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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 »

We are delighted to announce the public launch of the Berkman Center's Online Media Legal Network (OMLN), a new pro bono (i.e., free!) initiative that connects lawyers and law school clinics from across the country with online journalists and digital media creators who need legal help. Lawyers participating in OMLN will provide qualifying online publishers with pro bono and reduced fee legal assistance on a broad range of legal issues, including business formation and governance, copyright licensing and fair use, employment and freelancer agreements, access to government information, pre-publication review of content, and representation in litigation.    read more »

Last week, the Practicing Law Institute hosted its annual program on Communications Law in the Digital Age.

Up for discussion were a lot of topics near and dear to CMLP's heart: trends in First Amendment jurisprudence (including prognostications in US v. Stevens), the federal reporters' shield bill, the protection of anonymous commenters, libel tourism, the application of the single publication rule to the Internet, what the hell Congress meant by "copyright management information" in 17 U.S.C. § 1202(c), the future of misappropriation and the "hot news" doctrine, and legal developments related to FOIA and government sunshine laws. 

As anyone who was watching the CMLP Twitter feed probably noticed (you are following us on Twitter, aren't you?), some of the more interesting panelist exchanges centered on privacy issues and the pending federal reporters' shield law.   read more »

“’It isn’t fair, it isn’t right,' Mrs. Hutchinson screamed, and then they were upon her.”
- The Lottery, Shirley Jackson

In The Lottery, Shirley Jackson explored the interplay of the banal and the barbaric. She described a town’s old-fashioned agrarian ritual: an individual who has drawn a slip marked with a black spot is stoned to death in order to ensure a good harvest. While many filmmakers have attempted to update the story, their efforts were ultimately unnecessary – we bear witness to a similarly atavistic ritual.

The entertainment industry is a superstitious animal. Since I can remember, it has held a lottery: selecting at random file sharers to pelt to death with stones marked TORT and BREACH. Though the human sacrifice doesn’t seem to do much, the industry has continued the practice year after year. This is how it had always been. Though peculiar, this practice seems to elicit only mild revulsion in outsiders.  That is, until last week, when the lottery suddenly changed .  .  .    read more »

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 »

This one is a little disturbing.

Political Race Gets Nasty

During an election in Buffalo Grove, Ill., an online debate started about a candidate for Village Trustee, Lisa Stone. During that debate, this public official's 15 year old son, Jed, got a little upset about some harsh statements lobbed at his mother, so he joined the debate -- in particular, getting into a flame war with "Hipcheck16".   read more »

[A]ll it takes to kill a show forever, is to get one episode pulled. If we convince the network to pull this episode for the sake of Muslims, then the Catholics can demand a show they don't like get pulled . . . and so on and so on, until Family Guy is no more - it's exactly what happened to Laverne & Shirley.- Eric Cartman, South Park , Cartoon Wars I

It doesn’t take much to whittle away a law. One need only use the Cartman technique – ask for one exception and wait for others to follow. It is death by a thousand cuts on the legal stage.   read more »

Jeffrey A. Kilbride and James Robert Schaffer are spammers.  They sent millions of unsolicited e-mails advertising pornographic web sites, and were paid a fee whenever a recipient of their e-mails purchased a subscription to one of the sites, earning a total of $1.1 million.

In 2007, Kilbride and Schaffer were convicted of violating the Controlling the Assault of Non-solicited Pornography and Marketing Act (CAN-SPAM Act) by using falsified headers and domain names in their e-mails, conspiracy, fraud, money laundering, and various obscenity charges, and sentenced to 72 and 63 months in prison, respectively.  They were also fined $100,000 and ordered to pay $77,500 in restitution to AOL and to forfeit the proceeds from their spamming operation.

Kilbride and Schaffer appealed, leading to an important decision on how the Supreme Court's standards for obscenity apply on the Internet.  U.S. v. Kilbride, No. 07-10528 (9th Cir. Oct. 28, 2009).

Miller's "Community Standards" Test

In the 1950s and '60s, film was a primary medium for distribution of pornography. And in a series of cases, the U.S. Supreme Court and lower courts struggled to draw the line at which pornography, which is protected under the First Amendment, becomes obscenity, which is not.   read more »

First Amendment juggernaut Marc Randazza is having a very good week.  On Wednesday, Professor Donald Marvin Jones a/k/a the "Nutty Professor" voluntarily dismissed his invasion of privacy lawsuit against Randazza's client Above the Law.  Today, word comes that WIPO Arbitration Panelist Frederick M. Abbot has denied Glenn Beck's UDRP complaint against another Randazza client, Isaac Eiland-Hall, the man behind glennbeckrapedandmurdereda younggirlin1990.com.  (See our previous posts here and here.)

