Marie-Andree Weiss's blog

The Legal Committee of France's Chamber of Representatives voted unanimously on March 27 to propose to repeal the offense of insulting the President of the Republic, which is still a crime under article 26 of the French Press law. French Representatives will now vote on April 18 to adopt the proposal to repeal article 26, then will send the proposal to the Senate.

I wrote earlier about that odd remnant in French law of the Ancien Régime belief that the Head of State must not be insulted, and talked about the judicial saga of Hervé Eon, a French citizen, arrested and fined in August 2008 for having held a placard which read "casse toi pauvre con" ("get lost you a$$...") on the side of a road where Nicolas Sarkozy, then President of France, was scheduled to pass by.   read more »

Arizona State Representative Michelle Ugenti (R-Scottsdale) introduced Arizona House Bill 2004 in December, which would amend Arizona’s criminal code and make it a class 5 felony to impersonate somebody online, including, specifically, on a social networking site. A class 5 felony carries in Arizona a presumptive sentence of a year and a half imprisonment. Rep. Ugenti was quoted saying that she was inspired to propose the bill after one of her constituents approached her to tell her about being harassed on Facebook and other sites, but she did not elaborate further.

Indeed, cyberbullying is a rampant issue, and it may lead to serious physical and emotional harm (and even death, as in the sad case of Megan Meier). There is a legitimate state interest in preventing or limiting such harm. But people engage in online impersonation for a whole mix of reasons, and one could easily see a public figure threatening to use such a law against an account that was created for completely laudable ends, such as criticism and comment.    read more »

Last October I wrote about the rise in popularity among French Twitter users of the hashtag #unbonjuif ("a good jew"). In December we saw a growth in other offensive hashtags, including the homophobic #Simonfilsestgay, ("if my son is gay") or the xenophobic #SimaFilleRamèneUnNoir ("if my daughter brings a Black man home"). As with #unbonjuif, the "game" consisted of adding messages to these hashhags to create a "joke."

This time the hashtags prompted a response from the government. Najat Belkacem-Vallaud, France’s Minister of Women's Rights, reacted to these offensive tweets by writing an editorial published on December 28 in Le Monde under the title "Twitter must respect the values of the Republic." She described these tweets as being "morally reprehensible and illegal under our laws," and goes on by writing that:

[i]t is the honor of France to have progressively included in its criminal code punishment for incitement to hatred or violence against a person or group of persons because of their origin, membership or non-membership in an ethnic group, nation, or because of their sexual orientation or gender identity. These acts or remarks are punishable by law and the fact that they were made using a virtual channel does not make less punishable those who committed them and whose case made be tried by courts.   read more »

For a while now, one of the main causes of concern for privacy advocates has been "Big Data," that is, the collection, aggregation and analysis of data, on a, well, BIG scale. This post takes the opportunity to review some specific issues and recent developments in this area.

The exploitation of Big Data for commercial purposes may have negative consequences on individuals’ lives, yet consumers are not yet fully aware of the impact it may have on their privacy and their economic interests. Even more galling, consumers have no way to claim any portion of the profits generated by their data when sold to advertising companies for top dollars.

Big Data Enables Economic Discrimination

One of the most common uses of aggregated consumer data is in online advertising, where the advertisements that users see are based upon their online history. Automated algorithms assess whether a consumer is likely or not to be interested in a particular type of ad, and the opportunity to deliver an ad to that consumer is auctioned off on a split-second basis using an electronic trading system. Companies often present this use of Big Data as being advantageous to consumers, as they only see advertisements which are truly relevant to their interests, and thus are less exposed to spam.    read more »

On October 16, the Union des Étudiants Juifs Français (Union of French Jewish Students, UEJF) asked Twitter to remove several racist and anti-Semitic tweets. Using the hashtags #unbonjuif and #unbonmusulman ("agoodjew" and "agoodmuslim," respectively), some Twitter users were posting derogatory comments about Jews and Muslims, some allegedly meant to be 'jokes.'

