LibertyVoice

Many others already have written about the worrisome case of Professor Weiler, an NYU law professor who is being haled before a French criminal court to answer for the "crime" of hosting an academic book review that displeased the author of the book in question. I’ll add my voice to the chorus because Professor Weiler’s appeal for assistance (below) deserves the widest possible dissemination, and because the case is another object lesson on the importance of legal protection for intermediaries in preserving some modicum of freedom of expression online. 

When it comes to promoting a free and open environment for online speech, Professor Weiler may not be on the same level as Google, convicted in an Italian court for displaying a user-generated video, but he is nonetheless being targeted for hosting another’s speech, and his case could have a serious impact on sharing of academic expression online. If Professor Weiler can be held criminally liable in a foreign country for publishing this book review, I foresee a serious chilling effect on the willingness of others to provide an online platform for this important form of academic discourse going forward. As a precedent, it would put the editor in an intolerable position of choosing between censoring his/her colleague’s work based on nothing more than the complaining party’s say-so and facing expensive, liberty-threatening criminal proceedings in a distant locale.

It’s also a classic example of so-called "libel tourism," which some states have moved to address.  U.S. law provides robust protections in libel cases that other nations, including France, generally do not. I’d love input from readers in the comments about the specifics of French libel law, but the U.S. protections that come to mind in this scenario include protection for statements of pure opinion and the requirements of proving the statements were false and showing actual malice. Putting aside the First Amendment’s protections, under U.S. law the whole case likely would be thrown out because of Section 230 of the Communications Decency Act. Whether France recognizes any of these protections, there appears to be no meaningful mechanism for disposing of cases at an early stage in the proceedings based on the legal merits (not terribly surprising because the sharp common law distinction between pre-trial and trial is not recognized in many civil law jurisdictions). It’s hard not to posit that the complaining party chose to file a criminal complaint in France, where neither Professor Weiler nor she lives or works, in order to exert the maximum amount of pressure on him to take down the critical review. 

Background

Here’s the story (from our database entry, France v. Weiler): 

In September 2008, New York University law professor Joseph Weiler was
summoned to appear before a French Examining Judge in connection with
a complaint of alleged criminal libel made by Dr. Karin
Calvo-Goller, a senior lecturer at the Academic Centre of Law and
Business in Israel.  Professor Weiler will appear for trial before the
Paris Criminal Tribunal in June 2010.

Professor Weiler is the editor in chief of the European Journal of International Law and the affiliated book review sites, Global Law Books and European Law Books. In 2007, Global Law Books published a book review
written by Professor Thomas Weigend, Director of the Cologne Institute
of Foreign and International Criminal Law and Dean of the Faculty of
Law at the University of Cologne.  Professor Weigend reviewed Dr.
Calvo-Goller’s book, The Trial Proceedings of the International Criminal Court. ICTY and ICTR Precedents, and criticized it as an "exercise in rehashing the existing legal set-up" and "unproductive," among other things. 

In June 2007, Dr. Calvo-Goller wrote to Professor Weiler in his capacity as editor of Global Law Books,
requesting that he remove Professor Weigend’s review from the site. Her
letter detailed several perceived factual inaccuracies in the review,
claiming that it went "beyond the expression of an opinion, fair
comment and criticism" and contained "false factual statements which
the author of the review, a professor of criminal law, could not
reasonably believe to be true." It also claimed that "[t]he review is
an indirect insult to former ICTY and actual ICC
officials, defense counsel of the ICTY and ICTR, who took the time to
read and comment on previous drafts of the book."

In a response to Dr. Calvo-Goller, Professor Weiler declined to
remove the review, expressing his sympathy for Dr. Calvo-Goller’s hurt
feelings, but also pointing out the unorthodox character of the
request:

 I have seen all manner of reviews and from time
to time received letters from unhappy authors. In these long years of
experience I have never received a letter such as yours both in content
and tone. It departs from what in my view are considered common
conventions of academic discourse and academic publication.

. . . 

It is a very extreme request to ask for a
critical review to be removed. I could imagine acceding to such a
request only in most egregious circumstances of, say, bad faith,
conflict of interest etc. In reviewing a complaint such as yours the
task of the editor is not to engage in a de novo review, but to assess
whether the review falls into one of those extreme categories of
egregious unreasonableness.

After noting Professor Weigend’s distinguished professional credentials
and addressing each specific factual/substantive contention in turn,
Professor Weiler concluded that removing the review was not justified:

My conclusion from this preliminary enquiry is
that the heavy burden needed in my eyes to suppress a book review has
not been met. In fact not even a prima facie case has been made. I
found nothing to impugn the integrity or professionalism of the
reviewer and, independently of whether or not I share his opinions or
conclusions on your book, I must decline your request to suppress the
book review by removing it from the site. 

