An aggressive new Internet law was introduced in North Carolina, making it a criminal offense for a student to release statements online with the intention of intimidating or tormenting school faculty.
In Minnesota, a U.S. District Court maintained that compelling students to hand over access to their social media accounts is a violation of their rights under the First and Fourth Amendments. The case involves a 12-yer-old girl who posted one comment about a school employee on Facebook at home, and followed it up with another. School officials promptly questioned the student, which resulted in disciplinary actions. She also had to provide access to her email accounts, which they searched.
Based on Tinker v. Des Moines and other precedents, the court maintained that school authorities could not punish statements made away from school, which are guaranteed by the First Amendment, unless they are genuine threats or intended to affect the school environment. They must also be so inflammatory that they pose a significant safety risk, or some other significant disruption, at the school.
Attorneys for the school indicated that the protection of out-of-school statements was unclear when the alleged violation took place. However, that was dismissed by the court, which stated that a general rule that schools had no right to regulate inappropriate speech that takes place out of school was well-established long ago.
In addition, Bradley Shear, an attorney and an authority on privacy laws related to social media, states that any public school requiring students to provide their social media user names, or allow access to digital content protected by their password, or who install third-party software, regardless of the motive, are clearly violating the First and Fourth Amendments.
In view of this, our courts may soon face more challenging cases related to off-campus speech. The main hurdle appears to be defining the “true threat” standard for online interactions.
Twitter attorneys are warmed up and ready to spar over a New York judge’s decision on whether or not prosecutors have the right to subpoena the social media company for Malcolm Harris’ user account information. An Occupy Wall Street protester, Malcolm Harris was accused of disturbing the peace on October 1, 2011. Judge Matthew A Sciarrino, Jr. – a self-styled “social media expert” (who was disciplined in 2009 for trying to “friend” lawyers on Facebook) – ruled that neither the Twitter account holder nor the social media service could quash a subpoena issued by the DA’s office. Those in support of Harris argue that Sciarrino’s decision flies in the face of established United States’ legal traditions regarding anonymous free speech.
Facts of the Case
According to prosecutors, On October 1, 2011, Malcolm Harris – Twitter handle @destructuremal – violated the law by disrupting traffic on the Brooklyn Bridge. As a result, Harris is being brought up on charges. The District Attorney’s office believes Malcolm’s tweets – both public and deleted – are necessary to mount of a proper defense.
After receiving the subpoena on January 26, 2012, Twitter notified Mr. Harris on January 30, 2012 of the request. Harris informed Twitter representatives that he planned to file a motion to quash the subpoena; the social media network indicated they would not comply with the request until the court ruled on Harris’ motion.
Harris’ Attempt To Get The Subpoena Quashed Denied
In April of this year, Judge Matthew A. Sciarrino, Jr. ruled on Harris’ motion. While Sciarrino acquiesced that NY courts have yet to rule whether a criminal defendant can quash a subpoena served to a social network, he evoked a 1976 SCOTUS decision (United States v. Miller) which established that bank records are the property of a bank and that an account holder can’t assert ownership or possession over a bank’s records.
Sciarrino also cited the second circuit court decision in United States v. Lifshitz (2004) which concluded that “individuals do not have a reasonable expectation of privacy in Internet postings or e-mails that have reached their recipients.” To back-up this point, Sciarrino highlighted the fact that Twitter’s own Terms of Service read:
By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed)
As such, Sciarrino argued that by agreeing to the terms of service, users are aware that their words will be “quickly broadcast…around the world,” and therefore should have no expectation of twitter privacy if their account is set to public. He pounded home his point by saying:
Every single time the defendant used Twitter’s services the defendant was granting a license for Twitter to use, display and distribute the defendant’s Tweets to anyone and for any purpose it may have. Twitter’s license to use the defendant’s Tweets means that the Tweets the defendant posted were not his. The defendant’s inability to preclude Twitter’s use of his Tweets demonstrates a lack of proprietary interests in his Tweets.
Malcolm Harris also said that his tweets had nothing to do with the disorderly conduct charge, and therefore shouldn’t be needed by the prosecutors. The judge, however, averred that the DA needed the Twitter records in order to refute the defendants anticipated defense.
After Malcolm Harris failed to get the subpoena quashed, Twitter stepped up to the plate and took their turn at bat challenging the subpoena. Sciarrino denied Twitter’s motion to quash, as well. Twitter, however, announced they would file an appeal to the ruling.
So now we wait to see what comes next in this important test case for online privacy and social media. For as the American Civil Liberties Union pointed out, “What is surprising is that the court continued to fail to grapple with one of the key issues underlying this case: do individuals give up their ability to go to court to try to protect their free speech and privacy rights when they use the Internet? [T]he answer has to be no.”
Several months ago, a Virginia judge ruled against a deputy sheriff who said he was fired for Facebook “liking” his boss’ election opponent. The judge in the case declared that clicking a “like” button does not constitute “speech,” as nothing was actually spoken.
Plaintiff Daniel Ray Carter appealed the ruling. And now, Facebook is supporting the once deputy sheriff by way of an amicus brief arguing that a “like” is the 21st century version of a political bumper sticker.
Main points from the Facebook brief:
- When a user likes something on Facebook, a picture of the “liked” thing, and usually some accompanying text, appear on the user’s profile. As such, when Carter liked Adams’ Facebook page, the words “Jim Adams for Hampton Sheriff” and a picture of Jim appeared on Carter’s page – much like a “vote for” lawn sign. Conversely, Carter’s name and photo appeared on the campaign’s Facebook page in a list of people who supported Adams, further proving that he was a political supporter of the sheriff’s opponent.
