Jeff Hermes's blog

Seven Years of Serving and Studying the Legal Needs of Digital Journalism

We have some important news to share from the Digital Media Law Project. After seven years of providing legal assistance to independent journalism through various methods, the DMLP will soon spin off its most effective initiatives and cease operation as a stand-alone project within the Berkman Center. The upcoming changes will ensure that our work continues in a robust and sustainable fashion, and so, while those of us here are a bit melancholy to see the end of an era, we are hopeful for what comes next.

I wanted to take this opportunity to look back over the history of the DMLP and its accomplishments, and to talk a bit about what the future will hold for our work.

The Beginning

In 2007, a group of scholars and attorneys at the Berkman Center for Internet & Society recognized a growing problem for online speech: namely, that a vast array of bloggers, citizen journalists, and other non-professional writers were publishing information on the Internet without a solid understanding of their rights and responsibilities under the law. Those without legal training or resources were unprepared for challenges such as defamation, privacy, and copyright claims, and often ran into pitfalls when dealing with issues such as corporate formation, contract negotiation, and development of website policies.

While the Berkman Center had been providing legal services to online ventures for several years through the Harvard Law School Cyberlaw Clinic, this growing need among independent publishers was simultaneously too widespread for the Clinic to address through its existing service model and too basic in many specific instances to present a valid case-by-case training opportunity for law students. A different approach was required.   read more »

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Service and Research at the Frontier of Media Law

Earlier today the Digital Media Law Project released a new report, The Legal Needs of Emerging Online Media: The Online Media Legal Network after 500 Referrals. This report explores the large  body of data that we have gathered over four years of operating the DMLP's free nationwide attorney referral service for journalists, the Online Media Legal Network. Using this data, we have been able to identify notable patterns and trends in the legal needs of a substantial cross-section of the digital journalism ecosystem.  You can read the executive summary of the report here.

I am particularly excited by this report because it represents the intersection of the two core functions of the Digital Media Law Project: (1) providing legal resources to digital journalists to help them to thrive in the face of legal challenges; and (2) studying the nature of the online journalism ecosystem and the legal issues that enhance or inhibit its function. The staff of the DMLP (both past and present) and the member attorneys of the Online Media Legal Network (who routinely volunteer their time on a pro bono or reduced-fee basis) have made a substantial difference in the future of news, by ensuring that hundreds of new and innovative journalism projects did not fail because of legal pitfalls unrelated to their merit. With this new report, we have been able to leverage their tremendous efforts even further by using their service as a basis for a survey that we hope will benefit a much broader range of journalists, attorneys, and researchers concerned with the networked exchange of information online.   read more »

Revised DOJ Regs Protect "Members of the News Media," But What Does That Mean?

On February 21, 2014, the U.S. Department of Justice released its long-awaited revisions to 28 C.F.R. § 50.10, the DOJ's regulatory guidelines (the "Guidelines") regarding investigations and prosecutions of members of the news media. The prior version of the Guidelines came under fire last year, when it was revealed that the DOJ had, without prior notification, obtained two months of telephone records from 21 phone lines used by the Associated Press. These records had the potential to reveal confidential sources and other sensitive information relating to ongoing journalistic investigations. At that time, I wrote about weaknesses in the Guidelines' protections against unwarranted interference with journalism.   read more »

A Quick Thought on Bloggers, Opinion, and Today's Ruling from the Ninth Circuit

Earlier today, the U.S. Court of Appeals for the Ninth Circuit released its decision in Obsidian Finance Group, LLC, v. Cox, No. 12-35238 (9th Cir. Jan. 17, 2014), a case involving defamation claims brought against a blogger who wrote about alleged financial improprieties  in connection with a corporate bankruptcy. The case was the subject of considerable controversy among defenders of Internet speech, after a federal district court judge in Oregon ruled that the blogger, Crystal Cox, was not entitled to First Amendment protection under the Supreme Court's decision in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). Gertz imposes a baseline negligence standard in defamation cases, but the district court held that Cox was not entitled to Gertz's protection because she was (a) not a journalist and (b) writing only about matters of private concern.

