October 12, 2006
Law Lords Give Media Increased "Breathing Room" in Defamation Decision
Britain's highest court has ruled that media who act responsibly and who are reporting on stories of public importance" may not be held liable for defamation. In the case of Jameel v. Wall Street Europe, the Law Lords found that Wall Street Europe should not be held responsible for libel because it was reporting on a matter of public concern and had behaved responsibly. It found that lower courts had interpreted a prior standard, the so-called Reynolds defense of 2001, too narrowly, and consequently had not given the media enough breathing room to report stories of importance to the public. The lower courts misinterpreted the "Nicholls factors" in the Reynolds case as giving them "hurdles" that the defendant media had to jump over rather than examples of reportage that met the standard of professional journalism. Read more in the Media Guardian here and the Times online here. Read a story about the opinion in the New York Times here. The opinion suggests that libel law in Britain will now more closely resemble libel law in the US in terms of the media's ability to report matters of public concern in a responsible manner.
University of Tennessee Bans Sportswriter For Two Weeks for Unauthorized Interview
The University of Tennessee has banned a sportwriter until October 23 for interviewing an injured UT player without going through approved channels. Knoxville News Sentinel reporter Dave Hooker had contacted a source who had set up an exclusive interview for him with player Inquoris "Inky" Johnson. But UT procedures require that reporters go through the sports information office to schedule interviews. Hooker apparently did not do so. Consequently the university decided to suspend Hooker's credential for a period of time. The News Sentinel is standing behind its reporter. Read more here.
"Everybody Is Watching" Russian Investigation of Journalist's Death
The U. S. Secretary of State told ABC News that the world is monitoring how the Russians investigate the death of journalist Anna Politkovskaya, who was murdered recently. More than a dozen journalists have died violently during the administration of Russian President Vladimir Putin, and none of their murders have been solved. For more on the Russian Press, see the Committee to Protect Journalists website.
Orhan Pamuk Wins Nobel Prize For Literature
Orhan Pamuk, who was charged under Section 301 of the Turkish Penal Code for insulting the Turkish identity, has won the Nobel Prize for literature. The Turkish government later dropped the charges. Read more here about Pamuk's writings and political activism.
October 10, 2006
District Court Allows Some Causes of Action To Proceed in CNN Producer's Case Against Washington Examiner
The United States District Court for the District of Columbia is allowing Kathleen Benz's case against the Washington Examiner and John F. Bisney to proceed. Benz alleged defamation, invasion of privacy and intentional infliction of emotional distress after an item in an August 19, 2005 gossip column appeared in the Examiner, followed by pieces with like content on websites.
As the court recounted this dismal story, Benz and Bisney were colleagues at CNN between 2002 and mid-2005. Bisney wanted more than friendship, Benz did not. "...[P]laintiff learned that Bisney, without plaintiff's knowledge or permission, obtained access to her email account, read her emails, and established and maintained websites in the name of the plaintiff....On those websites, Bisney posted personal and private information and photographs of plaintiff....Bisney also wrote a "fake" article about the plaintiff and sent it to her....The article named various men whom plaintiff has allegedly dated...Of all the men mentioned, plaintiff has actually only dated Gary Williams, Paul Bosserman, Julian Epstein, and John Daggitt. On June 1, 2005, plaintiff filed for a temporary restraining order against Bisney....On July 11, 2005, plaintiff and Bisney entered into a "Binding Settlement Agreement and Release," which provided that "[t]he parties agree that they will not intentionally contact or communicate with each other." In July 2005, more articles about plaintiff, authored by Bisney, appeared on the Internet. In August 2005, Bisney used plaintiff's name...to respond to personal advertisements seeking sexual relations...on a website....As a result, plaintiff received numerous phone calls and email messages from individuals who believed that plaintiff wanted to engage in sexual relations with them.
"On August 19, 2005, the Examiner published an article in the gossip column entitled "Controversial Love for CNN Producer" by Karen Feld....Prior to publishing this article, Ms. Feld did not speak to the plaintiff....Once the article was published, plaintiff contacted Ms. Feld and told her that the article was substantially false."
The Examiner published a "correction" on September 30. On September 2, the plaintiff filed this action against the defendants.
Said the court, "According to the plaintiff, these articles are defamatory because they allege that plaintiff uses her position at CNN to meet and become romantically and sexually involved with "power players"...that she "hooked up" with porn king Mark Kulkis....These articles...have harmed her reputation professionally and in her community....In response, the Examiner argues that there is nothing defamatory about a single woman being "linked romantically" with single men....Moreover, the Examiner argues, the phrase "hooked up"...just means that Mark Kulkis and plaintiff met on a social basis. Finally, the plain meaning of the statement is that plaintiff "uses her position" to meet the "right people" is that plaintiff is a CNN producer, who, by definition, must use her position to meet the right people, i.e. those in a position to supply her with information for interviews and news stories. To the extent that the Examiner article is similar to the internet articles, Bisney adopts the Examiner's arguments...."
