Archive for the ‘courts’ Category

UK Bans Warns of Criminal Charges for Using Social Media to Discuss 25-Year-Old Soccer Tragedy

Wednesday, April 23rd, 2014
Persons scramble away from the human crush in the stadium

From television coverage of the game in 1989.

In the United Kingdom, there is a new example of that country’s sometimes surprising limitations on free speech.

The UK Attorney General is warning people that they might be held in criminal contempt for using social media to discuss the 1989 Hillsborough soccer tragedy. That disaster resulted in 96 deaths when people were crushed in an overcrowded stadium to watch a match between Liverpool and Nottingham Forest.

The notice reads:

Editors, publishers and social media users should note that the inquest proceedings are currently active for the purpose of the Contempt of Court Act 1981.

The Attorney General wishes to draw attention to the risk of publishing material, including online, which could create a substantial risk that the course of justice in the inquests may be seriously impeded or prejudiced, particularly as this inquest involves a jury.

This risk could arise by commentary which may prejudge issues that witnesses may give evidence about, or matters that the jury will need to consider in reaching their verdict. The inquests could also be prejudiced by publishing details of material (whatever its source) which may not form part of the evidence at the inquest.

The Attorney General’s Office will be monitoring the coverage of these proceedings.

This spring marks the 25th anniversary of the disaster, so naturally people want to talk about it. But just at this moment, the British government squelched discussion with heavy-handed criminal laws. That seems extremely regrettable to me.

An ESPN documentary on the tragedy is currently banned from being distributed in the UK. The director told Sports Illustrated:

Because the new inquest has started just two weeks ago, it can’t be shown in the UK until the jury delivers its verdict. Which is a year from now. I really want it to be shown now. You want it to have the impact now, but you can’t. It’s as simple as that.

Of course, the conversation a year from now will be a different one than could be had now. So it’s not just delaying speech, it is destroying speech.

Previously I’ve discussed how in the UK using social media can quite easily subject someone to possible jail time or draconian civil liability.

And here’s another example of the UK banning speech related to soccer:

One-Man Protest for Bradley Manning’s Freedom in Indiana Town

Wednesday, July 31st, 2013
Protestor holds sign reading "FREE BRADLEY MANNING" (Photo: EEJ)

Jason Urbanski holds a one-man rally for intelligence leaker Bradley Manning on July 31, 2013 in La Porte, Ind.

On the day news broke of the conviction of U.S. Army intelligence analyst Bradley Manning for downloading secret government documents and giving them to Wikileaks for release to the public, Jason Urbanski held a one-man rally for Manning’s freedom in front of the county courthouse in La Porte, Indiana. His handpainted sign with red-glitter letters said ‘FREE BRADLEY MANNING.”

I happened upon Urbanski while I touring around the area. I took the opportunity to talk with him a bit.

Urbanski spoke of Manning in heroic terms. “He sacrificed his freedom to show the world the truth,” Urbanski said. “He made a really unselfish decision to do something good. We can’t forget about him.”

A restaurant worker in nearby New Buffalo, Michigan, Urbanski said he was hoping that a future president, if not the current one, would pardon Manning. The way to pursue that, Urbanski reasoned, was to start at a grassroots level.

Manning was convicted by a court martial on several counts, including espionage. Manning was acquitted, however, of aiding the enemy, which was the most serious charge pursued by prosecutors.

“I think that what Bradley Manning did was just motivated by simple human empathy,” Urbanski said. “It was a political act, but really it was an act of human compassion.”

While I was there, Urbanski’s protest seemed to draw neither cheers nor jeers from passers-by. I think it is safe to say his opinions represent a minority view in the United States. I, myself, don’t see Manning in the same light that Urbanski does, but I am, however, very happy to see someone out flexing their First Amendment rights on a courthouse street-corner to weigh in on the topic.

Court Ruling Seems to Overlook the Online Fact v. Opinion Question

Thursday, November 1st, 2012

From contributing blogger John S. Merculief II –

Recently I posted about Chaker v. Mateo, No. D058753, 2012 WL4711885 (Cal. Ct. App. Oct. 4, 2012). It dealt a strong victory for free speech rights, but in my opinion, the California appellate court turned something of a blind eye to the issue of the relative legitimacy of internet postings.

The court reached its decision largely on the basis that the online statements at issue were incapable of being defamatory because they were merely nonactionable opinions. In doing so, however, I think the courts are overlooking the reality that many users of such internet forums actually treat postings they read as fact.

The case principally involved the online postings of Wendy Mateo regarding her daughter Nicole’s ex-husband, Darren Chaker. Here are the key facts:

  1. Nicole Mateo and Chaker had a contentious custody battle over their child.
  2. Wendy Mateo posted degrading comments about Chaker in online forums.
  3. Chaker sued for defamation.
  4. Wendy Mateo filed an anti-SLAPP suit and won.
  5. The appellate court affirmed that she was merely exercising her First Amendment free speech rights in the matter.

The Chaker court points out that “the context in which the statements are made” is an extremely important aspect of the “totality of the circumstances” examination of whether a statement is actionable. “This contextual analysis demands that the courts look at the nature and full content of the audience to whom the publication was directed.”

The two online sites where Wendy Mateo posted her comments were:

  • Ripoff Report, which describes itself as “a worldwide consumer reporting Web site and publication, by consumers, for consumers, to file and document complaints about companies or individuals.”
  • A social networking site into which Chaker had inserted himself by posting a professional profile.

In arriving at its findings, the court acknowledges and openly joins a trend I see as sad and disturbing: “In determining statements are nonactionable opinions, a number of recent cases have relied heavily on the fact that statements were made in Internet forums.”

By giving credence to the idea that internet forums generally yield nonactionable opinions, I think the courts are overlooking the reality that many users of such forums actually treat postings they read as fact.

It is true that, around the watercooler, someone making a claim he knows to be unsupported by fact, will add, “I saw it on the internet, so it must be true,” as a sarcastic verbal signal that he knows his point is a weak one – even if he is not willing to yield it.

