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We would like to congratulate Without My Consent on its one-year anniversary, and announce an exciting event in celebration!

Without My Consent is a 501(c)(3) non-profit organization dedicated to empowering victims of online harassment, as well as facilitating debate and discussion around the issues of online invasion of privacy, accountability, theI nternet and free speech. The project was co-founded by Colette Vogele and Erica Johnstone as a fellow project at Stanford's Center for Internet & Society. We are excited by the work that Colette and Erica are doing at Without My Consent, as they provide critical resources to victims of online invasion of privacy while remaining focused on the risk that excessive regulation poses to the legitimate exchange of information.   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 »

As a lawyer licensed in five states (MA, FL, CA, AZ, and NV) and who practices free speech law nationwide, I am in a position to comment on the relative merits of various states' views on First Amendment principles. Among the many states where I have worked on cases, Flori-duh is the worst. Hands down.

It has no anti-SLAPP law to speak of. Its state legislation intended to deter frivolous litigation, Fla. Stat. 57.105, looks great on the books but is a "paper tiger." While the statute was amended in 2002 to give it some real teeth, the state judiciary generally does not apply it. As a result, Flori-duh is a hotbed of frivolous SLAPP litigation.

If Nevada does not update its anemic anti-SLAPP law, it bears the risk of becoming the Florida of the West – at least with respect to frivolous SLAPPs. That risk is laid bare for all to see in the recent case of Metabolic Research v. Ferrell, despite the fact that the Ninth Circuit seems to have tossed in a prescription to cure some of the symptoms of the Nevada anti-SLAPP statute's lack of a fully developed spine.

What Happened?

From the Ninth Circuit's opinion:   read more »

The trafficking of children for sex in the United States is an appalling and very real problem, which a new Washington state law means to eliminate by targeting websites that offer classified advertising for escort services. But many fear the law poses a serious threat to free speech on the Internet by imposing upon online service providers the burdensome duty to monitor, vet, and otherwise censor third-party content.

Signed into law earlier this year, Washington Senate Bill No. 6251 creates the felony offense of "advertising commercial sexual abuse of a minor." Though the bill does not explicitly reference Backpage.com, there is little doubt that the Village Voice Media Holdings site was the impetus for the law. Backpage.com has generated a veritable furor by refusing to nix its adult section, to which personals featuring underage prostitutes are posted at a frequency subject to considerable debate. During hearings on the bill, a member of the Washington state legislature announced that she would "love to see the escort services section [of Backpage.com] shut down completely." The law was also touted as a landmark in the years-long offensive by state attorneys general condemning Backpage.com for not doing enough to prevent exploitation of minors via the site.    read more »

Another day. Another "I created Facebook first" case.  

Last month, a federal magistrate judge in Massachusetts dismissed the lawsuit of Aaron Greenspan, a former classmate of Facebook founder Mark Zuckerberg, against Random House Publishing and Columbia Pictures (and others), the respective distributors of the 2009 book about Facebook's creation, "The Accidental Billionaires," and the film adaption, "The Social Network," in 2010.

Amid various copyright claims (which were also dismissed) was an interesting, "Is this really a legal thing?" claim of "defamation by omission." Greenspan basically argues that he was defamed when he was left out of the movie based on the book about Facebook because he claims that he was "indirectly" involved in the founding of the company. In his complaint, Greenspan alleges he was referred to as "Grossman" in the book, and completely left out of the film. And by being left out, he alleges that he was excluded from any recognition of his contributions, and that all these (complicated and diluted) matters have affected his "career prospects." Sounds like a slam-dunk for the "subject ridicule, shunning and abuse" element for a defamation claim, right?

Not hardly.   read more »

There has always been an active debate about whether the First Amendment affords government outsiders (like the media) any protection when they disseminate classified national security information without authorization.  As I mentioned in my last blog post, however, critics of the most recent round of high-profile leaks have targeted their attacks almost exclusively on the leakers themselves and not on the news outlets that published the leaks.  So the question is, do leakers have any First Amendment right to disclose national security information to government outsiders without authorization?

