CMLP International Blog

The Role of Internet Intermediaries in Censoring Online Speech

Sam Bayard — Mon, 01 Dec 2008 12:48:33 -0500

Today I came across two excellent pieces touching on the role of intermediaries in censorship/regulation of online speech internationally:

The first is Rebecca MacKinnon's detailed blog post on her research on censorship of Chinese blogs. She looked at Chinese blog-hosting services, including foreign brands offering services inside China, and tried to determine how much variation exists in terms of "what gets censored and how it gets censored." She found remarkable variation between the 15 blog hosts examined:

Of 108 pieces of content on a variety of public affairs and news-related subjects from a variety of sources (ranging from Xinhua to dissident websites), the most censor-happy company deleted over half, while the most laid-back company censored only one.

Based on these findings, MacKinnon concludes that Internet filtering is only part of Chinese Internet censorship, that the Chinese government has outsourced domestic web censorship to the private sector, and that the private sector is carrying out censorship in an inconsistent way, among other things. Her post contains her fantastic presentation slides, which give concrete, visual examples of how the censorship works.

The second is a New York Times Magazine article by Jeffrey Rosen called "Google's Gatekeepers." It looks at three lawyers in Google's highest echelon, who ultimately decide what to do in response to demands by foreign governments (and Sen. Lieberman) to remove objectionable content. As you might imagine, this gives them incredible responsibility (and discretion) for determining what speech stays online. The article is generally optimistic about how Google has handled that responsibility so far, but expresses some understandable anxiety about the future:

Given their clashing and sometimes self-contradictory missions — to obey local laws, repressive or not, and to ensure that information knows no bounds; to do no evil and to be everywhere in a sometimes evil world — Wong and her colleagues at Google seem to be working impressively to put the company’s long-term commitment to free expression above its short-term financial interests. But they won’t be at Google forever, and if history is any guide, they may eventually be replaced with lawyers who are more concerned about corporate profits than about free expression. “We’re at the dawn of a new technology,” Walker told me, referring not simply to Google but also to the many different ways we now interact online. “And when people try to come up with the best metaphors to describe it, all the metaphors run out. We’ve built this spaceship, but we really don’t know where it will take us.”

Besides the important free speech issues, the article raises interesting questions about the professional responsibility of lawyers faced with potentially conflicting imperatives of pursuing their client's best interests and upholding larger ideals of social justice and human rights. It would make an excellent case study for a law school ethics class.

Charges Filed Against Google Executives in Italy Over User Video

Sam Bayard — Fri, 07 Nov 2008 12:43:19 -0500

Our intern Arthur Bright wrote an excellent post this summer on the prospect of criminal defamation charges being filed against Google executives in Italy over Google Video's hosting of a clip featuring the abuse of a teenager who has Down syndrome. Ars Technica reports that Italian authorities have now filed charges:

When Internet video hosts get dragged into the court room, chances are
good they're getting sued for something related to copyrighted
material. But rumors have persisted since July that Google execs might
get hauled before a judge in Italy to answer to charges of defamation
for a video that briefly appeared on Google Video Italia. Now, sources
are saying that charges have been filed against individuals that
include Google's Chief Legal Officer in a case where the actual
perpetrators may walk.

Arthur's post examined whether EU law might provide CDA 230-like protection for web hosts such as Google from lawsuits based on third-party content, using a procedural mechanism similar to that found in the DMCA. His preliminary conclusion was that EU law does provide this protection. Sounds like some Italian prosecutors disagree, or at least believe that the provisions Arthur cited don't apply to criminal actions (which looks like a strong argument). This should be an interesting case, and it could potentially illuminate the contours of EU law on third-party content.

U.K. Man Sued for Libel over Feedback on eBay

David Ardia — Fri, 24 Oct 2008 10:22:15 -0400

The Telegraph is reporting that a U.K. man has filed a libel lawsuit over negative feedback he received from a buyer on eBay:

Chris Read used the auction website's feedback facility to claim that the device he was sold by Joel Jones, a 26-year-old businessman from Suffolk, did not live up to its billing.

