Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, February 2, 2016

California Appellate Court Upholds Courtney Love "Twibel" Jury Verdict

A California appellate court has upheld a jury verdict in favor of singer Courtney Love Cobain that her "twibel" statements about a former attorney didn't defame her, because although they were false, Ms. Love did not make them with actual malice, the standard required by law. Specifically at issue were Ms. Love's Twitter comments that Ms. Holmes, her former attorney, had been "bought off."

"Viewing the evidence in the light most favorable to Cobain, we conclude that there is substantial evidence to support the jury's finding that although Cobain's statement was false and injurious, Holmes failed to establish by clear and convincing evidence that Cobain knew the statement was false or had serious doubt about the truth of the statement." Read the ruling here.

Read the Hollywood Reporter's story here.

February 2, 2016 | Permalink

Urquhart on Privacy and Freedom of the Press From Campbell To Leveson

Lachlan Urquhart, University of Nottingham School of Computer Science, is publishing Privacy and Freedom of the Press from 2004-2015: From Campbell to Leveson, in Law, Policy and the Internet (L. Edwards, ed.; Hart Publishing, forthcoming). Here is the abstract.

This chapter documents the developments in the English law of breach of confidence since the seminal Campbell v MGN case in 2004. In particular, we document the growth of the new action of ‘misuse of private information’. We conduct a largely doctrinal analysis of the case law by consolidating the complex, fragmented domain of principles and tests established by the courts. We situate these within the broader concerns around regulation of the UK print press, how this system is changing in light of the Leveson Inquiry, European Court of Human Rights (ECtHR) jurisprudence and the new Royal Charter on Self Regulation of the Press. We also look at the impact of new technologies on regulation of collection and distribution of the news. We briefly consider two examples, namely social media and superinjunctions, and use of drones to collect news.
Download the essay from SSRN at the link.

February 2, 2016 | Permalink

Kendrick on Shiffrin's "Speech Matters" (Princeton, 2014)

Leslie Kendrick, University of Virginia School of Law, is publishing How Much Does Speech Matter? in the Harvard Law Review. Here is the abstract.

In Speech Matters (Princeton 2014), Seana Shiffrin explains why lying is wrong, why freedom of speech is right, and why those two views are compatible. This review lauds Shiffrin’s book for its creative and powerful coherence of vision. It lays its claims about both lying and free speech on the same foundation: on a view of sincere communication as a prerequisite for moral agency and moral progress. In this regard, Shiffrin’s book stands in sharp rebuke to the current trend, in the Supreme Court and elsewhere, of assuming that the freedom of speech must include a right to lie. Instead, Shiffrin argues, the reasons that we have freedom of speech are the same reasons that lying is rarely morally permissible. At the same time, the coherence of Shiffrin’s view also reveals a certain symmetry between Kantian accounts of lying and predominant views of free speech, one that not everyone will find salutary. In both, the importance of communication seems to override other interests, even other moral commitments. While Shiffrin articulates a compelling view of why free and authentic communication serves a distinct, indeed a singular, role in moral identity, the question remains whether that role requires quite so much protection, either against lying or in favor of free speech. Nevertheless, Shiffrin’s book puts forth an original and authoritative view on these questions, one that will challenge and instruct anyone interested in lying, free speech, or the communicative responsibilities we owe to ourselves and others.

Download the book review from SSRN at the link.

February 2, 2016 | Permalink

Groves on the Publicity Rights of College Athletes and First Amendment Rights of Other Parties

Roger M. Groves, Florida Coastal School of Law, is publishing 'Can I Profit from My Own Name and Likeness as a College Athlete?' The Predictive Legal Analytics of a College Player’s Publicity Rights vs. First Amendment Rights of Others in volume 48 of the Indiana Law Review (2015). Here is the abstract.

