Archive for January, 2012

Conviction for Insulting Islam in Austria

Monday, January 30th, 2012

daylight exterior

Pallas Athena fountain in front of the Parliament Building in Vienna, Austria (Photo: CIA)

An Austrian appeals court has upheld the conviction of Elisabeth Sabaditsch-Wolff for insulting Islam.

This is a case that came down just before the New Year. I think it’s worth discussing here because blogs, of course, cross borders. American bloggers are likely to think that American concepts of free expression are likely to be shared with other industrialized Western countries. But that’s not true at all.

Eugene Volokh on the Volokh Conspiracy explains the legal angle with a post that provides a quick look at recent blasphemy prosecutions around Europe, as well as a discussion of America’s history of criminalizing blasphemy back in the early 1800s.

As far as the prosecution of Sabaditsch-Wolff, the defendant herself explains what happened in an interview:

What was the reason for this conviction, you may ask. Well, during the course of my seminars, I mentioned the choking EU directive “Framework decision on combating racism and xenophobia,” and in order to illustrate my point I told the audience about a conversation I had with my sister and how she believed that one should find a different word for Mohammed’s actions with Aisha. I said, “How does one name what he did if not call it pedophilia?” And this sentence got me convicted, for I am allowed by law to say that Mohammed had sex with a young girl, but I may not qualify this behavior as this is deemed “excessive” and thus denigrating.

It would be unthinkable for anyone in the United States to get in legal trouble for something like this. But, as Commenter Parker said in the thread after Volokh’s post, “This is Europe we are speaking of. Europe has a different idea of human rights and especially a different idea of the freedom of speech.”

True that. With the similarity in the media, press, and arts between the U.S. and Europe, you could easily assume that what’s sacrosanct as a matter of American expressive freedom would be protected in Europe. Just about anyone could guess that there’s no right to bear arms across Europe. But with free speech, you would be forgiven for thinking they are basically the same. And it’s probably true that 99% of what is protected in America is protected in EU countries. But once you get toward the fringes, you’ll realize that freedom of expression in Europe is actually very different. Free speech is at the apex of American freedoms and values. In the European scheme of values, there is the idea that free speech must often be subservient in the hierarchy of human rights. The Sabaditsch-Wolff case illustrates, I think, the European impulse that the right to be free from religious insult is considered as or more important than the right to be free to say whatever you want.

Illinois Court Rules TechnoBuffalo Blog Not Covered by Shield Law

Monday, January 23rd, 2012

Photo of shiny booklet with text, logo, and photo of phone
A leaked image published by TechnoBuffalo.

A state court in Illinois has ruled that gadget blog TechnoBuffalo is not covered by the Illinois shield law. Chris Healy of the Reporters Committee for Freedom of the Press reports on the decision.

In August of last year, TechnoBuffalo published photos of an instruction manual for a yet-to-hit-stores Motorola Droid smartphone. The photos came to the blog by way of an “anonymous tipster.”

The Johns-Bryne Company, the printers hired to reproduce the material for Motorola, sued the blog to learn the identity of the leak, and the blog claimed the protection of Illinois’s reporter’s privilege law. The court, however, read the statute in a restrictive way, saying that TechnoBuffalo does not qualify as a “news medium” and its bloggers are not “reporters,” thus making the law inapplicable.

TechnoBuffalo has asked the court to reconsider and has vowed to appeal.

Christine Neylon O’Brien on Facebook Firing

Thursday, January 19th, 2012

Boston College sealChristine Neylon O’Brien, Professor of Business Law at Boston College’s Carroll School of Management, has published The First Facebook Firing Case Under Section 7 of the National Labor Relations Act: Exploring the Limits of Labor Law Protection for Concerted Communication on Social Media in the Suffolk University Law Review (vol. 45, pp. 29-66, December 2011). Here’s the abstract:

The emergence of social media, from Facebook to Myspace and Linkedin to Twitter – much like the earlier evolution of email, IM and web 2.0 – have changed communications, expanding the virtual horizons for social networking and business promotion on these popular communications platforms. Smartphones, and other data interfaces including iPads and eReaders, and even internet hotspots in motor vehicles, have encouraged the blurring of work and personal time such that people are tethered to their devices, checking their work and personal messages wherever they are and whatever else they are doing.