Professor Weiler also explained that he would forward Dr.
Calvo-Goller’s comments to Professor Weigend and would consider a
request by Professor Weigend, if any, to change the review.
Professor Weiler also pointed out the comment feature on the website
and suggested that it would be "perfectly in order for you to write a
comment which, after editorial approval, could be posted on the website
and seen by anyone who reads the review."

Professor Weigend declined to make any changes, Dr. Calvo-Goller
posted no comment, and Professor Weiler stood by Professor Weigend’s
decision. And that was that until Professor Weiler ended up before the French Examining Judge, who told Weiler that her role was purely formal and that the merits could only be addressed by the Criminal Court itself at trial, set for June 25, 2010.

Professor Weiler’s Editorial

Professor Weiler published a thoughtful editorial on the case in the most recent edition of EJIL, entitled "Book Reviewing and Academic Freedom," which reproduces his letters back-and-forth with Dr. Calvo-Goller in their entirety and gives his perspective on the matter. Displaying surprisingly little indignation and speaking with great eloquence, Weiler sums up well the threat to academic freedom this case poses:

Consequently, I am saddened by the actions of Dr Calvo-Goller. I believe that in the circumstances of this affair, her action of instigating a criminal libel case against me for refusing to remove the book review is misguided and inconsistent with the most fundamental practices of all academic institutions with which I am familiar and with traditional academic discourse. It is not for me to criticize the French legal system under which I will stand criminal trial, but I would simply emphasize that the fact of being referred to trial before a criminal court does not, unlike many other systems, carry the implication that any public authority in France has concluded that there is any substantive merit in the complaint brought by Dr Calvo-Goller. Rather, the referral by the state follows automatically from the Criminal Complaint filed by Dr Calvo-Goller.

I very much hope that we will prevail before the Criminal Tribunal of Paris. Any other result will deal a heavy blow to academic freedom and change the landscape of book reviewing in scholarly journals, especially when reviews have a cyber presence as is so common today. Even if we do, the very fact of being subject to a criminal process by French public authorities and having to undergo a criminal trial in these circumstances coupled with the heavy financial burden of defending such a case – expenses which are in large part not recoverable even if acquitted constitutes a serious chilling effect on editorial discretion, freedom of speech and the very important academic institution of book reviewing. When the dust settles it may well be worth raising the question whether the French law which so easily allows a private complaint to become a public prosecution well balances the various competing interests in cases such as this. We would hope to hear from our French colleagues and readers.

The Jurisdictional Wrinkle

What makes the case all the more disturbing is that, as Gilles Cuniberti of Conflict of Laws.net points out, France’s stake in the whole affair is rather limited. Professor Weiler lives/works in New York, Professor Weigend  in Germany, and Dr. Calvo-Goller in Israel (though she was born and studied in France and may be a French national). The book review was published in English for an English-speaking audience.

French law governs offences committed wholly or partially in France, so, according to Cuniberti, the issue is "whether a website accessible in France entails that alleged libel on
the site is committed in France for the sole reason that the site is
accessible there."  Seems like a pretty thin reed to hang the whole matter on, and Cuniberti writes that recent French case law suggests the answer may be "no," but nothing is impossible in the fantasy land of international Internet jurisdiction. And a tenuous connection is nothing new in libel tourism cases.

An Appeal for Assistance

Now, we finally get to the important part.  In his editorial, Professor Weiler appeals to readers for assistance in advance of the trial. I encourage CMLP readers with an interest in academic expression to write in support of Professor Weiler’s cause. Here’s what he has in mind:

a. You may send an indication of indignation/support by email attachment to the following email address EJIL.academicfreedom@Gmail.com  Kindly
write, if possible, on a letterhead indicating your affiliation and
attach such letters to the email. Such letters may be printed and
presented eventually to the Court. Please do not write directly to Dr
Calvo-Goller, or otherwise harass or interfere in any way whatsoever
with her right to seek remedies available to her under French law.

b. It would be particularly helpful to have letters from other
Editors and Book Review Editors of legal and non-legal academic
Journals concerned by these events. Kindly pass on this Editorial to
any such Editor with whom you are familiar and encourage him or her to
communicate their reaction to the same email address. It would be
especially helpful to receive such letters from Editors of French
academic journals and from French academic authors, scholars and
intellectuals.

c. Finally, it will be helpful if you can send us scanned or digital
copies of book reviews (make sure to include a precise bibliographical
reference) which are as critical or more so than the book review
written by Professor Weigend – so as to illustrate that his review is
mainstream and unexceptional. You may use the same email address EJIL.academicfreedom@Gmail.com

I’ve no doubt that CMLP blog readers, fellow netizens that you are, are well aware of an Italian court’s conviction last week of three Google executives for invasion of privacy of an Italian teenager. 

