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  • 5/12/2018 Tpl Motion14 Brief


    Form IS.OSA2010 Yar. No. 328248


    Trout Point Lodge, Limited, a Nova Scotia LimitedCompanyPlaintiff

    - and-Louisiana Media Company, LLC, a Delaware Limited

    Liability CompanyDefendant

    BRIEF FOR MOTION UNDER RULE 14Please Note: This brief accompanies a motion for an order revealing the identity or information leadingto the true identity of anonymous Internet posters. The order is to be directed at a third-party and notthe defendant'The Plaintiff asks this honourable Court to take judicial notice of the following current publicationsdisseminated on the Internet, including any and all associated user "comments":--http: /lslabbed. word press. c om /2 0 1 11 04 /2 61 slabbed-takes-a-look -at-the-trout-point-business-venture-lets-start-at-the-end-and-~oLf.r~k-~b~a~c~k/:._ --------- _-~http.://slab be .word press. ( ; 0 1 1 1 / 2 0 11/04/26/tuesday- usic-dedicated-to-a.afQu-and-the-girlsl--http://slabbed.wordpress .c om / 20 1 1 /0 4 /2 21 and-now-a-word- from-our-sponsor/--http://slabbed.wordpress .c om /2 0 1 1/0 4/2 21how-ironic- that -on- the-day-after-th e-drive-b y-shootin g-of..the-nun-sisters-by-the-times-picayunel--hUp:/1slabbed. word press. com/20 11/04/201 coming-soon-on-slabbed-we-examine-the-times-picayune-trout-point-retractions-in-detaill-- 11/041 19/tuesday-video-dedicated-to-the-girlsl--hUp:!!slabbed. word press .com /20 11 /04 /18 /) 'e s -i -can-verify-that-trout-point-l odges-charles-leary-and-tlle-soon-to-be-indicted-aaron-broussard-\vere-thick-as-thieves-up-in-nova-scotial--http://slabbed.wordpress .com120 11/041 18/i-have-a-reply- for-the-times-picayune-and-their-laVlyer-steve-gaynor/--http://slabbed. word press .comf20 11/04/ 18/well- folks-this-trou t-point-thing-has-really:-rattled-some-cages/--http://slabbed.wordpress .c om / 20 1 1 /0 2/ 15 /j ohn-young- fire-f-unqualified-paral ega!s-fina IIy-wh ere-the-heck-was-peggy-barton-and-her-blowbuddy-lil-pup-this-whole-time!--http://slabbed. wordpress.comJ20 11/02/21!clue-the-grand-jury-versionl--http://slabbed.wordpress .com!20 11/0 2/24 iheU- wai ting-for-high-water-the-d evil-in- the-details-of-the-flooding-of-jefferson-parish/--!2011/02/18/mirror-mirror-on-tlle-wall-server-was-it-one-enterprise-office-after-all!--http://slabhed .word press. comJ20 10/02/05/ anyone-el se-notice-chehardy-sherman-de-norrnad-their-web site-hmmm/

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    In addition, the policies of Au tomattic and pport. word press .coml disputes/As well as:http://w\\ 111 0 4 I r e traction -=troul....P0inUod~e.htmlhttp://\,,,,\w.nola.comlnews/index.ssf/2010/01/newspaper_retracts_assertion_a.html

    April 26, 2011The Honourable Justice Pierre MuiseSupreme Court of Nova ScotiaYarmouth Justice CentreMy Lord:Please accept this brief accompanying a motion for an order under Civil Procedure Rule 14 forAutomattic.Tnc., a c05poration the owner of a popular blogging web site to reveal informationleading to ffie identity ofcertain.bIQggers and posters on the blog There issome urgency to this motion as the impugned bIog has launched a campaign of defamatory postingsrelated to the matters central to Yar No 323591 (now settled) and the current proceeding, whichpublications also contain threats and harassment and encourage invasion of privacy.Automattic, Inc. is a California corporation that hosts and publishes the blogging web in turn hosts a bIog named "slabbed," whose url"Telemachusr and "unslabbed" are 2 registered users on "slabbed" ho maintain ananonymous identity. Sop81_1 is the purported owner and publisher of-the blog, also anonymous.Telemachus, unslabbed, and Sop81_1 have jlQsted material on that:

    threaten the WalntifF,'-------is defamatory of the Plaintiff;republishes defamatory material previously removed and retracted by The Times-Picayunenewspaper;

    demonstrates a connection to broadcasts and Internet publications made by the DefendantLouisiana Media Company, LLC, including insider knowledge of Louisiana Media's receptionof Notice ofIntended Action in this matter as well as access 10 parts of the Aaron Broussardinterview requested but not disclosed by the defendant.

