Arthur Bright's blog

Is Britain Putting an End to Libel Tourism?

Could Britain finally be moving to shed its unflattering title of "libel capital of the world"?  

We can only hope, of course, but it does appear to be edging that way, thanks to a recent High Court decision to toss a textbook "libel tourism" case.  In the case, Out-law.com reports that Mr. Justice Tugendhat threw out the claims brought by Zimbabwe-oriented investment firm LonZim and two executives against Andrew Sprague, who criticized the company on the website of a South African magazine in May 2009.  The plaintiffs alleged that Sprague's article false accused them of "cynically and greedily indulg[ing] in self-enrichment at the expense of, and contrary to the interests of, shareholders."

LonZim argued that "a significant proportion" of the South African magazine's traffic was from England and Wales, the High Court's jurisdiction.  But in a departure from some of the more objectionable British libel decisions — like the case against Dr. Rachel Ehrenfeld, which founded jurisdiction on 23 copies sold in the UK on Amazon — Tugendhat held LonZim's feet to the fire and required it to prove that this was the case.  And LonZim couldn't make the requisite showing:

Sprague presented evidence of traffic figures from the website for the two months following the date of first publication. The publishers had recorded a total of 65 visits for the contentious article.   read more »

Fox News DMCA-Bombs News1News on YouTube

Like many former newspaper employees, I hate the 24-hour "news" networks.  Be it Fox News, MSNBC, or CNN, I think they're just across-the-board awful.  The only time I'll pay any attention to them is in the midst of some event that demands real-time attention, say a presidential election or a terrorist attack (and even then, I may just switch to BBC coverage instead).  Other than in those situations, the news channels are just echo chambers for the dreck spewed by your Becks, O'Reillys, Dobbses, and Olbermenn.

That dreck fuels a great deal of the blogosphere, of course.  Any number of political websites out there take the most offensive, ridiculous samples of bloviation and criticize/herald it in time-honored First Amendment tradition.  Indeed, the political blogosphere thrives on clips from these news channel programs.  Which makes Fox News' recent DCMA-bombing of one of the key left-wing YouTube channels serving up such clips so interesting.   read more »

A New Leistungsschutzrecht? Say It's Nicht So!

It's tough being a publisher these days.  Of course, no one is having much fun in the current economic downturn, but publishers were up against it even before the slowdown.  Circulations have been down across the board for years now, which in turn has slashed the advertising revenues that print publications have always relied upon to survive.  It's just a bad time to be publishing newspapers and magazines, at least while using the classical publishing business model.

Well, Germany's recently formed government believes they may have a solution to the woes of German publishers: a new kind of copyright.  The New York Times reports that the incoming German government has proposed a new kind of "neighboring right" (i.e., "ancillary copyright" or Leistungsschutzrecht), along the lines of those already enjoyed by movie and music publishers in Europe, to stymie the unauthorized use of published works by for-profit websites:

Details of how the proposal would work have not been spelled out, but publishing executives say one possibility would be to require a license for any commercial use of published material online. That might include Web sites that post articles from other sources, assuming they sell advertising.

A new agency, modeled on the music and book industries’ royalty collection societies, could be created to gather and distribute the fees, publishing executives add.   read more »

Yet Another Plaintiff Faceplant, Thanks to Section 230

I am constantly impressed with plaintiffs' hapless charges against the nearly impenetrable immunity that is Section 230 of the Communications Decency Act (“Section 230”).  Time and time again, angry plaintiffs bring suit against websites because some unknown third party posted questionable, if not illegal, material.  And time and time again, those claims are stymied by Section 230, which grants the websites immunity from liability for those third-party postings.  Seriously, there are loads of these cases, and they almost always fail — why do plaintiffs keep bringing them?   read more »

Showing Cyberbullying No Mercy in the Show Me State

On the broad grade-school spectrum of the bullies and the bullied, I tended to fall closer to the bullied side of things.  Fortunately, I quickly proved taller than average — thus harder to intimidate — and smarter than average — thus more useful as a source for homework help than as a target for abuse — so the bullies moved on to other targets.  Still, although not subjected to it much myself, I got to see a fair amount of bullying in my youth.