In the first case of its kind, the National Labor Relations Board (NLRB) issued a complaint against an employer, American Medical Response of Connecticut (AMR), for the suspension and firing of an employee who posted negative comments about her supervisor on her personal password-protected Facebook page. The NLRB alleged the employer retaliated against the terminated employee for her Facebook postings and for requesting a union representative at an investigatory interview that led to her discipline, thus violating her Weingarten right. Most importantly, the NLRB maintained that the employer’s social media policy was overbroad because its rules on blogging and internet posting, standards of conduct relating to discussing co-workers and superiors, and solicitation and distribution, interfered with employees’ rights to engage in concerted activities protected by section 7 of the National Labor Relations Act (NLRA). The AMR case and the NLRB’s ongoing interest in employer social media policies has signaled that the agency will prosecute companies whose policies interfere with employee communications concerning wages, hours, and working conditions, and other matters for mutual aid or protection on social media sites. Employers should review their policies governing employee communications, including the use of email and social media during non-work time, to ensure compliance with the NLRA.

On the Radio Talking About SOPA!

Thursday, January 19th, 2012

Guess what I did today! I was on the radio talking about SOPA! Not an internet radio station, but a real stick-in-the-ground over-the-airwaves AM radio station: KNOX 1310 Grand Forks, a talk program hosted by Brian Michaels and Denny Johnson.

Has the MPAA and RIAA finally overreached when a law professor is on a midday radio show talking about INTELLECTUAL PROPERTY? Yup, I think so.

Thanks to the blackout against SOPA, and mostly Wikipedia’s part in it, Copyright’s suddenly become a mainstream political issue. The blackout against SOPA was even on NBC Nightly News with Brian Williams last night! How about that?

Down Against SOPA

Wednesday, January 18th, 2012

Today, Congress is considering passage of SOPA – the Stop Online Piracy Act – legislation that would destroy the free architecture of the internet and initiate censorship.

I’m blacking out Blog Law Blog for the day to join with many others in showing symbolically what the internet could look like if this bill becomes law.

If you are in the U.S., please take a moment to contact your representative to register your opposition.

Blackouts Tomorrow for SOPA and PIPA

Tuesday, January 17th, 2012

Wikipedia is planning to blackout its whole site tomorrow as a protest to SOPA and PIPA – those internet censorship-in-the-name-of-fighting-intellectual-property-piracy bills on Capitol Hill. I know other websites are planning or contemplating the same.

I think I’ll do the same here on Blog Law Blog. I just have to figure out how to do it in terms of the code on the back end. If you are planning to join in, read up on how to do it the right way so you stay friendly to search engines.

White House Blogs in Response to Anti-SOPA Petitions

Monday, January 16th, 2012

The White House has responded to online petitioning done by opponents of SOPA. In a blog post, IP czar Victoria Espinel, U.S. CTO Aneesh Chopra, and national cybersecurity coordinator Howard Schmidt wrote:

While we believe that online piracy by foreign websites is a serious problem that requires a serious legislative response, we will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet.

That’s very good to hear.

Jury Instructions Regarding Blogs, Twitter, and Facebook

Wednesday, January 11th, 2012

New trends in how juries are being instructed about social media have been a recurrent topic on this blog. I thought it might be interesting to let you see that those Jury instructions actually look like in the flesh.

These particular jury instructions come from a Missouri automobile-collision negligence case, Molina v. Harlan. The full instructions comprise 1641 words. (I’ve put the whole set of instructions in the Blog Law Blog library.) The portion concerning juror research or communication about the case is 335 words (so, it’s a little more than a fifth of the whole thing).

One thing that strikes me as kind of funny, right off the bat, is that even as the instructions are an attempt to stay in step with the times, they show an old-school haplessness with punctuation and capitalization. Not only do they capitalize “Internet,” but they lowercase and place in quotes “‘facebook’,” “‘myspace’,” and “‘twitter’.”

What’s up with that? Does the court think that “facebook” is some kind of slang that the young kids are using? It’s very odd.

And, of course, another sign of out-of-touchness is any reference at all to Myspace.