    Automattic appears to have an explicit policy of being responsive to court orders and/or subpoenas. Atthe uri, Automattic states: Court orders: Official, signed courtorders can be [email protected] the uri,Au1moattic states:

    If we receive a complaint and are not in a position to make a determination (for examplewhether something is defamatory or not), we generally defer 10the judgment of a court.,mailto:[email protected],Au1moattic,Au1moatticmailto:[email protected],
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    However, in either case, we may take other action (or decline to take action) as we deemappropriate based on the circumstances.


    Inis Privacy Policy, Autornattic states:Other than to its employees, contractors and affiliated organizations. as described above,Automa ttic discloses potentially personally-identifying and personally-identifying informationonly in response to a subpoena, court order or other governmental request, or when Automatticbelieves in good faith that disclosure is reasonably necessary to protect the property or rights ofAutomattic, third parties or the public at large.

    c Plaintiff therefore has a good faith Beliefihat an Order from this HOQol!lrablCourt will befollowed hy Automaffic.

    ,TelemaChUS, unslabbed, and Sop81_1 had notice of, and agreed to Autornattic's policies, including the

    Privacy Policy. They therefore have no expectation that information leading to their true identities willbe kept confidential in a situation such as this. There is no right to defame or utter threats.DefamationThe background of the publications made by Telemachus, unslabbed, and Sop81_1 are the reporting bymedia organizations on what the slabbed blog labels as "the Jefferson Parish political corruptionscandal." The Plaintiff was erroneously, recklessly, illegally, and without substantiation referred to inpublications about the Broussard scandal by the defendant and others.Background is contained in the amended Statements of Claim filed in this matter and Yar No. 323591as well as affidavits filed in those matters.In essence, Trout Point Lodge was misidentified as being Jefferson Parish President Aaron Broussard'sproperty, as being involved in illicit business activities involving I\Jr. Broussard, and as being a frontfor criminal and unethical activity. Notably, the Defendant republished a defamatory publication of TheTimes-Picayune newspaper on January 7,2010, for which the Plaintiff holds the Defendant responsiblein defamation.Yar No 323591 is now the subject of a settlement agreement whose specific tenus cannot be disclosed.The Times-Picayune published both a "correction" and retraction regarding publications it had made inprint and the Internet, including using the Plaintiff's image. A further and broader retraction waspublished on nola. com on April 8, 2011 at http://,,,' \ 11104/retraction -_trou1_point_lodge.html. It reads:

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    Retraction - Trout Point LodgeIn January 2010, The Times-Picayune published several articles that mentioned Trout PointLodge and its business dealings while discussing Jefferson Parish politics and the scandal in theadministration offonner Parish President Aaron Broussard. The newspaper retracts publicationimplying that Trout Point Lodge was involved in the scandal.The newspaper believes there is no basis for making any implication that Trout Point Lodge,Limited or its owners, Daniel Abel, Vaughn Perret, or Charles Leary, were involved in anywrongdoing and, indeed, never intended to make any such implication. The Metropolitan CrimeCommission complaint to the Louisiana Ethics Board about Broussard's vacation property inNova Scotia in fact did not name or implicate any of them. The Times-Picayune apologizes forerrors in its reporting regarding Trout Point Lodge and its owners,