The Ninth Circuit properly reversed, finding that the First Amendment protects bloggers no less than the institutional press and that Cox was writing about issues of legitimate public concern.  On retrial, the plaintiffs will have to establish that Cox was negligent in publishing the statements at issue -- and that's all well and good.  I want to spend a little time, though, thinking about the tail end of the decision, in which the Ninth Circuit discusses a specific group of Cox's statements that both the Ninth Circuit and the district court held to be non-actionable opinion.   read more »

Wrapping 2013 at the Digital Media Law Project

Here we are again, at the end of another year with snow on the ground and Harvard University's winter shutdown rapidly approaching. Tomorrow, the staff of the Digital Media Law Project will be off to spend time with friends and family until Harvard's doors reopen in 2014; but before we go, I wanted to take a quick look back at this year's highlights at the DMLP.

First and foremost, this fall saw the long-deserved promotion of our staff attorney, Andy Sellars, to Assistant Director of the DMLP. Those of you who have had reason to meet Andy will understand how easy this decision was; those of you who haven't had a reason, find one - we get him out into the real world as much as possible.

2013 also saw our formal transition to a new name, "Digital" taking the place of "Citizen" in our project title. This change was a long time in coming, and reflects the evolution of online journalism from a field of individual voices speaking through discrete websites to an online environment where professionals and citizens, institutions and independents, share and develop information in a networked manner. While we continue to strongly support independent journalists and their legal needs, we also consider these needs in the larger framework of the legal issues affecting networked journalism and let our experiences with our constituency inform our future research and action agenda.   read more »

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Getting Dirty to Protect Crowdsourced Data and Public Information

Yesterday, the Digital Media Law Project joined an all-star cast of organizations (including the American Civil Liberties Union, the ACLU of Kentucky, the Electronic Frontier Foundation, the Center for Democracy & Technology, the Public Participation Project, and Wendy Seltzer and Adam Holland of Chilling Effects) in filing an amicus brief in Jones v. Dirty-World Entertainment Recordings, LLC, a case currently pending before the U.S. Court of Appeals for the Sixth Circuit.

The Jones case -- which will be familiar to readers of the DMLP blog -- involves defamation claims leveled at gossip website TheDirty.com and its owner, Nik Richie, arising out of user comments regarding the plaintiff's sexual behavior. The case caught the public's attention because of the salacious nature of the content at issue and Nik Richie's history of provocative behavior. In legal circles, however, the case raised eyebrows because of the federal district court judge's repeated rejection of the defendants' attempt to rely upon Section 230 of the Communications Decency Act.   read more »

A Click is Worth a Thousand Words: Fourth Circuit Sees the Value of a "Like"

On Wednesday, the U.S. Court of Appeals for the Fourth Circuit issued its decision in Bland v. Roberts, a case that made waves last year when a district court judge ruled that a Facebook “like” was “insufficient speech to merit constitutional protection.” But never fear, Facebook fans: the expressive value of a “like” has been reaffirmed.

The case arose after six employees in the Sheriff’s Department of Hampton, Virginia, were terminated from their jobs, allegedly for supporting Sheriff B.J. Roberts’s opponent during the Sheriff’s 2009 re-election campaign.  This support took many forms, including a bumper sticker, a comment to a co-worker about the Sheriff’s campaign material, attending a campaign cookout for the Sheriff’s opponent, and, notably, the aforementioned Facebook “like.” The six employees filed suit in federal court for wrongful termination, and the Sheriff responded by denying that their termination was retaliatory, and arguing that even if it was he had the right to terminate them for disloyalty due to their positions of responsibility.

But he also made the curious claim that the various expressions of support at issue (including the "like") were not speech, e.g.:

Carter’s and McCoy’s action of simply adding their names to Adams’ Facebook page is not sufficient evidence of constitutionally protected expression. There is no “speech.”   read more »

A Win for Opinion: Sixth Circuit Tackles Website Top-Ten Lists

As our friends at the Harvard Law School Cyberlaw Clinic have reported, on Wednesday, the U.S. Court of Appeals for the Sixth Circuit issued a decision that placing a particular hotel at the top of an online list of the "Dirtiest Hotels in America" was protected under the First Amendment and Article I, Section 19 of the of Tennessee Constitution as a statement of opinion. The Sixth Circuit's decision is a triumph for consumer ratings websites and their ability to build upon the data submitted by their users. However, the Court's articulation of the doctrine of opinion arguably underestimates the potential value of that same information.