- Symbolic speech, like arm bands and flag burning, are considered free speech; therefore, Facebook “likes” should also qualify.
- “If Carter had stood on a street corner and announced, ‘I like Jim Adams for Hampton Sheriff,’ there would be no dispute that his statement was constitutionally protected speech.”
Also, deposed co-workers said they knew Carter would be “out of there” when news broke of his support for Adams.
Facebook’s brief is comprehensive and includes lots of supporting case law, from Givhan v. Western Line Consol School District (1979) to Adams v. Trustee of the University of North Carolina-Wilmington (2011). The social media company’s argument is cogent and most likely will go a long way in getting the current ruling over turned.
In addition to Facebook, The American Civil Liberties Union also filed a brief in support of Carter.
This is a case to keep an eye on. To stay abreast of the latest, sign up for our Internet law newsletter today.
Defamation by omission is when one person harms the reputation of another by neglecting to report or include vital information that significantly impacts the case. For example, let’s say you were charged with a crime, but were later acquitted. If a local newspaper then printed a story about your involvement in the crime, but failed to mention your absolution, that would be defamation by omission since the paper led people to believe you committed the act.
Moreover, if a journalist leaves out critical information, the publisher – not just the reporter – can be charged. In the same situation, if a blogger were to post stories about you – again leaving out your absolution — each individual post that does not include the disclaimer would constitute one act of defamation.
Defamation by omission, however, is a nuanced statute. To illustrate, if you are included in a news report, and the reporter forgets to mention something that would make you look better, but does not have a material effect on the framing of the story, you probably will lose a defamation by omission claim.
Examples Of A Few Current Defamation By Omission Cases
Rachel Maddow and Bradlee Dean are reportedly involved in a defamation by omission legal tussle. In brief, Rachel Maddow is a left-leaning political pundit on MSNBC; Bradlee Dean is a conservative Christian rocker and youth minister. A couple of years ago, Dean made a comment on a radio show in which he allegedly lauded certain terrorists groups for fighting against homosexuality; he also made a disclaimer saying that he did not condone violence against the LGBT community. Maddow read Dean’s statement on air; she did include Dean’s caveat. Nevertheless, Dean sued Maddow for defamation claiming that she neglected to mention a disclaimer he had made about the controversial statement.
The obvious problem for Dean’s legal team is that she supposedly did make the statement Dean says she omitted, and it was aired. As such, all signs point to the case being dismissed.
In another high-profile defamation by omission case, Ex-American Idol contestant, Corey Clark, is suing MTV, Viacom and an MTV personality for defamation. According to reports, the defendants allegedly left out information about Clark being cleared of legal charges in a series of blog posts that ran for nearly five years.
Bloggers & Defamation By Omission
Bloggers must be especially careful about defamation by omission. In many ways, the name of the game these days is to get lots of content up, quickly. Being the first to post a story is still the goal of journalism. However, with the amount of content produced daily, sometimes the research is lacking. If you aren’t sure of all the information, or if your sources aren’t solid, don’t publish it. And remember, if you do several posts on the same topic, and omit precious information in each post – each post counts as one act of defamation – which can add up. Don’t try to sensationalize your posts, for hits, by omitting pertinent information.
Do you need to speak with a defamation attorney about a situation? If so, we’re here to help and answer any questions you may have. Kelly / Warner is an AV-rated firm, with a stellar defamation litigation reputation. Contact us today to get started.
Teacher blogging is becoming more popular, but is it legally dangerous for educators to indulge in the act?
Part of our societal contract is to provide a public education system. And in said system, we tend to favor affable teachers who understand — and enjoy working with — young people. As such, where does our allegiance land when a public educator maintains a semi-anonymous blog, wherein they disparage students, parents and school administrators? Does free speech win out over the arguable well-being of the targeted students?
Natalie Munroe, an eleventh grade English teacher in Pennsylvania, found out her community’s answer to that conundrum last month. She was fired.
But Munroe is fighting back in the form of a $5,000,000 federal lawsuit which essentially asks:
- Is free speech more important than a student’s right to a positive, unbiased and encouraging teacher?
- Are teachers legally obligated to refrain from blogging about students?
- Do educators have a moral obligation not to disparage students online?
Teacher Natalie Munroe’s Blog: Catalyst for the First Amendment Lawsuit
The fracas started over Munroe’s blog entitled “Where are we going, and why are we in this Handbasket?” Munroe’s lawsuit maintains the blog was “anonymous” even though it included pictures of the teacher. She also blogged under the name, Natalie M. – a pen-name that doesn’t do much to obfuscate her real name, Natalie Munroe. Nevertheless, Munroe insists it was meant to be a private blog, which only her friends and family were invited to follow. It was, however, publicly indexed; as such, even if people weren’t invited to follow, it could be found via a search engine.
Like many blogs, Munroe’s was often used as an outlet to vent her daily frustrations. Being a high school teacher, those frustrations included her students, parents and superiors. At times she stuck to fairly innocuous quips about her students and called them “out of control;” at other times, she arguably went for the jugular and opted for phrases like “dunderheads,” “frightfully dim” and “utterly loathsome.” Munroe once declared that one of her students was “a complete and utter jerk in all ways.” Natalie M. also lamented about “canned report card responses” and wished that she could put “dresses like a streetwalker” on a few of her students’ quarterly grade analyses.
