May 11, 2007
PCC Finds Breach of Singer Charlotte Church's Privacy
The British watchdog agency the Press Complaints Commission has ruled that the Sun newspaper invaded singer Charlotte Church's privacy when it reported speculation that she might be pregnant because she seemed to have cut back on alcohol and smoking recently. The PCC informed the Sun that it could not avoid liability by reporting the story as rumor rather than as fact.
"The Commission has recently made clear that newspapers should not reveal the fact of someone’s pregnancy before the 12 week scan without consent and when the information is not known to any significant degree. The newspaper’s defence in this case was that it had merely reported rumours that the complainant was pregnant because of a change in her behaviour. But the newspaper had provided no evidence of any rumours, and had not denied that it had known for a fact that she was pregnant when it published the piece. In these circumstances it seemed to the Commission that the newspaper had simply tried to circumvent the privacy provisions of the Code by presenting the story as speculation. This was not acceptable within the spirit of the Code. The complaint was upheld."
"Do You Think I Look Fat?"
A couple of Framingham State College students made off with multiple copies of The Gatepost, the institution's student newspaper, after a photo of them and some friends appeared in it. Apparently they didn't like the picture, which showed them advertising their support for a college lacrosse player. They now may face sanctions from the school, and The Gatepost's editor wants restitution in order to reprint copies of the issue.
May 10, 2007
Smoking To Be Considered In Ratings
Smoking will now be considered as part of the criteria when films get their ratings, the Motion Picture Association of America (MPAA) has announced. The anti-smoking lobby has been asking for an automatic "R" rating if movies include a portrayal of smoking for some time; that won't happen, but the MPAA will take the image of smoking into consideration when it issues its ratings from now on. Read more here.
HBO Head Leaves Post
Chris Albrecht, the head of HBO, has stepped down following his arrest over the weekend for what has been described as "suspicion of assault" and further revelation that he was involved some years ago in another case that resulted in a payment by HBO to a former HBO employee who alleged that Mr. Albrecht had assaulted her. Yesterday, the Los Angeles Times broke the news of that previous alleged assault by Mr. Albrecht, after which HBO is said to have paid the woman involved a settlement of $400,000. HBO's chief operating officer Bill Nelson will take over Mr. Albrecht's duties at the cable network.
May 9, 2007
Guido Schryen, RWTH Aachen University, has published "Anti-Spam Legislation: An Analysis of Laws and Their Effectiveness," in volume 16 of Information and Communications Technology Law. Here is the abstract.
More than half of world-wide e-mail traffic - an estimated total of several billion e-mails per day - consists of spam. This is becoming a considerable disturbance to telecommunications. Spam is also closely related to other kinds of cyber crime as it possibly contains malicious software or is pursuing some kind of fraudulent aim, such as phishing. Besides technical and organizational measures, many countries have introduced anti-spam legislation.
However, today's world-wide legislative coverage of spam is heterogeneous, and its effectiveness is controversially discussed. This article describes important parameters by which anti-spam legislation can vary and gives an overview and analysis of world-wide anti-spam legislation, including the European Directive 2002/58/EC, the U.S. CANSPAM Act of 2003, and international cooperation, such as the London Action Plan. The article then proceeds to discuss the effectiveness of current laws, and it identifies problems resulting from the fact that an international phenomenon is being addressed by national legislation. Finally, the article presents suggestions for overcoming some of these problems.
Download the entire article from SSRN here.
Domain Name Ownership and the First Amendment
Jacqueline Lipton, Case Western Reserve Law School, has published "Who Owns "Hillary.Com"? Political Speech and the First Amendment in Cyberspace," in the 2008 volume of the Boston College Law Review. Here is the abstract.
In the lead-up to the next presidential election, it will be important for candidates both to maintain an online presence and to exercise control over bad faith uses of domain names and web content related to their campaigns. What are the legal implications for the domain name system? Although, for example, Senator Hillary Clinton now owns 'hillaryclinton.com', the more generic 'hillary.com' is registered to a software firm, Hillary Software, Inc. What about 'hillary2008.com'? It is registered to someone outside the Clinton campaign and is not currently in active use. This article examines the large gaps and inconsistencies in current domain name law and policy as to domain name use in the political context. Current domain name policy is focused on protecting trademark uses of domain names against bad faith commercial 'cybersquatters'. It does not deal with protecting important uses of domain names as part of the political process. This article identifies the current problems with Internet domain name policy in the political context and makes recommendations for developing clearer guidelines for uses of political domain names. In so doing, it creates a new categorization system for different problems confronting the political process in cyberspace, including: (a) socially and economically wasteful political 'cybersquatting'; (b) politicial 'cyberfraud' which might involve conduct such as registering a politician's name as a domain name to promulgate a misleading message about the politician; and, (c) competition between politicians' names and competing trademark interests.
Download the entire article from SSRN here.
Susan W. Brenner, University of Dayton School of Law, has published "Should Online Defamation Be Criminalized?" in volume 76 of the MIssissippi Law Journal. Here is the abstract.
In 1961 the drafters of the Model Penal Code decided that defamation should not be criminalized, even though libel was a common law crime. They based their decision on two assumptions: One was that defamation does not inflict “harm” of a severity comparable to rape or murder; the other was that while defamation concededly inflicts a lesser “harm,” the likelihood of its being inflicted was too slight to justify the imposition of criminal sanctions. This article argues that our increasing use of cyberspace makes the second assumption increasingly problematic, and therefore requires that we revisit the need to criminalize online defamation.