The court reviewed the standard for determining whether a statement is defamatory and found that the Examiner's August 19 article was capable of defamatory meaning. "...[A]n average, ordinary reader could likely comprehend that plaintiff uses her position at CNN for personal gain. Plaintiff is a single, professional woman in her mid-30s. An allegation that she is using her position...arguably makes [her] appear "odious, infamous and ridiculous."..." The court rejected the Examiner's defenses. However, it did not agree that the Correction published on September 30 was reasonably capable of defamatory meaning.
The court also found that Bisney's articles were capable of defamatory meaning, for the same reasons as given in its analysis of the Examiner article.
The court found that Benz stated a claim for false light against the Examiner and Bisney. "The Court's reasons as to why the Examiner's...article and Bisney's internet articles are capable of defamatory meaning are applicable to the Court's finding that those articles would be highly offensive to a reasonable person." It also found that she had stated a claim for public disclosure of private facts against both defendants. "The Court is persuaded that it is unlikely that an unmarried, professional woman in her 30s would want her private life about whom she had dated and had sexual relations revealed in the gossip column of a widely distributed newspaper, particularly in the context in which the information was revealed. Further, plaintiff's personal, romantic life is not a matter of public concern. Because the Court finds that unwanted publication of such personal, true facts would cause suffering, shame or humiliation to a person of ordinary sensibilities, the plaintiff has sufficiently satisfied the elements of this claim."
With regard to Bisney, the court held that Benz's privacy interest in her home address and telephone number sufficed to allow her to state her claim for public disclosure of private facts against Bisney, since he had published those without her consent on websites in conjunction with the solicitation for sexual relations. However, it refused to recognize her claim for intrusion into seclusion against Bisney, saying "[P]laintiff does not specify how Bisney invaded or interfered with her seclusion by physical intrusion. Plaintiff...does allege in her opposition to Bisney's motion that she suffers from a form of herpes...and that disclosure of this fact...satisfies the elements of intrusion....Because plaintiff fails to explain whether Bisney learned of this fact by physical intrusion into a place where she secluded herself, the Court is not persuaded that the elements of this claim have been met."
The case is Behr v. Washington Newspaper Publishing Company, Civil Action No. 05-1760 (EGS); 2006 WL 2844896 D.D.C. 2006
October 9, 2006
Prosecutor-Novelist Dropped From Pending Case
A California appellate court has ruled that a prosecutor cannot represent the people in a case if that case's facts and issues closely resemble a book she has written and is promoting at the same time. In Haraguchi v. Superior Court of Santa Barbara County, the petitioner requested that the deputy district attorney, Joyce Dudley, recuse herself because "`Dudley has a conflict of interest based on the fact that she is prosecuting petitioner in a rape by intoxication case at the same time she is promoting a self-published novel about a rape by intoxication case which includes details from petitioner's case.'" Said the court, "`We will grant the petition as to Dudley with the hope that this case of first impression will make a case of lasting impression.'"
Both the prosecutor-novelist and her protagonist have names with the initials J.D. "In his recusal motion, petitioner alleged: `[Dudley's] book contains a lengthy fictional account of a rape by intoxicating agent. Just like [petitioner's] trial, [the] Deputy D.A. arranged for the fictional trial to begin in April 2006. These and other coincidences lead [petitioner] to fear that the lines between fact an[d] fiction have been obscured by the publication of the book, and that the District Attorney's obligation to exercise discretion and seek justice impartially is now compromised by her financial and emotional interests in promoting her book. In support of the recusal motion, petitioner's counsel declared that, in her novel, Dudley had `incorporated facts of the real District Attorney's investgiation of [petitioner's] case...'...Petitioner's counsel declared that Dudley `has been promoting the book throughout the county of Santa Barbara.'...
"At the hearing on the recusal motion the trial court ruled...`[I]t doesn't appear to me as though there is a conflict that would justify recusal....The publication of her book appears to be coincidental to [petitioner's] circumstances. The circumstances related...factually don't appear to related to [petitioner's] circumstances....If there were any potential conflict, there could not be recusal unless that conflict was so grave as to render it unlikely that the defendant would receive a fair trial, and I don't think there's any evidence of that. It has not been demonstrated or established that any publicity related to Ms. Dudley's book has been so extensive or interlinked with [petitioner's] case that he would be unlikely to receive a fair trial.' It's noted that [petitioner] may have a physical resemblance to a character in the book...who happens not to have been the perpetrator of the crime in the book, and that certainly, in my view, doesn't implicate any prejudice to [petitioner's] right to a fair trial.'"