The case, Seaton v. TripAdvisor LLC, arose after online travel website TripAdvisor published its "2011 Dirtiest Hotels" list based upon hotel cleanliness ratings provided by the site's users. #1 on the list was the Grand Resort Hotel and Convention Center in Pigeon Forge, Tennessee, owned by plaintiff Kenneth Seaton. Seaton sued, claiming that TripAdvisor's rankings were false because they did not accurately reflect the underlying user data. TripAdvisor in turn argued that the list constituted a statement of opinion that could not be proven true or false, because the rankings on the list and the concept of the "dirtiest" hotel were inherently subjective. A federal district court in Tennessee dismissed Seaton's claims, and Seaton appealed.   read more »

Congratulations to Nevada on its New and Improved Anti-SLAPP Law!

As of October 1, 2013, those targeted with frivolous lawsuits in Nevada designed to chill speech will enjoy substantially stronger protection, thanks to Nevada's new and improved anti-SLAPP statute.

The brainchild of First Amendment attorney and friend of the Digital Media Law Project Marc Randazza (pictured at right with Nevada Governor Brian Sandoval), Nevada's revised statute significantly improves upon the state's prior anti-SLAPP law. The revisions will grant defendants in Nevada courts some of the best and broadest protections for speech adopted by other states in their anti-SLAPP statutes since the passage of Nevada's original law.

Nevada's original anti-SLAPP statute, Nev. Rev. Stat. 41.637 et seq., was adopted in 1993. Like many other first-generation anti-SLAPP laws (such as those passed by Massachusetts and New York), its protections were limited to speech "in furtherance of the right to petition" the government on issues of public concern. Thus, it did not protect the broader range of speech among citizens on public issues, despite the critical role that such speech plays in civic life and in gathering support for petitioning. As such, Nevada's law fell out of step with anti-SLAPP laws passed by other states such as Washington, California, and Texas, which recognized that petitioning activity starts not with speech to government, but speech among peers.   read more »

Who is a Journalist? Here We Go Again…

In the wake of the Associated Press and James Rosen incidents, the call for statutory protection for journalists and their sources has started anew. The Obama administration has called on Sen. Chuck Schumer to re-introduce a federal media shield law, reviving a concept which floundered in 2009 in the wake of the Wikileaks disclosures and raising questions over the sufficiency of that proposal. Just as in 2009, one of the issues that will inevitably be raised is the question of who will receive the protection of such a law. This question is well known to those who practice media and Internet law as the “who is a journalist?” problem. But this is – and in some ways always has been – the wrong question.

The “who is a journalist?” problem has been with us for quite a while. The great Supreme Court defamation cases of the post-Sullivan/pre-Internet era were largely fought by the institutional media, and this is often reflected in the language of the Court. For example, in Philadelphia Newspapers, Inc. v. Hepps, the critical 1986 First Amendment ruling stating that plaintiffs have the burden to prove falsity in defamation actions, the Court held specifically that:   read more »

Justice Dept.'s Media Investigation Policy Falls Flat Compared to Other Protections Against Press Intrusion

As has been widely reported, the U.S. Department of Justice has disclosed that it has obtained two months' worth of telephone records from 20 separate phone lines assigned to the journalists and offices of the Associated Press. The Associated Press was not informed of the investigation before the DOJ acquired the telephone data, which could potentially reveal confidential sources and editorial strategy (among other sensitive information).

The incident has resulted in widespread condemnation of the DOJ's actions by the press and demands for accountability and reform. In response, the DOJ has asserted its commitment to abiding by applicable law and its internal policies, which require special consideration before information may be sought from members of the news media.

This is not the first time that a government investigation into a news organization's operations has led to questions about the sufficiency of protection for the press, and in fact the effects of one prior incident in particular can be seen in these recent events. Examining this incident and its consequences provides a useful lens through which to examine the breadth and limitations of government power to investigate the press.