But the thing is, for many people, “I saw it on the internet, so it must be true” is not a sarcastic expression, but rather words to live by.

Does that make such a user legally “unreasonable”? That appears to be the judgment in recent cases. But if courts truly are to look at the “nature … of the audience to whom the publication was directed,” perhaps a better way to articulate the standard is “reasonable when viewed from the perspective of a typical user of an internet forum.”

To be sure, the Chaker court does not actually use the term “reasonable person” nor even the word “reasonable” in its roughly 10-page opinion. But I believe what it’s saying, in joining the internet-forum-as-opinion trend, is that a reasonable person would not go to those sites expecting facts.

And I don’t know whether that makes sense, given actual usage behaviors regarding visitors to internet forums.

Internet forums admittedly are often places for “outrageous claims” where some (the Chaker court says “most”) “visitors are completely aware of the unreliable nature of these posts.” And that seems to tilt the needle toward unactionable opinion.

But if a goodly number of those visitors treats those same claims as hard, verified (or at least verifiable) fact, doesn’t that tilt the needle into the realm of actionable statement of fact?

Court treats degrading online postings as protected free-speech opinions

Friday, October 19th, 2012

From contributing blogger John S. Merculief II –

A California appellate court has affirmed a lower court’s ruling granting a woman’s anti-SLAPP motion against her daughter’s ex-husband regarding online postings the woman made about him.

The genesis of Darren Chaker’s lawsuit against Nicole Mateo and her mother, Wendy, was apparently a contentious custody battle in Texas courts regarding the former couple’s child. This battle appears to have helped prompt Wendy Mateo’s online comments, which in turn led to Chaker’s defamation suit.

In granting Wendy Mateo’s anti-SLAPP (“Strategic Lawsuit Against Public Participation”) motion to strike the defamation suit, the appellate court affirmed that she was merely exercising her First Amendment right to free speech in the matter.

Principally at issue in the case of Chaker v. Mateo, No. D058753, 2012 WL4711885 (Cal. Ct. App. Oct. 4, 2012) were the online postings of Wendy Mateo regarding ex-son-in-law Chaker’s business practices and moral character. Examples:
  • “This guy is … a deadbeat dad.”
  • “He may be taking steroids so who knows what could happen.”
  • “He uses people, is into illegal activities, etc.”
  • Varied accusations of fraud, deceit, picking up street walkers, and homeless drug addicts
The court found that the postings, while not on sites that were truly interactive, were at least on the internet, which functions as a worldwide bulletin board (read: public forum):
  • Something called “Ripoff Report,” which describes itself as “a worldwide consumer reporting Web site and publication, by consumers, for consumers, to file and document complaints about companies or individuals.”
  • A social networking site into which Chaker had inserted himself by posting a professional profile (the opinion styles him as working in “forensics”).
As such, the court found that the comments Wendy Mateo posted were of public interest, regarding each forum.
But the court went on to conclude that the statements were nonactionable opinions (or, in other words, free speech) rather than actionable statements of fact by considering the statements’ contexts – internet forums – as likely places for opinions rather than facts, and not so much their content: “In determining statements are nonactionable opinions, a number of recent cases have relied heavily on the fact that statements were made in Internet forums.”
In fact, in analogizing to a prior case it handled in which a defendant had posted nine claims against a bank and its CEO in an expletive-laced rant, the court said:
In finding the defendant’s statements were nonactionable opinions, the [prior] court relied in part on the fact they were posted on the Internet Craigslist “Rants and Raves” Web site and lacked “ ‘the formality and polish typically found in documents in which a reader would expect to find facts.’” Summit Bank v. Rogers, 206 Cal.App.4th 669, 696–701, 142 Cal.Rptr.3d 40 (2012).
Here’s a review of California’s anti-SLAPP statute (Cal Civ. Proc. Code § 425.16). According to the court’s opinion:
The statute, as subsequently amended, provides in part:
  • (b)(1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. …
  • “ ‘(e) As used in this section, “act in furtherance of a person’s right of petition or free speech … in connection with a public issue” includes: … (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest. …
Note that the statute sets up a two-part test. In plain terms, first, the defendant must show that the statement that the plaintiff complains of qualifies as free speech in connection with a public issue.
If the defendant succeeds with Step One, the case is not necessarily resolved: The plaintiff must then show that he at least has a reasonable chance of prevailing if the case goes to trial, in order for the case to proceed from there.
Here, the court found that Wendy Mateo’s online postings fit the criteria for California’s anti-SLAPP statute.
Further, the court found that the postings were in online forums where people do not expect to read factual information.
As such, the court foreclosed on Chaker’s defamation suit by concluding that Wendy Mateo’s online postings are nonactionable opinions, i.e. free speech.
Left unanswered, though, is the question of what to do about the reality that many people treat online forums as sources of fact. More on this in a follow-up post, coming soon.

Blogger Johnny Northside Victorious on Appeal – $60K Award Struck Down

Thursday, September 27th, 2012

An appeals court in Minnesota has struck down a $60,ooo defamation award against blogger  John Hoff (“Johnny Northside” on his blog). In doing so, the appeals court did what appeals courts are supposed to do – correct erroneous actions of trial courts.

Citizen Media Law Project’s blog has the full story and an analysis of the legal aspects: Justice Delayed But Not Denied – Appellate Court Overturns $60K Verdict Against Blogger for Posting “Not False” Information

Prior coverage on Blog Law Blog:

Twitter Deserves Continuing Credit for Defending Privacy in Harris v. N.Y.

Saturday, September 15th, 2012

gavel coming down on twitter birdFrom what I see, Twitter is doing a strong job of standing up for user privacy in the case of the criminal prosecution of Malcolm Harris. In that case (CMLP summary) New York prosecutors are trying to get Twitter to hand over information about Harris, who has been charged with disorderly conduct relating to an October 2011 Occupy Wall Street protest on the Brooklyn Bridge.

