? Because they have no claim in law. Everybody will laugh at them because it would be pathetic.”
He said, “This is the reality. The Cayman Islands is so embarrassed about the business it does and the disputes that arise from that business that they don’t want the outside world to know about it. However, they still want to continue taking millions and tens of millions of dollars from the same outside world.”
Mr. Marchant said that if the issue is not resolved by next Friday, he plans on issuing a monthly warning against doing business with companies in the Cayman Islands in his newsletter.
“Whoever is responsible for this is unintelligent and unworldly,” Mr. Marchant said.
“But I can tell you now, the court for ridiculous reasons has chosen to go to war with OffshoreAlert, and there will be consequences and repercussions only in the sense that I will explain to the financial world what is going on accurately and fairly. It’s basically a question of the court hanging itself with its own rope. They have provided me with three miles of rope from which to hang them. Thank you.”
The Compass contacted Alasdair Robertson, president of the Cayman Islands Law Society, and Jude Scott, the head of Cayman Finance, seeking comment on this story. As of press time, neither had responded with a statement for publication.