Teacher Blogging: Munroe v. Central Bucks School District
Word got out that “Handbasket” was the work of Natalie Munroe and within a few months she got her walking papers. The tenured teacher believes her blog is to blame for the firing, while school officials insist it has more to do with “poor performance.”
Munroe filed a “First Amendment Retaliation case” on June 21, 2012 in federal court alleging her firing violated her first amendment rights. Named defendants include the Central Bucks School District, the superintendent and the principal of her school. Munroe is asking for reinstatement, back pay and front pay, in addition to punitive damages related to civil rights violations, emotional distress and reputation damage – a package totaling $5 million dollars.
Public Education v. The Internet: Striking the Right Jurisdictional Balance When It Comes To Teacher Blogging
Munroe’s case is intriguing because of the questions it raises about the intersection of public education, digital technology and the law. As the world we live in becomes more digitized, what legislative and societal rules should be adapted to ensure both personal freedoms and a healthy learning environment for the “next generation”?
Should teachers be censured for lambasting their students online? If a teacher is going to maintain a blog about their students, should statutes exist to ensure it’s not publicly searchable — for student privacy right reasons? Do parents have the right to demand that a demeaning teacher be removed? If so, where is the law-line drawn?
Blogging teachers aren’t the only issue involving Internet law and the public school system. In fact, many states are in the process of examining cyber bullying legislation and deciding whether or not schools can enact punishments for cyber harassment that occurs off campus.
The more we integrate the Internet into our lives, the more gray-area Internet law implications will arise. Moreover, it’s likely these issues will involve ethical questions that may force a robust public discourse about online free speech and how it relates to students’ rights versus teacher bloggers.
Matthew Inman of “The Oatmeal” was embroiled in an epic legal battle with lawyer Charles Carreon and Carreon’s client, FunnyJunk.com. Thanks to a little “WTF!? Litigation,” Carreon v. Inman engaged netizens across the globe. For Internet law enthusiasts, the case was front-row-seat material. So much more than just an online copyright tussle, the FunnyJunk v. Oatmeal legal battle served as a cautionary tale about lawyering and marketing in the Internet age; it highlights the philosophical gap between old-fashioned lawyering and the fluid nature of today’s online marketplace; and perhaps most intriguingly, Carreon v. Inman is a lawsuit that makes tests whether or not the old marketing adage of “any publicity is good publicity” still holds true today.
“I’m not one to combat piracy,” Matthew Inman explained in a statement to Comic Riffs, “if you want to post my comics on your site, just don’t post 500 [of them] and just give me a link back.”
Inman’s statement succinctly encapsulates today’s “pro-piracy” zeitgeist. It’s also become a rallying cry for small- to mid-sized copyright holders who are willing to share their work in exchange for a little SEO link-love, but are fed up with “re-hosting” sites that blatantly profit off stolen material.
First: A Little About Carreon v. Inman
Before we get to the pulp of the drama, let’s first meet the players.
Matthew Inman, 27, is the creator of “The Oatmeal” – an original, popular, irreverent online cartoon and blog. Charles Carreon, a 1986 graduate of UCLA Law School, is legal counsel for Funnyjunk.com. Back in the day, Carreon litigated one of the first high-profile domain disputes; today, according to Comic Riffs, he’s angling to become the “go-to attorney for people who feel they’ve been cyber-vandalized or similarly wronged on the Internet.”
TheOatmeal.com is essentially Inman’s portfolio site. It’s filled with his original work, a blog, a quiz section and a marketplace where fans can purchase Oatmeal paraphernalia. According to reports, The Oatmeal attracts over 4 million page views a month. All in all, it’s a great-looking, user-friendly website that highlights Inman’s considerable talent – and no, it’s not littered with advertising and scraped content.
FunnyJunk.com, on the other hand, is a forum-like website that relies on user-generated content. Administrators claim infringement immunity under the Communications Decency Act and provide a questionable “copyright removal request form” on the site; questionable because it doesn’t provide the contact information for FunnyJunk’s DMCA agent – a requirement for DMCA compliance. Like other social-voting sites, posts on FunnyJunk.com are up- and down-voted by other users; “reputation points” are based on positive feedback. Unlike The Oatmeal, FunnyJunk is littered with advertisements – a point, thanks to contributory infringement statutes, that may come back to bite them in the butt.
The Oatmeal v. FunnyJunk: In the Beginning
The Oatmeal v. FunnyJunk saga started in 2010. Back then, Inman contacted FunnyJunk.com and asked the administrators to remove some copyrighted content from their site. As previously stated, FunnyJunk.com’s copyright removal page didn’t include a DMCA agent, but they ostensibly agreed to Inman’s request.
Ostensibly being the operative word.
Turns out that FunnyJunk.com simply removed all the content that WAS properly attributed to Inman, and left all the material that was not. Then, FunnyJunk pulled the ultimate in school-yard whining by changing all instances of the phrase “The Oatmeal” to “The Fag” on their website.
As Inman explained, filing a DMCA takedown notice for every single infringement would have taken an inordinate amount of time. Besides, Matt had more important things to do, like continue building one of the most successful online, graphics-based businesses in the U.S. So instead of going the DMCA route, Inman decided to make a post on his blog about FunnyJunk.com’s blatant infringement. That was that – or so he thought.
At around the same time, FunnyJunk.com was in the process of retaining Charles Carreon as counsel. A self-styled crusader against “cyber vandalism,” Carreon got down to the business of lawyering on behalf of his client, FunnyJunk.com. As part of his efforts, instead of first making sure that FunnyJunk.com had rock-solid website disclosures, complete with a DMCA agent listed on the “copyright removal” page, he fired off a strongly worded letter to Inman after coming across The Oatmeal blog post that discussed FunnyJunk’s copyright infringement.