In the decision (pdf), Panelist Abbot ruled that Eiland-Hall's domain name was a "legitimate noncommercial or fair use of [Beck's] mark,"  dooming Beck's claim:   read more »

On Monday, the Massachusetts Supreme Judicial Court (SJC) heard oral argument in Fustolo v.Hollander, No. SJC-10485.  As you may recall, last month the Citizen Media Law Project (CMLP) joined the American Civil Liberties Union of Massachusetts (ACLUM) and the Lawyers’ Committee for Civil Rights Under Law of the Boston Bar Association in submitting an amicus curiae brief urging the SJC to reverse a lower court's decision interpreting the state’s anti-SLAPP legislation.  Representing CMLP, Harvard Law School’s Cyberlaw Clinic co-authored the brief.   read more »

What do Tommy Hilfiger, MasterCard, the World Wrestling Federation, and Tom "Scopes monkey trial" Donohue, the President of the U.S. Chamber of Commerce, have in common? Apparently, none of them has a sense of humor when it comes to their respective brands.    read more »

On Friday, Senators Arlen Specter (D-PA) and Charles E. Schumer (D-NY) released a revised version of the proposed federal shield bill (S. 448), which expands the bill's coverage to bloggers and other amateur journalists publishing on the Internet. This version departs from a previous one, announced in September, which limited protection to "salaried employee[s]" and independent contractors for established news media organizations. The new language reads:

(2) COVERED PERSON.—The term "covered person"—

(A) means a person who—

(i) with the primary intent to investigate events and procure material in order to disseminate to the public news or information concerning local, national, or international events or other matters of public interest, regularly gathers, prepares, collects, photographs, records, writes, edits, reports or publishes on such matters by—   read more »

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 »

"How do I get media liability insurance?"  It's a question we hear a lot here at CMLP. 

A lot has been written about why bloggers and other citizen journalists should consider obtaining insurance to protect themselves against liability for their online activities. But comprehensive, impartial information on the issue remains scattered and hard to find. 

As a service to you, our dear readers, CMLP has attempted to remedy this problem by updating our Legal Guide content on insurance for online journalism ventures.  In the guide, you will find sections on Finding Insurance, Homeowners and Renters Insurance Coverage, Evaluating Homeowners and Renters Insurance Policies, Insurance Exclusions for Business Pursuits, and Media Liability Insurance.   

We've also added a brand-new feature: an Interactive Question Tool for Evaluating Your Insurance Needs.  The tool takes you through a series of questions to help you determine whether your activities are covered by your existing homeowner's or renter's policy, whether separate media liability insurance is right for you, and what issues you should consider when shopping for media liability insurance.  read more »

Voters head to the polls again on November 3 to cast their ballots in mayoral, city council, and even a handful of gubernatorial elections.  In addition, there are some important ballot measures up for consideration, like the referendum in Maine seeking repeal of the state's newly enacted statute legalizing same-sex marriage.  Sure, it's an off-year for Congress and it doesn't have the historic dimensions of the last election, but there are still plenty of reasons for ordinary voters and journalists alike to document the day and gather news at the polls, including to root out fraud and other problems in election procedures. 

To help out, the Citizen Media Law Project has updated its legal guide pages on laws regulating recording activities in and around polling places on Election Day.  Our specific focus is on the laws that impact voters' ability to document their own voting experiences through video and still photography, as well as their ability to carry out other newsgathering functions, such as interviewing other voters outside of polling places.   read more »

Last week was a tough one for Internet users worldwide. On the foreign front, the French (as predicted) reinstituted a due-process-shattering law that allows ISPs to kick suspected file-sharers off the Internet.  On the domestic side, a district court refused to lift a government gag order, preventing ISPs from discussing the FBI’s Internet snooping. Separately, each of these events is a bummer, but taken together they threaten the Internet as we know it by inviting abuse from both private industry and government.

As you may recall, the French government (with a little encouragement from the entertainment industry) has previously attempted to do away with the entire notion of due process vis-à-vis the Internet. The HADOPI law would have allowed ISP’s to strip Internet access from users who were accused of file sharing. The French Socialist party challenged the law, arguing that access to the Internet was a basic right that could not be violated without judicial oversight. The Conseil Constitutionnel agreed and declared the banning provision unconstitutional.   read more »

As social media become more popular, it is inevitable that enterprising politicians will use it promote themselves, connect with constituents, and garner votes.  The White House has a blog, several Senators and House members tweet, and elected officials and candidates at all levels of government are using social media to get out their messages.

But just as use of social media by voters is coming into conflict with existing election laws, some politicians are discovering that their use of social media may clash  — or at least create possible problems — with existing campaign and government disclosure laws.   read more »

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 »

A Tennessee state court ruled earlier this month that plaintiffs Donald and Terry Keller Swartz are entitled to discover the identity of the anonymous blogger behind the Stop Swartz blog who published critical statements about them and encouraged readers to post information on their whereabouts and activities. In his decision, Judge Thomas W. Brothers adopted a legal standard highly protective of anonymous online speech, but found that the Swartzes had come forward with sufficient evidence in support of their claims of wrongdoing to outweigh the anonymous blogger's right to anonymity.   read more »

Back in February, Denise Finkel, a 2008 graduate of Oceanside High School on Long Island, sued four of her former high school classmates and their parents after the students created a private Facebook group called "90 Cents Short of a Dollar," which allegedly contained false and defamatory statements about her. 

Rather surprisingly, Finkel also sued Facebook, claiming that the über-popular social network should be held liable for publishing the defamatory statements because it "should have known that such statements were false and/or have taken steps to verify the genuineness" of the statements. Complaint ¶ 28.  (The complaint also alleges that the students' parents are liable for negligently failing to supervise their children.)

As Eric Goldman presciently noted at the time, "[w]ith respect to the claim against Facebook, this lawsuit is unquestionably DOA."  After all, even a cursory reading of the complaint demonstrates that Facebook qualifies for protection under Section 230 of the Communications Decency Act. Indeed, our database is littered with the wreckage of similar claims filed against social networks that ran aground on Section 230's protective shoals.   read more »