This Article is focused entirely on the battle between athlete’s NIL/publicity rights and the First Amendment rights of those who use those rights in their own works or products. The aforementioned publicity rights settlements predictably do not provide any admission of liability or wrongdoing by the NCAA or any other defendants. Therefore, the primary source of legal authority and precedent on the publicity rights issues reside in the Hart and Keller opinions discussed in this Article. In the three cases of import, Keller, Hart, and O'Bannon, the athletes abided by the NCAA rules that required that they refrain from taking advantage of their relative fame through licensing their NILs or otherwise being paid in any form, directly or indirectly from the sport. In all three cases, the NCAA and its licensee partners gained substantial revenue using the NILs of the athletes. Furthermore, in all three cases the athletes did not receive proceeds from the licensing or use of their NILs from the NCAA or its partners before or after the collegiate eligibility expired. This article provides a continuum of factors that help predict when the NCAA and licensed partners no longer have prevailing First Amendment rights over the publicity rights of collegiate athletes.

Download the article from SSRN at the link.

February 2, 2016 | Permalink

Monday, February 1, 2016

Bernstein on Abuse, Harassment, and Free Speech

Anita Bernstein, Brooklyn Law School, is publishing Abuse and Harassment Diminish Free Speech in volume 35 of Pace Law Review (2014). Here is the abstract.

A familiar dichotomy in the legal academy juxtaposes freedom against a contrasting value like security or equality. Applied to speech, the “freedom” half gets assigned to abusers and harassers while those who speak up against harm are perceived as censors or silencers. The dichotomy is unfair to the latter camp: Abuse and harassment threaten not only security and equality but freedom. As phenomena that have grown with the rise of social media, abuse and harassment drive individual speakers from the Internet; cause points of view to be lost to discourse; force attacked persons to spend scarce time and money in pursuit of physical safety; reinforce unjust and oppressive hierarchies; and generate emotional distress, which in turn impedes the production of new speech.

Download the article from SSRN at the link.

February 1, 2016 | Permalink

Rostron and Levit's Updated Chart on Law Journal Submissions, Expedites, and Rankings for Spring 2016

Allen Rostron and Nancy Levit, both of the University of Missouri (Kansas City), School of Law, have published Information for Submitting Articles to Law Reviews & Journals. Here is the abstract.

This document contains information about submitting articles to law reviews and journals, including the methods for submitting an article, any special formatting requirements, how to contact them to request an expedited review, and how to contact them to withdraw an article from consideration. It covers 204 law reviews. The document was updated in January 2016.
Download the article from SSRN at the link.

February 1, 2016 | Permalink

Friday, January 29, 2016

Steeves on Performing "Appropriate" Femininity on Social Media

Valerie Steeves, University of Ottawa, Criminology, has published 'Pretty and Just a Little Bit Sexy, I Guess': Publicity, Privacy, and the Pressure to Perform 'Appropriate' Femininity on Social Media in eGirls, eCitizens: Putting Technology, Theory and Policy into Dialogue with Girls' and Young Women's Voices (University of Ottawa Press, 2015). Here is the abstract.

In this chapter, I explore the qualitative findings of the eGirls Project to test these assumptions against the lived experiences of girls and young women living in Ontario, Canada. When the eGirls Project was initiated, one of the aims was to map the variety of ways that girls could perform emancipatory identities on social media.

Download the essay from SSRN at the link.

January 29, 2016 | Permalink

Thursday, January 28, 2016

FCC Chair Wants To Open Up Cable Box Market

FCC Chair Tom Wheeler wants to unleash consumers from their cable boxes.  In this piece for Re/Code, he writes in part that the cost of paying for a set-up box adds significantly to the cost of cable subscriptions and he thinks it's time for the FCC to address that issue.

One way to do that effectively, says Mr. Wheeler, is to allow third party manufacturers, like Google, Apple, and Microosoft, to provide consumers with boxes and other devices that would allow them to get cable services without paying their cable companies for those services. Here's a link to a fact sheet on the proposal.

More here from NPR.


January 28, 2016 | Permalink

Wednesday, January 27, 2016

Randazza on Freedom of Expression and Morality Based Impediments to the Enforcement of Intellectual Property RIghts

Marc J. Randazza, Randazza Legal Group and World Intellectual Property Organization (WIPO), is publishing Freedom of Expression and Morality Based Impediments to the Enforcement of Intellectual Property Rights in volume 16 of the Nevada Law Journal (2016). Here is the abstract.

In the case of intellectual property rights (IPRs), some nations erect barriers to the protection of IPRs on the basis of "morality." This paper will examine the implications of morality-based impediments to the enforcement of IPRs and their supportability under international agreements. There are significant freedom of expression issues to consider when we think about "morality" getting in the way of intellectual property rights. If that description doesn't make you run to download it, it manages to include an academic discussion of "Cumfiesta", "Screw You", "Nut Sack Ale", and Japanese porn being stolen in Taiwan. Beat that.