(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, lawyers, 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, e-mail, blog, tweet, text, or post anything about this 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.

Volokh Steps In to Help Blogger Crystal Cox Challenge $2.5 Million Defamation Judgment

Tuesday, January 10th, 2012


Eugene Volokh (Photo: Jeff Barnett-Winsby / UCLA)

Arthur Bright at Citizen Media Law Project blog has the latest on Obsidian Finance v. Cox in Oregon: Professor Eugene Volokh of UCLA Law has stepped in to work on an appeal of the $2.5 million libel judgment against blogger Crystal Cox, which was rendered by a federal court last month.

Critical is whether First Amendment protections established by the U.S. Supreme Court in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) will apply to Cox, or whether, as a blogger, she’s not a member of the “media.”

A post last month by Eric P. Robinson explores both the Gertz issue and the court’s ruling on the application of the Oregon shield law.

Review of a Review of 2011

Monday, January 9th, 2012

2011As Blog Law Blog continues it’s look back at 2011, I’d like to note a very good wrap-up article over at PBS’s MediaShift:

The article covers the principal stories in media law over the past year, and it does a nice job of hitting the important topics, but the legal analysis isn’t always right on. I’ll just look at one example – what the article lists as the number-one topic in media law over 2011: “‘Wiretapping’ the Police.”

“Wiretapping” sounds like it should involve a man in a headset sitting in a van listening in on your telephone calls. But the legal definition is often far broader — as many journalists and ordinary citizens found out after being charged with a felony for simply filming a few seconds of police activity in public.

It’s true that laws against making surreptitious audio recordings do go well beyond classic “wiretapping,” but I’m aware of no law that purports to make criminal “filming” police activity taking place in public. The an Illinois statute mentioned in the article prohibits recording audio of any conversation without the consent of all persons speaking. That was used against someone with a video camera that was also capturing sound, but the case was ultimately dropped, and it’s not clear that any recent prosecutions have happened under similar circumstances.

In general, however, the problem is not laws themselves – the problem is police arresting people for conduct that does not violate any law.

For instance, when attorney Simon Glik used his cell phone to record Boston Police officers arresting a homeless man in a public park, the officers arrested Glik under a law (Mass. Gen. Laws ch. 272, § 99) that prohibits “secretly” recording wire or oral communications. Glik wasn’t being secret. He was recording openly. His conduct didn’t violate the law. The problem there was that police were arresting Glik for doing something that wasn’t against the law. Indeed, the charges were soon dismissed. (Post-dismissal, Glik filed a lawsuit that successfully established constitutional rights to make such recordings as well.)

Another instance of this coming up – not mentioned in the PBS article – was the Baltimore Police’s action against Christopher Sharp, who recorded the arrest and apparent abuse of a woman at the Preakness Stakes. The problem there was not that Maryland law prohibited Sharp’s conduct – it didn’t. The problem was that the police seized Sharp’s cellphone on the spot and deleted a bunch of videos (including personal ones as well as the one of the police). At the time, one police officer made the completely absurd claim that it is “illegal to record anybody’s voice or anything else in the state of Maryland.” But, as I explained, that’s not the law.

That’s why the article kind of misses the point when it says:

The importance of the wiretapping cases cannot be overstated. If the government is permitted to prosecute citizens for collecting and disseminating accurate information about acts of official misconduct, specifically when those acts occur in a public place, both citizen and professional journalism — and by extension the public at large — will suffer greatly.

The problem is not the prosecutions. The prosecutions almost never happen. The problem is the police acting lawlessly on the scene.

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:

Monic Sun and Feng Zhu on the Effects of Ad Revenue and Content Commercialization

Thursday, January 5th, 2012

View of building exteriorStanford University Graduate School of Business (Photo: EEJ)

Attempting to extract advertising revenue from your blog introduces a myriad of potential legal problems. I’ve said before, I think it’s not worth the hassle for the tiny bits of coin you might eek out. Now here comes an interesting paper form Monic Sun, Assistant Professor of Marketing at the Stanford Graduate School of Business, and Feng Zhu, Assistant Professor of Strategy, Management and Organization from the University of Southern California Marshall School of Business. The working paper, posted to SSRN, is Ad Revenue and Content Commercialization: Evidence from Blogs.