    The Defendant by contrast, has refused to.make any retraction whatsoever, including related to use of ..,.the Plaintiffs image and video of its web site inmultiple TV and Intemet broadcasts. The refusal topublish any retraction or correctiem fias allowed third parties, such as the slabbed posters, to believetl1at the identification of th e Plaintiffwith Aaron Broussard's alleged illegal activities is true and thatt h r e tr ac tions published by the Iimes.,PicaUne &e 12aft of a CQverup. "'The Plaintiff was a subject matter of discussions and posting on the slabbed blog contemporaneouswith d,gfamatory publications by the defendant. Not all of the numerous slabbed publications referringto the Plaintiff are defamatory. Publication of defamatory material is, however, ongoing and hasincreased in the past 2 weeks in what is tantamount to a smear and hate campaign (Barrick GoldCorp ..Y. Lopehandia, 2004 CanLII 12938 (ON C.A., uses homophobic rhetoric as a rallying cry'..Publications before April. 2011The first Times-Picayune retraction appeared on January 16, 2010. It was a direct result of th ePlaintiff's efforts, including a Notice ofIntended Action.Starting on Eebruary 6,2010, Telemachus andunslabbed revived the issues raised in previousdefamatory publications b~rmedia organizatie}fl-s,ineluding by the Defendant. Publications byTe1em adius an d uflslabbe (lver .t!i~~erioQ @f.!}1Ql'ehan.a year refer at various points to the defendant'sTv' and Internet publications. For example, immediately after hyperlinking to a letter fiorn Trout PointLodge published online, Telemachus stated as a matter of fact that "The TP [Times-Picayune] wrote acorrection that made it seem like everything reported about Nova Scotia was false. Well it wasn't" Thisstatement 1 S defamatory in that it referred to the Plaintiff in the context of an implied coverup of thetruth about the Broussard scandal by media organizations, and once again implicated the plaintiffsinvolvement in a political corruption scandal.In general, references on slabbed to "Nova Scotia" or Aaron Broussard's Nova Scotia properties withinthe context of the "Jefferson Parish corruption scandal" include an implicit reference to the Plaintiffparticularly~ief.l Telemachus' public repudiation of the Times-Picayune retraction. sop~n:1,Telemachus, and unslabbsd continued 'tfie aefamatory [email protected] that Trout Point Drdge-was A~arol1Broussard's property and/or business; involved in shady dealings and the front for a criminal enterprise.On March 8, 2010, unslabbed made.reference to the defendant a n a its reporter Val Brac)~ He/she statedthat \V\ U\E/Louisiana Media was being sued by th Plaintiff, which arthat time was-not true. ThePlaintiff in fact, was attempting to avoid litigation. The defendant hadtjust been served-with theplaintiff's Notice of Intended Action attemp1 to get a retraetion, KnoYc.l~dgeof such service of

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    legal documents points to a cloae association between ilie aefendant or its agellts and the slabbed blog.Unslabbed continued in the same publication to use words:

    mocking of the Plaintiff implying that any investors the Plaintifi'might han are illegitimate or suspicious stating that the plaintiff had filed a frivolous lawsuit stating that the Plaintiff had knowingly sued an incorrect party stating that the plaintiff had illegitimately "silenced" the free press Implying that the plaintiff feared investigation by the press, including the Defendant and