Yesterday, Twitter handed over the requested information pursuant to a court order.

There has been a lot of traffic suggesting that Twitter gave up rather than continue to fight (e.g., Betabeat: “Twitter Caves”). But that’s unfair. Twitter is trying to get review from a higher court. And the records they turned over are sealed until September 21, when another hearing is set.

Twitter has done the right thing. It is right for Twitter to resist. But it is also right for Twitter to comply with the court order to turn over the information. (Even though the court was plainly wrong to issue the order.)

What Twitter should do – and what it is doing in this case – is use all available legal process to protect user privacy. Twitter should not, however, violate the law in order to thwart the courts and prosecutors.

Many reporting on the case have said something to the effect that Twitter decided to turn over the information rather than face expensive fine for being held in contempt of court. (EFF said something similar in an otherwise great post on the case.) Saying that makes it sound like Twitter cheaped out. But, as I see, and as I would see it if I were advising Twitter, the problem is not the expense, it’s that refusing to comply with the court order means Twitter itself is violating the law.

It’s true that reporters will often take a contempt citation and go to jail to protect an anonymous source. When they do, it’s civil disobedience, and it’s often heroic. I hate to say it, but the stake are simply lower here. Anonymous-source-based journalism outed Watergate. It’s cultural and societal importance looms very large. Journalists have tried to get shield laws passed to prevent contempt being used to compel the identification of anonymous sources. And shield laws have been passed in many states. For the remaining gaps, brave reporters have often acted in defiance of the courts and the law to uphold free-press values.

The battle Twitter is fighting is different. It’s more of a general internet privacy issue, and while important, it’s a different ball of wax. It’s worth fighting for the cause in the courts, in the legislatures, and on the international level. But I’m not convinced there are fundamental rights here which necessitate disobeying court process.

Update on Johns-Byrne Co. v. TechnoBuffalo

Tuesday, May 22nd, 2012

TechnoBuffalo logo and headshot of CEO Jon Rettinger

In the case of Johns-Bryne Co. v. TechnoBuffalo, a commercial printer is suing a venerable gadget blog to find out who leaked photos of some new cell phone packaging the printer was producing for Motorola. When I last blogged about this in January, an Illinois state trial-level court had just rebuffed TechnoBuffalo’s attempt to use Illinois’s reporter’s privilege law to prevent having to turn over information about the leak. The court said TechnoBuffalo wasn’t a “news medium,” and its bloggers aren’t “reporters.” TechnoBuffalo turned around and asked the court to reconsider the ruling and vowed to appeal if necessary.

I contacted TechnoBuffalo’s CEO Jon Rettinger (heroic Twitter profile pic above left) to ask for an update. We talked on the phone. I was impressed with his sense of conviction – he is working hard to protect the blog’s source.

The motion for reconsideration is, at this point, still pending. On reconsideration, TechnoBuffalo has sought to put more support behind the notion that blogs are real news outlets. To beef-up bloggery bona-fides, TechnoBuffalo pointed out that a blog (HuffPo) recently won a Pulitzer. They also pointed out that TechnoBuffalo is syndicated word-for-word on more traditional news outlets, such as Business Insider, and that TechnoBuffalo bloggers are commonly tapped to make appearances on the cable news channels.

This will continue to be an interesting case to watch as it gets right at the heart of the matter the most salient question of blog law: To what extent the law will blogging inherit the privileged legal status of heritage journalism?

Ding Dong! Righthaven is Gone!

Friday, March 16th, 2012

Righthaven, the Nevada-based copyright thugster that sued scores of mom-and-pop bloggers with heavy-handed lawsuits seeking six-figure awards, has had its engine – or it’s malignant beating heart, the metaphor’s up to you – pulled out of it. The U.S. District Court in Las Vegas has ordered the transfer of all of Righthaven’s copyrights – the copyrights it used as its basis to sue – to a court-appointed receiver to auction them off against $186,680 owed to creditors, including Righthaven defendants who won fee awards.

The first auction may start on Monday.

Court in Texas Should Uphold the Full Lousiness of Patent Law

Friday, February 24th, 2012

Over on my Pixelization blog, I’ve explained why I think a ridiculous patent that threatens Silicon Valley should have carried the day in a federal court in Texas:
Court in Texas Should Have Upheld the Full Lousiness of Patent Law

Cameras in the U.S. Supreme Court Closer to Reality

Thursday, February 16th, 2012

Front of U.S. Supreme Court building with dramatic lightingPhoto by me.

Arthur Bright has a nice post at Citizen Media Law Blog on the good news that the Senate Judiciary Committee voted 11 to 7 to require the U.S. Supreme Court to allow television cameras into hearings.

The bill that has been approved in committee, S.B. 1945, provides:

The Supreme Court shall permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court.

We’ll see if the bill becomes law. And if it does, the U.S. Supreme Court could always, of course, strike it down (making for a fun new case for your Federal Courts textbook). But it’s a great step in the right direction for open government and media freedom.

My concern going forward, if cameras are allowed into SCOTUS, is that everyone will have equal access to the footage. If the networks put their own cameras in and produce copyrighted footage, that won’t be a boon to bloggers and citizen journalists. The best implementation would be for the court to do its own television feed, which, as a federal government work, would be copyright-free.

And, of course, there’d be fewer cords to trip over …

Social Media Gotchas in Court – Plus: Professor Goldman’s Innovation Giveaway

Friday, January 6th, 2012

refrigeratorProfessor Eric Goldman has been keeping a list of cases in which a person’s social media has been used as evidence against them, or, as he puts it, when litigants say “one thing in court and another when talking to their friends online.”

In the latest case, a workers comp claimant, who says he is in excruciating pain after a refrigerator fell on him, put pictures on Facebook and MySpace that show him drinking and partying. To try to get the photos excluded from evidence, the claimant attempted to seize the moral high ground, arguing that the use of the pictures in litigation was “a disgrace to the dignity of the workers’ compensation proceedings and the legal system.”

Nice try.