WTF!? You’re Actually Going to Sue for Defamation, Carreon!?
In Carreon’s letter to Inman, he demanded that Inman pay $20,000 for making a “false accusation of willful copyright infringement” against The Oatmeal’s “competitors,” FunnyJunk.com. The defamation, Carreon argued, centered on the fact that Inman defamed his clients by saying they were infringing on copyrights, when in fact, Carreon argued, they were protected by Section 230 of the CDA.
Carreon further argued that an alpha-numeric pterodactyl graphic, which appeared in the source code of Inman’s post about FunnyJunk.com, was “evidence” of actual malice. Additionally, Carreon averred that Inman’s statements constituted false advertising under the Lanham Act.
Here’s why Carreon’s claims are ridiculous:
1) The pterodactyl graphic was developed long before the fracas with FunnyJunk.com started and appears on nearly every page of The Oatmeal’s source code. It has absolutely nothing to do with taunting Carreon’s clients.
2) The defamation claims are ridiculous. Without even evoking legalese, common sense dictates that defamation is not pointing out that another website is posting copyright protected work without proper credit. Now, Carreon says that all the links that Inman said were infringing were removed soon after Inman made his complaints, thereby putting them on the right side of DMCA law; However, a quick look at one of the page’s cache proves that it was still intact on May 28, 2012. Carreon’s letter was dated June 2, 2012. It’s not a far stretch to infer from those facts that the links were taken down with the express purpose of sending the “extortion” letter to Inman.
3) The Lanham act specifies “commercial advertising and promotion.” As such, a lawyer could easily argue that Inman’s actions did not constitute “false advertising”
Crowdsourcing Success 101: The “Bear Love, Good. Cancer Bad” Campaign
Understanding the actual parameters of the Digital Millennium Copyright Act and United States’ defamation statutes, Inman made the following promise to both Carreon and Oatmeal fans:
Instead of mailing the owner of FunnyJunk the money, I’m going to send the above drawing of his mother. I’m going to try and raise $20,000 and instead send it to the National Wildlife Federation and the American Cancer Society.
True to his word, Inman posted the campaign, “Operation Bear Love Good, Cancer Bad,” on Indiegogo.com, with the proceeds going to the American Cancer Society and National Wildlife Foundation. In true Oatmeal form, the campaign included a cartoon drawing of a “mother” having sexual relations with a Kodiak bear. In just over an hour, Inman had raised the $20,000. Inspired by the generosity of his readers, The Oatmeal creator kept the giving campaign open. Within three days, the amount had climbed to over $170,000 – all of it would go to charity.
Within minutes of Inman’s charitable campaign launch, thousands of copies of Inman’s mother-kodiak drawing landed in Carreon’s inbox; crank calls were made to his office; under siege, the beleaguered lawyer attempted to stop the onslaught by removing his contact information from his website.
WTF!? You’re Actually Going to Sue the American Cancer Society & National Wildlife Foundation Over This, Carreon!?
Carreon was ticked about the drawing. He told reporters that “accusing [his] mother of beastiality is revolting, and [he would] not forgive it!”
And with that, instead of cutting his losses and letting the incident die a slow death, Carreon opted to serve Inman with yet another lawsuit – this time over Inman’s failure to file a charitable disclosure or annual report, thus making him an unfit entity to receive charitable gifts.
To add some cache to the suit (and possibly to assure greater media coverage?), Carreon included not only Indiegogo, but the American Cancer Society and the National Wildlife Foundation, for illegally participating in a charitable giving campaign that was not in compliance with non-profit technicalities. In his claim, Carreon also asserted that Inman’s campaign violated Indeigogo’s terms of service – an argument which Indiegogo has since refuted.
The Electronic Frontier Foundation has now stepped in on Inman’s behalf, and will most likely make mincemeat of Carreon’s claim – further embarrassing the once lauded Internet lawyer. It just goes to show, as an Internet lawyer, you have to keep up – otherwise you may end up unintentionally knocking yourself out of the market – within a matter of hours.
The Oatmeal v. FunnyJunk: A Metaphor For The Current State Of Internet Law?
FunnyJunk.com v. The Oatmeal (which has now turned into Carreon v. Inman), is a fascinating case. Not only, as Comic Riffs pointed out, does the case involve two smaller-sized websites instead of a mega-corp like Google or Facebook, which makes it that much more accessible to the average user, but it also serves as an ideal case study for how vintage lawyering can sometimes prove disastrous in today’s digital marketplace.
In a matter of a few days, Carreon became Internet public enemy #1. The hive mind was incredulous that a lawyer could make such ridiculous demands of one of the more popular Web cartoonists around. Part of what was so infuriating was Carreon’s ostensible ignorance of current Internet culture. Not only did he seemingly fail to handle the most basic and foundational aspect of online business litigation by making sure FunnyJunk.com had a proper DMCA disclosure, but instead of cutting his losses after the first threat, he doubled down – thereby making himself a 21st century target and highlighting his arguable ignorance of the market in which he claims expertise.
Beyond Carreon, though, FunnyJunk.com v. The Oatmeal is noteworthy because it illuminates the cavernous gap between the mores of average Internet users and entrepreneurs versus the philosophical beliefs on which many of our Internet laws are based.
