Media Law Prof Blog

Spanish High Court Drops Charges Against U.S. Soldiers In Death of Journalist, Tells Lower Court Judge To Close Case

Three American soldiers facing charges in the death of a Spanish journalist have had the charges dismissed by the Audiencia National (the Spanish National Court). The Court found that the judge who reinstated the charges did not present any new evidence to support that reopening of the case. It also told the trial judge to close out the case. "La Audiencia Nacional ha vuelto a revocar el procesamiento de los tres militares de EEUU implicados en la muerte del cámara de Telecinco José Couso en Bagdad (Irak) el 8 de abril de 2003, y le ordena al juez Santiago Pedraz que concluya el sumario y lo eleve a la Sala de lo Penal, para poder acordar el archivo."

Read more here from La Opinion Coruna and here from INO.com.

National Portrait Gallery Threatens Legal Action Over Downloaded Images Uploaded To Wikipedia

Derrick Coetzee, who downloaded "thousands" of images of from the National Portrait Gallery's website and uploaded them to Wikipedia, is facing legal action for copyright infringement. The issue is not whether the paintings themselves are copyrighted, but whether the photographs of the paintings are copyrighted, and where, and whether that copyright will be recognized under U.S. law. Here's more from TechRadar.com. Here's a copy of the letter Mr. Coetzee received from the NPG's attorneys.

Guardian Employees Testify Before Parliament About Phone Hacking

The Guardian has told Members of Parliament that the News of the World's phone hacking extended even farther than the paper previously reported. The Guardian's journalists, summoned before the House of Commons Culture, Media and Sport committee told the committee about additional evidence, including payments to private investigators. Testimony before the committee continues next week. Read more here.

ASA Bans Israeli Tourism Poster

The Advertising Standards Authority has banned an Israeli Tourism poster that misleadingly implies that the West Bank, Golan Heights and Gaza Strip are still part of Israel. The ASA received more than 400 complaints from the public about the poster. In response the Israeli Ministry of Tourism said that the poster was not intended to be a political map, and that the criticism was political. But the ASA responded,

[T]he aim of the ad was to promote tourism to Israel. We also noted that the map featured in the ad was labelled "Israel" and we considered that, along with the claim "Few countries pack so much variety into such a small space as Israel", the ad implied that all of the areas featured on the map were part of the state of Israel. We noted that the map showed border lines for the Gaza Strip and the West Bank, but we also noted that those border lines were faintly produced and difficult to distinguish on the map itself. We understood that the borders and status of the occupied territories of the West Bank, the Gaza Strip and the Golan Heights were the subject of much international dispute, and because we considered that the ad implied that those territories were part of the state of Israel, we concluded that the ad was misleading.

Controversial Photo Temporarily Removed From Exhibit, Then Returned

Controversy over a juried Baton Rouge, Louisiana, art show. Forum 35, which sponsors an annual art show, Art Melt, removed a photograph chosen for the exhibit, apparently because it was of a nude woman, without notifiying the photographer, Kenneth Wilks. The photo was eventually returned to the exhibit. Erin Wesley, head of Forum 35, said the group regretted the decision to remove the piece, "without in-depth consideration of its impact on the artistic integrity of the piece, the artist, and the arts community.” Read more here in an article from the Baton Rouge Advocate. Here's a link to a video clip discussing the issue.

Russian Government Closes Down History Website

British historians and writers are objecting to a Russian decision to shut down a major website, www. hrono.info, officially because it provided some excerpts from Adolf Hitler's autobiography, Mein Kampf. But protestors are saying the real reason is political. The site included criticism of Russian official Valentina Matviyenko. Read more here and here.

Stephen Fry Downloads "House" Finale Illegally

Actor Stephen Fry said he illegally downloaded a copy of an episode of his former co-star Hugh Laurie's show House because he was away from home at the time and couldn't download the episode legally. He said he used the popular BitTorrent site to do so. He also said he is not advocating piracy.

Harvard's Berkman Center To Assist FCC In Studying Broadband Deployment

From the FCC

 

The Berkman Center for Internet and Society at Harvard University will conduct an independent expert review of existing literature and studies about broadband deployment and usage throughout the world. This project will help inform the FCC’s efforts in developing the National Broadband Plan.