The First Amendment and the Fourth: Zurcher v. Stanford Daily   read more »

When Comments Turn Ugly: Newspaper Websites and Anonymous Speech

Dan Kennedy has reported on an interesting anonymous speech issue brewing (or perhaps already boiled over) in the town of Cohasset, Massachusetts. It seems that the board of selectpeople of Cohasset has been concerned recently about ad hominem attacks on their members, delivered through the medium of the comment sections of the websites of the Quincy Patriot Ledger and the Cohasset Mariner. The board has debated issuing a subpoena through the Town Counsel to identify the commenters, allegedly to determine whether the comments were being posted from computers owned by the own in violation of Cohasset's computer usage policy.   read more »

Misidentifications Past and Present: Terror, Suspicion & the Media

The DMLP blog has been on an unplanned break for a while as a result of the Boston Marathon bombings and subsequent manhunt. Like many in the Boston-Cambridge-Watertown area, we have had our past two weeks disrupted both with our personal attempts to come to terms with this senseless act of violence and by last Friday's "shelter-in-place" request by law enforcement.

There has been outstanding coverage and analysis of these events already by both mainstream and independent media, but one particular aspect which has stood out for many commentators was the role played by social media. For many in the Boston area, platforms such as Twitter and Reddit became a key way for the community to share its experiences and reactions, anger, fear, and prayers. Last Friday in the Watertown area, social media took on another aspect as the way in which many of us who sat locked in our houses reached out to one another for news and support.

However, there was also controversy around social media, in particular concerns about "witch hunts" among social media users while the suspects were still unknown. While these problems were not limited to social media platforms, there has been significant commentary about how social media either helped or hindered law enforcement efforts and public understanding in a crisis situation.   read more »

Judge: Blogging from the Courtroom OK, Twitter Not So Much

As Bob Ambrogi reports, on February 19, 2013, Massachusetts Superior Court Justice Peter Lauriat held a hearing in the case of Commonwealth v. Fujita, a first-degree murder case going to trial in Middlesex County, Massachusetts. The purpose of the hearing was to give representatives of the media an opportunity to voice their objections to Judge Lauriat’s limitations on reporting on the trial. The judge had previously approved a panoply of reporting and recording techniques in the courtroom itself, including a video feed, a still camera, blogging, and (in the judge’s words) the “pencil press.” However, he prohibited the use of Twitter or other social media “other than the blogosphere” to transmit live updates during the trial from the courtroom or anywhere else within the courthouse.

So, the natural question is, what’s the difference? What exactly is the “blogosphere” in Judge Lauriat’s mind, and why does he draw the line at Twitter and whatever other social media tools are not within that sphere?

The Court Rule at Issue

For context, it is necessary to take a closer look at Massachusetts Supreme Judicial Court Rule 1:19, the court rule that governs use of cameras and electronic devices in Massachusetts courtrooms. Section (2) of the rule states:   read more »

FTC Clarifies Obligations of Product Reviewers, But Does Not Ease Concerns

On March 12, 2013, the Federal Trade Commission released a new guidance paper entitled ".com Disclosures: How to Make Effective Disclosures in Digital Advertising." The new FTC guidance updates a prior FTC release from 2000 relating to disclosures in online advertising. The new guidance also provides some answers to questions raised by the agency's 2009 Guides Concerning the Use of Endorsements and Testimonials in Advertising, which caused substantial concern among bloggers and users of social media who write product reviews due to a lack of clarity as to their obligations.

Scope of the New FTC Guidance

The FTC has long taken the position that some online advertisements can be deceptive when not accompanied by certain clarifying disclosures. Such disclosures might relate to pricing, product materials or ingredients, or any of a number of other issues -- including identification of sponsored endorsements, as discussed in the 2009 endorsement guidelines. The agency's position on effective online disclosures is straightforward:

The ultimate test is not the size of the font or the location of the disclosure, although they are important considerations; the ultimate test is whether the information intended to be disclosed is actually conveyed to consumers.   read more »

On a Very Long Walk, Paul Salopek Sees a Ray of Light from the IRS

Pulitzer Prize-winning journalist Paul Salopek is currently on a long walk...a walk across continents that is expected to take approximately seven years to complete. An extraordinary experiment in what Paul calls "slow journalism," the Out of Eden Walk will see Paul -- on foot at a rate of three miles per hour -- trace humanity's 60,000 year expansion out of Africa, through the Middle East and Asia, and down the length of North and South America. Dispatches from along the way will illustrate the cross-section of the human race that Paul encounters along his way, part of an innovative storytelling platform designed to explore who we are as a species, where we came from, and the journey that we are still on.