To illustrate, consider the fact that Inman did not originally file a DMCA takedown request. The truth is that most small-to-mid sized copyright holders don’t bother with the DMCA process. Why? Because the new generation of online business people aren’t diametrically opposed to “sharing;” heck, most don’t even remember life before the share-fueled Internet arrived. As such, these netizens rely on the exchange of free goods/info/data/links to build their brands and businesses. To this new wave of users and entrepreneurs, the time it takes to fill out DMCA takedown requests often proves too costly and time consuming.
Large corporations and lobbying associations, however, make considerable use of the DMCA process. Which begs the question: Are current Internet laws really drafted with the intention of protecting the average copyright holder and consumer, or are they written with the sole purpose of placating “fat cats” like the RIAA? I hate to say it, but in most cases the desires of the mega-corps and Godzilla-like lobbyists take precedence in the legislation writing process; resulting in:
1) A dearth of U.S. online copyright legislation that adequately impedes copyright trolls;
2) Improper rights protection for small to mid-sized intellectual property holders; and
3) Outrageous statutory damages based on agitprop compiled by biased entities.
Over the next few months, Carreon v. Inman is poised to be an oft-talked about Internet law case —not because of the legal prowess of Carreon’s lawyering, but because the Inman v. FunnyJunk.com drama has definitely brought a little LULZ to kick off summer 2012.
Kelly / Warner specializes in Internet law. Our practice represents all types of startups, online marketing businesses, hosting companies, app developers and even hackers. Not only do we have a deep understanding of online intellectual property, defamation and advertising law, but we’re tech-heads ourselves (we even made our own legal app). Contact us today.
Is NY’s Internet Protection Act Another Misguided Cyberbully Legislation Attempt?
Not to be outdone by their cyberbully law-drafting counterparts in Arizona, New York legislators penned a doozy of a cyberbully bill — the Internet Protection Act (IPA).
In a state well known for its forthright citizens, if passed, the Internet Protection Act would not only make it illegal to anonymously harass classmates online (a noble cause), but it would also be illegal to post anonymous disparaging diatribes about state politicians or local businesses (a shady cause).
How New York’s Internet Protection Act (IPA) Would Work
Originally authored by New York District 10 Assemblyman Jim Conte, the primary goal of the Internet Protection Act is to combat cyberbullying. But like other bills promoted as cyberbullying legislation, the IPA goes too far in attempting to rectify the problem.
In short, New York’s proposed Internet Protection Act outlines a process wherein those who are bullied (and presumably defamed) online can take action to remove the material. The bill, however, only applies to anonymous comments.
As currently written, the IPA would allow victims to contact a site where offensive material is posted and demand that the person making the comment attach their name to the statement. If the original poster doesn’t comply, the website, under the IPA, would be forced to remove the content.
Online Business Reviews and Political Rants Would Also Be Curbed Under New York’s Internet Protection Act
But Conte’s bill doesn’t stop at cyberbullying. In addition to its underage-stalking aspect, the IPA also includes language that aims to protect elected officials from “mean spirited and baseless political attacks.” An arguably thought provoking addition considering that Conte was quoted as attributing New York’s near Republican sweep in the 2010 elections to the fact that the party had “had no scandals and [were] getting the job done.” Though, the public can’t know about any scandals if none are broached – and the first step in silencing critics is enacting semi-Draconian Internet conduct laws. (Both Parties are equally guilty.)
In addition to cyberbullying and safeguards for politicians, business owners will be pleased to learn that the IPA also aims to stamp out online trade libel. If passed, the IPA will afford business owners the same “name reveal” protections as online bullying victims. Supporters of the bill argue this measure will help ensure that only real customers – not competitors – are the only people posting Internet evaluations.
What Constitutional Scholars And Internet Lawyers Are Saying About NY’s Proposed Internet Protection Act: “Hey New York, Remember Your American History!”
Kevin Bankston – an attorney with the Center for Democracy and Technology – said it best when he dubbed New York’s proposed Internet conduct law “a heckler’s veto.” Many reporters, like David Kravets at Wired, reminded the “Federalist Papers” may never have been distributed, and thus our beloved Constitution never ratified, if laws existed against anonymous speech in our nation’s nascent days.
If passed, the Internet Protection Act would apply to the websites of newspapers based in New York; which means two of the most circulated dailies in the world – the New York Times and The Wall Street Journal – would be subject to this law. An ironic point when you consider the fact that a Supreme Court case involving the New York Times (New York Times, Inc. v. Sullivan) is widely regarded as one of the most important defamation rulings in our nation’s history (it’s the one that made actual malice a standard in defamation lawsuits involving public figures and elected officials).
In short, if gaveled into law, New York’s Internet Protect Action would come dangerously close to infringing on individuals’ free speech rights.
While we publicly grapple with online privacy and intellectual property legal issues on this side of the pond, our English-speaking brethren on the other side are engaged in a hot debate over defamation law and libel tourism. Donning a very distinguished name, if passed, the Lord Lester of Herne Hill’s draft defamation bill will significantly alter libel and slander laws in England and Wales.
Journalists will have more freedom to publish parody and “irreverent criticism” without fear of a costly defamation lawsuit; “convenience test” standards will be stricter, thus making it harder for wealthy entities to file claims for little cause; and perhaps of most import to US citizens, the proposed bill with most likely eradicate UK libel tourism.
What Is Libel Tourism?
Some people shop for jewelry and others for jurisdictions. The act of filing a defamation lawsuit in a dominion with the most favorable laws is known as libel tourism. Over the years, London has earned a reputation for being very defamation-claimant-friendly. The result is an increase in costly legal battles, which tax payers end up covering, that involve individuals with extremely tenuous links to the UK.