“Advanced communications have the potential to enhance the lives of all Americans, improve public safety, create jobs, and support our economic recovery,” Chairman Julius Genachowski 

 said. “As the Commission embarks on the important task of crafting a National Broadband Plan, better data will inform and animate the activities of the agency. The Berkman Center’s independent review of existing information will help lay the foundation for enlightened, datadriven decisionmaking. I appreciate the Berkman Center’s invaluable assistance and look forward to seeing the results.” Yochai Benkler, the Berkman Professor of Entrepreneurial Legal Studies at Harvard, and faculty co-director of the Berkman Center for Internet and Society, said, “I am pleased that the Berkman Center can contribute positively to the process Chairman Genachowski has envisioned for developing a national broadband strategy by providing to the Commission, and thereby the public, the results of our compilation and assessment of the existing literature on this important and timely subject.”

“A comprehensive assessment of these plans will be enormously helpful given our short timetable,” said Blair Levin, who is coordinating the FCC’s National Broadband Plan. “We don’t want to reinvent the wheel. Knowing what has already been learned will improve our ability to deliver the best possible National Broadband Plan.” Consistent with Chairman Genachowski’s recent public statements regarding an open and transparent National Broadband Plan process, the results of the Berkman Center review will be made publicly available.

Rosetta Stone Suing Google For Trademark Infringment

Rosetta Stone, the popular language learning company, has sued Google for trademark infringement. The suit arises via Google's "Ad Words" advertising program, which links search words to trademarked products. Rosetta Stone claims that via Ad Words, Google misleads consumers. Read more here via Blog of Legal Times.

Almost Like Being There: Live Blogging From the Sotomayor Hearings

Live blogging from the Caucus of the New York Times during the Sotomayor hearings.

Sotomayor Opinions; Hearings Begin Today

Here's a link to the Congressional Research Service (CRS) analysis of selected opinions of Judge Sonia Sotomayor's opinions, including some in the area of speech. Hearings on her nomination begin today.

Media Campaign From Sense About Science Aimed At Changing British Libel Laws

Science journalists and others in the media have begun a massive international campaign to pressure British MPs to modify the libel laws in the wake of the Simon Singh defamation ruling. Mr. Singh lost an important preliminary ruling over an article he wrote criticizing chiropractic treatment when Mr. Justice Eady determined that "wording used by Singh implied that the BCA was being consciously dishonest. Singh has denied that he intended any such meaning."

Mr. Singh is appealing the ruling. Meanwhile, a number of influential reporters and writers are mounting a campaign called "Keep Libel Laws Out of Science" and are sending an open letter to Members of Parliament. The letter reads:

The law has no place in scientific disputes We the undersigned believe that it is inappropriate to use the English libel laws to silence critical discussion of medical practice and scientific evidence.

The British Chiropractic Association has sued Simon Singh for libel. The scientific community would have preferred that it had defended its position about chiropractic for various children's ailments through an open discussion of the peer reviewed medical literature or through debate in the mainstream media.

Singh holds that chiropractic treatments for asthma, ear infections and other infant conditions are not evidence-based. Where medical claims to cure or treat do not appear to be supported by evidence, we should be able to criticise assertions robustly and the public should have access to these views.

English libel law, though, can serve to punish this kind of scrutiny and can severely curtail the right to free speech on a matter of public interest. It is already widely recognised that the law is weighted heavily against writers: among other things, the costs are so high that few defendants can afford to make their case. The ease and success of bringing cases under the English law, including against overseas writers, has led to London being viewed as the "libel capital" of the world.

Freedom to criticise and question in strong terms and without malice is the cornerstone of scientific argument and debate, whether in peer-reviewed journals, on websites or in newspapers, which have a right of reply for complainants. However, the libel laws and cases such as BCA v Singh have a chilling effect, which deters scientists, journalists and science writers from engaging in important disputes about the evidential base supporting products and practices. The libel laws discourage argument and debate and merely encourage the use of the courts to silence critics.

The English law of libel has no place in scientific disputes about evidence; the BCA should discuss the evidence outside of a courtroom. Moreover, the BCA v Singh case shows a wider problem: we urgently need a full review of the way that English libel law affects discussions about scientific and medical evidence.