Download the article from SSRN at the link.

January 27, 2016 | Permalink

Tuesday, January 26, 2016

Kolber on Views of First Amendment Thought Privacy

Adam J. Kolber, Brooklyn Law School, is publishing Two Views of First Amendment Thought Privacy in the University of Pennsylvania Journal of Constitutional Law. Here is the abstract.

For centuries, our thought privacy has been reasonably well protected by the difficulty of deciphering other people’s thoughts. This natural protection is in jeopardy, however, as emerging technologies improve our ability to, loosely speaking, read minds. When these methods get cheaper and more accurate, the state may seek to monitor and regulate thought in ways previously impossible. The First Amendment undoubtedly protects thought privacy, but current law leaves open two very different levels of protection: On one view, thought is only protected when intertwined with expression. If so, we have rather limited First Amendment freedom of thought, since thought often goes unexpressed. Alternatively, thought may be protected independent of expression. If so, we have more expansive First Amendment freedom of thought. I explore these views by considering blackjack players who “count cards.” Card counters perform mental calculations on publicly available information — the cards dealt in plain sight — in order to turn the odds in their favor. Even though card counting does not obviously implicate expression, I argue that the First Amendment plausibly gives us the right to count cards in our own minds. More controversially, I argue that the Amendment may even protect the right to count cards when combined with an overt action, such as betting in a casino. A criminal prohibition on betting while counting cards might constitute impermissible thought-content discrimination by permitting bettors to make the basic calculations required to play blackjack but not the more accurate calculations used to count cards. It is difficult, however, to predict whether courts would recognize thought-content discrimination and, if they would, how they would cabin its scope.

Download the article from SSRN at the link.

January 26, 2016 | Permalink

Froomkin on Anonymity and Identification

A. Michael Froomkin, University of Miami School of Law, has published From Anonymity to Identification at 1 Journal of Self-Regulation and Regulation 121 (2015). Here is the abstract.

This article examines whether anonymity online has a future. In the early days of the Internet, strong cryptography, anonymous remailers, and a relative lack of surveillance created an environment conducive to anonymous communication. Today, the outlook for online anonymity is poor. Several forces combine against it: ideologies that hold that anonymity is dangerous, or that identifying evil-doers is more important than ensuring a safe mechanism for unpopular speech; the profitability of identification in commerce; government surveillance; the influence of intellectual property interests and in requiring hardware and other tools that enforce identification; and the law at both national and supranational levels. As a result of these forces, online anonymity is now much more difficult than previously, and looks to become less and less possible. Nevertheless, the ability to speak truly freely remains an important ‘safety valve’ technology for the oppressed, for dissidents, and for whistle-blowers. The article argues that as data collection online merges with data collection offline, the ability to speak anonymously online will only become more valuable. Technical changes will be required if online anonymity is to remain possible. Whether these changes are possible depends on whether the public comes to appreciate and value the option of anonymous speech while it is still possible to engineer mechanisms to permit it.

Download the article from SSRN at the link.

