Affidavit by David Irving I DAVID JOHN CAWDELL IRVING of 81 Duke Street, Grosvenor Square, London W1M 5DJ MAKE OATH and say as follows: 1. I am a self employed writer, historian, broadcaster, and publisher. On September 5, 1996 I issued and served a Writ in libel on Penguin Books Ltd and on their author professor Deborah Lipstadt. The contents of this affidavit are within my knowledge save where appears otherwise from the context. 2. I have been the target for a long time of a well-funded world-wide campaign to destroy my hard-won professional legitimacy as an historian of Hitler's Reich, and deprive me of my professional income; this campaign has been operated within the jurisdiction of this court as well as in the United States, Argentina, Canada, New Zealand, Australia, Germany, South Africa, Austria, Italy and other countries.

3. At the trial of this action I shall show that the Defendants adopted the role of Willing Executioners in this campaign, with Professor Lipstadt the Second Defendant casting herself in the executioner's role of Albert Pierrepoint and me in the less fortunate role of James Hanratty.

4. There is now produced and shown to me a bundle of documents marked "DJCI5" (the "bundle").

5. Discovery by the parties involved has so far produced about three thousand numbered documents, with many thousands more furnished by myself in bulk to the defendants under Orders made by Master Trench.

6. I am a litigant in person but I have a working knowledge of the laws of the land and the Rules of the Supreme Court. I shall not be aided in court by counsel nor have I instructed solicitors. I am obliged to prepare months ahead of the trial, using modern information technology to process the immense documentation.

My Websites.

7. I maintain a Website on which I host a newsletter and correspondence columns, and make available to the historical community historical documents which I have generated through my thirty-five years of research. An example is the Bruns interrogation (pages 1-5 of the bundle): a Nazi general describes in 1945 in captivity mass shootings of Jews he has witnessed, without realising he is being taped. I was the first to locate and publicise, repeatedly, this horrific document.

8. My staff and I are transferring key documents of all parties in this action to a computer within my residence, in the form of a hierarchically constructed Website. This structure has the advantage that "hyperlinks" can be constructed between files (these show up underlined and in red on the exhibits [not posted] to this affidavit): a key word in one document, when "clicked" on, brings up instantly other documents referred to, or a rebuttal, or some other relevant item.

9. The manual labour involved in coding the documents is considerable. They have to be converted to hypertext mark-up language (HTML), the hyperlinks referred to have to be calculated and inserted, and the necessary indices and navigation aids have to be constructed. All of this is being done offline and behind closed doors.

10. I submit that this is no different from an office worker typing a copy onto a word-processor (or making a Xerox copy and filing it in a confidential cabinet); this latter procedure is no doubt adopted by the solicitors for both Defendants, whether or not the documents are subject to the O.24 implied undertaking. At this stage in the argument, nothing has proceeded beyond the casing of my computer and the walls of my residence.

11. I and my publishing imprint Focal Point Publications (FPP) created on or about January 19, 1998 a public-domain Website. Its URL (address location) is "www.fpp.co.uk". We thus have a public presence on the word-wide link-up of computers known as the Internet. In fact I have three Internet service providers (ISPs), one of which is located within the jurisdiction, and two are not. FPP stores its publicly accessible Website www.fpp.co.uk on a commercial computer ("server") at an ISP located at Milton Keynes; this is to all intents a mirror-image of the public part of the Website, which I construct on my domestic computer. This public Website is updated regularly, usually several times a day, since it contains an "on-line newsletter".

12. The purpose of this newsletter is twofold

(a) generally disseminating news, both items created by myself and important items culled from other sources including national newspapers e.g. on censorship, on General Pinochet, or on the bombing of Iraq; and

(b) informing my world-wide circle of friends and sponsors of the progress of the current legal actions through an on-line edition of my printed newsletter Action Report.

13. There is a second purpose underlying the effort being spent on preparing the off-line (i.e. non-public part of the) Website referred to in para. 9: When the trial of this action begins it is possible that it will attract wide attention. To aid interested parties in following the action I propose to make public all documents as soon as, but not of course before, it is legally permissible. The relevant files will then be transferred electronically from the off-line (private) to the on-line (public) portion of the Website. The legal rules governing this are as set out in my letter to the Second Defendants' solicitors on January 20, 1999 which is in their bundle.

14. The Second Defendant [Deborah Lipstadt] is aggrieved by suspicions that she has developed, rummaging around the further reaches of my Website (which currently consists of 1,968 files), that I may have on occasion momentarily posted in a strictly password-protected (i.e. non-public) part of that electronic environment a transcript of a privileged document from her discovery.

15. The password protected sites are totally closed to the public. They are accessed e.g. via a tiny key (the Internet symbol for a password-protected link) located at the bottom right hand corner of the main index. This brings up three levels of password protection (e.g. pages 6-7 of the bundle). There is currently nothing of any questionable nature posted whatever.

16. The protected-area device is used purely as a particularly secure electronic mail (e-mail) facility for a legal document too bulky to send by regular e-mail: for example, as in the case of the Mozzochi affidavit, which was however, so is my submission, not privileged, I shall need to ask advisers and witnesses for their commentary on a particular document. Showing it to them in a password-protected frame, purely for the purpose of preparing this action, is no different from showing it to such expert advisers in my office. The password protection is multi-level (one password alone is not enough), and regularly changed, to make that document available only to the one addressee. There is no intention to make such privileged documents available for public consumption before it is legally permissible to do so.

17. Agencies representing the international Jewish community have financed a number of mega-Websites specifically devoted to problems of history, presenting their own case. Most prominent among these are Websites run by Mr Ken McVay and David Keren in Canada and Mr Jamie McCarthy. The consequence of this saturation of the Internet has been that for several years any Internet browser who has browsed the world wide web with one of the search-engines available, typing-in a search for my name, has generated hundreds of items produced by my enemies calculated to defame and blacken my reputation before they read any alternate materials.