"I was told the phone was in good condition, but there were scratches all over it, a big chip out of the side and it was a different phone. I paid for a Samsung F700 and got a Samsung F700V," Mr Read said.

After returning the phone and asking for a refund, Mr Read, 42, a mechanic from Herne Bay, Kent, posted his feedback, saying: "Item was scratched, chipped and not the model advertised on Mr Jones's eBay account."

. . .

Defending his decision to proceed with court action, Mr Jones said he believed that the feedback was "unfair, unreasonable and damaging" given that he had given Mr Read his money back.

I think this is the first libel lawsuit we've seen stemming from negative feedback on eBay. Anyone else seen one of these before?

German Courts Say Nein to Google Image Search

Arthur Bright — Fri, 17 Oct 2008 08:47:34 -0400

Google appears to be learning the hard way that there's "kein fairer Gebrauch" (no fair use) in Germany. The Internet search giant lost two German copyright decisions Monday, as the courts ruled that the thumbnail images that appear in Google Image Search violate German copyright law. Bloomberg reports:

Google's preview of a picture by German photographer Michael Bernhard violates his copyrights, the Regional Court of Hamburg ruled, his lawyer Matthies van Eendenburg said in an interview today. Thomas Horn, who holds the copyrights on some comics that were displayed in Google search results, won a second case, court spokeswoman Sabine Westphalen said in an e-mail.

"It doesn't matter that thumbnails are much smaller than original pictures and are displayed in a lower resolution," the court said in its ruling for Bernhard. "By using photos in thumbnails, no new work is created," that may have justified displaying them without permission.

Naturally, Google was none-too-pleased by the ruling and plans to appeal, according to PC World. The company said in an email that it believes "that services like Google Image Search are entirely legal and provide great value and critical information to Internet users." "Today's decision is very bad for Internet users in Germany," it added.

Of course, if Germany recognized a doctrine of fair use like that in the United States, Google would be off the hook. But according to an article by Wencke Bäsler in the Virginia Journal of Law and Techonology, "there is no general fair use right in the German system. Rather, the German Copyright Act only provides for exceptions and limitations of the authors’ rights in certain circumstances." Wencke Bäsler, Technological Protection Measures in the United States, the European Union and Germany: How Much Fair Use Do We Need in the “Digital World”?, 8 Va. J.L. & Tech. 13, 23 (2003).

Ms. Bäsler notes several exceptions to infringement liability, but the only one that sounds like it might apply in this case is that for "quotations in the necessary amount for certain purposes." Id. In a broad sense, that's all Google's doing: "quoting" the images by presenting thumbnails of them. But if Google's use is not one of the allowed "certain purposes," or if German law means quotations in the literal, textual sense, Google may have a hard row to till.

Nonetheless, it's hard to see how this ruling will be beneficial to German copyright holders in the long run. Google isn't going to start shelling out royalties for these images. Rather, as Kevin Smith points out on the Scholary Communications blog at Duke University, the company may simply filter German search results to omit thumbnails that might infringe, which "would ultimately harm business in Germany more than Google." So while Bernhard and Horn may get some damages out of these rulings, they've also potentially eliminated whatever traffic Google Image Search might have driven to German sites in the future. It's hard to believe that loss outweighs their gain.

(Arthur Bright is a second-year law student at the Boston University School of Law and a former CMLP Legal Intern.)

Skype Cannot be Trusted, Period

Dan Gillmor — Thu, 02 Oct 2008 14:57:55 -0400

As Salon notes in "Skype sells out to China," the eBay-owned service has collaborated with a Chinese company to enable spying on the allegedly encrypted messages that Skype users send each other to and from, and within, China. This disgusting sellout should surprise no one.

Skype and its corporate parent, eBay, have been evasive about whether the product is truly secure. There’s ample reason — including this admission attributed to an Austrian law-enforcement agency — to suspect that the company has created backdoors for police.

Skype, for its part, has never outright denied that it has done so. Nor has it shown its encryption algorithms in an open way to outside experts for verification and analysis. I take this as an admission that you can’t trust Skype’s encryption, period.