The UEJF president, Jonathan Hayoun, and the UEJF legal representatives had a conference call with Twitter's senior management, in which the UEJF asked Twitter to remove the tweets in question. Twitter initially had refused to delete them, and had also refused to provide the UEJF with the identities of the users.

But on October 28, the UEJF announced that Twitter had started removing the anti-Semitic tweets. It is not yet clear whether Twitter also provided the identities of the authors of the tweets, but it is unlikely it would do so without an order from a French court.   read more »

On September 14, French weekly gossip magazine Closer published several pictures of the Duke and Duchess of Cambridge taken without their consent while they were spending a weekend at a private villa in the South of France. Some of the pictures showed the Duchess wearing only the bottom of a bikini suit. France may have a liberal attitude towards female nudity and half-naked women are routinely seen sunbathing on its beaches, but it also has strong privacy laws, including the court-created droit à l’image -- the right to the privacy in one’s image.

French Law Protects the Privacy of Public Figures, including Princesses 

Article 9 of the French civil Code provides that “[e]veryone has the right to respect for his private life.” This is not merely an aspirational statement, but an enforceable right, as Article 9 gives courts the power to prescribe any measures appropriate to prevent or to end an invasion of personal privacy.  In case of emergency, those measures may even be provided for by interim order.

Even though Article 9 does not specifically mention a right over one’s image, the French courts have interpreted it as giving individuals a droit à l’image. What is protected is not the image itself, but a person’s right not be photographed without her consent. Article 9 provides protection regardless of whether the person is famous, or even royalty.   read more »

Being a journalist in Italy may have occupational hazards, but having to go to prison in your own country because of an article you wrote should not be one of them. However, Italy, a founding Member of both the Council of Europe and the European Union, still punishes defamation through the medium of the press (diffamazione a mezzo stampa) by a prison term.

The penalties are harsh: article 595 of the Italian Penal Code punishes such crimes by six months up to three years in prison, or by a fine which cannot be less than €516 (more or less $675). The penalties are increased if the victim is a political figure, a concept that might surprise United States journalists who generally receive greater protection against defamation liability when writing about politicians.

Three Recent Cases

The law is alive and well enforced. An article written by journalist Orfeo Donatini, titled “Pura razza SüdTirol” (The pure race of South Tyrol), was published in 2008 by the newspaper Alto Adige. It reported that Seven Knoll, a Representative at the Parliament of South Tyrol and the leader of Süd-Tiroler Freiheit, a South Tyrol separatist party, was being investigated by the police for his possible ties with neo-Nazi groups. The source of the information, which had first been published by the national weekly L’Espresso, was a confidential police report.   read more »

Cell phones allow us not only to communicate with one another, but also to take and store pictures, “check in” from a location, balance our checking account, and even update our blogs. When the content of a cell phone may help the police to solve a crime, the legality of the search of both the phone and its content is of crucial importance. However, the law of warrantless searches of cell phones is not yet settled.

A recent 190-page decision from Rhode Island Superior Court Justice Judith Savage in State of Rhode Island v. Patino, C.A. No.: P1-10-1155A, weighs in on the debate. The facts in this case are very sad; here is a quick summary. A 6-year-old died, possibly from abuse. Four cell phones are observed by the police at the scene. The police seized and searched them. One belonged to the mother of the victim, and at least two others belonged to the Defendant. Was the search legal?

Facts of the case

On October 4, 2009, the Cranston Police Department was called by Trisha Oliver, the mother of 6-year old Marco Nieves, who was unresponsive and not breathing. He was taken to the hospital, while Sergeant Michael Kite went to Oliver's apartment. He met there Michael Patino, Oliver’s boyfriend and the father of her infant daughter. Sergeant Kite observed four cell phones in the apartment: a LG Verizon, a Metro PCS Kyocera, a black T-Mobile Sidekick, and an iPhone.