(In case you missed the story, here it is in short: the teenager (who either suffered from Down’s syndrome or autism; reports differ) was filmed by four other teens who were bullying him, and the bullies posted the video on YouTube.  Google promptly removed the video after receiving a formal complaint. Italian authorities then criminally prosecuted four Google execs for defamation and invasion of privacy.  Last week, the Italian court found three of the execs guilty of invasion of privacy; the defamation charges were dropped against all four.  More back-story can be found in my 2008 post when the possibility of charges was first announced.)

Of course, Google is apoplectic. Much of the rest of the media world is too: Mathew Ingram of gigaom.com rounds up:

The Wall Street Journal called it “madness,” and suggested it was “crazy, even for Italy,” while the Inquirer called it “a blow against common sense and Internet freedom.” Danny O’Brien of the Electronic Frontier Foundation called it “a threat to the Internet,” and the National Post said it suggested that “Fascism is alive and well.”

And that doesn’t include Anna Masera’s commentary on The Guardian’s website, where she warns that "today Italy is a little bit more Chinese"—in the online oppression sense, of course.

So the vast majority of the responses have been damning of the Italian judge’s verdict, and Google has said they’re going to appeal.  John Naughton writes for The Observer that:

[I]t’s likely that they will be vindicated because even if the Italian
appeal fails, there is always the possibility of recourse to the
European Court in Strasbourg, which will take the view that European
Union law, as currently drafted, appears to give hosting providers a
safe harbour from liability so long as they remove illegal content once
they are notified of its existence.

Certainly, that’s what I’d expect given what EU law says about all this (again, see my earlier post for more).  And I agree with the media criticism above, for the most part.  But there are a few outlying opinions suggesting (or indeed stating outright) that Google got what was coming to it.  Mr. Ingram writes in his article that the correctness of the Italian judge’s decision hinges on what kind of company Google is.

So is Google a media company? Or is it simply a form of Internet
service provider, and therefore not directly responsible for the
content it hosts? Such a distinction is crucial to the Italian
decision. Google argued that the ruling contradicts a European Union
directive that gives service providers safe harbor from liability for content they host (the U.S. has Section 230
of the Communications Decency Act, which gives providers of electronic
services so-called “safe harbor” for content). But prosecutors argued
that because Google handled user data — and used content to generate
advertising revenue — it was a content provider, not a service
provider, and therefore liable.

The question of whether Google is a media company or not, and if so how it should be treated, has been vexing observers for years now.
Its primary business might be search and search-related ads and
marketing, but with YouTube and Blogger and Buzz and other services in
its stable, it’s also part content provider.

Then there’s Malcolm Coles, an SEO maven apparently based in Britain, who argues flat out that "Italy was right to find Google guilty." Now, I don’t know if Mr. Coles is a lawyer, because he seems to be arguing in largely colloquial moralistic terms and to be taking the prosecutors’ statements to the press as proven facts—a risky proposition.  But the gist of his arguments is largely that Google "runs a publishing platform" and that the Google execs are "responsible for the systems put in place to stop abusive content being
published. If those systems have failed, it is right that senior
executives are held responsible."  So as I interpret it, Coles is invoking liability on the same sort of "content provider" basis that Ingram mentions.

But the problem with this argument (and indeed, Italy’s law on the subject) is that I don’t believe that EU law (which Italy is required to incorporate domestically) makes such a distinction.  Rather than fighting the legal battle over whether Google was "hosting" under Article 14 of the Directive on E-Commerce, Council Directive 2000/31/EC, 2000 O.J. (L 178) 1, (which I discussed in my post in 2008), the Italian prosecutor seems to have been effectively arguing that Google was not an "Information Society service" ("ISS") under Article 1 (2)(a) of Council Directive 98/48/EC, 1998 O.J. (L 217) 18. 

Article 1 (2)(a) defines an ISS to be "any service normally provided for remuneration, at a distance, by
electronic means and at the individual request of a recipient of
services."  But there’s no indication that this definition distinguishes between providers of content and providers of other services. Annex V of the same Council Directive lays out examples of services that fall outside the ISS definition, but none of them are analogous to Google.  The closest that Google might come to appearing on that list is under subsection (3), which notes that television broadcasting services are "provided by transmitting data without individual demand for
simultaneous reception by an unlimited number of individual receivers
(point to multipoint transmission)" and thus not ISSes.  But YouTube and the Internet generally entail both individual demand (by clicking the link) and point-to-point transmission (from server to user).  I just don’t see how Google/YouTube is not an ISS, and thus not protected under EU law.