That's why I'm surprised that I can't think of a similar, non-Internet parallel for this Wired story about a new case of cyberbullying in Missouri.  Apparently a ninth-grade girl at the Troy Buchanan Ninth Grade Center put together a "disparaging" website attacking a fellow student, posting photos of her and calling her a "slut," among other "very troublesome" things.  The site creator even went so far as to register a domain name, which Wired writes, "included the target’s name and 'cunt.com.'"  (I suspect that an "isa" appeared between the two.)  

Naturally, this is the sort of thing that schools crack down on.  Unfortunately for the spiteful girl in question here, it's now also the sort of thing that Missouri district attorneys crack down on — she was arrested by the local sheriff's department.  According to Wired, her case has been turned over to juvenile court prosecutors who will determine whether she will be charged with a crime.   read more »

Ralph Lauren Gets the Skinny on DMCA Takedown Backlashes

File this one under DMCA don'ts:

Last month, the folks at Photoshop Disasters and Boing Boing noticed that Ralph Lauren had done some rather horrific photoshopping of a fashion model in one of its ads (on right).  Both sites mocked the horribleness with brief, but clearly critical, comments. 

"Make her head bigger than her pelvis! Do it!" wrote Photoshop Disasters.

"Dude, her head's bigger than her pelvis," gasped Boing Boing.

Naturally, both blogs saw a torrent of comments of people laughing, pointing, and noting that this kind of photoshopping is exactly the sort of thing that drives women's self-esteem down the tubes.  But that was about as much publicity as the posts got.

Enter an apparently cranky Ralph Lauren.  Claiming that the blogs infringed on its copyright in the hideously doctored photo (and presumably also fearing that the label would see a backlash for promoting emaciation chic even more blatantly than the fashion industry's norm), Ralph Lauren sent DMCA takedown notices to the hosts of both blogs.  (You can see a copy of the notice sent to Boing Boing at the Berkman Center's own Chilling Effects Clearinghouse.)   read more »

Jim Dolan Shows Why Anti-SLAPP Laws Are Good (And Why New York Needs a Better One)

Now, I am not from New York.  Thus, I don't know much about Jim Dolan, the owner of Cablevision, Newsday, Madison Square Garden, and the New York Knicks.  But the local press offers a sense of the man.  The New York Daily News said that he is "a little bit wacky, lashing out indiscriminately behind the scenes, speaking nonsense whenever he talks at all."  Gawker, a New York blog, said that his "loathing for reporters, propensity for feuds, and general belligerence are legendary."

With that in mind, it's no particular surprise that he has sued New York blog Cityfile into retracting a story that it ran over the summer with the headline "Jim Dolan to Kill Christmas in July?"  Dolan's complaint (¶ 1) describes the Cityfile article as follows:   read more »

Senate Cuts Citizen Bloggers From Federal Shield Bill

For citizen journalists, the federal shield law front was looking good for a while.  Although the House of Representatives version of the bill, passed in April, only offered a shield to professional bloggers, the Senate version didn't differentiate between the pros and the amateurs.  So there was hope that amateur journalists might actually, eventually, get its protection.

No longer though.

Sadly, the Senate Judiciary Committee has followed the path of the House and opted to specify that only a "salaried employee . . . or independent contractor" will be able to invoke the shield, reports the Wall Street Journal's Digits blog.  The amendment, offered by Sen. Chuck Schumer (D) of New York, limits the definition of a journalist to one who:

(iii) obtains the information sought while working as a salaried employee of, or independent contractor for, an entity—
  read more »

Australia's Facebook Five and the Right to Whinge About Your Boss Online

It's hard to be a prison guard in Australia, and not just because the entire country is a penal colony — zing!  Apparently you run the risk of being fired for griping about your job in a private Facebook group, even if other corrections officers are the only ones reading your complaint.  Such is the threat looming over those officers whom the Australian press has dubbed the Facebook Five. (Although apparently there are six of them.  Go figure.)