At one point during his visit, it seems that Sergeant Kite picked up the LG Verizon cell phone because it beeped, and he may have viewed a “sent” message addressed to “DaMaster.” The message read as follows:

Wat if I got 2 take him 2 da hospital wat do I say and dos marks on his neck omg.   read more »

The issue of same-sex unions is hotly debated, and the discussion is heating up this election year with the case on California’s Proposition 8 making its way to the Supreme Court, and with President Obama recently declaring that he is in favor of same-sex marriage.

Two GOP candidates for the Colorado State District 8 Senate seat did not have the same opinion on same-sex unions. Incumbent Sen. Jean White had supported the 2011 Colorado bill on civil unions, S.B. 172. She has a niece and a nephew who are gay, and she spoke emotionally during the debate, concluding: “My vote today is for love and respect and commitment. My vote today is for my niece and my nephew.”

Senator White’s opponent, Rep. Randy Baumgardner, does not support civil unions. He was therefore the candidate of choice of Public Advocate of the United States (Public Advocate), a nonprofit organization based in Falls Church, Virginia.

Public Advocate’s website indicates that it is in favor of “[a] federal traditional marriage (man-woman) amendment to the Constitution to defend tradional [sic] marriage from assaults from those who claim to promote 'same sex marriage'.” It also “offers strong and vocal opposition to … [s]ame sex marriage and the furtherance of so-called 'Gay Rights.'” This anti-gay stance has earned Public Advocate a spot on the Southern Poverty Law Center hate map.   read more »

When hearing the expression “lèse majesté,” images of the Queen of Hearts ordering heads to be chopped off ASAP may come to mind. Marie-Antoinette, the queen who was once a “majesté” in France, herself lost her head during the French Revolution. Surely, the crime of lèse majesté is now a thing of the past?

Lèse Majesté Law is Heavily Enforced in Thailand

Not quite, as some monarchies still prosecute this crime. Several of the European monarchies still have lèse-majesté laws, including Norway, where prosecuting the crime can only be carried out by the king or with his consent.

Thailand, a constitutional monarchy, has had a lèse-majesté law since 1908, the year of the enactment of its first criminal code. Although the political powers of the king (currently King Bhumibol Adulyadej, who has reigned since 1946) are limited, the monarchy is held in high regard.  A clause in the Thai constitution states that "The King shall be enthroned in a position of revered worship and shall not be violated. No person shall expose the King to any sort of accusation or action." Article 112 of the Thai Criminal Code states that "Whoever defames, insults or threatens the King, the Queen, the Heir-apparent or the Regent, shall be punished with imprisonment of three to 15 years." The code does not define, however, what constitutes a defamation or an insult.   read more »

Here is a story that would be an excellent fact pattern for a media law exam. Copyright! DMCA! Libel! Oh my…. Well, at least I hope it will be a topic of interest for the readers of this blog.

Background

Consider the following fact pattern, drawn from a series of blog posts by the parties to this dispute. (Each party has since made an effort to delete their respective posts, so this analysis will not refer to the parties by name.)

Photographer took a picture of downtown Houston, and then posted the photograph on his blog. He later discovered that several sites had used the photograph without his permission, and he proceeded to send them all DMCA takedown notices. Some of the sites took down the pictures, and others asked to be granted a license. Fourteen of the sites which received a DMCA notice from Photographer were owned by the same person, Blogger. These fourteen sites were all hosted by GoDaddy, whose policy is, upon receipt of a complaint, to remove or disable access to sites which are allegedly infringing copyright. Accordingly, access to all of Blogger's sites was disabled.

One of Blogger’s disabled sites was a blog she uses as a platform to express her support for a local candidate in a race for Sheriff. Another of these sites was a site designed to inform the public about a non-profit organization whose goal is to promote awareness for the education needs of special needs children (Nonprofit Organization). Blogger is Nonprofit Organization’s President.   read more »