18. The attack on my name is being conducted with particular savagery on the Internet. Within the last few days they have begun a frenzied activity, posting on his Website over 120 items attacking me. I produce at pages 8-11 of the bundle a listing, downloaded from the Internet this morning, of the first one hundred items posted within the last few days, largely by Messrs Ken McVay, Daniel Keren, and James McCarthy. McVay's Website, Nizkor, has the address (or "URL") www.nizkor.org. Until I established my own Website one year ago this month I was unable to respond to this attack.

19. These include court documents obtained by various means relating to legal actions in Germany, Australia, the United Kingdom, Canada, and elsewhere. In other words, the same people who are trying today to secure an injunction tying my hands as to what I can post on my own Website, are gleefully saturating it with hundreds, if not thousands of items, smearing me.

20. As is evident from the Second Defendant's discovery [... passage withheld to comply with Order ...]. What they are doing is not illegal. But there must be a level playing field.

21. The prospects of this, the level playing field, are diminishing hourly. The same people who have devoted twenty years of effort to destroying my career have recently devoted much ingenuity to attempts to controlling the Internet and filtering out of it materials which they oppose. They have collaborated with Internet software developers to manufacture filters with proprietary trade-names like Surfwatch™ and simultaneously they have in the USA obtained state and federal assistance in requiring public and educational establishments to install these filters in their computers. Computers thus tampered with are incapable of "tuning in" to Websites these people disagree with. In some cases (e.g. Cyber-Patrol™), users find themselves surreptitiously directed to the Websites which these people maintain instead. They wanted to get to www.birmingham.com, but find themselves in www.crewe.com instead.

22. When the Anti-Defamation League in New York, another organisation with which the Second Defendant stands in close communication as is evidenced by her discovery, applied pressure in the spring of 1996 to my American publishers St Martins Press (SMP) to violate, as they subsequently did, their contract with me and to abandon plans to publish my book GOEBBELS. MASTERMIND OF THE THIRD REICH, they did so, according to press statements of SMP chairman Mr Tom McCormack, by drawing his attention to the defamatory materials about me on the Internet, claiming that they were true. They did not reveal that they themselves had planted that material on the Internet. They have posted at their Internet Website www.adl.org since June 6 last year a multi-page document in press release form devoted to smearing my name and reputation. In fact the book GOEBBELS. MASTERMIND OF THE THIRD REICH describes at length documents like the Bruns interrogation referred to above.

23. I submit that the Second Defendant's attempt to gain an injunction against my preparing to place documents related to this case on the public part of my Website, as and when it becomes legal to do so, is an attempt to tilt the playing field against me and to gag me; it is an extension of censorship, which is abhorrent in a free society.

The Witness Statements

24. In preparing the groundwork for an application in chambers for an order that I verify my List, and produce further documents relating to individuals, the Second Defendant produced affidavits by a certain Oregonian, Mr Jonathan Mozzochi. The affidavits were defamatory and scandalous, and their allegations were untrue. By posting those affidavits on my Website I was able to develop information as to credibility, revealing that Mozzochi had in fact figured in Oregon police records as a skinhead gangleader, and had a history of a bad character. These affidavits were struck out by Master Trench on my application.

25. I have prepared all the witness statements for posting in a form necessary to generate information as to the credibility of the witnesses (page 22). A "splash screen" (page 23 of the bundle) first warns the reader that the document is a legal document, etc. At the foot of the page is an e-mail form (page 24) specifically asking the reader to provide information on the witness concerned, for the purposes of these proceedings. It is respectfully submitted that this is not an improper use of the documents, as contemplated under O 38 r 2A.

26. The Second Defendant has given notice under the Civil Evidence Act that, with the exception of herself, all those witnesses whose statements of fact are at issue today are over the seas and cannot be called upon to testify. In the premises I shall therefore have no chance to test their credibility or their allegations, many of which are of a scandalous nature, in cross-examination, and it is proper that I should be permitted to use the same methods of inquiry to expose them as I used successfully to expose the same Defendant's witness Mozzochi.

27. The relief sought of this Honourable Court is an attempt to hamstring my inquiry into the credibility of those witnesses, by making it impossible for me to conduct inquiries, as a litigant in person without the funds that are at the Second Defendants' disposal. Thus one of the latest witnesses is known to have attended a university in East Berlin that was a training ground for the KGB and Stasi (East German secret police) agents, which is of significance given the nature of their allegations, which are untrue, about my political views.

28. It is respectfully submitted that the proper course of action for the Defendants is to wait until the implied undertaking is breached and then seek the appropriate sanctions. It is further respectfully submitted that I have not breached the O.24 undertaking or made any unpermitted use of the documents that is not related to the proceedings.

29. Pending the ruling of this Honourable Court, there are currently no O.38 witness statements, save those served by myself, on the public (on-line) portion of the Website, since I temporarily removed them from that portion on receipt of the letters from the Defendants' solicitors yesterday; nor are there any items privileged by virtue of the O.24 implied undertaking on Discovery so posted. Unless the Court grants the relief sought by the Defendant, however, I shall post those items again, in so far as is permissible within the law.

30. At 11:40 a.m. this morning I received an affidavit from the Plaintiff, which I have not read before making this my affidavit.

31. In the premises I therefore ask that

this Honourable Court dismiss the Second Defendant's application for the relief sought, and make no order as to the costs.

SWORN AT LONDON, this twenty-sixth day of January 1999           
Before me,
A Solicitor, [signature]

This affidavit is filed on behalf of the Plaintiff.