Therefore, I suspect that whatever Italian law says, Italy will lose on appeal.  Either the Italian appeals court will recognize that their law fails to square with that mandated by the EU, or, as Mr. Naughton predicted in the Observer, a European court will overturn the Italian decision.  Because regardless of however much Italy might like to hold Google responsible for this video, the overriding EU law just doesn’t appear to support the court’s decision.

(Arthur Bright is a third-year law student at the Boston University
School of Law
and a former CMLP Legal Intern. Before attending law school, Arthur was
the online news editor at The Christian Science Monitor.)

Image "Google Pavarotti" courtesy of flickr user annovi.frizio, licensed under a CC Attribution-Noncommercial-Share Alike 2.0 Generic.

Hung Tan Phan v. Lang Van Pham, — Cal.Rptr.3d —, 2010 WL 658244 (Cal.App. 4 Dist. Feb. 25, 2010)
Defendant, a veteran of the Vietnamese military, forwarded an email to some other Vietmamese veterans which apparently defamed another veteran. He didn’t just forward the email, though. He added some commentary at the beginning, which said (translated [...]

I have written plenty of posts in which I have opined that sue-happy entities simply do not understand the Streisand Effect. That is, they do not grasp that the Internet has fundamentally changed the economics of menace: attempts to gag individuals will only result in a greater publication of those pieces of information that the litigant is trying to hide.  The story hits Twitter, the net hordes awaken, and the PR battle becomes a rout. See Sarah Palin, Tony La Russa, Shaw Printing, ACORN, et alia.

But to be fair, at least some individuals grasp the basics of the Streisand Effect and try to avoid it. Unfortunately, this does not mean that these people refrain from filing meritless lawsuits in order to censor critics. Instead, these wise bullies simply try to suppress the disclosure of their attempted gags.  One method is to claim that the threat itself is copyrighted, as was the case with Platinum Equity. I have detailed why this should almost never work; similarly, it offends the sensibilities to allow an extortionist to copyright a threat, or a kidnapper to copyright a ransom note (no matter how lovingly crafted these implements of terror may be). But Vision Media cooked up a more novel method to hide information from the public. Thankfully a judge saw through it; but it truly was an inspired attempt to smother the Streisand Effect.

Background: In February 2009, Vision Media TV, a company that makes video segments that advertise nonprofit companies, sued Julia Forte, who runs the website 800Notes, a forum site on which members of the public can discuss telemarketing companies and practices. Vision Media filed suit in federal district court in Florida after Forte refused to identify users who posted critical comments about the company and to remove the postings.
The complaint, which has been amended several times, currently includes claims for libel, trademark dilution under Florida law, and "defamation by implication."

In January 2010, Forte moved to dismiss the complaint, or alternatively for summary judgment.  She argued, among other things, that the court lacked personal jurisdiction over her, and that Section 230 of the Communications Decency Act immunized her for publishing the statements of her users. Paul Levy, one of Forte’s lawyers, posted a copy of this motion on his firm’s blog.   

Vision Media must have realized that wasn’t a good thing if people knew that it went around suing critics. So they argued that Paul Levy’s public posting of the Defense’s motion for summary judgment defamed the Plaintiffs and Hugh Downs (a television host). Accordingly, Vision Media asked the court to order Levy to remove any references to Vision Media from his website in order to "allow the Court, rather than the media or the public, [to] decide the [case]." Plaintiff Motion to Strike, 5 – 6.

Bravo, Vision Media. You had the gall to argue that a court motion (and one of public record) was so likely to sway public opinion that in order for justice to be done, that same motion needed to be hidden away. Wow.

Thankfully, the judge was having none of this and swatted the motion with alacrity. "The motion for summary judgment is a matter of public record, and the Court sees no reason to prevent Defendants from posting their motion on their internet website or otherwise disseminating it." Denial of Gag Order, 2.

So now that the “publication of motion as defamatory grandstanding” maneuver has been strangled in the crib, let’s review. If you send off a meritless C&D or file a pointless lawsuit, there is no way of keeping it quiet. A merciless PR thrashing is the price you have to pay for using our legal system as your own personal ball gag. 

(Andrew Moshirnia is a second year law student at Harvard Law School and a CMLP blogger. His safe word is "banana.")

Picture originally from T-Shirt Hell http://www.tshirthell.com/funny-shirts/gluten-for-punishment

A ruling by the highest court in Massachusetts could impact the methods that activists use to advocate their causes, by setting a boundary between activism that is protected by the state’s anti-SLAPP statute and factual reporting, which is not.

Earlier this week, the Massachusetts Supreme Judicial Court (SJC) ruled in Fustolo v. Hollander, SJC-10485 (Mass. Feb. 1, 2010), that the writer of newspaper articles on a local development controversy could not use the state’s anti-SLAPP statute to get defamation claims by a developer dismissed, even though the writer was also involved in the story as the co-founder of a community group that opposed the development. 