At the outset, let me just say leakers have a variety of statutory arguments they might make if prosecuted under the Espionage Act and related statutes.   Charlie Savage recently outlined a few of these arguments here. In addition, one of the obstacles the government might face is that in order to prove that the disclosure was harmful to national security, they might have to reveal even more national security secrets (often called “graymail”).  This is one reason why the Drake prosecution fell apart.   read more »

In the fourteen years that I practiced as a media defense lawyer before joining the Berkman Center, there was one sentence from one Supreme Court opinion that I learned to loathe above all others. It appears in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), and reads as follows: "But there is no constitutional value in false statements of fact." Id. at 340. The court goes on to explain:

Neither the intentional lie nor the careless error materially advances society's interest in "uninhibited, robust, and wide-open" debate on public issues. New York Times Co. v. Sullivan, 376 U. S., at 270. They belong to that category of utterances which "are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942).

Id. The primary reason that I hate this particular sentence is that it is quoted out of context by plaintiffs' attorneys at one point or another in virtually every defamation action. Although the Court held that falsity itself does not advance society or the debate on public issues, it nevertheless went on - at the bottom of the very same page, mind you - to hold that there is nevertheless significant constitutional value in protecting certain falsehoods to ensure that publication of the truth is not chilled:   read more »

Take a moment to explore your daily newspaper's webpage. You'll likely find recent articles and archives, video materials, job postings, classifieds, sidebars with advertisements, various forms of social media integration, and, most surprisingly (or perhaps not, considering the financial challenges journalism faces), a store. Newspapers including The Los Angeles Times, The New York Times, The Seattle Times, and The Hartford Courant have opened online storefronts that sell page and photo reprints, mugs, t-shirts, and more. One such newspaper used to be the North Adams Transcript, a daily paper in North Adams, Massachusetts that is owned by New England Newspapers. Because of this storefront, they are now defending a lawsuit that raises questions about how to evaluate the newsworthiness defense in privacy cases. In the context of such storefronts, what really matters - content or context?   read more »

The DMLP recently appeared as an amicus curiae in Commonwealth v. Busa, a case brought in Boston Municipal Court under Massachusetts's anti-counterfeiting law, M.G.L. ch. 266 § 147 ("Section 147"). Yesterday morning the BMC gave us a narrow victory by granting the defendant's motion to dismiss, but without resolving the underlying question of Section 147's constitutional validity.

The case arose after defendant Matthew Busa sold anti-Vancouver Canucks shirts outside of the Boston Garden during last year's Stanley Cup Finals. The shirts had the Canucks logo with a circle and line through it (approximated in the image at right), and on the back read "Boston Fights, Vancouver Bites," a reference to an incident from game 1 of the finals. The Commonwealth arrested Busa and seized these shirts under Section 147, claiming that they were an unauthorized reproduction of the Canucks's trademark. Busa filed a motion to dismiss the indictment on a variety of grounds, including unconstitutional overbreadth and copyright preemption. At yesterday's hearing Busa also moved to report the question of Section 147's constitutional validity to the Massachusetts Appeals Court under Massachusetts Criminal Procedure Rule 34.   read more »

We are delighted to announce that, with the generous support of the Corydon B. Dunham Fellowship Fund of the Harvard Law School, the Berkman Center has named our own staff attorney, Andy Sellars, as the inaugural Dunham First Amendment Fellow.

Andy received his J.D. with high honors from the George Washington University Law School, where he was awarded the Peter D. Rosenberg Award for Patent and Intellectual Property Law, and the American Intellectual Property Law Association’s Jan Jancin Award, honoring the nation’s top intellectual property law student. He joined the Berkman Center as a Employee Fellow in July 2011, after having served as a summer intern at Berkman's Cyberlaw Clinic in 2009 and 2010.   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 »

I am excited to welcome Marie-Andrée Weiss as a guest blogger!

Marie-Andrée Weiss is a solo attorney admitted in New York, and her admission is pending in France. Her practice focuses on intellectual property, privacy, and social media law. She frequently writes on these topics and on European Union law. Her article, "The use of social media site data by business organizations in their relationship with employees," was published in 2011 by the Journal of Internet Law. She graduated from the University of Strasbourg in France with a J.D. in business law, an LL.M. in criminal law, and an LL.M. in multimedia law. She also graduated from the Benjamin N. Cardozo School of Law in New York City with an LL.M. in Intellectual Property Law. Before becoming an attorney, she worked for several years in the fashion and cosmetics industry in New York City, as a buyer and a director of sales and marketing. She is the chair of an ABA subcommittee on European Union Data Protection Reform. Marie-Andrée also blogs at Information Security Privacy and the Law and on the ABA Secure Times blog.