The Duke of Brunswick Rule: Why London Is The Libel Tourism Capitol Of The World
We’ve established what libel tourism is, and we’ve established that England and Wales are popular spots for libel tourism; so now the obvious question is: why is the UK such a popular spot for libel tourism?
The root of the phenomenon can be traced back to The Duke of Brunswick.
One day, way back – we’re talking 17th century back – an exceptionally paranoid German Duke, recently exiled to France due to an peasant rebellion in his region, sent a servant to England to purchase a newspaper the nobleman suspected of having published material that could hurt his reputation.
Turns out Brunswick’s hunch was on-point; the Duke subsequently won his libel claim in a British court and was awarded pecuniary damages. The most important aspect of the famous defamation case, though, was its establishment of the precedence that every purchase of a newspaper constitutes a new act of libel.
In the Internet age, the Duke of Brunswick rule translates to one view of a web page.
But Is Libel Tourism Really A Problem?
There’s little theoretical doubt that London is where you go to get your tourism libel on, but the actual number of foreign lawsuits that make it in front of a high court or jury is on the decline. In fact, according to Joint Committee on Draft Defamation Bill, there hasn’t been such a case in two years.
While very few libel tourism classes have been heard by the UK’s high court as of late, the mere threat of a potentially costly London-based defamation suit dissuades foreign media outlets and others from publishing stories in the first place.
In the defamation draft bill comments, the committee acknowledged the “exaggerated” number of libel tourism lawsuits in their nation, but also averred that the courts “could benefit from more robust” judicial powers with regards to defamation law when it comes to dismissing cases that have little to do with a UK resident or entity.
Moreover, the committee also points out that while there are very few jurisdictionally questionable lawsuits that make it far in their system, the mere threat of being pulled into a London defamation court is damaging to international free speech. In other words, a blogger in Canada may be hesitant to publish something about a Saudi businessman for fear of being hauled into a London court because their blog page was viewed in the UK. (Yes, a scenario very close to that has actually happened and the claimant won!)
The US SPEECH Act
One of the reasons parliamentarians are keen to reform defamation standards is because other countries are beginning to pass laws that render UK Legislation impotent. One of those nullifying nations is the United States.
Unimpressed with how the Duke of Brunswick rule was “chilling” free speech in America and around the world, the Federal government enacted the Securing the Protection of our Enduring and Established Constitutional Heritage – or SPEECH Act – in 2010. Its purpose is to prevent foreign slander and libel rulings that don’t pass a First Amendment sniff test from being enforceable in the United States.
The libel tourism is only a small part of UK defamation reforms. The island nation also seeks to codify stricter rules concerning fair comment and editorial freedom – moves that could open up a bold new era of British parody and free speech.
Today, Arizona Governor, Jan Brewer, vetoed Arizona House Bill 2729 — a piece of legislation concerning firearm freedoms. Being an Internet law firm, though, we’re more curious to see if Gov. Brewer will use the same veto power on Arizona House Bill 2549.
A few weeks ago, the Arizona Legislature angered First Amendment advocates and freedom-loving netizens. Copper State officials poked the “hive mind” by passing Arizona House Bill 2549 – an Act intended to thwart cyberbullying and stalking, has instead caused consternation in free speech circles.
Arizona House Bill 2549 Basics
When you divorce Arizona’s new Internet law from legal analysis, its administrative purpose is to update section 13-2916 of the Arizona Revised Statutes – the state’s long-standing telephone harassment law.
A one-and-a-half-paged piece of legislation, all 2549 does is redact the words “telephone” from the statute and replaces it with “any Electronic or digital device.”
Sounds simple enough, right? After all, everyone agrees that laws need to catch up to our new-fangled communication tools, correct?
Well, not everything is as simple as it seems.
The Language of Arizona House Bill 2549: Harmless or A First Amendment Threat?
Though the ostensible intent of 2549 is noble, the problem with the bill is its lack of definitions. While the updates address the outdated “telephone language,” the surrounding verbiage remains unchanged, and the result is causing a few raised eye-brows amongst legal eagles.
The excerpt attracting attention:
“It is unlawful for any person, with intent to terrify, intimidate, threaten, harass, annoy or offend to use a telephone or any electronic or digital device and use any obscene, lewd or profane language or suggest any lewd or lascivious act, or threaten to inflict physical harm to the person or property of any person.”
The Internet is the last bastion of free speech…and if there’s one universal online mantra, it’s “what’s crude and lewd for you, may not be crude and lewd for me.” Hence, the concern over Arizona’s new Internet Conduct Law.
Arizona House Bill 2549 also says that “disturbing the peace, quiet or right of privacy of any person at the place where the…Communications were received” is a class 1 misdemeanor; it makes threatening online stalking a class 5 felony and online death threats a class 8 felony.
Arizona’s new Internet Protection Law also defines “immediate family members” as any person who regularly resides with the person in the household within the past six months. A measure undoubtedly included to allow parents to bring charges, on behalf of their children, against cyberbullies.
Proponents Say Speech Is Protected In Arizona Bill 2549
But are the free speech advocates screaming fire when there’s little cause for concern? Advocates of the bill point out that 2549 explicitly states: “’constitutionally protected activity or other activity authorized by the law’ cannot be prosecuted under this statute.”