January 26, 2016 | Permalink

Barnhizer on Freedom of Speech at Universities

David Barnhizer, Cleveland-Marshall College of Law, has published 'Fire Away': I Have No Right to Not Be Insulted as Cleveland-Marshall Legal Studies Paper No. 290. Here is the abstract.
Universities are the institutions responsible for advancing our freedom of thought and discourse through the work of independent scholars and the teaching of each generation of students. But for several decades, universities and other educational institutions have increasingly set up rules aimed at protecting individuals and groups from criticism that those individuals and groups consider insensitive, offensive, harassing, intolerant and disrespectful, critical of their core belief systems or threats to their agendas. Even though it has been claimed that disadvantaged interest groups have a right to use one-sided tactics of intolerance against those they consider to be responsible for their misfortunes in a democracy this is a fundamentally wrong policy that ultimately tears apart the social fabric. I believe that many of the outraged reactions to speakers’ phrasing in many areas where “outrage” is voiced are insincere and done primarily or exclusively for purposes of gaining political advantage. This “fake offensiveness” -- “or OMG I am so hurt and offended” -- occurs because it is the ammunition by which interest groups gain political advantage. Yet universities, our supposed hotbeds of free and critical thinking, are co-conspirators in suppressing the intellectual independence and stifling the values they are supposed to be instilling in their students. The Renaissance and the Enlightenment were intended to free us from centuries of darkness and ignorance in ways that allowed the full flourishing of humanity. Unfortunately it turns out that we are less as a species than hoped and considerably less interested in open-minded freedom of thought and expression. Albert Schweitzer argued decades ago: “The past has, no doubt, seen the struggle of the free-thinking individual against the fettered spirit of a whole society, but the problem has never presented itself on the scale on which it does to-day, because the fettering of the collective spirit…by modern organizations, [by] modern unreflectiveness, and [by] modern popular passions, is a phenomenon without precedent in history.” The situation has rapidly degraded since Schweitzer spoke. There are several causes. In part the decline is due to the emergence of the Internet and related communications technologies. Although they offer incredible tools for the management and dissemination of knowledge, they have unfortunately bestowed power on fanatics and ideologues. In doing so we have opened an electronic “Pandora’s Box” full of hate, vitriol and ignorance. A result is the rapid fragmentation of society into aggressive actors and indignant cults. This has produced a social and political balkanization dominated by single-interest groups that are intent on achieving narrow agendas. These groups and political activists operate without any willingness to consider how their interests fit within the dimensions of an overall community where balance is necessary and compromise is not weakness but the “glue” that holds us together.
Download the article from SSRN at the link.

January 26, 2016 | Permalink

Walden on Press Regulation in a Converged Environment

Ian Walden, Queen Mary University, London, School of Law, has published Press Regulation in a Converged Environment as Queen Mary School of Law Legal Studies Research Paper No. 217/2016. Here is the abstract.

With the Leveson Inquiry, the Royal Charter and a forthcoming revision of the Communications Act 2003, the need to re-design the existing regulatory framework for the press in a converging media environment is becoming increasingly apparent. This contribution considers the need for a regulatory scheme for the press and the difficulties of preserving freedom of expression while protecting and balancing other fundamental rights.
Download the article from SSRN at the link.

January 26, 2016 | Permalink

Monday, January 25, 2016

Peukert on Public Domain Doctrine in German and EU Law

Alexander Peukert, Goether University Frankfurt, Faculty of Law; Cluster of Excellence Normative Orders, is publishing A Doctrine of the Public Domain in The Innovation Society and Intellectual Property (Josef Drexl, ed.; Edward Elgar Publishing, 2016) (EIPIN Series). Here is the abstract.

The article, which summarizes key findings of my German book ‘Die Gemeinfreiheit. Begriff, Funktion, Dogmatik’ (‘The Public Domain: Theory, Function, Doctrine’), asks whether there are any provisions or principles under German and EU law that protect the public domain from interference by the legislature, courts and private parties. In order to answer this question, it is necessary to step out of the intellectual property (IP) system and to analyze this body of law from the outside, and – even more important – to develop a positive legal conception of the public domain as such. By giving the public domain a proper doctrinal place in the legal system, the structural asymmetry between heavily theorized and protected IP rights on the one hand and a neglected public domain on the other is countered. The overarching normative purpose is to develop a framework for a balanced IP system, which can only be achieved if the public domain forms an integral part of the overall regulation of information.

Download the essay from SSRN at the link.

January 25, 2016 | Permalink

Friday, January 22, 2016

Hunter and Lastowka on BarbieTM as a Subject of IP Law

Dan Hunter, Swinburne Law School and New York Law School, and Greg Lastowka, Rutgers Law School, have published BarbieTM at 18 Tulane Journal of Technology & Intellectual Property 113 (2015). Here is the abstract.

Intellectual property laws are the means by which corporations allow access to their products. Mattel Inc.’s Barbie doll is highly dependent on the intellectual property system, and this Essay provides the first serious account of the development of Barbie as an object of intellectual property. It demonstrates the significance of Barbie as an intellectual property object, and it traces how intellectual property laws emerged as such a powerful technology of control in the period from Barbie’s birth in 1959 to the present. The Essay also shows that the great unrecognized feature of the intellectual property system is its ability to manipulate desire.