Among the early signers from the media and publishing are

David Aaronovitch Columnist, The Times and Author

Monica Ali Writer and Member, English PEN

Yasmin Alibhai-Brown Journalist and Columnist

Julian Baggini Journalist and Writer

Wendy Barnaby Editor, People and Society

Penelope Bennett Writer and Member, English PEN

David Bodanis Journalist and Author

Rosie Boycott Former Editor, The Independent and Independent on Sunday

Geoffrey Carr Science Editor, The Economist

Marcus Chown Author, Journalist and cosmology consultant to New Scientist

Duncan Campbell Journalist and Author

Dr Philip Campbell Editor-in-Chief, Nature

Nick Cohen Columnist, The Observer

Clive Cookson Science Editor, Financial Times

Amanda Craig Writer and Member, English PEN

Nick Davies Journalist and Author of Flat Earth News

Blain Fairman Writer and Member, English PEN

Kendrick Frazier Editor, Skeptical Inquirer

Martin Gardner Author, Former Scientific American columnist and prominent skeptic

James Gleick Science Writer and Journalist

Dr Ben Goldacre Writer, Broadcaster and Medical Doctor

David Hare Writer and Member, English PEN

Nigel Hawkes Director, Straight Statistics and Former Health Editor, The Times

Mark Henderson Science Editor, The Times

Roger Highfield Editor, New Scientist

Eva Hoffman Writer and Member, English PEN

Dr Richard Horton FRS FMedSci Editor, The Lancet

Alok Jha Science and Environment Correspondent, The Guardian

Rohit Jaggi Columnist, Financial Times

Frances Jessup Writer and Member, English PEN

Barry Karr Skeptical Inquirer and Committee for Skeptical Inquiry

Dr Karl Kruszelnicki Author, Broadcaster and Scientist

Hari Kunzru Writer and Member, English PEN

Sam Lister Health Editor, The Times

Brenda Maddox Journalist and Biographer

Kenan Malik Journalist and Author

Marilyn Malin Writer and Member, English PEN

Naomi May Writer and Member, English PEN

Dr Margaret McCartney Columnist, Financial Times and GP

Caspar Melville Editor, New Humanist magazine and Chief Executive, The Rationalist Association

Robin McKie Science Correspondent, The Observer

George Monbiot Journalist

Andrew Mueller Journalist and Author

Beverley Naidoo Writer and Member, English PEN

Steven Novella Editor, Science-Based Medicine; Director of General Neurology, Yale University School of Medicine and Author

Vivienne Parry Science Writer and Broadcaster

John Rennie Former Editor-in-Chief, Scientific American

Nick Ross Journalist and Broadcaster

Ian Sample Science Correspondent, The Guardian

Anne Sebba Columnist, Financial Times

Ariane Sherine Comedy, Writer and Journalist

Michael Shermer Publisher, Skeptic Magazine; Columnist Scientific American and Author of Why People Believe Weird Things

Rebecca Smith Medical Editor, The Daily Telegraph

Andrew Sugden Deputy Editor, Science

Mike Swain Science Correspondent, The Daily Mirror

Bill Thompson Technology Journalist

Margaret Wertheim Science Writer

Among the early signers from law are

David Allen Green Solicitor

Jonathan Morgan Fellow in Law, University of Cambridge

Baroness Helena Kennedy QC Barrister and Labour Member of the House of Lords

Here is a link to the statement for individuals who wish to sign.

For more about the campaign and related issues go to the Sense About Science site here.

 

LSU Press Will Stay Open

In spite of drastic budget cuts announced yesterday, the Louisiana State University Press will not close. It will lose some funding, however. LSU President Michael Martin said he would help the Press as much as possible but did not want to sacrifice academic programs for its benefit. Here's more from the Chronicle of Higher Education.

New Jersey Judge Rules Blogger Cannot Claim Protection of Shield Law

In a case of first impression, a New Jersey judge has held that a blogger cannot claim the protection of New Jersey's shield law. Too Much Media Corp., a software company that produces a software product of interest to the adult entertainment industry, sued Shellee Hale, a blogger who had commented on message boards about the company, over her allegations that it had "threatened her life and violated New Jersey laws protecting consumers against identity theft." In return she claimed that she was due the protection of the shield law.