The writer’s involvement in the community group did not make her articles an exercise of her "right to petition" on the development issue, the high court said, because the articles were objective journalistic accounts that did not advocate a particular position or disclose the writer’s involvement. 

From Participant to Observer 

Fredda Hollander became involved in community issues in Boston’s North End neighborhood in the 1990s, and in 1996 co-founded the North End Waterfront
Residents’ Association (NEWRA).  She soon began submitting articles to the Regional
Review community newspaper, as a means of advocating the organization’s positions. In 1997, the newspaper began paying Hollander for her stories, after instructing her to cover neighborhood meetings, including NEWRA meetings, objectively and factually. Hollander remained a member of NEWRA, but did not disclose this in her Regional Review articles, or write her articles as expressions of her personal opinion or the opinion of NEWRA, according to the court.

In May and June 2006, the Regional Review published five articles written by Hollander on the proposed development of three North End properties by Steven C. Fustolo. Two of these articles reported on NEWRA meetings: one to discuss the issue; and a second meeting at which NEWRA voted to oppose redevelopment of one of the properties. A third article covered the meeting of another community group, North End/Waterfront Neighborhood Council (NEWNC), which voted in favor of the project opposed by NEWRA.

Fustolo sued Hollander for defamation over the five articles, and Hollander sought to dismiss the case under the Massachusetts anti-SLAPP statute, Mass.Gen. Laws ch. 231, § 59H. Anti-SLAPP statutes, which have been adopted by several states, are meant to provide a way to quickly dismiss lawsuits deemed to be "strategic lawsuits against public participation" (SLAPP): lawsuits filed in retaliation for petitioning the government or speaking out on a public issue or controversy.

In Ms. Hollander’s case, the Massachusetts trial court judge denied her anti-SLAPP motion, concluding "that Hollander did not engage in petitioning activities ‘on
her own behalf as a citizen’ because she wrote the articles in her
capacity as a reporter, and also because she received compensation for
doing so." 

Journalist or Activist? 

Hollander appealed to the SJC (docket).

The Citizen Media Law Project (CMLP) joined the American Civil Liberties Union of Massachusetts and the Lawyers’ Committee for Civil Rights Under Law of the Boston Bar Association in submitting an amicus curiae brief—co-authored by Harvard Law School’s Cyberlaw Clinic, representing CMLP—urging the SJC to hold that "factual reporting by community newspapers and their employees qualifies as petitioning activity under the anti-SLAPP statute." (More on the brief.)

[T]he simple fact of gainful
employment by a newspaper, another media outlet or an
advocacy organization is insufficient by itself to
deprive an individual of the protections of the anti-
SLAPP law.

. . . Newspapers, through their
reporters, engage in news reporting to influence,
inform, and bring about governmental consideration of
issues and to foster public participation in order to
effect such consideration. This type of petitioning
activity is exactly what the legislature sought to
protect by enacting the anti-SLAPP law. Because
newspapers, by necessity, petition through the
reporting of their staff, a categorical exclusion of
reporters from the scope of the anti-SLAPP law would
chill expression far more effectively than any SLAPP
suit could.

Amicus Brief, at 6-7.

In other states, like California, journalists take advantage of anti-SLAPP statutes to get defamation suits dismissed without much hullabaloo (here’s a recent example). But the California anti-SLAPP statute, for instance, protects against lawsuits brought to chill the valid exercise of "freedom of speech" as well as the "right to petition" the government, whereas the Massachusetts statute omits the general term "freedom of speech."

Only one Massachusetts court, a trial court in Plymouth County, had applied the anti-SLAPP statute to a journalist before Hollander asked the SJC to do so.  See Joyce v. Slager, No. 08-01240 (Mass. Super. April 6, 2009) (Rufo,
J.), and at oral argument the Justices seemed markedly reluctant to open the statute’s protections to journalists at large.

Ultimately, the SJC rejected the argument—advanced by both Hollander and amici—that factual reporting in a newspaper can qualify as petitioning activity when its purpose or practical effect is to spur public participation around an issue or controversy. 

The court also rejected the narrower argument that Hollander was functioning as an activist when she wrote the articles in question and upheld the lower court’s ruling.  The court acknowledged that Ms. Hollander had "a personal interest in the development issues that she wrote about," and that she "sought to bring issues that she considered important to the attention of residents, politicians, and government officials," but ultimately concluded that her subjective and sincere personal interest was not legally relevant. What the SJC cared about was that "Hollander’s articles did not contain statements seeking to redress a grievance or to petition for relief of her own." On this point, the court gave weight to an affidavit submitted by Ms. Hollander:

Indeed, she expressly stated in her affidavit that in writing all her
articles, she was "always careful to present an objective description
of the subject matter, including the positions of both sides where
applicable," and that while she had personal views on the issues she
covered, "they were not reflected in the articles I wrote."