This is important to citizen-media people for several reasons. First, plenty of regimes make it downright dangerous to indulge in truly free speech. Skype has been a favored tool for many people who believed the built-in encryption somehow would protect them.

Second, it’s another example of the way companies from the West collaborate with the globe’s most dictatorial regimes — and it makes abundantly clear that we need an open-source communications toolset that we can trust.

Skype is better than no encryption at all. But do not imagine for a minute that you can fully trust this company, because you can’t.

Libel Tourism: A First Amendment Holiday

David Ardia — Tue, 16 Sep 2008 09:59:50 -0400

Over the past few months, I've blogged several times (see here and here) about the proposed federal Free Speech Protection Act of 2008, which would allow a federal court to enjoin the enforcement in the United States of a foreign libel judgment if the speech at issue would not constitute defamation under U.S. law. "Libel tourism" describes the practice of libel plaintiffs who pursue claims against American publishers in foreign courts that offer few, if any, of the protections for speech available in the United States.

The federal bill is meant to address situations like that of Rachel Ehrenfeld, who was sued for libel in the United Kingdom by Saudi banker Khalid bin Mahfouz over her book, "Funding Evil: How Terrorism is Funded and How to Stop It," which she published in New York. According to evidence in the case, a mere twenty-three copies of the book were sold in England, but that was sufficient for a U.K. court to exercise jurisdiction over Ehrenfeld. As a result of her refusal to appear or contest the court's jurisdiction, the court entered judgment against Ehrenfeld in the amount of $225,000. Ehrenfeld then sought a declaratory judgment in New York federal court stating that the U.K. judgment was not enforceable in the United States because it did not comport with the First Amendment. Punting on that issue, the federal court certified a jurisdictional question to the New York Court of Appeals, which held that New York courts did not have authority to hear Ehrenfeld's case. (New York recently passed its own Libel Terrorism Protection Act to address this issue.)

Well, on Sunday the New York Times took up the issue with an editorial by Adam Cohen entitled ‘Libel Tourism’: When Freedom of Speech Takes a Holiday:

The result is what lawyers call a "chilling effect" — authors and publishers may avoid taking on some subjects, or challenging powerful interests. That has already been happening in Britain. Craig Unger’s “House of Bush, House of Saud: The Secret Relationship Between the World’s Two Most Powerful Dynasties” was a best seller in the United States. But its British publisher canceled plans to publish the book, reportedly out of fear of being sued. (A smaller publisher later released it.) . . .

Britain should rethink its libel laws, as the U.N. committee urged, for the sake of its citizens. But until it does, the United States should ensure that other countries’ pro-plaintiff libel laws do not infect this country and diminish our proud tradition of freedom of expression.

As I've noted in the past, this is an important issue for both traditional publishers, who are increasingly moving to online distribution, and citizen media, who already use the Internet to reach audiences all over the world, including in countries that don't have adequate free speech protections. Let's hope that Congress acts quickly on this.

For more on the proposed legislation, see Marc Randazza and Carolyn Elefant.

Turkish Court Ends Latest YouTube Ban

Sam Bayard — Wed, 27 Aug 2008 14:12:01 -0400

The Guardian reports that a Turkish court has lifted the ban on YouTube in that country, imposed by an Ankara court in May 2008 after it determined that certain videos posted on the popular video-sharing site insulted Mustafa Kemal Atatürk, the founder of modern Turkey. Turkey has two notable laws restricting freedom of speech on the Internet -- (1) Article 301 of the Turkish Penal Code, which criminalizes the denigration of Turkishness, the Republic, and the foundation and institutions of the state; and (2) Internet Publication Law No. 5651, which regulates online content and includes a prohibition on insulting the memory of Ataturk (additional information on 5651).