Judge Louis Locascio ruled that "To extend the newsperson's privilege to such posters would mean anyone with an email address, with no connection to any legitimate news publication, would post anything on the internet and hide behind the shield law's protections."

Ms. Hale's attorney says he will ask Judge Locascio to reconsider his ruling, or in the alternative, he will appeal the ruling.

Here is the text of the New Jersey shield statute.

§ 2A:84A-21. Newspaperman's privilege


   Rule 27.

Subject to Rule 37, a person engaged on, engaged in, connected with, or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public or on whose behalf news is so gathered, procured, transmitted, compiled, edited or disseminated has a privilege to refuse to disclose, in any legal or quasi-legal proceeding or before any investigative body, including, but not limited to, any court, grand jury, petit jury, administrative agency, the Legislature or legislative committee, or elsewhere.

a. The source, author, means, agency or person from or through whom any information was procured, obtained, supplied, furnished, gathered, transmitted, compiled, edited, disseminated, or delivered; and

b. Any news or information obtained in the course of pursuing his professional activities whether or not it is disseminated.

The provisions of this rule insofar as it relates to radio or television stations shall not apply unless the radio or television station maintains and keeps open for inspection, for a period of at least 1 year from the date of an actual broadcast or telecast, an exact recording, transcription, kinescopic film or certified written transcript of the actual broadcast or telecast.

§ 2A:84A-21a. Definitions


   Unless a different meaning clearly appears from the context of this act, as used in this act:

a. "News media" means newspapers, magazines, press associations, news agencies, wire services, radio, television or other similar printed, photographic, mechanical or electronic means of disseminating news to the general public.

b. "News" means any written, oral or pictorial information gathered, procured, transmitted, compiled, edited or disseminated by, or on behalf of any person engaged in, engaged on, connected with or employed by a news media and so procured or obtained while such required relationship is in effect.

c. "Newspaper" means a paper that is printed and distributed ordinarily not less frequently than once a week and that contains news, articles of opinion, editorials, features, advertising, or other matter regarded as of current interest, has a paid circulation and has been entered at a United States post office as second class matter.

d. "Magazine" means a publication containing news which is published and distributed periodically, has a paid circulation and has been entered at a United States post office as second class matter.

e. "News agency" means a commercial organization that collects and supplies news to subscribing newspapers, magazines, periodicals and news broadcasters.

f. "Press association" means an association of newspapers or magazines formed to gather and distribute news to its members.

g. "Wire service" means a news agency that sends out syndicated news copy by wire to subscribing newspapers, magazines, periodicals or news broadcasters.

h. "In the course of pursuing his professional activities" means any situation, including a social gathering, in which a reporter obtains information for the purpose of disseminating it to the public, but does not include any situation in which a reporter intentionally conceals from the source the fact that he is a reporter, and does not include any situation in which a reporter is an eyewitness to, or participant in, any act involving physical violence or property damage.


§ 2A:84A-21.3. Prima facie showing subpenaed materials obtained during professional activities; waiver of privilege or other grounds for disclosure; hearing


   a. To sustain a claim of the newsperson's privilege under Rule 27 the claimant shall make a prima facie showing that he is engaged in, connected with, or employed by a news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public or on whose behalf news is so gathered, procured, transmitted, compiled, edited or disseminated, and that the subpenaed materials were obtained in the course of pursuing his professional activities.

b. To overcome a finding by the court that the claimant has made a prima facie showing under a. above, the party seeking enforcement of the subpena shall show by clear and convincing evidence that the privilege has been waived under Rule 37 (C. 2A:84A-29) or by a preponderance of the evidence that there is a reasonable probability that the subpenaed materials are relevant, material and necessary to the defense, that they could not be secured from any less intrusive source, that the value of the material sought as it bears upon the issue of guilt or innocence outweighs the privilege against disclosure, and that the request is not overbroad, oppressive, or unreasonably burdensome which may be overcome by evidence that all or part of the information sought is irrelevant, immaterial, unnecessary to the defense, or that it can be secured from another source. Publication shall constitute a waiver only as to the specific materials published.

c. The determinations to be made by the court pursuant to this section shall be made only after a hearing in which the party claiming the privilege and the party seeking enforcement of the subpena shall have a full opportunity to present evidence and argument with respect to each of the materials or items sought to be subpenaed.