The court allowed the evidence.

Confronted with this case, Goldman offers the following:

Now that Facebook can do facial recognition, it should next develop a tool to automatically detect photos depicting alcoholic drinks and give users a way to automatically opt-out of those photos!

Goldman’s quite a guy, huh? Instead of trying to grab some quick cash by applying for a software/business-method patent on this, he’s offered it up as a public service. Someone note this down so that Goldman’s post can be used as prior art to block patent-hungry Facebook if and when they apply for a patent on “Method of Shielding Workers Comp Claimants from Impeaching Photos of Boozing”.

Here’s the full list of social-media-evidence-gotcha cases Professor Goldman has collected:

Liberty L.A. Style: Free Speech School or Jail

Tuesday, December 27th, 2011

View of the LA City Hall skyscraper under a blue skyL.A. City Hall (Photo: EEJ)

Jeffrey P. Hermes at the Citizen Media Law Project Blog has spotted a small volcano of irony erupting from Los Angeles: The L.A. City Attorney’s Office has announced that it won’t press charges against Occupy L.A. protesters arrested on low-level misdemeanor offenses if they complete a free-speech course.

But freedom isn’t free: The lessons for the pre-trial diversion program will be supplied by a private-contractor, American Justice Associates, which will charge $355 per person for the course. Checks can be made out to “The One Percent, LLC.”

It’s a move Hermes calls “a dramatic, last-minute effort to win the prize for ‘Most Obnoxious Law Enforcement Tactic of the Year.’” Hmmm. Well put. As he explains:

Let’s reflect for a moment on this one, shall we? … This is, after all, the city that was on the wrong end of a $1.7 million verdict after police assaulted a journalist covering a rally in 2007, and attempted to control coverage of Occupy L.A. by excluding all media except a hand-picked pool of reporters. And let us not forget Special Order No. 11, which among other things directs the LAPD to file a “Suspicious Activity Report” about any photographer who takes pictures “with no apparent esthetic value.”

But there’s another side to this. As a Los Angeles Times article explains, the city wants to save on the expense of prosecuting the hundreds of people it’s rounded up. Fair enough. We all know how California is hurting for money. (Actually, in recent years the office has suffered a 25% budget reduction.)

Look, I think I’ve got an easy fix: Just require Occupy protesters to complete community service by teaching the class themselves, with LAPD higher-ups enrolled as students.

Playing Simon Says: California’s Crazy, Crazy Reader Privacy Act

Tuesday, November 1st, 2011

Electronic Simon game from the 1980sGetting a subpoena is a highly unpleasant experience.

A subpoena is a legal document that commands you to hand over documents or appear someplace at a certain time to answer questions under oath. Subpoenas are necessary to get the business of our civil justice system done, but they can make the IRS seem like an old friend by comparison.

And that makes for what I think is the biggest problem with the Reader Privacy Act, a new California law intended to increase people’s privacy with regard to what books they choose to read. (More problems here and here.) To accomplish this, the new law puts certain requirements on any online “book service” provider (which, oddly, might include a blog) that receives a subpoena seeking information on any of the provider’s readers. The requirements are that before complying with the the subpoena, the “book service” provider must give notice to any reader whose information is sought and/or the provider must make a number of determinations about the legal appropriateness of the subpoena.

So, for instance, a provider covered under the law is not allowed to comply with a qualifying subpoena unless the provider first gives 35-day advance notice to the reader about the reader’s ability to seek a motion to quash the subpoena. §1798.90(c)(2)(B)(iv).

Just think about that for a minute: The subpoena is an order issued by a court commanding a person to do something. But under this new law, a person is prohibited by law from obeying that court order unless and until the person fulfills certain requirements.

You would think, if you got a court order, you’d be safe in obeying it. But not so!

And that’s crazy. That’s more than just crazy. That’s the Crazy Suite at the Hotel Crazy.

But wait, it actually gets crazier.

Under §1798.90(c)(1), it is illegal for a covered “book service” provider to obey a subpoena commanding the disclosure of information to a law enforcement agency unless the law enforcement agency has met two conditions and the court itself has met three conditions. For instance, you can’t obey a subpoena under the law unless the court first “finds that the law enforcement entity seeking disclosure has a compelling interest in obtaining the personal information sought.” §1798.90(c)(1)(B).

Yes, that means it’s illegal for you to do something the court is commanding you to do unless the court made a certain finding before hand. To be quite plain, it is unlawful for you to comply with a court order demanding that you cooperate with law enforcement.

That’s beyond crazy. That’s No. 1 Crazy Street, Crazy City, Crazyland, U.S.A.

The only precedent I can think for whackitude like this is the children’s game of Simon Says. In Simon Says, the leader barks commands preceded by the words “Simon says.” If you obey a command that is not preceded by the words “Simon says,” you’re out.

It’s silly, but that’s what makes it fun. For children. Who are playing.

But it’s not fun for the California legislature to do this. It’s not fun at all.

If the California legislature thinks the courts and the police are out of control, then – I hate to have to point out the obvious here – they can put restrictions on the courts and the police. That only makes sense.

Instead, the California legislature has made it illegal for people to cooperate with the police and the courts when the police and courts are, in the legislature’s judgment, going too far.

But wait. It gets CRAZIER still. Look at this provision:

A provider shall disclose personal information of a user to a law enforcement entity only pursuant to a court order issued by a duly authorized court with jurisdiction over an offense that is under investigation and only if …
[p]rior to issuance of the court order, the law enforcement entity seeking disclosure provides, in a timely manner, the provider with reasonable notice of the proceeding to allow the provider the opportunity to appear and contest issuance of the order.

§1798.90(c)(1)(D).

That’s right: It’s illegal for you to obey the subpoena if the police didn’t inform you of your right to contest the subpoena.

That’s like making it illegal for a suspect to answer questions while in police custody if the police failed to inform the suspect of the suspect’s right to remain silent.

That’s P.O. Box Crazy Crazy Crazy, Crazytown Station, Crazy Valley Acres, California 95814.