Clearly, for such a monumental project Paul requires an extensive support system, including representatives here in the United States who can coordinate the venture during the extended periods when Paul himself is out of ready contact. The form that the Out of Eden Walk has selected is a nonprofit organization that can operate as a legal entity in the United States. In November 2012, that entity applied for tax exempt status from the IRS, a critical step for securing the funding necessary to support the project.   read more »

We are the Digital Media Law Project

Many of you who have followed the adventures of the Citizen Media Law Project know that we have been contemplating a change of our project's name for quite some time (the eagle-eyed will have seen our new name and logo appearing in stealth fashion here and there on our site and elsewhere). The change from "Citizen" to "Digital" is a profound one for us, reflecting an ongoing discussion within our project (now and hereafter the "DMLP") about the nature of the online journalism and publishing ecosystem and our role in supporting those involved in it.

When our project started in 2007, the disruptive effects of the Internet on the journalism industry were in full swing, while at the same time individuals were realizing the potential of blogs, social media, and other open online platforms to change how we share information of public importance. The ability of individuals to participate directly in meeting the information needs of their communities marked a critical shift in how we communicate on public issues. However, many of those exploring the possibilities of citizen journalism did so with little understanding of the legal risks that they might face, risks that traditional journalism organizations had long understood and for which they had developed extensive risk management strategies.   read more »

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Introducing Jillian Stonecipher!

It gives me great pleasure to welcome our newest blogger, Jillian Stonecipher! Jillian, a 2L at Harvard Law School, is no stranger to our project, having worked with us as an intern throughout the 2012-13 academic year. When not hanging around the Berkman Center, Jillian works on both the Harvard Journal of Law & Gender and the Harvard Journal of Law & Technology. She is a Phi Beta Kappa graduate of the University of Texas, where she was the Editor-in-Chief of The Daily Texan, managing a staff of 200 to produce a newspaper with a circulation of more than 20,000.

We are thrilled to have Jillian's contributions to the blog!

 

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Heads Up, Online Radicals -- You're Next

For me, thinking about one of the Obama administration's latest initiatives to keep us all safe online is like one of those pattern recognition puzzles (you know, like "What is the next term in this sequence: O, T, T, F, F, S, S, E, N, __?").  Here, the sequence is:

cyber bullies, scammers, gangs, sexual predators, ________?

The pattern, you see, is perceived online threats against which the White House has taken action. In a February 5 post on the White House Blog, we get the administration's answer to what goes in the next blank: "online radicalization to violence."

Huh.

The White House explains its concerns this way:

Violent extremist groups ─ like al-Qa’ida and its affiliates and adherents, violent supremacist groups, and violent “sovereign citizens” ─ are leveraging online tools and resources to propagate messages of violence and division. These groups use the Internet to disseminate propaganda, identify and groom potential recruits, and supplement their real-world recruitment efforts.  Some members and supporters of these groups visit mainstream fora to see whether individuals might be recruited or encouraged to commit acts of violence, look for opportunities to draw targets into private exchanges, and exploit popular media like music videos and online video games.  

Al-Qa'ida, violence, music videos AND video games? I'll get my pitchfork.

Except, see, I'm pretty sure I remember reading something along the following lines:    read more »

Filing Lawsuits in the United States over Google Autocomplete is...

On December 21, 2012, Dr. Guy Hingston, a cancer surgeon from Port Macquarie in New South Wales, Australia, filed suit against Google in the U.S. District Court for the Central District of California. Dr. Hingston's complaint alleges that Google portrayed him in a "false light" through its "autocomplete" feature, because for at least some users entering his name into Google's search engine has triggered the option to search for the phrase "guy hingston bankrupt."

Dr. Hingston, of course, denies that he is bankrupt. This is not the first lawsuit against Google based upon autocomplete results; we have written before about suits in other countries.  However, this is the first such suit filed in a United States court, raising the question of whether the suit could succeed under the laws of California and the United States, including the First Amendment.

"False light" is a notoriously ambiguous tort, but for the purposes of this post I will focus on California's interpretation of the tort. California's version of "false light" is very similar to defamation, except that while defamation involves false statements of fact about the plaintiff, false light involves false implications of fact. (For more on California's false light tort, see our Legal Guide entry). Nevertheless, false light is subject to limitations similar to those applicable to a defamation claim, several of which are fatal to this claim.

"Of and Concerning"   read more »

   
 
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