    its reporter Val BracyOn November 16,2010, Telemachus revived the subject of "Nova Scotia," which by that time was acode word known to slabbed readers to reference the Plaintiff and its alleged connections to AaronBroussard, in the context of a federal criminal investigation.On February 16, 2011, Telemachus republished the entirety of a defamatory January 10, 2010 Times-Picayune article that had been removed from publication and/or retracted by that newspaper. The"Mystery on the shores of Nova Scotia may be uncovered by ethics board" article contains defamatoryinnuendo about the plaintiff, makes false statements of fact, and has little if any journalistic value. Thearticle also links the Broussard scandal to investigations of government deals involving waste disposalcontracts, particularly with a company called River Birch. Telemachus was, in addition to making apublication referring to the Plaintiff that would tend to lower its esteem in the eyes of ordinary people,also reviving in February, 2011 the whole gamut of defamatory implications and innuendo firstappearing in January, 2010, which the Plaintiffhad worked so hard to have retracted.Telemachus then continued to Charles Leary, Vaughn Perret, and Daniel Abel personally into theldefamatory context, mentioning them and their business entities by name.The stings of the defamation had by February, 2011, actually increased over January, 2010, as Mr.Broussard was then publicly known to be the subject of a target letter from the Federal Bureau ofInvestigation, and at least one federal indictment involving River Birch had been handed down. See:http://vllwwnola.comJpoIiticsiindex.ssf/2011l02/aaron _broussards_attomey _ says.htmlTelemachus concluded his posting by suggesting that the Plaintiff. Leary, Perret, and Abel belonged inthe proverbial "woodpile" along with Broussard and others publicly implicated in the scandal.On February 20, 2011, unslabbed published the suggestion that subpoenas issued to Jefferson Parishofficials in the federal investigation would result in Grand Jury testimony regarding topics such asAaron Broussard's Nova Scotia properties (by imputation including the Plaintiff) in connection withcharges of wire fraud, payroll fraud, and conspiracy.On February 21, 2011, Telernachus again referred to the Plaintiff in the context of the Broussardscandal and published suspicions about the Plaintiff's connections to persons-including publicofficials- allegedly implicated in the River Birch scandal and the federal investigation.On February 24, 2011 unslabbed made blog postings implicating the plaintiff in Nova Scotia being theultimate recipient of millions of dollars in monies paid by Jefferson Parish, while under Broussard'sdirection, to government waste disposal contractors.

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    On February 2-5 .2011. Te lemachu s brought up th e [email protected],)' G,2Q10 television broadcasts of th edefendant that 1'01111 causes of action in the current prQGeeding. He/she implied that the defendant'sjournalistic investigation and broadcasts, which rein:ed to the Plaintiff, resulted in Aaron Broussard'sresignation. implying in rum that there was someili[ng sinister or mysterious about Broussard's NovaScotia PfQperties, including, inc(l)rr~etly, the Plailil'til1if.

    Publications inApril. 2011: The Smear CampaifIDInApril, 2011, the posters on the slabbed blog began a smear campaign against, and "investigation"into the plaintiff and it s principal owners. This campaign included threats and homophobic utterancesfrom unslabbed, including the following published on ARril 18 , 2011:

    Welcome to Slabbed Danny and Carlie and Char lie an d :Vaughnie and an y of you Qilie r SpeGialGuys oFiTrout P oin t an d Wild West.NO\v I am VERY curious and inquisitive about you ... and ALL your BUDS.May 1 suggest BOYS that you all huddle quickly and decide if the Inquisition sure to followcontinued attempts to GAG the Slabbed Nation is worth the information which will be elided inprotracted legal battles on all continents. Please remember that many of us enjoy DualNationalities. Counsulate Immunities, and have LONG REACHING tentacles ... perhapslonger than yours, although size is not really that important unless you are on the receiving end.If! were you BOYS I would keep my head down, not bend over to pick up the soap and ride myhorses into th e sunset on Brokeback Mountain.I,one Slabbed Nation member, vow to search you all out to the ends of the earth (Yes inSwitzerland, Hawaii, France, Italy, Canada and Spain) anywhere any of you have an yconnections.Iave the time, temperament and now the impetus to set myself to this task. Hold on, it may bea bumpy ride for some of you.See ya soon, Cowboys.

    Postings by Sop81_1 and others are also full of homophobic innuendo and rhetoric, and threats of an"investigation" into the Plaintiff and its private business matters as well as the private lives of Abel,Leary, and Perret. TIle slabbed publications and "investigation" constitute an invasion of privacy.Notwithstanding .Jones v. Tsige,2011 ONSC 1475, with a very different set of'facts, there issubstantial weight to the argument that a tort of invasion of privacy has emerged in Nova Scotian andCanadian common law. The court in MacDonnell v, Halifax Herald Ltd., 2009 NSSC 187 found:

    [13] The plaintiff relies on what may be an emerging tort, invasion of privacy, and upon acombination of the torts of conversion and breach of bailment as founding her claim 10 aninjunction preventing the Chronicle Herald from publishing ally of the remarks. She bolstersher position on this by referring to s. 193 of the Criminal Code.