The court then examined section 1424, which sets forth the standards for recusal. "`...[S]section 1424 should be read `as establishing a two-art test: (i)is there a conflict of interest? and (ii)is the conflict so severe as to disqualify the district attorney from acting? Thus, while a `conflict' exists whenever there is a `reasonable possibility that the DA's office may not exercise its discretionary function in an evenhanded manner,' the conflict is disabling only if it is `so grave as to render it unlikely that defendant will receive fair treatment.'
"We cannot affirm the trial court's ruling on the deferential standard of appellate review. This is a first impression case...As we shall explain, here, as a matter of law, the trial court was required to recuse Dudley as the trial prosecutor....Dudley cannot be recused merely because her further participation in the prosecution...would be unseemly. She can be recused only if she suffers from a disabling conflict of interest. Nevertheless...before discussing the conflict issue we explain why Dudley's further prosecution of petitioner would be unseemly....Although her novel and petitioner's case have differences in their facts, enough similarities exist to suggest that Dudley is relying on petitioner's case for plot lines. Dudley is using her official position to obtain personal financial gain. Her connection with the Santa Barbara County District Attorney's Office is a major selling point for the book. The front cover shows a file with the heading, "Santa Barbara County District Attorney File." The back cover states Joyce Dudley is a Senior Deputy District Attorney for Santa Barbara County. She specializes in: sexual assault crimes, crimes against children, murder, and hate crimes....On the first page of the novel, Jordon Danner is identified as a "Santa Barbara County District Attorney." No current public employee should be permitted to exploit his or her official position as a lever to earn extra private income....Dudley presents a biased, black-and-white view of the participants in the criminal justice system. She portrays prosecutors as fearless champions of truth and justice. On the other hand, she characterizes the defendant in the novel as "despicable"....Defense counsel is portrayed as "disingenuous and manipulative"....These stereotypical generalizations have no place in a current public prosecutor's thinking processes even if they are uttered in a fictional account. A reader of the novel is bound to consider the source of the comments, and the source here is a public prosecutor presently employed by the Santa Barbara County District Attorney's Office. Perhaps without intending to do so, Dudley is potentially infecting the jury pool with her views on the righteousness of cases prosecuted by that office.
"Consideration should also be given to the views of the petitioner....The California Supreme Court has indicated that a public prosecutor is `a guardian of the defendant's constitutional rights.'...It is understandable that petitioner would question whether his constitutional rights will be protected by a prosecutor who writes a fictional account about a case similar to his own in which the defendant is depicted as a vile brute."
With regard to the conflict of interest question, the court continued, "We conclude that a conflict exists because there is a reasonable possibility that Dudley may not exercise her discretionary functions in an evenhanded manner. There is a reasonable possibility that Dudley's desire to see her book succeed is so strong that it will trump her duty as a prosecutor `to see that justice is done and to accord to defendants their constitutional rights.'...The success of Dudley's book would result in both financial and emotional rewards. She has been making an effort to promote book sales, and the best means of promotion would be favorable media publicity. Dudley will garner no laurels, and this case will not generate favorable media publicity for her book, if she enters into a negotiated settlement with petitioner. If, on the other hand, she tries the case before a jury and obtains conviction, her victory may be acclaimed in the media. Dudley could expect such acclamation to generate favorable publicity for her book, especially since the defendant in the book is charged with the same crime as petitioner. Thus, Dudley's desire to promote her book could motivate her to try the case even though the matter might be fairly resolved through a negotiated plea to a lesser charge.
"There is another reason why a conflict exists. Although Danner is a fictional character, it is reasonable to infer that Dudley is using Danner as a mouthpiece for her own views." The court spent some time explaining why it was reasonable to believe that the character Danner represented Dudley's prosecutorial philosophy.
"Our decision does not result in a wholesale recusal of Dudley in criminal cases or sexual assault cases. We conclude only that she has a disabling conflict of interest in the instant case, where petitioner is being prosecuted for raping an intoxicated person while the prosecutor is promoting her novel involving the identical charge."
The court declined to recuse the entire Santa Barbara County District Attorney's Office. The case is
Haraguchi v. Superior Court of Santa Barbara County, Court of Appeal, State of California, Second Appellate District, Division Six (2d Civil No. B191161)(Filed 10/05/06). Read more about the case in Adam Liptak's story in today's New York Times.
YouTube Closes Deals with Google, CBS, Sony, Universal
Confirming a rumor that has been floating about for the past few days, Google has paid out more than $1.6 billion for the immensely popular YouTube. YouTube's Chad Hurley and Steve Chen will stay with the company. YouTube has been a hot commodity over the past few months--in June it signed a deal with NBC in which it would promote NBC programming. Also today YouTube signed a mega-deal with CBS, Sony and Universal under which it promote product for those corporations. CBS also plans to test new technology on YouTube that will find and delete copyrighted material.