That said, when it comes to drafting laws, little wiggle room exists. When you change “telephone” to “electronic communications” without definition, the scope of the act widens and falls dangerously close to infringing on personal freedoms. Before, if you were using the telephone to harass someone your target was a specific person. With the Internet, there’s a greater chance that bystanders could view it and be offended. As such, the statute should focus more on the intent, as opposed to the action. The language of the bill should be tweaked to include language surrounding the concept of “harassment.”
For those interested in law redundancies, take note that Arizona already has a computer harassment statute on the books – A.R.S. 13-2921 – which makes illegal “a communication with another person by verbal, electronic, mechanical, telegraphic, telephonic or written means in a manner that harasses.” Makes one wonder: Do we really need two online harassment laws?
The Future Of Cyberbullying Legislation
When asked, state representative and co-sponsor of 2549, Steve Farley, said the intention of the bill was to protect stalking and cyber bully victims. Justin Patchin, co-director of the Cyberbullying Research Center, elaborated by explaining he was a “defender of the Constitution like anyone else, but the First Amendment doesn’t give you the right to harass and terrorize someone.”
The clamor surrounding Arizona Bill 2549 has prompted officials to pull-back and tweak the language. When the updated version is released, we’ll see if they listened to objections and incorporated the necessary changes.
And most importantly, we’ll see if Gov. Brewer’s veto pen will get some more exercise.
A judge presiding over the well-publicized Oregon defamation lawsuit involving Crystal Cox recently ruled against the self-styled, self-published investigative blogger. Cox was ordered to pay $2.5 million in damages and the decision has stirred online First Amendment crusaders.
The Crystal Cox Defamation Lawsuit Background
A self-described investigative blogger and whistle blower, Crystal Cox is a real estate agent by day and Internet vigilante by night. Among her cadre of websites was obsidianfinancialsucks.com, an outlet Ms. Cox used to accuse Kevin Padrick — one of Obsidian’s founding executives — of fraud, misappropriation of funds, lie telling, and a litany of other unscrupulous actions. Cox even insinuated Padrick may have hired an assassin to silence her.
As a result of her online accusations, Mr. Padrick decided to sue for defamation. He maintained his company lost considerable business thanks to Ms. Cox’s allegedly misleading statements. Padrick explained that the Internet was awash with Cox’s disparaging claims — a digital reality which damaged him financially.
Defamation Pro Se Trial
In court, representing herself “pro se,” Cox argued her blog posts were journalistic, of “pubic concern,” and that the Oregon retraction laws should apply to her situation (retraction laws allow journalists to correct or retract defamatory statements in lieu of compensatory damages.). Cox also characterized herself as a “whistle blower” exposing the unscrupulous practices in the finance world.
The Definition of Journalist When It Comes To Online Defamation Lawsuits
Judge, Marco A. Hernandez, however, rejected the assertion that Cox was a journalist.
By applying Oregon law, Hernandez ruled Cox could not be treated as a journalist since:
- She did not have a formal education in journalism
- She did not hold proof of affiliation with a recognized news entity
- She arguably didn’t adhere to journalistic standards such as editing and fact checking
- She did not keep notes of conversations and interviews conducted
- She could not produce evidence that she had a mutual understanding or an agreement between the defendant and his or her sources
- She did not contact the grieved party, before publishing, to get both sides of the story
Offering SEO Services Sunk Cox
In addition to the legal Oregon defamation elements noted above, perhaps the most damning piece of evidence against Cox was an email, presented as evidence by the defense, wherein Cox offered Padrick online reputation management services for $2,500 a month.
In the eyes of the court, the email helped in disqualifying Cox for journalistic immunity. After all, the offending email framed Cox as someone who was actively looking to profit off her statements, and thanks to the presence of the email, the defense could argue that Cox was essentially holding Padrick’s business reputation hostage.
The Right Defamation Decision…But At What Cost
Based on the above defamation definition elements — and the fact that Cox couldn’t prove wrongdoing on the part of Mr. Padrick — it’s no surprise that Obsidian and it’s executive emerged victorious.
That being said, many are concerned about the unintended First Amendment ramifications this decision may have on Internet bloggers in the future. Many wonder how well bloggers, who work for online magazines or news organizations, fit into the qualifying factors listed by Hernandez. For instance, not every blogger working for a news organization has a a journalism degree.
The defamation lawsuit of Crystal Cox is sure to play a role in future blogger defamation lawsuits; it’s established legal precedence that is certain to be tested and challenged in the coming years.
A court case in Indiana has raises an intriguing First Amendment question as it relates to anonymous defamation. In this case, a potentially libelous comment was left by an anonymous user on the Star website. The comment suggested that Jeffrey Miller, the former head of Junior Achievement of Central Indiana, and several of his colleagues had misappropriated funds into their own bank accounts. This comment was posted by a user with the handle “DownWithTheColts.” Now Miller et al. want to sue, but they have no idea who “DownWithTheColts” is.
Although the Star may be able to find identifying information about this individual via his or her IP address (Internet Protocol Address), the publication refused to provide it, citing anonymous speech rights under the First Amendment.
This case calls into question the ability of laws originally created for offline situations to govern or apply to online situations. For example, the judges made an analogy between a website’s comment forum and a physical bulletin board that may exist in a public location. Whether this is a sound analogy, and whether the same laws can govern both situations, is one of the anonymous defamation issues at hand.
