Archive for February, 2017

Zuiderveen Borgesius on the Right to Be Forgotten

Monday, February 27th, 2017

Frederik J. Zuiderveen Borgesius of the University of Amsterdam – IViR Institute for Information Law (IViR) has posted to SSRN Het ‘Right to Be Forgotten’ En Bijzondere Persoonsgegevens: Geen Ruimte Meer Voor Een Belangenafweging? (The ‘Right to Be Forgotten’ and Sensitive Personal Data: No Room for Balancing?).

The paper is in Dutch, but here is the abstract in English:

An attorney submitted a ‘right to be forgotten’ delisting request to Google, regarding a blog post about a criminal conviction of the attorney in another country. The Rotterdam District Court ruled that Google may no longer link to the blog post when people search for the attorney’s name. The court granted the attorney’s request because the blog post concerns a criminal conviction. Personal data regarding criminal convictions are, under Dutch law, special categories of data (sometimes called sensitive data). The reasoning of the court on special categories of data creates problems for freedom of expression. This paper, in Dutch, explores how these problems can be reduced. Google has appealed the decision; the judgment of the Court of Appeals is expected in March 2017.

Thinking About Depositions and Document Demands in Trump v. Daily Mail

Friday, February 24th, 2017

I continue to be surprised that the First Lady is pursuing her defamation suit against the Daily Mail. When you think about how things are likely to unfold, it won’t be surprising if the lawsuit winds up being an unhappy burden for the First Family and a joyous boon for a gossip-slinging tabloid like the Daily Mail.

Consider that if you file this kind of a lawsuit, you are going to have to hand over a huge trove of documents. Don’t expect the Daily Mail to agree to a protective order that would keep those documents under wraps: They will want to use those documents as grist for their pages. And the Daily Mail also will get to take Ms. Trump’s deposition.This means, for their trouble of fighting this lawsuit, they’ll end up getting an exclusive interview with the First Lady of the United States.

The Daily Mail will even have a good argument for taking the deposition of President Trump himself. After all, Ms. Trump’s star power derives from her marriage to the president – she already alleged as much in the original complaint.

The Trumps will of course fight in court to limit discovery and to keep a lid on whatever they do produce. But Ms. Trump is not the defendant – she brought this matter to court herself. So I would expect that the court may not be very receptive to arguments about the inconvenience and burden caused by discovery.

So if Ms. Trump’s lawyers are hoping the newspaper will opt for a quick settlement to avoid the expense of fighting this in court, I don’t see why the Daily Mail would oblige. We’ll see how this all plays out.

Melania Trump Tries Again with Defamation Complaint – Without ‘Once in a Lifetime’ Language

Thursday, February 23rd, 2017

First Lady Melania Trump has filed a new complaint against the Daily Mail, this time without the allegation that the Daily Mail’s alleged defamation deprived her of a “unique, once-in-a-lifetime opportunity … to launch a broad-based commercial brand in multiple product categories, each of which could have garnered multi-million dollar business relationships for a multi-year term during which [she] is one of the most photographed women in the world.” (BBC, The Independent)

That allegation was an attempt to lay the groundwork for a theory of damages to take to the jury – one that would set up a multi-million-dollar ask in closing argument. But it is the perfect example of something that makes lawyer sense without making any practical sense.

What made headlines was indignation that Ms. Trump would try to profit from being First Lady. But it struck me more as an unsupportable damages theory: It just isn’t believable that a false and mean-spirited but fleeting accusation that Ms. Trump was a prostitute could be the straw that broke the camel’s back and caused the collapse of an incipient licensing empire.

It will be very interesting to watch this lawsuit unfold.

Trump Daily Mail Suit, Causation Problems

Wednesday, February 8th, 2017

Daily Mail logo

Good Morning America just had a piece on Melania Trump’s lawsuit against the UK’s Daily Mail, relaying that “experts say this is uncharted territory for the office of the First Lady.”

They’ve got that right. It’s a new world with an ultra-litigious television-celebrity family in the White House.

I found this interesting: The GMA report included footage from an October 2016 interview in which Ms. Trump says, “I didn’t expect media would be so dishonest and so mean. I didn’t expect that. Also for me, from the beginning, I never had one correct story, one honest story.”

That would seem to undercut the causation theory for damages stemming from the Daily Mail’s publication. If no one’s published an honest story about Ms. Trump, then how is the Daily Mail story the straw that broke the camel’s back for Ms. Trump’s multi-million-dollar endorsement deals?

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