Trial of Accused Terrorist Blogger Tarek Mehanna Set to Open Today

Thursday, October 27th, 2011

Tarke Mehanna forward mugshotAccused terrorist blogger Tarek Mehanna (Image: Sudbury Police Department.)

Opening statements are expected to begin today in the trial of Tarek Mehanna on terrorism-related charges stemming from alleged support for Al Qaida.

Federal prosecutors say the 29-year-old, born in Pittsburgh and raised in Boston, aided Al Qaida by promoting the organization’s cause on his blog. Specifically, prosecutors say he translated into English distributed online Al Qaida texts originally written in Arabic.

Mehanna is asserting the First Amendment in defense. His lawyers argue that his speech is constitutionally protected, since it was not done in coordination with a terrorist organization. They have sought from the judge a jury instruction on constitutional free-expression rights.

Mehanna faces life in prison if convicted.

More:

Yikes! Is My Blog Regulated By California’s Reader Privacy Act? Is Yours?

Monday, October 24th, 2011

Looking up at the California capitol dome on a sunny day
The California Capitol. (Photo: EEJ)

Well, this is terrifying.

Eric Goldman, in a new blog post, hypothesizes that California’s newly enacted Reader Privacy Act could be read to impose statutory requirements on bloggers. The law requires “book services” to give notice to persons who are the target of a personal-information-seeking subpoena served on the book service. In other words, if someone throws a subpoena at an online book service in order to find out what books someone is reading, the book service has to first reach out to that someone before turning over the information.

So far, that doesn’t sound too bad.

But where Professor Goldman gets alarmed … (Let me just pause to note that while I would feel comfortable calling Eric Goldman by his first name, if I start saying “Eric argues” or “where Eric gets alarmed” on this blog, people are going to think I’m talking about myself in the third person. And while I’m generally okay with people thinking I’m a bit eccentric, I don’t want people thinking I’ve got the mindset of a marginal presidential candidate who is slowly losing touch with reality.)

So, anyway, as I was saying, where Professor Goldman gets alarmed is in looking carefully at who qualifies as a “book service” and who is therefore is obligated under the new law:

Let’s look closely at who is required to comply with the law — recognizing that the statute has a private cause of action that will be enforced by a rapacious privacy plaintiffs’ bar.

What?!? A “rapacious” plaintiffs’ bar?!? In CALIFORNIA?!?!? I can’t believe that. Anyway, as Goldman was saying …

[C]learly this covers Amazon and other online book retailers. But in this day and age, what is a “book” and, more importantly, what isn’t? The statute defines a book as:

paginated or similarly organized content in printed, audio, electronic, or other format, including fiction, nonfiction, academic, or other works of the type normally published in a volume or finite number of volumes, excluding serial publications such as a magazine or newspaper

… [W]hat about blogs? Are they “book services”? Before you discount the latter, consider that many blogs are, in fact, paginated (at least in the URL–see Blog Law Blog as an example).

Isn’t that awesome? I did a nested double-blockquote! Who knew you could even do that? Hey, wait a minute! That’s ME he’s talking about! AIYEEEAAHHH?!?!? There’s nothing like waking up in the morning and finding out that the California legislature has just done something that might expose you to private plaintiffs’ actions.

But wait, I can actually breathe a sigh of relief, because I’m pretty confident I don’t count as a “commercial entity” under the law. And since I’m not a commercial entity, the law’s requirements don’t apply to me.

But what about you, dear reader? Does your blog have advertisements on it? Even AdSense or Amazon affiliate links could, in Goldman’s view, possibly expose a blogger to “commercial entity” status.

And that’s just one more reason not to have ads on your site. As I said in regards to the question of whether having an ad-bearing blog imposes tax liability (in a post that my WordPress installation faithlessly labeled “page 1075“):

My advice for most bloggers is this: Dump the ads. Why bother putting ads on your blog unless it is going to make you substantial amounts of money? Ads clutter up blogs. They look terrible, and they are often for products that are either ridiculous (like herbal cures) or kindov depressing (like life insurance). That detracts from a user’s experience. And if ads cause you to have legal trouble – and even trying to figure out if you have legal trouble is a kind of legal trouble – then you should flush them down the drain.

I’ll have more to say on California’s Reader Privacy Act in posts this week. I’ll weigh in on the debate between Paul Alan Levy of Public Citizen and Goldman about whether an individual can be an “entity’ under the new act. I’ll also explain my biggest problem with the new law.

HuffPo’s Motion to Dismiss Tasini’s Lawsuit

Wednesday, August 31st, 2011

Last week I discussed the no-end-in-sight freelancer class-action litigation that was touched off by Jonathan Tasini’s landmark litigation in the 1990s against the New York Times for infringing freelancers’ copyrights by posting freelancer written material online without specific premission.

First of all, that’s just creepy. It’s not like publishers and contributors are married. And since they aren’t, what’s wrong with intruding into their relationship?

Meanwhile, Tasini’s latest litigation escapade is suing the Huffington Post for not paying him or others for blogging they volunteered to do for free. The latest I can find out of that lawsuit is that the The Huffington Post filed a motion to dismiss [PDF]. That’s their response to Tasini’s complaint. I’ve already blogged about the complaint, so let’s go ahead and take a look at the defendants’ motion.

The motion is filed under Federal Rule of Civil Procedure 12(b)(6). That’s a very common procedural move, and it’s well-known to anybody who’s spent much time in law school. But in case you haven’t, I can explain.

Rule 12(b)(6)  allows defendants to have a judge bounce a lawsuit out of court in the earliest stage of a case in the event that, even if all the allegations of the plaintiff were proved true, there would still be no winnable lawsuit. So, how could it be that all of a plaintiff’s allegations could be true, and yet there would still be no chance of winning? Well, not everything worth complaining about entitles someone to compensation. In a civil lawsuit, the facts you allege have to give rise to a valid “cause of action.”