Slip op., ¶ 12.

The SJC took pains to emphasize that the denial of anti-SLAPP protection would not deprive journalists of the constitutional protections they (and others) enjoy against defamation liability:

To the extent that Hollander fears a chilling effect on reporters and the press if they are not entitled to claim the protection of the anti-SLAPP statute in cases where they write about contentious issues of public concern, we note that the common law of defamation, with its constitutional overlay, see, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964), provides reporters with protection for both opinions and, of probable greater relevance to this case, for fair reports of public meetings of both government bodies and organizations such as NEWRA. . . . While "the Legislature intended to enact very broad protection for petitioning activities," "the scope of the statute has its limits." There is no reason to stretch the anti-SLAPP statute beyond its appropriate boundaries in order to create a level of protection for reporters beyond that to which they are currently entitled under the existing defamation law. 

 Slip op., ¶ 19 (citations omitted).

Impact on Community Media

Despite the SJC’s assurances, this ruling could make activists who use journalistic methods to further their causes more vulnerable to defamation and other lawsuits in Massachusetts.  Regardless of constitutional protections, the decision potentially deprives them of a powerful weapon against frivolous lawsuits—most importantly, the anti-SLAPP statute awards a prevailing defendant costs and attorney’s fees.

And, perversely, the SJC’s decision creates an incentive for those on the margins between journalism and advocacy to eschew any effort to be objective or balanced in their work.  Several of the most popular blogs are driven by an express or implied political ideology. At least when it comes to potential liability in the Massachusetts court system, they may be better off leaving behind any semblance of objectivity or good journalism and sticking to politics. 

Photo "John Adams Courthouse (warm)" courtesy of Flickr user mcritz, licensed under a CC Attribution-Noncommercial-Share Alike 2.0 Generic license — http://www.flickr.com/photos/mcritz/ / CC BY-NC-SA 2.0

For the London Free Press – January 25, 2010
Read this on Canoe
“Responsible communication” expands media freedom of expression and opens door to more frank discussion of matters of public policy
If you don’t have anything nice to say, be sure to say it in the name of public interest.
The Supreme Court of Canada recently changed defamation [...]

Andrew Wang of Chicago Breaking News reports that an Illinois judge has dismissed Horizon Realty Group’s defamation lawsuit against Amanda Bonnen. Surely you remember this gem from last summer? The landlord that sued its tenant for tweeting to all of 20 followers that her apartment was moldy; the management company that made—and then backpedalled on—one of the greatest statements (foot-in-mouth-wise) of all time: "We’re a sue first, ask questions later kind of an organization." Ah, good times indeed.

Cook County Circuit Court Judge Diane J. Larsen found that Bonnen’s tweet wasn’t capable of supporting Horizon’s claim because it was "too vague to meet the legal standards of libel." Ruling from the bench, the court also apparently indicated that the tweet could be construed innocently or as a statement of opinion, according to Wang’s article.

As you’ll recall, the statement in question is "Who said sleeping in a moldy apartment was bad for you?  Horizon realty thinks it’s ok."  It’s hard to say what the court had in mind without seeing a written opinion, but perhaps Judge Larsen reasoned that the use of "moldy" in this context didn’t create a sufficiently precise meaning in the mind of the average reader.  As I’ve explained before, this is part of the test courts use to determine whether a statement is "fact" or "opinion." In defamation cases, statements of opinion are constitutionally protected unless they imply the existence of unstated, false facts. 

If I can get a hold of a written opinion (assuming one is forthcoming), I’ll post it to our database entry, Horizon Group v. Bonnen.

Update: I spoke with one of Ms. Bonnen’s lawyers, and it sounds like there won’t be a formal written opinion forthcoming.  Here’s the judge’s very short dismissal order.  I also got a hold of the briefs on the motion. 

The case of Blockowicz v. Williams, — F.Supp.2d —, 2009 WL 4929111 (N.D. Ill. December 21, 2009), which I posted on last week is worthy of discussion in that it raises the question of whether website operators like Ripoff Report could get off too easily when they knowingly host harmful third party content. Immunity under [...]

As both a journalist and a techie, I’m pretty keen on the free flow of information, and thus pretty keen in turn on the importance of protecting journalists, both professional and citizen, who are in the business of facilitating that flow. So it was reassuring to see that the Massachusetts Supreme Judicial Court ruled on the side of the angels this week in the case of Howell v. Enterprise, granting protection from libel claims to reporters who fairly and accurately report official government proceedings.

