Welcome to the website of the Digital Media Law Project. The DMLP was a project of the Berkman Klein Center for Internet & Society from 2007 to 2014. Due to popular demand the Berkman Klein Center is keeping the website online, but please note that the website and its contents are no longer being updated. Please check any information you find here for accuracy and completeness.
Chris Grotke and Lise LePage, co-founders and owners of iBrattleboro.com, a widely acclaimed citizen journalism site based in Brattleboro, Vermont, were sued on November 16 for libel based on a comment submitted by one of the site's users.
Before the Thanksgiving holiday, Steve Tobak at CNET published a useful post -- "Bloggers beware: You're liable to commit libel." In it, he gives a straightforward and largely accurate account of the elements of a defamation claim and some good general advice:
week, David Ardia previews our legal threats database, Colin Rhinesmith talks about a recent decision on First Amendment protections for anonymous bloggers, and Sam Bayard spotlights a defamation suit involving an Iranian blogger in Canada.
On Tuesday, October 23, Justice Marcy Friedman of the New York Supreme Court dismissed a lawsuit seeking discovery from Google (dba Blogger) regarding the identities of the anonymous operator of the blog "Orthomom" and an anonymous commenter to the blog. The court's opinion is potentially important because it addresses the difficult question of what standard a court should apply when deciding whether to unmask an anonymous defendant in a defamation action.
Insist that readers be who they are, and not attempt to pass themselves off as someone else. If you[r] site allows pseudonymous posting, insist that readers use a consistent handle or account name, and take whatever technical steps you can to keep people from posting under others' names.
Don't allow readers to mislead others about their identity, either. Warn readers against omitting information from their profiles or posts that would lead other readers to believe that they are someone other than who they are. Elected officials shouldn't be allowed to pretend that they are not when posting to a discussion about local politics, to use the Telegraph's example.
These recommendations are important from a practical, ethical perspective more so than from a legal perspective because CDA 230 (47 U.S.C. § 230(c)(1)) gives website operators immunity for publishing content submitted by others under most circumstances. From this practical, ethical perspective, however, I agree wholeheartedly with Niles. There is a difference between respecting and promoting a user's ability to engage in anonymous speech and allowing a user to mislead others and manipulate the tools put at his/her disposal. Perhaps a Term prohibiting impersonation would be hard to enforce (maybe not?) -- at the very least, a Term of this kind puts users on notice about what kind of community you want to create and makes a statement about engaging in speech and debate responsibly.
A recent case from Texas highlights the difficulty of identifying
the correct legal standard for determining when a court should order
disclosure of the identity of an anonymous person engaging in speech on
the Internet. In June 2007, a subsidiary of Essent Healthcare, Inc.
filed suit in Texas state court against an anonymous blogger and an
undefined number of anonymous posters to his blog.
In late August, Volkswagen obtained a subpoena from the United States District Court for the Northern District of California (Case No.3:07-MC-80213) requiring YouTube to disclose the identity of an anonymous YouTube user who posted a Nazi-themed parody of a Volkswagen commercial. The video has apparently been removed from YouTube and is no longer available.
Brad Spitz reports in his blog that a French court held DailyMotion liable for copyright infringement, despite concluding that the site was a mere "hosting service." DailyMotion is an online video-sharing site similar to YouTube. In a July 13 ruling (in French), the court went out of its way to label DailyMotion a hosting service, an argument DailyMotion itself put forth. In France, hosting services typically enjoy a safe harbor from the infringing acts of users under the French Act of 21 June 2004 on Confidence in the Digital Environment (in French). The Act implements the European Commission directive on electronic commerce and states in part:
Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:
(a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which illegal activity or information is apparent; and
(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.
The court found DailyMotion was aware of the infringing content, in part because the site deliberately furnished the users with the means to commit the acts of infringement. The court stated that the Act's limitation on liability is not available when the infringing activities are created or induced by the provider itself. DailyMotion has appealed.
Notably, the language of the French Act is almost identical to the safe-harbor provisions of the Digital Millennium Copyright Act (DMCA) codified at 17 U.S.C. Sec. 512(c). Google (on behalf of its popular video-sharing site, YouTube) frequently invokes the DMCA safe-harbor provisions as a defense to copyright infringement claims brought against it. At the end of the day, the French court ruling has no direct effect on any U.S. court's interpretation of the DMCA, but it may cause Google to reassess its stance on its liability via YouTube.
Editor & Publisher details a new venture between the Associated Press and Attributor, a service provider that will fingerprint and track the use of AP content on the web.
The Associated Press is moving to protect its content by partnering with the technology company Attributor, which will track AP material across the Internet. The arrangement will allow Attributor to "fingerprint" AP copy down to a level where it can be identified anywhere on the Web.
"Our goal is to get a feeling for some of the useful ways to monitor content," said Srinandan Kasi, vice president, general counsel and secretary at the AP. "We are looking at it not just to protect our rights but to derive some intelligence."
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