May 6, 2005
District of Columbia Appeals Court Rules Against Broadcast Flag Reg
The District of Columbia Court of Appeals has just ruled that the FCC "exceeded the scope of its delegated authority" in promulgating the controversial Flag Order in the case of American Library Association v. Federal Communications Commission. This new regulation would have allowed the use of technology to prevent the "unauthorized copying and redistribution of digital media"., a feature very much desired by the motion picture industry but opposed by some consumer groups. The court examined the agency's grant of jurisdiction under the Communications Act of 1934 and related statutes and determined that it did not have sufficient authority to enact the regulation under review. Read the court's decision here.
May 4, 2005
Proposed Changes to New EU Directive Might Require Policing of Internet
The Media Guardian reports that Ofcom, the British agency responsible for regulating the media, may also find itself regulating the internet because of the reach of proposed new changes to the EU's Television Without Frontiers Directive. Television broadcasts over the 'net might then come within Ofcom's purview. Read the Guardian's story here. Read more about the Directive here.
May 2, 2005
Maine Supreme Judicial Court Orders Release of Investigative Records in Alleged Cases of Sex Abuse by Catholic Priests
In a decision court watchers have anticipated for eleven months, the Supreme Judicial Court of Maine has ordered the release of records pertaining to "allegations of sexual abuse by eighteen deceased Roman Catholic priests" held by the Maine Attorney General, some dating back decades. The Court affirmed a lower court's judgment "to the extent that it ordered the disclosure of the records, but conclud[ed] that the court should have also ordered the records redacted so as to eliminate the names and other identifying information of the living persons who are cited in the records. We therefore vacate the judgment and remand for further proceedings so that the records will be subject to redaction before their disclosure." Blethen Maine newspapers, which publishes several papers in the state, had sought the release of the records under the state's Freedom of Access Act (FOAA) statute from the Attorney General beginning in 2002. The AG had refused, "based on his conclusion that `disclosure of the investigative records relating to the deceased priests would `constitute an unwarranted invasion of personal privacy' within the meaning of 16 M.R.S.A. [section] 614 [(Supp. 2004)] of the Criminal History Record Information Act.'"
The state had argued that release of the records might constitute an invasion of privacy into the lives of those named, including living victims and witnesses. The Court recognized the heightened privacy interests of these individuals and found that based on the appropriate balancing test the privacy interests of the dead could be overcome by public policy concerns but those of the living could not. "The Superior Court concluded, in effect, that any residual personal privacy rights that could be claimed by those named in the documents sought by Blethen are nominal and `must bend to the public interest.' The court declined to redact the names of living persons and other identifying information because of `how much information would have be taken out and the extent to which this information is likely already known, at least at a local level.' We have concluded that although the privacy rights of the deceased priests and their families are, at most, minimal, the residual personal privacy rights of the living individuals named in the records persist, albeit tempered by the manner in which the information was reported to public and church officials....Accordingly, we conclude that the public interest in the disclosure of the records is substantial and the public interest supporting disclosure can be realized even with the redaction of all identifying information regarding the persons identified in the records other than the deceased priests. On balance, the identified public interest exceeds the privacy interests associated with the records once they are redacted. We therefore affirm the court's determination that the records requested by Blethen should be disclosed...." The decision was 4-3.
Read the entire opinion here.
10th Circuit Affirms Jury Verdict in Century Martial Art Supply Case
The 10th Circuit Court of Appeals has affirmed the jury verdict in the case of Century Martial Art Supply v. National Association of Professional Martial Artists and International Ikon, Inc.,, originally filed in the Western District of Oklahoma. Century claimed among other things that NAPMA and IKON had engaged in "defamation, tortious interference with existing and/or prospective business relationship, deceptive trade practices, and unfair competition."
Century sells martial arts supplies to martial arts schools, many of which are members of NAPMA. In 2001, NAPMA began marketing rival products to its members "under the IKON brand name." In its mailings to its members "it included a chart which compared three IKON uniforms with three Century uniforms....The information about Century's unifrom was false and the discount information was misleading." As a result, Century's sales began declining. "The President/CEO of Century contacted Graden to ask that he stop publishing inaccurate information about Century's uniforms. Graden responded that `he would print whatever he wanted; it was his magazine.'" Some of the information from the comparison chart was reprinted in an e-mail NAPMA sent to its web-site subscribers. In turn, that e-mail was reprinted in Graden's Martial Arts Professional magazine. NAPMA repeated the allegations about the fabric content (cotton/polyester percentages) and weight of Century's uniforms but noted that Century stated these figures were false....The e-mail also stated `If the comparison is inaccurate, a letter from Century is all that is needed. Instead they use the profits that they get from the industry to attack us...We receive weekly calls saying Century is out to get us. I guess this is the first shot. What is Century afraid of?'....Century indicated at trial that it already had sent such a letter when these statement[sic] were made."
The 10th Circuit noted that the jury found for the plaintiff "on all four claims and found the evidence that the defendants acted with reckless disregard was clear and convincing. The jury award Century both compensatory and punitive damages." It rejected the defendants' claims on appeal that the district court "erred in permitting the jury to consider privileged or constitutionally protected statements in support of Century's claims", finding that "were we to consider these belated defenses now, it would be Century who could claim a miscarriage of justice. Century prepared for trial and presented evidence without anyn otice from defendant that reference to statements made by Graden would violate his First Amendment rights or were in some way protected by statutory privilege." The appellate court was also unconvinced by defendants-appellants' other arguments. Read the 10th circuit's opinion here.