Turkish authorities have used these laws aggressively in recent years, triggering a good deal of international attention and criticism. As I've blogged about before (here, here), a court ordered WordPress blocked in its entirety last year due to an individual complaint about one blogger's allegedly defamatory postings. More recently, bloggers inside Turkey organized an online protest against Web censorship, in which they voluntarily shut down their own blogs, posting notices like "The access to this web site is prevented by its owner’s free will" (TechCrunch's translation), riffing off notices posted by ISPs noting site blockage due to court order. As Erick Schonfeld TechCrunch explained in a post in mid-August, "[t]he point is to show Turkish Web surfers what the Internet would look like if the censorship continues unabated."

Although The Guardian article suggests a link, it's hard to say whether there is any relationship between the protest and the court's recent decision to end the ban. According to one tally, 441 sites participated in the protest, and the attention may have caused authorities to reconsider their position on YouTube. But perhaps YouTube met some critical demand of the Turkish government, or maybe there was a technical legal reason. Who knows? If anyone has any insights, please add your thoughts in the comments.

Google Execs Face Charges in Italy Over Third Party Content

Arthur Bright — Wed, 30 Jul 2008 11:16:49 -0400

Does the European Union offer web hosts any protection from liability for the content of third parties, a la section 230 of the Communications Decency Act (CDA 230) or the "safe-harbor" provisions of the Digital Millennium Copyright Act? This looks to be a key question for four current and former Google executives, as Italian prosecutors prepare to launch criminal charges against them over a video hosted by Google Video.

The Wall Street Journal (WSJ) reported last week that the prosecutors are looking to charge the executives with defamation and invasion of privacy, both of which are criminal claims in Italy, due to Google Video's hosting of a clip featuring the abuse of a teenager who has Down syndrome. Reuters reports that in the video, which was recorded in Turin, Italy, in May or June 2006, four high schoolers are seen "taunting" and "humiliating" the youth with Down syndrome.

An Italian Down syndrome advocacy group alerted Google to the clip's presence on the site in September 2006, and Google removed it "within hours." The WSJ wrote that sources close to the prosecutors said that the charges against the executives would be premised on Google "allegedly failing to adequately control the content of the site." The four teenagers are facing separate charges.

Stefano Hesse, the head of Google's corporate communications in Southern Europe, told the WSJ that there is no legal basis for action against the company under Italian law, as no Google employees were involved in the incident in the video. Furthermore, Google has no responsibility to monitor content, he said, but rather only to remove offending video when notified of its existence.

It sounds like Hesse is referring to a European safe-harbor provision that applies to defamation and privacy claims. Does the EU provide protection to web hosts like Google from lawsuits based on content created by third parties (think CDA 230), using a procedural mechanism similar to that found in the DMCA?

It looks like EU legislation, from which Italian law draws, does. First, under Article 1 (2)(a) of Council Directive 98/48/EC, 1998 O.J. (L 217) 18, Google Video would appear to qualify as an "information society service" ("ISS"). Council Directive 98/48/EC defines an ISS to be "any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services." Google Video is certainly provided at a distance, as host and user do not have to be in the same location for the service to work. Google Video is also provided by electronic means, and at the request of the user.

The only possible hang-up is that Google Video is a free service, so there may not be "remuneration." Without a definitive interpretation, it's hard to say whether Google Video fails to be an ISS because of its cost-free business model. Perhaps Google's advertising practices would fit the concept of remuneration, although the statutory language suggests that the recipient of services is the one providing remuneration. But given that the directive says "normally provided for remuneration" (emphasis added), I'd imagine that Google would clear this hurdle and be considered an ISS under EU law.

That established, we look to Article 14 of the Directive on E-Commerce, Council Directive 2000/31/EC, 2000 O.J. (L 178) 1. Article 14, titled "Hosting," declares: "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 the illegal activity or information is apparent; or

(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.

In addition, Article 15 of the E-Commerce Directive, titled "No general obligation to monitor," says, well, just that.

Note that, in the United States, the DMCA safe-harbors only apply to copyright claims, and CDA 230 prohibits state law claims that treat a web host as the "publisher or speaker of any information" provided by a third party (e.g., defamation, invasion of privacy, negligence). By its terms, CDA 230 does not apply to intellectual property claims, federal criminal law, or the Electronic Communications Privacy Act. Article 14, on the other hand, seems to apply to all claims, civil or criminal, based on information stored at the request of a recipient.