The back-story: apparently, one James Howell, a former superintendent of the Abington sewer department, was fired from his job in 2005 for storing "inappropriate images" on a town computer, showing those images to a subordinate, and using a town computer for private business.  The Enterprise, a Brockton-based newspaper, reported several times on Mr. Howell’s termination, including quotes from an anonymous commissioner describing a closed session of the sewer commission’s deliberations on Howell.

In response to the news reports, Howell sued The Enterprise and the reporters who wrote the articles in Massachusetts state court for defamation, intentional infliction of emotional distress, and violation of his privacy.  The Enterprise moved for summary judgment, arguing that Howell’s termination was a matter of public concern, that Howell could not prove that the articles were materially false, and that overall the articles were fair and accurate reports of government proceedings (even if they did contain some errors), and thus were protected under the fair report privilege.  The Superior Court judge disagreed and denied the motion, ruling that a reasonable jury could find that Howell’s firing was not of public interest and that the reports were not fair and accurate. The Appeals Court upheld this ruling, while reversing other aspects of the lower court’s opinion.

On further appeal, the SJC reversed and ordered that summary judgment be entered for Enterprise on the defamation claim.  The high court wrote that the fair report privilege is meant to "dispos[e] of cases at an early state of litigation" and should be "construed liberally."  It added that the privilege hinged on two factors: whether the topics at issue in the articles were official government actions, and whether the reports were fair and accurate, i.e. they didn’t contain either of "two sorts of reporting errors: mistakes in reporting what actually
happened (accurate), and liberties taken in reporting the character of
what actually happened (fair)."

The SJC found that that the sewer commission’s deliberations over Howell’s termination were indeed official government actions. That the deliberations were closed to the public (in executive session) and only reported via an anonymous source did not, in the court’s view, make them any less "governmental" or "formal."

The SJC also examined each of The Enterprise articles at issue and found them fair and accurate accounts of the underlying proceedings, but for one misstatement about a dropped conflict-of-interest charge against Howell.  The SJC added that, even though that one misstatement fell outside the privilege, Howell still failed to provide evidence that it was made with malicious intent.  Thus, Howell’s defamation claim failed.

I’m glad the SJC ruled the way it did, because this case seems like a complete no-brainer.  (Certainly, The Enterprise itself is pleased; see its editorial on the subject here.)  How can the public be informed about its government’s activities if the press has to worry about being sued for reporting on official government activities that touch on inflammatory topics?  And it’s laughable to describe these Abington sewer commission goings-on as anything other than official—sure, the commissioner who offered up some of the juicier details may not have wanted his name used, but he’s still a commissioner commenting on the commission’s formal inquiries into Howell’s performance.

I disagree with Justice Spina’s dissent, which seems to misunderstand the policies underlying the fair report privilege.  Justice Spina argues that the two policies for the privilege—the agency rationale and the public supervision rationale—are not furthered in the case of the Enterprise’s report on the closed executive session about Howell’s termination.  But I think Justice Spina misses the point on both of these policies. 

First, Justice Spina indicates that the agency rationale, which says that the press is protected when reporting on official meetings that the public could witness for itself, is not furthered under the circumstances because the particular session reported upon was closed.  But, having a commissioner give what the SJC calls "a near perfect account of the testimony" at the closed session is arguably a de facto public presence.  Yes, it may have been a closed session, but if members of the commission are willing to recount the events that occurred there in toto, it doesn’t seem all that farfetched to say that the public really did have access. 

I suppose this really depends on the history of such sessions—if the Abington sewer commission’s executive sessions had typically been highly classified and this was the first breach, then yeah, he might have a point.  But if the sewer commission was happy to chat up anyone who actually wanted to hear about the maintenance of Abington’s sewers (and I suspect this is probably the case), it’s hard to see how the public didn’t already have a de facto presence in the meetings, and thus the agency rationale would apply.

Second, I think Justice Spina gets wrong the public supervision rationale, which sees the fair report privilege as allowing the media to serve as a check on government power by giving the public an opportunity to inform itself.  Justice Spina seems to think that The Enterprise should show a good reason for concern that the government is doing something wrong before being allowed to report on closed sessions.  But, in my opinion, he misunderstands what the media watchdog role is about. 

Despite what the popular wisdom says, the media itself is not a check on the government.  Rather, the media is simply an information conduit to the public–it is the public that is the real check.  When the government does something scandalous, it is not the media that will force them to mend their ways, but rather the public that will do so.  If the press is required to justify every report they make about closed government sessions, the public’s ability to hold government accountable is undermined, as they won’t get all the information they need from the press to make an informed decision about the government’s actions.  Justice Spina’s insistence that the press must have a good reason before reporting on closed sessions puts the cart before the horse.  After all, the press just reports—the public decides.