What Arianna Huffington, HuffPo, and AOL are arguing, through their lawyers, is that there is just no law out there that entitles Tasini to any money. Or, to state it more plainly, there’s no cause of action against someone for being greedy, mean, and successful. Here’s how the defendants say it:

Mr. Tasini … asks this Court to jettison his long-standing agreement with The Huffington Post and rule under New York state law that a competent adult in his position cannot agree with a website to publish his submissions in exchange for non-monetary consideration. He asks this Court to abrogate that agreement, as a matter of public policy, to combat “the broad detrimental effect of setting an artificially low price” for online content, and to reallocate at least a third of The Huffington Post’s value to recognize “the collective efforts” of other bloggers who also agreed to post without receiving monetary compensation. …

But no rule of statutory or common law, in New York or elsewhere, recognizes such a remarkable and unwarranted intrusion into the relationship between publishers and contributors. … [T]he fact is that no court, state or federal, has the authority under New York law to rewrite private agreements and reallocate private property in the manner Mr. Tasini seeks.

Now, while I think the law is on HuffPo’s side, this brief strikes me as being just slightly puerile. I get that there’s no precedent that supports the existence of a valid cause of action on these facts, but it seems a bit silly to me to be throwing around phrases like “a remarkable and unwarranted intrusion into the relationship …” First of all, that’s just creepy. It’s not like publishers and contributors are married. And since they aren’t, what’s wrong with intruding into their relationship? If it’s abusive, as Tasini suggests, then maybe we should intrude.

That’s why I think HuffPo’s lawyers are going a little astray here. It’s not about the relationship, it’s about the law, pure and simple. There’s no cause of action here. That’s all you need to say. When the law’s on your side – and boy is the law on HuffPo’s side – there’s no need to act like the sky is falling.

Busy-Body Legislating: California’s New Law on Tweeting Jurors

Thursday, August 25th, 2011
Assemblymember Felipe Fuentes in a suit smiling with arms crossed

Assemblymember Felipe Fuentes, author of California’s latest silly law (Photo: ASMDC)

A new California law signed by Governor Jerry Brown threatens jurors with jail time if they tweet, blog, or otherwise use the internet to communicate about their trial. The bill is the handiwork of Democratic San Fernando Valley Assemblymember Felipe Fuentes.

I’ve looked at the text of the law. At best, it’s silly. At worst, it’s hurtful.

The first thing the law does put an additional requirement on judges when they make their admonishments to the jury. Under Code of Civil Procedure §611, judges already have to explain that jurors are prohibited from talking about, researching, or disseminating information about the trial. The new law requires that judges “clearly explain,” that this admonishment “applies to all forms of electronic and wireless communication.”

Ooooh. Notice how cleverly the law was drafted with the use of the word “clearly”. If judges were merely required to “explain” this to jurors, there would be a huge loophole allowing judges to undermine the spirit of the law by issuing their explanation in an unclear manner.

To drop the sarcasm for a second, this strikes me as pure busy-body lawmaking. There’s no need to micromanage courtroom procedure through statute. Judges are completely capable of fine-tuning admonishments on their own. If this part of the law does anything, it seems to me it might create an argument for throwing out otherwise perfectly good jury verdicts on appeal. If a judge with decades of experience makes the mistake of issuing a standard admonishment, not complying with the technicality of the new law, there now appears to be a basis in statute for tossing the verdict. And even if the judge does the explanation, disappointed litigants can still quibble with the judge’s words, arguing that the issue wasn’t explained “clearly.”

Then there’s the aspect of the new law that’s been given the press coverage: Jail time for tweeting jurors.

Here’s what the new law adds to the list of misdemeanor offenses listed in Code of Civil Procedure §1209:

Willful disobedience by a juror of a court admonishment related to the prohibition on any form of communication or research about the case, including all forms of electronic or wireless communication or research.

Note that before Fuente’s new law, §1209 already made the following a misdemeanor:

When summoned as a juror in a court, neglecting to attend or serve as such, or improperly conversing with a party to an action, to be tried at such court, or with any other person, in relation to the merits of such action, or receiving a communication from a party or other person in respect to it, without immediately disclosing the same to the court[.]

and this:

[a]ny … unlawful interference with the process or proceedings.

The current law seems to cover everything of substance. The only thing the new provision does that I can see is make it a jailable offense to use the internet in such a way that is neither improper nor interfering. I guess I don’t understand why we would want to jail jurors under such circumstances.

Jurors are already the lowliest souls on the schedule of recipients of rights and liberties. Prisoners have more legal safeguards for their rights than jurors. Without committing or even being suspected of a crime, jurors are swept off the streets and detained against their will, their freedoms of expression and association instantly curtailed. Moreover, jurors can made to serve for months on end and can be sequestered from the rest of the world – all without due process. Is it really necessary to slap them around with threats of jail?

I poked around on Felipe Fuentes’s website. I don’t see any press release he’s issued about this regrettably successful project. Maybe he’s not too proud of it.

Last year, Governor Arnold Schwarzenegger vetoed a bill similar to this one because he considered current warnings to jurors to be adequate. He had some common sense. I’m sorry to see it gone missing in Sacramento now.

Freelancer Litigation from 1990s Has No End in Sight

Monday, August 22nd, 2011

Front page of an old New York TimesAs Jonathan Tasini’s lawsuit against HuffPo and Arianna Huffington for unpaid blogging is still in its early stages, we have a story by Joe Mullin of PaidContent.org that reminds us how slow the wheels of justice turn: Court Rejects Freelancer Settlement: Still No Payment From Tasini Court Win

Ten years ago, Tasini won his landmark U.S. Supreme Court case against the New York Times for infringing the copyrights of freelance writers by putting material they had written in an online database. Huh? How could that happen? Well, when the NYT contracted with those freelancers back in the Stone Age (early 1990s), the geniuses at the NYT only bought rights to reproduce the stories in the printed newspaper. They had no clue they might want someday (i.e., just a few years later) to republish them electronically.