According to the Sydney Morning Herald, the corrections officers set up the Facebook group last October and used it as a place to vent about the New South Wales ("NSW") government's plans to privatize some of the state's prisons.  They also used the group to gripe about their boss, NSW Corrective Services Commissioner Ron Woodham.  According to the Associated Press, the Facebook group was private, so that only those invited to join could view posts.   read more »

The Judge Would Like to Be Your "Friend"

I'm always pleased to see judges embracing new technology.  And it's not just because, as an aspiring lawyer and a Webby, techie guy, my ability to find a job in this economy may depend on it.  I really do believe that technology can help judges do their jobs better.

Thus, it was with great interest that I read this article, published in Texas Lawyer and posted on Law.com, which examines how three Texas judges take advantage of Facebook and other social networking sites in their daily duties. Some of the article comes across as a bit of a no-brainer to Web denizens: the gist of the third judge's story was that she's seeing an increase in material from social networking sites being introduced as evidence.  Well, yeah.  It's not exactly a shock that lawyers would eventually think to tap such a data source as massive as the various social networks.

But the tales of the other two raise some interesting points of discussion.  The first judge, Judge Susan Criss of Galveston's 212th District Court, only started to use Facebook this year, but is now "a Facebook regular," friending lawyers for networking and campaigning purposes.  (Completely unrelated: Can I mention how much I hate the concept of electing judges?)  Much to Judge Criss's chagrin, though, she has discovered that people are a little too forthcoming in their profiles and status updates:   read more »

Italian Bloggers On Strike!

Did you know that Italian bloggers are on strike?  It's true!  Since July 14, Italy's bloggers have been under self-imposed silence, in protest of a proposed law (called the Alfano decree) that would grant a right of reply to those who feel their reputations have been besmirched by something posted on the Web, writes the BBC.  For those who can read Italian, the strike's website is located here.

I have mixed feelings about this.

On the one hand, I'm very sympathetic to the bloggers, who are right to be concerned, because this is pretty much the mother of all chilling effects.  If I wanted to make up a hypothetical to illustrate the damage such a law could cause, I couldn't make one better than this.  As Alessandro Gilioli, the journalist who organized the strike, told the BBC:

"[The legislators behind the Alfano decree] are discouraging the use of the internet, forcing all the bloggers to rectify any opinion that anybody thinks is hurting his honour or reputation and they are creating big fines, more than €10,000 (£8,500), if you don't publish your rectification in two days.   read more »

British Court Clears Google of 'Defamatory' Search Results, But It Still Sucks to be a Web Host in Britain

As nearly every American lawyer knows, London is the libel capital of the world.  There are a bunch of reasons why, of course: defendants have the burden of proving the truth of their statements; neither negligence nor actual malice is required for liability; there's no distinction between public and private figures; etc.  But regardless of the reasons, Great Britain is the place to sue for defamation.  Heck, it's so bad that it's gotten the lefty ACLU in bed with the neo-con American Center for Democracy!  So you know it's serious.

That makes this week's ruling in Britain that Google isn't liable for the content of its users quite noteworthy.  Google was sued for defamation by a London-based company called Metropolitan International Schools Ltd ("MIS"), which offers correspondence courses in game design marketed as "Train2Game."  If one searches for that term on Google, among the results are forums hosted by digitaltrends.com where Train2Game is called a scam. According to a fairly lengthy write-up of the lawsuit on the site out-law.com (run by Pinsent Masons LLP), MIS was particularly peeved by the phrase "Train2Game new SCAM for Scheidegger" that comes up.  (MIS used to be branded Scheidegger MIS.)  MIS denied that it was running a scam and argued that this snippet search result was defamatory, and that Google, as the engine producing such a result, was liable for it.   read more »

A View of Judge Sonia Sotomayor From Cyberspace

With Obama's pick of Judge Sonia Sotomayor for the Supreme Court, the press has been snuffling through her record to find out where she stands on all sorts of hot-button topics. Little has been written in the popular press about what she might mean for areas of interest to our readers, such as copyright and online speech (the RCFP just put out a great report summarizing her First Amendment and freedom of information opinions).  Still, there's enough to get a sense of how her appointment might ripple through cyberspace, and unfortunately, there are a few red flags.