These provisions certainly support Hesse's view of Google's obligations. The offending video was stored at the request of the four teenagers who filmed it. Google took no part in creating the content and was not aware of the content's illegality. And Google took it down shortly after receiving the complaint about the video. Under such a reading, Google ought to be immune from the Italian prosecutors' charges.

Of course, it's probably not that simple. After all, the directives are not self-executing. EU member states like Italy have to incorporate them into their laws, and Italy may have made changes to the wording in the codification process. Further, there may be administrative or other materials steering the reading of the law toward a more narrow interpretation of the EU directives. To find out more would require a better knowledge of Italian than my own; hopefully there are some readers out there who are better versed in EU and Italian law and can weigh in. But making just a cursory reading of the directives, it does look like the Google execs have a good defense.

(Arthur Bright is a second-year law student at the Boston University School of Law and a CMLP Legal Intern.)

Max Mosley's S&M Party Not A Matter of Legitimate Public Concern, Says English Court

Sam Bayard — Fri, 25 Jul 2008 12:22:33 -0400

Admittedly, Max Mosley's lawsuit against an English tabloid is not the heartland of citizen media, but who can resist posting about a story that involves "sadomasochistic orgies, car racing, and Nazis," as Bill McGeveran puts it. Mosley, the head of the governing body for Formula One racing, sued the News of the World for reporting in March 2008 that he organized a “sick Nazi orgy” with five prostitutes and for posting a surreptitiously recorded video of the party on its website. Mosley claimed that the S&M extravaganza had no Nazi theme and that recording and publishing the video and story violated his right to privacy under the European Convention on Human Rights. England's High Court ruled in Mosley's favor yesterday and awarded him £60,000 in compensatory damages and £450,000 in attorneys' fees (ouch!). BBC news has a good article providing lots of background.

The big issue in the case was whether details about the S&M orgy were a matter of legitimate public concern. English law (or the English court's interpretation of the European Convention), like U.S. law, recognizes a defense to a publication of private facts claim when the matter publicized is newsworthy. The tabloid argued, reasonably enough, that a public figure holding a Nazi-themed sex party was newsworthy, especially when this public figure's father was notorious fascist Sir Oswald Mosley. Mosley argued that there was no Nazi element to the party and thus his private consensual sexual acts were not newsworthy.

The High Court agreed with Mosley on the facts, finding that there was "no evidence that the gathering . . . was intended to be an enactment of Nazi behaviour or adoption of any of its attitudes." It agreed on the legal issue as well:

There was bondage, beating, and domination which seem to be typical of S and M behavior. But there was no public interest or other justification for the clandestine recording, for the publication of the resulting information and still photographs, or for the placing of the video extracts on the News of the World website - all of this on a massive scale. Of course, I accept that such behavior is viewed by some people with distaste and moral disapproval, but in the light of modern rights-based jurisprudence that does not provide any justification for the intrusion on the personal privacy of the Claimant.

I wonder whether a U.S. court would reach the same conclusion on the newsworthiness issue. My research suggests that, in publication of private facts claims, U.S. courts might recognize a similar zone of privacy for sexual activity, even when the person involved is a public figure or celebrity. See, e.g., Michaels v. Internet Entm't Group, 5 F. Supp.2d 823, 840 (C.D. Cal. 1998) (tape of Pamela Anderson and Bret Michaels engaged in sexual intercourse could form basis of claim, despite Anderson's celebrity status and her past playing roles involving sex and sexual appeal); Vassilades v. Garfinckel's, Brooks Bros., 492 A.2d 580 (D.C. 1985) ("Certain private facts about a person should never be publicized, even if the facts concern matter which are, or relate to persons who are, of legitimate public interest."). But see Restatement (2d) of Torts § 652D cmt. e ( "Thus an actor, a prize fighter or a public officer has no cause of action when his appearances or activities in that capacity are recorded, pictured or commented upon in the press. In such a case, however, the legitimate interest of the public in the individual may extend beyond those matters which are themselves made public, and to some reasonable extent may include information as to matters that would otherwise be private.").