While Tasini himself has been paid, there’s still no settlement of the subsequently filed class action that sought to use Tasini as precedent to get recoveries for all the other freelancers against the New York Times and likes of Westlaw and Lexis/Nexis. The latest is that the Second Circuit Court of Appeals has just thrown out a settlement agreement that seemed like it might actually put everything at rest. Now its time for a fresh start back in district court.

The original Tasini lawsuit goes back at least to 1997, when some district court judge name Sonia Sotomayor granted summary judgment to the New York Times. She got the analysis wrong, by the way. That’s not only my opinion, it was also the opinion of the Second Circuit Court of Appeals in overruling her in 1999 and the U.S. Supreme Court upholding the appeals court in 2001. The good news is that Sotomayor may get a second chance to get it right, since, of course, she is sitting on the U.S. Supreme Court. That’s because Sotomayor has moved on in life, even if this litigation hasn’t.

This is how Mullin sums it up:

What looked like a solid and promising win for writers in 2001 may just be another indication of how copyright in the digital age is turning into an overcomplicated mess, to no one’s benefit but lawyers. It may still be years before the writers get paid.

That’s a rosy view. But as much as I would agree that copyright in the digital age is an overcomplicated mess, I don’t think this suit is an indication of that. The truth, in my view, is far worse: This suit’s another indication of how our entire civil litigation system is an overcomplicated mess.

Suit Against Y’all Politics Blogger Dismissed

Tuesday, July 19th, 2011

The Associated Press is reporting that a Mississippi state court has dismissed a lawsuit against blogger Alan Lange of Y’all Politics.

FBI agent Hal Neilson brought the lawsuit against Lange and former federal prosecutor Tom Dawson over a book they co-wrote. That book, King of Torts, chronicled the scandal over superstar plaintiffs’ attorney Richard F.”Dickie” Scruggs’s attempt to bribe a state court judge to get a favorable ruling in a dispute with another lawyer over fees.

Neilson claimed in the lawsuit that King of Torts defamed him. But the judge tossed the litigation after Neilson and his attorney no-showed a hearing, apparently bailing out of the case.

Cricketer’s Twitter Libel Suit Sustained

Monday, March 14th, 2011

A court in the United Kingdom has rebuffed an attempt to throw out a Twitter libel suit brought by a New Zealander cricket player.

Cricketer Chris Cairns of New Zealand, a right-handed allrounder, alleged that cricket administrator Lalit Modi libeled him with a tweet about match fixing.

Modi’s attempt to have the case dismissed was based on the argument that so few people saw the allegedly libelous tweet, that it would be a waste of court resources. The court did not agree, saying in its decision,

A claimant’s primary concern in a libel action is vindication, not damages for what has been suffered in the past. So the damage that has occurred before the action is brought may not give an indication of the importance of the claim. Vindication includes a retraction, or a verdict for the claimant, or a judgment to the effect that the allegation complained of is false.

The Pinsent Masons law firm discusses the decision on their Out-Law blog.

UK Courts Give Go Ahead to Blogging Live from Court, But Give Preferences to Traditional Media

Friday, February 25th, 2011

The Lord Chief Justice of England and Wales has issued a document [pdf] of “interim practice guidance” regarding the use of “live text-based forms of communication … from court.” Blogging and tweeting, for instance.

The document generally supports allowing persons to tweet and blog from court to provide rapid reports of court proceedings. Unfortunately, however, the guidance draws a distinction between the “wider public” and “representatives of the media” in a way that may be used to discriminate against citizen bloggers:

[I]t may be necessary for the judge to limit live, text-based communications to representatives of the media for journalistic purposes but to disallow its use by the wider public in court. That may arise if it is necessary, for example, to limit the number of mobile electronic devices in use at any given time because of the potential for electronic interference with the court’s own sound recording equipment, or because the widespread use of such devices in court may cause a distraction in the proceedings.

I find this passage troubling. Today, at least in the Twittersphere, anyone with a non-private Twitter account is on an equal footing with a salaried newspaper reporter with a Twitter account. In fact, there are a lot of citizen tweeters who have many more followers than many newspaper or television reporters with active Twitter accounts.

Volokh Reports Victory Against Allegedly Libeled Philly Lawyer

Wednesday, February 23rd, 2011

Eugene Volokh of The Volokh Conspiracy reports that the U.S. Third Circuit Court of Appeals has rejected a motion to seal, the pursuit of which may have been a first step in trying to get a court order to force Volokh to take down a blog post.

Volokh said it seemed like “an innovative attempt to suppress publications that criticize a lawyers’ motions.”

The case is Wolk v. Olson, in which Philadelphia lawyer Arthur Wolk is suing Overlawyered.com for defamation. Volokh, along with Glenn Reynolds of Instapundit and Marc Randazza of Legal Satyricon, sought leave to file an amicus brief, a move Wolk resisted.

You can read Volokh’s full post for the procedural complexities, but after Wolk lodged some accusations at Volokh, Volokh then discussed those on the Volokh Conspiracy. Wolk then apparently regretted opening the door to discussing the underlying material he claimed to be defamatory. He proceeded to try to retroactively seal a portion of his own brief. In Volokh’s view, that looked like the beginning of an effort to force Volokh to remove the blog post about what would then be a sealed document.

It would have set a bad precedent for law bloggers (“blawgers”). But, happily, Volokh won. Congrats!

Benihana Review Gets Kuwait Expat Sued

Wednesday, February 2nd, 2011

An online banner ad for Benihana's new Kuwait location

Mark Makhoul, a blogger and Lebanese expat who lives in Kuwait, has been sued by the owner of a Benihana franchise for writing an unflattering review on his Two Forty Eight a.m. blog. The suit seeks $18,000 in damages.

The blog post that got Makhoul sued is, at least once you know he got sued over it, surprisingly not all that negative. I mean, it’s negative. But it seems pretty tame by lawsuit standards.