Please join me in welcoming Marie-Andrée to the CMLP blogroll!

Lately I have been following the discussion about the most recent series of national security leaks, including those that detailed the White House's terrorist "kill lists," the foiling of a terrorist plot by a double agent in Yemen, and cyberattacks against Iran.  Outrage about leaks is hardly new.  Neither are leaks.  (See my prior article detailing the long history of leaks in this country.)  What is new is that the outrage this time around seems to be directed at the leakers and not at the media outlets that published the leaked information.   read more »

Censorship in China is nothing new.  Heck, it's practically to be expected these days. Witness last week's censoring of the Shanghai stock exchange's 64.89 point drop on June 4.  See, that number is already on the Great Firewall of China's blacklist because it happens to coincide with the date of the Tiananmen Square massacre, 6/4/89.  That the drop happened to occur on June 4, the 23rd anniversary of the massacre, well, that's just one of life's rich little ironies.  And it caused havoc, as the censors felt compelled to crack down on any mention of the perfectly legitimate stock market results.  And any mention of the stock market, in fact.  It'd be funny if it weren't so sad.

Now, China's Twitter-like microblog Sina Weibo is threatening to up the censorship ante with a new policy that cracks down on "untrue" content, reports the International Business Times.  This new system comes in the guise of a new point system.  Upon creating a Sina Weibo account, users are given 80 points (or 100 points if they set up their account using their government-assigned ID number).  Subsequently, each "falsehood" that the user communicates to the larger community results in a point loss, with broader communication leading to greater losses.   read more »

Let's start with the following premise: thedirty.com is a tasteless website. In addition to a bit of celebrity gossip and paparazzi-type pictures, the site also invites anyone to post pictures – often revealing, embarrassing, or insulting – of others for comment by users and, sometimes, the site's proprietor.

The site has been sued a number of times for postings making scurrilous allegations. One of these lawsuits was brought by Sarah Jones, a former Cincinnati Bengals cheerleader and high school teacher, who sued over postings (now removed) on thedirty.com which accused her of having a sexual disease and claimed that she "has slept with every ... Cincinnati Bengal football player." (Jones now has bigger problems: she was arrested in March on charges of sleeping with one of her students. She has pleaded not guilty.)

Jones originally filed the suit anonymously. She mistakenly named thedirt.com – rather than thedirty.com – as the defendant, leading to a default $11 million verdict.    read more »

As we have reported previously, the Digital (nee Citizen) Media Law Project has been following a trend in delays at the Internal Revenue Service relating to Section 501(c)(3) tax exemptions for nonprofit journalism organizations. Although there has recently been movement in the IRS, with a number of organizations obtaining their tax exemptions over the past several months, others continue to wait for decisions delayed two years or more.

One possible reason for these delays is an increase in the numbers of journalism organizations seeking to operate on a nonprofit basis, at the same time that the IRS is likely reviewing its existing precedential decisions relating to news and publishing ventures. As our guide to the IRS's decision-making process discusses, many of the key precedents that the IRS relies upon in these cases date back as far as the 1960s, 1970s, and 1980s. Given that not only the news business, but the very nature of communication, has changed dramatically in the last fifty years, it would be reasonable for the IRS to take another look at these decisions when faced with a new wave of online journalism projects.

That being said, we have recently learned of a somewhat disturbing development in this regard. At least one applicant for 501(c)(3) status has been questioned by the IRS relating to user-generated content posted to the applicant's site as follows:

Will you allow individuals to post content directly to your website? If so, will you hold the content in queue until you review it to determine whether it would constitute intervention in a political campaign?   read more »

Last week the Digital (nee Citizen) Media Law Project joined an amicus curiae brief filed in Hart v. Electronic Arts, Inc., currently before the United States Court of Appeals for the Third Circuit. [FN] Hart is yet another case concerning the ever-uncomfortable balance between free speech and intellectual property, this time in the context of "right of publicity" laws.