I must admit: I’m making a bit of a mountain out of a molehill.  After all, Justice Spina was the sole dissenter, so there’s not much risk that the judicial winds will shift any time soon.  But it’s still worth keeping an eye on what the judges think and why it might be of concern.  After all, it’s up to the public to keep an eye on the government, and that includes the judiciary.

(Arthur Bright is a third-year law student at the Boston University
School of Law
and a former CMLP Legal Intern. Before attending law school, Arthur was
the online news editor at The Christian Science Monitor.)

Last week, celebrity, model, socialite, and actress Kim Kardashian found herself in diet hell.  Dr. Sanford Siegal, creator of the "Cookie Diet," and his Company, Dr. Siegal’s Direct Nutritionals, LLC, filed a lawsuit against Kardashian in the 11th Judicial Circuit Court in Miami, Florida, for allegedly publishing false and defamatory statements to her immensely popular twitter account.

According to the complaint, Dr. Siegal’s company sent diet samples to Kardashian’s publicist last Spring after the company’s CEO read an article claiming Kardashian, and other celebrities, had lost weight using the cookie diet.  The complaint states that neither Kardashian nor her publicist confirmed or denied the accuracy of the article, but acknowledged they received the samples.  Subsequently, the company posted a hyperlink on its website, alongside other news articles written about the diet, to a subsequent article that again stated that Kardashian and other celebrities had lost weight using the cookie diet.

On October 29, 2009, two tweets posted to Kardashian’s Twitter account:

14(a). Dr. Siegal’s Cookie Diet is falsely promoting that I’m on this diet. NOT TRUE! I would never do this unhealthy diet! I do QuickTrim!

14(b). If this Dr. Siegal is lying about me being on this diet, what else are they lying about? Not cool!

More than a month later, on December 11, 2009, Kardashian’s legal team took aim at the hyperlink and sent a cease and desist letter to Dr. Siegel’s company, which, according to the complaint, promptly removed the hyperlink despite (apparently) not having a legal obligation to do so.

On December 28th, 2009, Dr. Siegal and his company fired back by filing this suit, focusing the substance of the defamation claims on Kardashian’s assertions that the cookie diet is "unhealthy" and "Dr. Siegal is a liar" (you’ll note this is not what the second tweet said).  In addition to alleging that these two statements were defamatory and inaccurate, the complaint claims that Kardashian had a commercial motive to defame Dr. Siegal and his company because Kardashian has an endorsement relationship with a competing diet product, QuickTrim, which relationship was not disclosed in the tweets at issue.

The defamation claims could be challenging. As Wendy Davis of MediaPost notes: 

It’s not clear that Kardashian’s alleged
statements about the diet being unhealthy, or about Siegal "lying"
regarding Kardashian’s use of products, are libelous. For one thing,
Kardashian’s alleged statement that the diet is "unhealthy" might be
viewed as an opinion, and only statements of facts can be libelous. In
addition, the alleged statement that Siegal was "lying" about
Kardashian might not be the type of remark that’s likely to damage
Siegal’s reputation.

Julie Hilden at FindLaw makes a similar point about the "unhealthy" comment. Plus, Dr. Siegal may well be a "public figure," at least when it comes to diet controversies, so he could have to show that Kardashian made the statements with actual malice—knowing or reckless disregard for the statements’ truth or falsity—always a challenging endeavor.

Mike Masnick at Techdirt points out another interesting aspect of the case. According to one source, Kardashian’s Twitter account, which has some 2.7 million followers, commands as much as $10,000 for product endorsement tweets.  Although the lawsuit doesn’t specifically bring up the Federal Trade Commission’s new product endorsement disclosure requirements, the fact pattern does raise the issue in a law-school-exam kind of way. 

The FTC’s new guidelines require bloggers, tweeters, and Facebook users to disclose "material connections" they have with companies whose products and services they endorse.  And if Kardashian is getting paid a hefty sum to endorse QuickTrim, her little quip—"I do QuickTrim!"—is precisely the sort of tweet for which the FTC wants to see disclosure. But the issue is totally academic because Dr. Siegal has no authority to enforce the FTC’s guidelines, and Kardashian published her comments in October, before the guidelines became effective on December 1.  Still, this is an interesting example of the kind of high profile and lucrative social media endorsement the FTC might take an interest in. 

If you’re interested in this topic, be sure to check out CMLP’s guide to Publishing Product or Service Endorsements, which is designed to help social media users understand and comply with the new requirements.  And if you just can’t get enough cookies, you can monitor developments in the case through CMLP’s database entry, Siegal v. Kardashian. 

(David O’Brien is an attorney and former CMLP Legal Intern. David received his J.D. from Northeastern University School of Law in 2009.)