Does it make any difference that the newspaper believed that the matter was newsworthy (i.e., that it involved Nazi role playing) even though, in the court's view, it wasn't? In most U.S. jurisdictions, there is no requirement of bad intent or recklessness in order to impose liability for publication of private facts. California is a notable exception; it requires a plaintiff to show that the defendant published private facts "with reckless disregard for the fact that reasonable men would find the invasion highly offensive." Briscoe v. Reader's Digest Ass'n, 4 Cal. 3d 529 (1971), overruled on other grounds by Gates v. Discovery Communications, Inc., 101 P.3d 552 (Cal. 2004).

Putting aside publication, under U.S. law, Mosley might have an intrusion claim or cause of action under a state wiretapping law against the newspaper for physically invading on his private affairs and secretly recording his activities. According to the Wall Street Journal Law Blog, Mosley's lawyers are preparing a follow-up libel action against the tabloid.

Revisiting Foreign Libel Law's Pernicious Impact on First Amendment Speech

David Ardia — Tue, 15 Jul 2008 01:04:43 -0400

Back in April, I blogged about New York's Libel Terrorism Protection Act, which bars the enforcement of foreign defamation judgments unless a New York court has found that the foreign court proceeding provided at least as much protection for freedom of speech and press in that case as would be provided by both the United States and New York Constitutions. "Libel terrorism" (a term I am not a big fan of) describes the practice of libel plaintiffs who pursue claims against American publishers in foreign courts that offer few, if any, of the protections for speech available in the United States.

New York's Libel Terrorism Protection Act was meant to address situations like that of Rachel Ehrenfeld, who was sued for libel in the United Kingdom by Saudi banker Khalid bin Mahfouz over her book, "Funding Evil: How Terrorism is Funded and How to Stop It," which she published in New York. According to evidence in the case, a mere twenty-three copies of the book were sold in England, but that was sufficient for a U.K. court to exercise jurisdiction over Ehrenfeld. As a result of her refusal to appear or contest the court's jurisdiction, the court entered judgment against Ehrenfeld in the amount of $225,000. Ehrenfeld then sought a declaratory judgment in New York federal court stating that the U.K. judgment was not enforceable in the United States because it did not comport with the First Amendment. Punting on that issue, the federal court certified a jurisdictional question to the New York Court of Appeals, which held that New York courts did not have authority to hear Ehrenfeld's case.

After Ehrenfeld's plight became widely known, the New York legislature passed the Libel Terrorism Protection Act to give Ehrenfeld and others who are sued abroad for libel the right to obtain a declaration by New York courts that U.S. law protects their speech. Governor Patterson signed the Act into law on April 28, 2008.

In a similar effort at the federal level, Senators Arlen Specter and Joseph Lieberman have introduced the Free Speech Protection Act of 2008, which would allow a federal court to enjoin the enforcement in the United States of a foreign libel judgment if the speech at issue would not constitute defamation under U.S. law.

Yesterday, Specter and Lieberman published an op-ed in the Wall Street Journal explaining the proposed law:

Our bill bars U.S. courts from enforcing libel judgments issued in foreign courts against U.S. residents, if the speech would not be libelous under American law. The bill also permits American authors and publishers to countersue if the material is protected by the First Amendment. If a jury finds that the foreign suit is part of a scheme to suppress free speech rights, it may award treble damages.

First Amendment scholar Floyd Abrams argues that "the values of free speech and individual reputation are both significant, and it is not surprising that different nations would place different emphasis on each." We agree. But it is not in our interest to permit the balance struck in America to be upset or circumvented by foreign courts. Our legislation would not shield those who recklessly or maliciously print false information. It would ensure that Americans are held to and protected by American standards. No more. No less.

Apart from Specter and Lieberman's gratuitous reference at the end of their op-ed to "Islamist terror" as a justification for the federal law, this is an important issue for both traditional publishers, who are increasingly moving to online distribution, and citizen media, who already use the Internet to reach audiences all over the world, including in countries that don't have adequate free speech protections. Let's hope that Congress acts quickly on this.