This case involves the NCAA Football series developed by Electronic Arts ("EA"), which allows players to play for and manage real-world collegiate football teams. EA licenses the right to use the team and league names, but not the names or likenesses of individual players. In fact, according to Wikipedia, EA does not claim that the players in the game are based on their real-world counterparts. That said, users are quick to point out that the jersey numbers, personal stats, and player hometowns of the virtual players frequently align with the real athletes.

Ryan Hart, a former quarterback for Rutgers University, claims that he appears in the NCAA Football games from 2004-06 both as a virtual player (that is, there is a character in the game who shares Hart's team, position, basic player stats, and jersey number) and in the 2009 edition of the game in a brief video clip showing the real-world Hart throwing a pass, which appears when a player selects Rutgers as a favorite team. Hart objects to his appearance in the game without his permission as a violation of his right of publicity.   read more »

Britain's effort to reform its defamation laws and shed London's title of "libel capital of the world" has been chugging along for several years, but now it looks like it's in sight of the last stop: The government unveiled its proposed new defamation bill in early May.  So what has all this time and effort wrought?

(Before I get into it, note that I use "Britain" and "British" in this piece to as shorthand for England and Wales.  The Scots and Northern Irish have their own legislative bodies and will not be beholden to this bill.)

One Step Forward...

First, the good news: The bill does make noteworthy progress on the problem of libel tourism. 

If you are unfamiliar with the phenomenon, libel tourism is the practice of bringing libel lawsuits in Britain, where defamation laws are very plaintiff-friendly, even in situations where the case has limited connection to the jurisdiction. 

The poster child for libel tourism in London is Rachel Ehrenfeld, a US author who in one of her books laid out an argument accusing Saudi banker Khalid bin Mahfouz of financing terrorism.  The book in question was published and sold primarily in the US; a scant 23 copies were sold in Britain.  Nonetheless, bin Mahfouz sued for libel in London, winning a default judgment of $225,000 against Ehrenfeld.   read more »

Earlier this week the CMLP (under its new name, the Digital Media Law Project) sought leave to file an amicus brief in Boston Municipal Court in the case of Commonwealth v. Busa, which concerns a prosecution under Massachusetts's anti-counterfeiting law, M.G.L. ch. 266 § 147 ("Section 147"). I wanted to share a little bit about the statute, and why we decided to take the unusual step of appearing at the trial court level to urge the court to void the statute.

Section 147, at a quick glance, may look like a traditional trademark regulation. The statute punishes whoever willfully "manufactures, uses, displays, advertises, distributes, offers for sale, sells or possesses with intent to sell or distribute any item or services bearing or identified by a counterfeit mark." So far, highly unremarkable.

The statute deviates from mainstream trademark law, however, in its definition of "counterfeit mark," which includes "any unauthorized reproduction or copy of intellectual property." "Intellectual property," in turn, is defined as "any trademark, service mark, trade name, label, term, device, design or word" that is used by a person and is registered in a state trademark database or the USPTO Principal Register. Notably absent is the central test of trademark infringement: that the use is likely to cause confusion as to the origin or sponsorship of goods or services.   read more »

Qualified immunity for police might be a thing of the past

In May 2010, Christopher Sharp used his cell phone to record video of his friend being arrested by the Baltimore Police at the Preakness Stakes. The police demanded that Sharp surrender his phone, stating that the contents might be evidence; when the phone was returned, Sharp discovered that the video he had made, plus a number of other unrelated videos, had been deleted. The ACLU (a leading voice on the First Amendment right to record in public, as reflected in its efforts in Glik v. Cunniffe and ACLU v. Alvarez) helped Sharp file suit against the Baltimore PD for violation of his First Amendment rights in Sharp v. Baltimore City Police Department, a civil rights action filed in the U.S. District Court for the District of Maryland.

In January 2012, the Department of Justice got involved in the case. Contrary to what might be expected, the DOJ was not supporting the police department – instead, it filed a "Statement of Interest" in support of Sharp's position in the case, stating:   read more »