On the plus side, as noted by the Wall Street Journal, Ms. Sotomayor has "significant experience in the area of so-called cyberlaw," unlike the "famously low-tech" David Souter. She's also had extensive involvement with intellectual property issues, both in private practice and on the bench.    read more »

NY Legislature Proactively Considering Whether Shield Law Applies to Bloggers? How Novel!

As anyone who's been faithfully reading the CMLP blog knows, the law hasn't been particularly good at dealing with the intersection of media shield laws and bloggers.  Although there seems to be a modest trend towards application of shield laws to anonymous commenters on news stories, the judiciary's application of shield laws to bloggers has been pretty hit and miss (and sometimes avoided all together).

That makes the efforts of a couple New York legislators to proactively address the problem a most welcome change.  According to The New York Times, State Senator Thomas K. Duane and Assemblywoman Linda B. Rosenthal have submitted a bill that would extend the protections of New York's robust media shield law to bloggers.  In a marvelously hideous 262-word sentence (which I've trimmed down to spare you from reading), N.Y. Civ. Rights Law § 79-h (b) currently states that:   read more »

China Blocks YouTube, Shoots Self In Foot

Everyone knows that China's not fond of the Tibetan protestors. As a result, sad as it is to say, the world's press just doesn't pay much attention when China does something to smack the Tibetans down.  So long as China's actions aren't too violent or otherwise noteworthy, the press won't invest more than a sentence or two on the topic.  But when China, in order to censor a video of Tibetan protestors being beaten, blocks the whole of YouTube, the press is damn well going to sit up and take notice.

As is naturally the case after ham-handed censorship of this type, everyone immediately went about trying to find out what China was so worried about.  The Shanghaiist blog noted the outage started Tuesday, and immediately began speculating about which particular set of Chinese dirty laundry was to blame.  Was it Tibet?  Was it the recent confrontation between the USNS Impeccable and some Chinese fishing boats, of which the US Navy recently posted videos?   read more »

Attorney General Holder Puts Freedom Back In FOIA

Making good on President Obama's early prioritizing of the Freedom of Information Act ("FOIA"), Attorney General Eric Holder officially instructed government agencies to favor release of documents to the public.  CBS News reports that Mr. Holder's memo announcing the new FOIA policy reverses the policies of President Bush's former attorney general, John Ashcroft, who had ordered a presumption in favor of withholding documents.

In a memo to heads of executive departments and agencies, Holder instructed government workers to apply "a presumption of disclosure" when handling FOIA requests.

“The American people have the right to information about their government’s activities, and these new guidelines will ensure they are able to obtain that information under principles of openness and transparency,” Holder said in a statement announcing the new guidelines.

In his memo, Holder said that agencies must release information unless doing so is specifically prohibited by law.

For those suffering under the Ashcroftian secrecy of the last eight years, the key portion of the memo (which is available on the DOJ's website) is this:   read more »

Wisconsin Athletic Association Fumbles with Lawsuit Over Paper's High School Football Webcast

High school athletics tend to be held out as an important tool for teaching youth important skills: teamwork, fair play, and hard work.  The Wisconsin Interscholastic Athletic Association ("WIAA") is adding one more lesson to the lesson plan: disrespect for freedom of the press.