Whether it’s defamatory under Kuwaiti law or not, one thing is crystal clear: Whatever the restaurant hoped to accomplish with their lawsuit has backfired in the most spectacular way. The story of Benihana Kuwait’s unpleasing chicken is now burning up Twitter, and television news shows are lining up to interview Makhoul.

Internet karma strikes again. Like a razor sharp cleaver through rubbery chicken.

Makhoul blogs about getting sued in post headlined “I’m Getting Sued by Benihana”. He says his lawyer has advised him to keep mum about it. But for those who want to learn more about the lawsuit, he has posted a court document in the original Arabic, along with a version translated into English.

I’ve read the English translation, and it’s a little confusing. The document is phrased as an “order,” but the way Makhoul talks about the lawsuit, it’s just in its beginning stages, with nothing determined as of yet. By his description, all that has happened so far is that he has been sued, and he is awaiting a court date in March. That leads me to guess that the posted document is something along the lines of what you would call a “proposed order,” a lawyer-drafted document that is submitted to the court with the hopes (sometimes high hopes) that the judge will simply sign at the bottom, turning the party’s litigation wish list into an enforceable mandate.

One thing that comes through in the document is that the restaurant is also apparently bent out of shape that Makhoul took photographs and video in the restaurant without permission. Hmmm. Where I come from, juggling knives in front of customers while spotlighted with track lighting counts as implied permission. But maybe I’m old fashioned that way.

From Makhoul's video taken at Benihana, which he posted along with his review

More:

Internet Speech Freedom on the Line in Paris

Monday, January 31st, 2011

Professor Joseph H.H. Weiler

Joseph H.H. Weiler, an extremely well-regarded scholar of international law (and my teacher back in law school) has completed his criminal trial for libel in France. The verdict isn’t due back until March 3rd, but Weiler’s account of the trial is up on his journal’s blog, and it’s great reading.

The case stems from an unflattering review of Dr. Karin Calvo-Goller’s book The Trial Proceedings of the International Criminal Court. Weiler didn’t write the review, but he did publish it on Global Law Books, a website of the European Journal of International Law. Weiler is and was editor-in-chief of the EJIL.

Calvo-Goller was offended and demanded that Weiler pull the review down. Weiler offered to publish Calvo-Goller’s response, but he refused to remove the review. After his investigation, Weiler determined the piece contained no factual inaccuracies.

While the case involves a book review, not a blog entry, the stakes for blog law are high. That’s because of what Calvo-Goller did next.

She didn’t sue Weiler where he lived. Instead, Calvo-Goller filed a criminal complaint in Paris.

From Weiler’s post:

Why Paris you might ask? Indeed. The author of the book was an Israeli academic. The book was in English. The publisher was Dutch. The reviewer was a distinguished German professor. The review was published on a New York website.

Beyond doubt, once a text or image go online, they become available worldwide, including France. But should that alone give jurisdiction to French courts in circumstances such as this? Does the fact that the author of the book, it turned out, retained her French nationality before going to live and work in Israel make a difference? …

Paris … is very plaintiff friendly.

In France an attack on one’s honor is taken as seriously as a bodily attack. Substantively, if someone is defamed, the bad faith of the defamer is presumed just as in our system, if someone slaps you in the face, it will be assumed that he intended to do so. Procedurally it is open to anyone who feels defamed, to avoid the costly civil route, and simply lodge a criminal complaint. At this point the machinery of the State swings into action.

The French Republic v. Weiler has been brewing for a while. But this month, it  finally went to trial.

The trial took place in in France’s version of Old Bailey – the hallowed Tribunal de Grande Instance de Paris,
where Émile Zola was tried for libel over the publication of his J’accuse! letter. More than 100 years later, France is still criminally prosecuting alleged libel.

Especially interesting for me was Weiler’s account of the procedural aspects of the quick trial, which he described as “a strange mélange of the criminal and civil virtually unknown in the Common Law world.”

Despite its unfamiliarity, Weiler expressed considerable admiration for a procedure that was steadfastly “aimed at establishing the truth.”

“The trial was impeccable by any standard with which I am familiar,” Weiler wrote in the post. “Due process was definitely served. It was a fair trial.”

Read Weiler’s full account. It’s worth it. The stakes in this case are high. Blog freedom, along with Weiler, is “in the dock.”

Jury Instructions on Blogs

Tuesday, October 26th, 2010

For a while now, trial judges have been careful to warn juries against using social media to communicate about their trial. Here is an example of how that is being done. Below are recent jury instructions from the case of Digital Ally, Inc. v. Todd Elder & Co. from a state court in Jackson County, Missouri.

(8) PROHIBITION OF JUROR RESEARCH OR COMMUNICATION ABOUT THIS CASE

Your deliberations and verdict must be based only on the evidence and information presented to you in the proceedings in this courtroom. Rules of evidence and procedure have developed over many years to make sure that all parties in all cases are treated fairly and in the same way and to make sure that all jurors make a decision in this case based only on evidence allowed under those rules and which you hear or see in this courtroom. It would be unfair to the parties to have any juror influenced by information that has not been allowed into evidence in accordance with those rules of evidence and procedure or to have a juror influenced through the opinion of someone who has not been sworn as a juror in this case and heard evidence properly presented here.

Therefore, you must not conduct your own research or investigation into any issues in this case. You must not visit the scene of any of the incidents described in this case. You must not conduct any independent research or obtain any information of any type by reference to any person, textbooks, dictionaries, magazines, the use of the Internet, or any other means about any issues in this case or any witnesses, parties, layers, medical or scientific terminology, or evidence that is in any way involved in this trial. You are not permitted to communicate, use a cell phone, record, photograph, video, email, blog, tweet, text, or post anything about his trial or your thoughts or opinions about any issue in this case to any other person or to the Internet, “facebook”, “myspace”, “twitter”, or any other personal or public web site during the course of this trial or at any time before the formal acceptance of your verdict by me at the end of the case.

If any of you break these rules, it may result in a miscarriage of justice, and a new trial may be required.

The complete document is available on Westlaw at 2010 WL 3417831.