Investigating a new ad-revenue-sharing program introduced to a Chinese blogging platform, Sun and Zhu conclude that the availabilty of ad revenues increased the quality of participating bloggers’ posts and caused an overall shift toward “popular” topics, including primarily the stock market, celebrities, and “salacious content.”

What does that say about the desirability or perniciousness of blog ads? Good question. And here’s another: To what extent might these results be affected by the repression of political speech in China? After all, political speech is a huge driver of blogging in the rest of the world.

Here’s the abstract:

Many scholars argue that content providers, when incentivized by ad revenue, are more likely to tailor their content to attract “eyeballs,” and as a result, popular content may be excessively supplied. We empirically test this prediction by taking advantage of the launch of an ad-revenue-sharing program initiated by a major Chinese portal site in September 2007. Participating bloggers allow the site to run ads on their blogs and receive 50% of the revenue generated by these ads. After analyzing 4.4 million blog posts, we find that, relative to nonparticipants, popular content increases by about 13 percentage points on participants’ blogs after the program takes effect. This increase can be partially attributed to topics shifting toward three domains: the stock market, salacious content, and celebrities. We also find evidence that, relative to nonparticipants, participants’ content quality increases after the program takes effect.

CJR: Who’a a Journalist? – NYPD’s Credentialing at Occupy

Wednesday, January 4th, 2012

Columbia Journalism Review
An article by Erika Fry in the Columbia Journalism Review investigates an intriguing question arising out of the police action against people reporting on the occupy protests in New York. With bloggers and other non-traditional reporters seeking to avoid being swept up by the New York Police Department, Fry asks: Who’s A Journalist?

The article’s a great read, and it gets at one of the essential questions of blog law – to what extent are bloggers entitled to be treated by the police and the government like traditional journalists?

The particular object of Fry’s scrutiny is the NYPD’s system for issuing press credentials to reporters. The credentials help in official and unofficial ways, getting reporters access to press conferences and allowing them to avoid hassles at crime scenes and to avoid roundups of crowds. The way the NYPD doles out press credentials has been hotly criticized. But for bloggers, things are, at least, better than they used to be. Fry writes:

Yet this system, backlog and all, is roundly considered by journalists and civil liberty types to be an improvement over the NYPD’s press credentialing process that was in place until 2010, and was notorious for being opaque and inaccessible to bloggers and journalists from nontraditional media organizations—so much so that three men filed a lawsuit against the NYPD for unfairly denying them credentials in 2008. As Gothamist reported at the time, the reforms to the system in 2010 were intended to “help the Police Department modernize the City’s credentialing system to reflect changes to the media industry and, for the first time, expressly incorporate online-only media such as blogs.”

2011 in Review: Bad Legislation

Monday, January 2nd, 2012

2011Unlike a lot of tawdry, pandering, cut-rate journalistic operations out there (Time, CNN, etc.) who claim to review 2011 before it’s over yet, here at Blog Law Blog, your faithful blogger waited until it was all over before claiming to look back at it.

So now it’s time. What characterized 2011 in blog law?

First up: Bad legislating. This was a year when legislatures engaged in all kinds of nonsense that, at best, was dopey, and, at worst, was potentially disastrous.

The California legislature outdid itself this year. First there was the absurd new statute threatening jurors with jail time if they tweet, blog, or otherwise use the internet to communicate about their trial. The law’s not inane because I have an affection for tweeting jurors. It’s inane because, when you look at it closely, it’s inane:

Could the California legislature have felt egged on by reading my withering critique? Well, they urned around and did something even worse with their Reader Privacy Act. Some laws I just disagree with. But the California Reader Privacy Act actually makes no sense. Here’s an actual quote from me about this law:

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

For a more in-depth explanation:

Now, the worst legislation of 2011 was a set of related measure working their way through the U.S. Congress: the Protect IP Act (PIPA) in the U.S. Senate and the Stop Online Piracy Act (SOPA) in the House of Representatives. Now this stuff hasn’t become law yet – it’s still a bill (sittin’ there on Capitol Hill). But it’s really bad. The House Judiciary Committee will be taking SOPA back up this month. Let’s hope 2012 is a better year for legislation than 2011 was.