    [14] Ms. Macfronnell relies on Somwar Y.Macllonald' s Restaurants ofCanada Ltd., [2006] OJ 64, and its extensive review of authorities. Somwar concluded that a

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    common law tort of invasion of privacy may be emerging in Canadian law. It is "not unheardof". The court refused to strike a statement of claim based on the posited tort[15] In Haskett v. Trans Union a/Canada Inc., [2001] OJ 4949, the court adopted apassage from Dean Klar's text suggesting privacy is protected only under thetraditional torts and legislation. But, Justice Cumming said there is "some recognitionof invasion of privacy as an embryonic tort where there is harassing behaviour or anintentional invasion of privacy". That seems to me a sound conclusion to be drawn from mostof the cases reviewed in Soml'v'ar

    See also, Nitsopoulos v. Wong, 2008 CanLII 45407 (ON S.C.); Sime v, Jupp, 2009 BCSC 1154(allowing a claim based on common law invasion of privacy to proceed); Dyne Holdings Ltd. v. RoyalInsurance Company of Canada, 1996 CanLII 3672 (PE S.C.A.D.)Notably, in a post by anonymous user "whitmergate" on April 21, 2011, he/she publishes a transcriptionof the January 6, 2010 interview by Val Bracy of Aaron Broussard. The transcription-which cannot beverified or authenticated-appears consistent with video material provided by the Defendant indiscovery to date. However , this transcription contains material never before seen by the Plaintiff andnever provided bv the defendant in discoveQ', including passages that were apparently elided or editedby the defendant in its publications and broadcasts in January, 2010. This points to another close linkbetween the slabbed blog and the defendant, and also suggests that the defendant has not followed theCivil Procedure Rules regarding provision of documents and electronic information.On A]2ril 26, 2011 Sop81_1 began his post at the uri!201110~726 'slabbed-t ake s -a-l ook-a t-t he -t rou t= poin t-bu s ine s s -ven IT lr e- le ts -s ta rt -a - the-end-and -work-b ack/sm ore-~~3 .

    Ihink by now even our most casual readers know our successor website, slabbed.o~ TI' :asknocked offiWe cOUl1esy of the Times Picayune's corporate parent AdyancePublications an d this started a chain of events that resulted in Slabbed temporarily beingmoved back to WordPress. I'd submit this was a miscalculation of gargantuan proportions f rseveral reasons, which ,\~11become clear as I roll out this series of posts on AaronBroussard's connections to Trout Point Lodge ana its purported o'[email protected],G;harlesLeary, DannyAbel.and VaughnPerreL I say purported because etherswere sold 2% ownership interests inthe Trout Point dev~lepmentc.a-s touted byBrotrssatd anG mose folKS ate tlie bagnolders in this;...r

    And he continued:

    The blog's owner erroneously blames the Plaintiff and its owners for the independent actions of theTimes-Picayune and its law fmn Sabin, Berrnant, & Gould in requesting that SopSl_l's web serverhost remove copyrighted material from publication. His/her explicit intention is revenge and is de factomalicious.

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    In these posts, the slabbed blog builds on earlier homophobic, threatening, and harassing words andinnuendo to threaten ""aseries of Qosts," accuse the plaintiff and it s principals of being "bag men" forA:aron Broussard, and of "fleecing" investors in . rouisiana.

    ILater on in the same post, Sop8l_1 accuses Charles Leary of perjury before Justice LeBlanc of theSupreme Court of Nova Scotia in the now-settled case ACOA v La Ferme d'Acadie, et, al.:

    Obviously there is a huge problem here _ that of a liar or in this case a perjurer keeping his liesstraight.

    SopSl_l uses selective quotations from Justice LeBlanc's decision to his own illegal and maliciousends. He/she uses Nova Scotia judicial decisions to confect and fabricate injurious material, to invadeprivacy, and to disrupt the plaintiffs ability to carry on its business. Taken as a whole, the slabbedpostings are full of veiled and direct threats, libel, harassment, invasion of privacy, and directencouragement to others to invade privacy.

    The Law


    \l , '. . ,.