The Associated Press reports that the WIAA is suing The Post-Crescent of Appleton, Wisconsin; its parent company, Gannett Co.; and the Wisconsin Newspaper Association after the Post-Crescent webcast a high school football playoff game last November.  The WIAA claims that it owns any “transmission, Internet stream, photo, image, film, videotape, audiotape, writing, drawing or other depiction or description of any game action, information or commercial used” of its games.

Peter Fox of the Wisconsin Newspaper Association characterized the WIAA's claim as an "uncomprehensible [sic] overreach":

“They are essentially saying all these news reporting products are subject to WIAA control,” said Fox, whose association represents more than 240 daily and weekly Wisconsin newspapers.

“If Wisconsin weekly and daily newspapers go ahead and capture these athletic events in certain forms of blogging or video or still photography, (the WIAA is saying) that Wisconsin newspapers can’t use them in certain circumstances and they are owned by the private vendors that the WIAA has selected.” (AP)
  read more »

Do No Harm (But Don't Let Anyone Talk About You)

The online community reviews everything these days.  Be it via stars, thumbs, or free-form comments, the denizens of the Internet are keen to offer their assessments of books, movies, restaurants, and all else out for public consumption and aggregation.  Most subjects seem to accept it as a part of offering goods or services to the public.

Not the doctors, though.

According to an Associated Press report, some doctors, peeved at being subjected to patient reviews, are requiring their patients to sign waiver agreements, in which the patient agrees to refrain from posting online comments about the doctor, his expertise, or his treatment.

Oy vey.  (Or as Marc Randazza put it, "Omfg!")

This is apparently the brainchild of one Dr. Jeffrey Segal, and part of a service offered through his company, Medical Justice.  He justifies thusly:

"Consumers and patients are hungry for good information" about doctors, but Internet reviews provide just the opposite, contends Dr. Jeffrey Segal, a North Carolina neurosurgeon who has made a business of helping doctors monitor and prevent online criticism.

Some sites "are little more than tabloid journalism without much interest in constructively improving practices," and their sniping comments can unfairly ruin a doctor's reputation, Segal said.   read more »

Congressional Efforts to Stymie "Libel Tourism" Rev Up

After several false starts, it looks like Congress is finally going to address the issue of "libel tourism," an unfortunate practice where foreign plaintiffs pick the jurisdiction with the most draconian libel laws in which to sue. 

The Reporters Committee for Freedom of the Press writes that the anti-"libel tourism" bill introduced last year by Senators Arlen Specter, Joseph Lieberman, and Charles Schumer is back under consideration in the Senate.  (And judging by information on Govtrack.org, the new bill has already made more headway toward becoming law than last year's version.) Substantively, the bill would prevent courts from recognizing foreign libel judgments that conflict with First Amendment protections for authors.  Further, the bill grants authors who lose foreign libel cases to file a counterclaim in the US to seek damages from the foreign plaintiffs.   read more »

Texas Judge Orders 178 Anonymous "John Does" Who Posted on Topix Be Revealed

Once again, the right to anonymous speech is being tested, this time in Texas, where a judge has ordered news portal Topix.com to reveal the identities of 178 forum posters accused of defaming a Texas attorney and his wife.

The Clarksville Times reports that Mark and Rhonda Lesher were charged in April 2008 with the aggravated sexual assault of a former client of Mark's legal services.  The Times writes that despite the accusations, "a jury of 12 Collin County citizens needed just two hours to render a not guilty verdict" in the January trial, apparently on the basis of evidence presented by the Leshers' attorney indicating that the alleged victim had lied during her testimony.

But according to the Leshers' 365-page petition,"[a]lmost immediately following" the April 2008 allegations and throughout the nine months in which the criminal case was pending, they became the subject of ongoing, allegedly defamatory comments on Topix forums.  The Leshers claim 178 John Does authored some 1700-plus defamatory statements, accusing them of being criminals, being sexual deviants, carrying noxious diseases, and the like.  As a result, the Leshers are seeking actual, special, and pretty much every other kind of damages from the Does.   read more »

   
 
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