Download the essay from SSRN at the link.

January 22, 2016 | Permalink

Thursday, January 21, 2016

Rolph on Anonymity and Defamation in Australian, English, and Canadian Cases

David Rolph, University of Sydney Faculty of Law, has published Anonymity and Defamation in Secrecy, Law and Society (G. Martin, R. Scott Brady, and M. Kumar, eds. London, UK: Routledge, 2015). Here is the abstract.

Ordinarily, a plaintiff in a defamation claim is not, and does not seek to be, anonymous. The nature of the interest protected by the tort of defamation - reputation - is indelibly public, being what other people think of the plaintiff. To vindicate the plaintiff's reputation in a defamation action requires the plaintiff to be named. Increasingly, however, there are cases in which plaintiffs in defamation cases seek, and, in some cases, are granted, anonymity. This chapter explores the paradox of the anonymous defamation plaintiff. It focuses on recent Australian, English and Canadian cases, analysing the possible reasons for making defamation plaintiffs anonymous, noting particularly their use in cases involving social media and where both reputation and privacy are arguably implicated. It also considers the consequences of making defamation plaintiffs more anonymous routinely, particularly for the principle of open justice and for fundamental principles of defamation law.

Download the essay from SSRN at the link.

January 21, 2016 | Permalink

Call For Applications, 2016 Annenberg-Oxford Media Policy Summer Institute

From the Center for Global Communications Studies, the Annenberg School for Communications, University of Pennsylvania, and the Programme in Comparative Media Law and Policy, University of Oxford Centre for Socio-Legal Studies




The Center for Global Communication Studies at the Annenberg School for Communication, University of Pennsylvania and the Programme in Comparative Media Law and Policy (PCMLP) at the University of Oxford’s Centre for Socio-Legal Studies are pleased to invite applications to the 18th annual Annenberg-Oxford Media Policy Summer Institute, to be held from Monday, June 27 to Friday, July 8, 2016 at the University of Oxford.

For seventeen years, the Institute has brought together top early career communications scholars, media lawyers and regulators, internet governance experts, and freedom of expression and human rights activists from countries around the world to discuss the effects of technology and policy from a global and multidisciplinary perspective. The Summer Institute provides participants with an intensive two week interdisciplinary curriculum that combines expert instruction from media policymakers and scholars with hands-on activities such as stakeholder mapping, policy analysis, group case studies, and participant presentations.

The 2016 Annenberg-Oxford Summer Institute seeks applicants whose research or work is related to the relationship between international media laws and national jurisdictions, online censorship and surveillance, the role of the media in political change and conflict, strategic communications and propaganda, online extremism and social media, and global internet governance processes. Applications are welcomed from students studying communications, sociology, political science, international relations, area studies, anthropology, information studies, and  related disciplines. Practitioners working in media, law, policy, regulation, and technology are also encouraged to apply.

Preparing, motivating, and supporting students and practitioners who aspire to pursue a career in media policy, the Annenberg-Oxford Institute endeavors to broaden and expand the pool of talented young scholars engaged in media studies and to connect these individuals to elite scholars and practitioners from around the world. The Institute’s alumni are a vibrant group who continue to engage in the program, collaborate through network ties, and have become leaders at the top national and international nonprofits, advocacy organizations, government agencies, corporations, and academic institutions. Recent past Institutes have included participants from India, Kenya, Brazil, the Philippines, Jordan, Turkey, Pakistan, China, Italy, Israel, Colombia, Iran, Myanmar, South Sudan, and Nigeria.

The application for the 2016 Summer Institute is now open and can be found here. The deadline for all applications is Monday April 4, 2016 at 5:00PM EST. Applications will be reviewed on a rolling basis before the deadline, so please submit as soon as possible. Several partial scholarships are available to top applicants. For more information please see our FAQ page.

January 21, 2016 | Permalink

Cohen-Almagor on The Charlie Hebdo Affair: Between Speech & Terror

Raphael Cohen-Almagor, University of Hull, is publishing The Charlie Hebdo Affair: Between Speech & Terror in The Critique's Great War Series Part II: Charlie Hebdo, Free Speech & Religious Violence, 2016. Here is the abstract.