Since this case occurred in Indiana, the court must adhere to the state’s “Shield Law.” The Indiana shield law protects a journalistic publication or entity from revealing the identity of its sources. It applies narrowly to professional journalists and traditional media. If the Shield Law applies in this case, it would mean the court cannot legally require Star to provide information regarding the identity of the anonymous commentator. However, whether this law applies at all is one of the matters under review. Is Star’s website an entity covered by the Shield Law, or does the law only apply to print media? And if Shield does apply, is an anonymous comment considered a source?
To that extent, the fact is that Star did not publish information that was based on the information provided by anonymous commentator, DownWithTheColts. Therefore, the individual was not a source to any journalistic ends. Logically, it follows that the Indiana Shield Law does not apply in this case.
Additionally, Star has the ability to moderate comments that are published on the website, which may mean a comment could be considered as an extension to the original article.
The other primary issue in this case is whether or not the comment posted by DownWithTheColts was defamatory. Since constitutional free speech rights don’t apply in cases of defamation, the judges have to agree that the statement was, in fact, defamatory. It also follows that the statement must be proven to be false, since a factual statement is not defamatory.
Upon further review, the judges concluded that the anonymous comment was defamatory. However, Miller also needs to prove it was false. Without this proof, it’s not possible to move forward with a defamation claim. Further, there needs to be some evidence of malice, in regards to the intent of the individual who posted the comment. Since the individual’s identity is not known, it’s not possible to prove whether the intent was malicious. Since proving malice is not possible in this case, the judges modified the requirements so that this detail would not be required in order for Miller to satisfy the requirements and obtain the commentator’s identity.
This case has been sent back to the trial court in order to determine whether all of the necessary requiremenents have been met under the stipulations of the state and federal constitutions. If so, Miller will be able to proceed in finding DownWithTheColts’ identity and Star may have to furnish the IP address and other details of this individual.
Believe it or not, The United States Constitution doesn’t mention “privacy” once; but that doesn’t mean invasion of privacy isn’t protected. After all, the fourth amendment guards against unreasonable search and seizures, and the ninth ensures that rights not explicitly mentioned in the Constitution are also protected. As such, many states have False Light invasion of privacy laws on the books.
As a private citizen, you have a right to protect yourself from unflattering and unwanted publicity. The legal concept is known as “False Light.” And as we collectively continue to travel down this Internet-obsessed road we’re on, expect to see more false light lawsuits hitting the courts.
What Is False Light?
False light is a privacy tort often confused with defamation. In fact, some jurisdictions think the two are so similar they’re lumped together in the eyes of the law. The premise behind false light is that private citizens have the right to “protect themselves from publicity, which puts them in a ‘false light.’”
To satisfy false light claims in the eyes of the court, most state statutes demand that:
- There exists a Publication of false light material by defendant, either online or off, against plaintiff;
- Actual Malice was involved; and
- The published material would be considered “highly offensive or embarrassing” to a “reasonable person.”
The Difference Between False Light and Defamation
As stated previously, false light and defamation are very similar. The main difference is that false light statues address damage to one’s dignity, whereas defamation is more about one’s reputation. In other words, false light deals with the impression created; defamation, on the other hand, deals with truth and falsity.
For a person to be lose a false light lawsuit, the plaintiff must prove the defendant acted in “reckless disregard,” however, a false light plaintiff does not have to show evidence of actual harm, unlike in defamation cases.
False Light Jurisdiction
False light is primarily a state-based law.
Interestingly enough, though, due to the Ninth and Fourth Amendments of the U.S. Constitution, some states deem false light protections as a constitutionally protected right and therefore outside of limitation statutes.
Common False Light Defenses
What are some common defenses for false light charges? Most people argue free speech rights and/or newsworthiness. Most false light laws exempt “newsworthy” information from persecution. As such, many a false light litigation centers around what is and is not considered newsworthy – a definition that is only sure to become murkier as citizen journalism and social networking continue to grow.
Notable False Light Cases
Jose Solano, Jr. brought a false light privacy claim again Playgirl magazine after the publication placed his picture on the cover, surrounded by headlines that seemed to suggest that Solano would appear naked in the edition. At first, he won his claim, but the decision was reversed as the appeals court ruled that Solano was a temporary public figure and that the magazine was newsworthy.
While Larry Flynt may have famously won his defamation trial against Rev. Jerry Falwell, he wasn’t as lucky with Jeanie Barton. Barton had an aquatic act that featured a swimming pig and Flynt’s magazine, Chic, published a photo of the act along side some copy only the mind of Larry Flynt could come up with. Sine the photo was a true representation of Barton’s pig act, defamation charges could not be brought, but she was awarded a false light ruling since the “essence” of the piece made the act seem sexually deviant.
In Zeron v. Diamond Broadcasting, a Seattle-based film maker sued an Oklahoma radio station after receiving threatening calls after the hosts of a morning radio program erroneously broadcast Zeron’s phone number and urged listeners to call it and give Zeron a piece of their mind.
You see, it was a few days after the Oklahoma City bombings back in 1995; someone had created an anonymous AOL account using the screen name ZZ03 and used it to promote offensive products about the horrific incident; the person who created the account used Zeron’s phone number. Zeron asked AOL to remove the material and they refused. To make a long story short, once Zeron was able to reach the station and explain the mix-up, they made an on-air correction and announcement, but not before Zeron was inundated with nasty phone calls.
Zeron did not end up winning the false light case, as he failed to prove that the station had acted with a “high degree of awareness to the claims falsity.”
Contact A False Light Lawyer
Do you feel someone has maliciously used your name or likeness in a “highly embarrassing” manner – either online or off? If so and you’d like to consult with a lawyer well-versed in false light litigation, contact Aaron Kelly.