    The relevant Supreme Court of Nova Scotia decisions on anonymous Internet poster/bloggers, underthe 2009 Civil Procedure Rules, are A.B. v. Bra~!l Communications Inc., 2010 NSSC 215 and Mosherv. Coast Publishing Ltd., 2010 NSSC 153. Justice LeBlanc's decision was reviewed and upheld, onother issues, by the Court of Appeal.In both cases, it emerges as clear that Rule 14.12(1 )-rather than Rule IS-governs requests for an orderto take steps to reveal the true identity of anonymous Internet posters. As Justice Robertson found:

    [6] I believe that an order for production under Rule 14.12(1) is more appropriate.Ajudge may order person to deliver a copy of a relevant or relevant electronicinformation to a part)' or at the trial or hearing of a proceeding.

    [7] And I believe that these Rules are flexible enough to require such production in thepre commencement stage of an action, which is where you are. You need to identify thoseindividuals who have committed the alleged defamations and you cannot start an action untilyou know who they are. Your requested order entails a process to identify the individuals.[8] I have no problem in princi ple with your application and prepared to grant theorder. Because the court does not condone the conduct of anonymous internet users who makedefamatory comments and they like other people have to be accountable for their actions.

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    InMosher, Justice Robertson appeared to accept the plaintiffs' assertions that postings on The Coastweb site 'were defamatory. The Coast did not oppose the application. No analysis of Charter rights,evidentiary burden, and/or the existence of a prima facie case of defamation appears to have occurred.In the Bragg decision, Justice LeBlanc applied a rigorous analysis, including reviewing an Ontarioappeals case. He wrote:

    The appellants argued that production was not automatic upon establishing relevance andabsence of privilege, and that the court was also required to consider the John Doe defendants'interest in privacy and freedom of expression. There was no dispute that the IP addresses and email addresses constituted documents under the relevant rule.[12] The Divisional Court h~ld that Charter values were engaged by the proceeding. citingR v. Sharpe, 2001 SCC 2 (CanLII), [2001] 1 S.C.R. 45 at para. 21 for the proposition that"freedom of expression is among the most fundamental of rights possessed by Canadians" andthat "[tjhe values underlying the right to free expression include individual self-fulfillment,finding the truth through the open exchange of ideas, and the political disclosure fundamental todemocracy" (para. 16).

    Justice LeBlanc's ultimate decision was in accord with that in Mosher:[22] As to the question of whether the public interests favouring disclosure outweigh thelegitimate interests of freedom of expression and right to privacy of the persons sought to beidentified if the disclosure is ordered, I am mindful that Chatter values of freedom ofexpression and privacy are involved here, and that "[t]he requirement to demonstrate a primafacie case of defamation furthers the objective of establishing an appropriate balance betweenthe public interest in favour of disclosure and legitimate interests of privacy and freedom ofexpression" (Warman at para. 42). Defamatory speech does not Jose its character as defamationsimply because it is anonymous. In these circumstances, where a prima facie case ofdefamation is established, and no public interest beyond the general right of freedom ofexpression is offered in' support of maintaining the author's anonymity, I am satisfied that thepublic interest favouring disclosure prevails.

    The Plaintiff has established a prima facie case of defamation with liegards to the publications byTelemachus, SopSl_l,and unslabbed listed above, particularly given the general context of publicationson the Broussard scandal. In addition, the anonymous posters have published on the topic of thedefendant's publications inlpugned in the Statement of Claim, and in two instances appear to be closelylinked to the Defendant. Ifno defendants in a separate aetion.fhey wi.ll be material witnesses in thecurrent proceeding;.... _Finally,'s published policies and user agreements state that Wordpress \-viIIgenerallydefer to the judgment of a court, inclaaing a non-U.S. Court. Such notices and agreement'S decrease toe__ .ruser's eXp':ectations of privacy, and put them on notice that there will still be legal consequences for .their anonymous publications. As Justice LeBlanc stated: Defamatory speech does not lose its characteras defamation simply because it is anonymous. All users had to register with and agreeto the terms of the web site's policies.The Plaintiff therefore asks this Honourable Court for an order instructing Autornattic, Inc. to provideall documents or electronic information in its possession or control that would assist in identifying the

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    ., users Telemachus, Sop81_1, and unslabbed.ALL OF WHICH IS RESPECTFULLY SUBMITTED.

    Charles L Leary for the Plaintiff