John is standing in the city square and sings loudly. He holds a baseball bat and carries a big sign that says: “I dare you to criticize my singing”. John is 2 meter tall and his physics suggests that he spends many of his free hours in a gym. It seems he enjoys many free hours. The expression on his face leaves little doubt as to the likely consequences of such a dare. You have the freedom and choice to ridicule him, even more so because you do find his singing most disturbing. Still, would you dare him? The Charlie Hebdo affair has brought to the fore four major issues: [1] Freedom of expression and offence [2] The fallacy of universal liberalism [3] Globalization [4] Sombre yet sober thoughts about the era in which we live. I analyse the terror attack on the Charlie Hebdo offices through several prisms: freedom of expression; the principle of profound offence; the fallacy of universal liberalism; globalisation, and the era in which we live of violence and terror. It is argued that after the violent episodes of “The Satanic Verses”, The Danish Cartoons and the Hebdo Cartoons we know full well that freedom of speech has a price. Responsible people should weigh the consequences of their conduct – action and speech. We should learn from these affairs, take offence seriously, acknowledge the fallacy of universalism and the reality of globalisation where speech in a liberal part of the world may provoke negative and violent reaction worldwide. We should fight for our principles while being cognizant of the price tag which might be high and bloody. And the price would not necessarily be paid only by the speaker. The speaker also endangers others. Responsible speakers should ask themselves whether their struggle to express outrageous ideas freely justifies putting other people’s lives as risk. Our freedoms should always be tempered by responsibility.

Download the essay from SSRN at the link.

January 21, 2016 | Permalink

Wednesday, January 20, 2016

Voss on EU Data Privacy Law After the Google Spain "Right to Be Forgotten Ruling" and the Paris Terrorist Attacks

W. Gregory Voss, Toulouse Business School, is publishing After Google Spain and Charlie Hebdo: The Continuing Evolution of European Union Data Privacy Law in a Time of Change in volume 71 of the Business Lawyer (2015/2016). Here is the abstract.
This article investigates various developments over that year that helped (or are helping) reshape European Union data privacy law, building around two important events: the Court of Justice of the European Union's Google Spain decision, applying a form of a "right to be forgotten," and the Paris terrorist attacks on the satirical journal Charlie Hebdo in January 2015 after which additional security measures involving websites and surveillance in France were adopted and advances on an EU directive on PNR data were made. The EU member state court decisions that came in the wake of the Google Spain decision and that give a right to individuals in the EU to have certain search engine results delisted, which raise issues for Internet search engines, publishers of information, and potentially other Internet intermediaries, are discussed, as are Google’s attempts to come to terms with the Google Spain decision. In addition, this article covers the continuing EU member state data protection agency enforcement action on Google's privacy policy, that were detailed in the author’s prior article – "European Data Privacy Law Developments," with lessons being drawn for businesses regarding privacy policies and data protection compliance generally. The surveillance measures discussed apply to electronic and other communication methods and introduce possibilities in France for mass data collection. Thus, the French legislation adopted in part in reaction to terrorist attacks, described by some as analog to the U.S. Patriot Act – evidences modifications related to security affecting the business legal environment for internet and telecommunications companies and others. Similarly, EU efforts to allow greater passenger data sharing following the Charlie Hebdo attacks also show the continuing tension between data privacy – considered a fundamental right in the EU – and security. Finally, ongoing work on the European Union data protection law reform – which will apply to non-European companies offering goods or services to individuals in Europe or monitoring their behavior – is detailed.
Download the article from SSRN at the link.

January 20, 2016 | Permalink

Sag on IP Litigation in United States District Courts, 2015

Matthew Sag, Loyola University Chicago School of Law, has published IP Litigation in United States District Courts - 2015 Update. Here is the abstract.

In a previous paper, "IP Litigation in United States District Courts: 1994 to 2014", I undertook a broad-based empirical review of Intellectual Property litigation in U.S. federal district courts from 1994 to 2014. This brief update extends that data to include the year 2015. This update contains new data on: (1) the overall state of copyright, patent and trademark litigation, (2) copyright litigation and the John Doe phenomenon, (3) the continuation of the patent litigation explosion and (4) the geographic distribution of copyright, patent and trademark litigation. This Update is not intended as a stand-alone article, it should be read in conjunction with the previous paper.

Download the article from SSRN at the link.

January 20, 2016 | Permalink