Download the entire article from SSRN here.
Australia's Spam Legislation
Mark R. Bender, Monash University, Department of Business Law and Taxation, has published "Australia's Spam Legislation: A Modern-Day King Canute?" Here is the abstract.
This paper considers a number of aspects of Australia's recently introduced unsolicited commercial email (UCE or spam) legislation, the Spam Act 2003 (Cth). The magnitude and nature of the harm caused by the spam problem is outlined, as are the key provisions of legislation enacted in an attempt to reduce spam. Observations are made as to some of the perceived shortcomings of the Act, and of lawmakers approaches in general in trying to legislate against spam. The fundamentals of Australia's legislative approach are contrasted with those of the corresponding US legislation and some key distinctions drawn, notably the 'Opt-In'/'Opt-Out' dichotomy, Australia having used the former as a basis, while the US used the latter. Some alternative approaches and suggested enhancements to the Australian Act are also considered, including proposals by Bill Gates and Lawrence Lessig. Finally there is a summary of and some limited comment on the first case bought under the Australian legislation.
Download the entire paper from SSRN here.
The Development of British Privacy Law
Barristers Dan Tench and Hugh Tomlinson discuss the development of privacy law in the UK since the implementation of the Human Rights Act. Read their analysis here in the Guardian.
May 8, 2007
Court Rules Journalist Waived Shield Law Privilege
A New York state court has ruled that a journalist has waived his privilege under the state's shield law to refuse to testify about statements in a newspaper article regarding an automobile crash that left a passenger dead. "...counsel for non-party journalist Brian Howard has moved for an order quashing a subpoena to appear and give testimony at the trial of the defendant upon the ground that it would violate the privilege accorded him by the First Amendment of the United States Constitution and [the] New York Civil Rights Law....It is undisputed that Brian Howard, as a staff writer for The Journal News, is a professional journalist within the meaning of CRL §79-h(a)(6) and, as such, is entitled to claim the qualified privilege. Notwithstanding his right to claim such privilege, defendant contends in his affirmation in opposition that since the information was published in the Journal News, the qualified privilege contained in CRL §79-h(c) is inapplicable. In the alternative, defendant argues that he has made the requisite clear and specific showing to satisfy the tripartite test contained in CRL §79-h....In the newspaper article authored by Mr. Howard, it was reported that Mr. Borras had spoken with the driver of the Civic, who had stated `he had been racing another vehicle and had sped up and was in third gear at the time of the crash, trying to keep the other driver from passing him.' According to the testimony elicited during the bench trial, the driver of the Civic was the co-defendant, Eladio Gonzalez. Upon cross-examination by defense counsel, Mr. Borras denied he had ever spoken to the driver of the Civic, and when asked to explain the discrepancy between his trial testimony and the statement contained in the newspaper article, Mr. Borras testified that the reporter was mistaken.
"The theory of defendant's culpability for the death of the passenger in the co-defendant's vehicle is predicated upon conduct of operating his vehicle at an extremely high rate of speed along with the co-defendant and his reckless disregard that such conduct could cause the death of another human being. This being the only statement attributable to defendant in which he admits to participating in such conduct, it is highly relevant and material to this case. The general rule of evidence in New York concerning the impeachment of witnesses prohibits the use of extrinsic evidence to impeach a witness on a matter that is merely collateral.... However, the rule has no application where, as here, the issue to which the evidence relates is material in the sense that it is relevant to the very issues that the trier of fact, that being the Court, must decide.... The proper foundation having been laid by defense counsel during cross-examination, defendant may show that Mr. Borras has, on another occasion, made oral statements which are inconsistent with some material part of his trial testimony...."
During trial, "... defense counsel clearly stated that testimony regarding the contents of the statement as contained in the newspaper article is the only testimony which he intends to elicit from Mr. Howard. Defense counsel further clarified for the record that, although the subpoena seeks the production of Mr. Howard's notes and other documents, he has no intention of seeking any testimony regarding the circumstances under which the statement was made. It is the finding of this Court that insofar as defendant only seeks to elicit testimony regarding the contents of the statements made by Mr. Borras to Mr. Howard that were published in the April 3, 2006 edition of The Journal News, Mr. Howard has waived his statutory privilege with respect to those statements...."
Concluded the Court, "...Mr. Borras's testimony attributes a statement to the defendant which is highly material and relevant, and which will weigh heavily in the Court's ultimate determination as to whether the People have met their burden of proving beyond a reasonable doubt that defendant is guilty of the charges contained in the indictment. Consequently, the credibility of Mr. Borras's testimony with respect to this alleged statement by the defendant is critical and necessary to the defense."
The case is People v. Nasser, 830 N.Y.S. 2d 892; 35 Media L. Rptr. 1518 (2007).
May 7, 2007
Freedom House 2007 Survey Out: Details Decline In Press Freedom Around the World
Freedom House has released its 2007 report on press freedom around the world and it says that it has detected a continuing decline in media freedom. According to its press release:
"Among the most critical setbacks singled out by Freedom House this year were:
· Setbacks in Asia—notably Thailand, Sri Lanka, Pakistan, the Philippines and Fiji—stemming from coups, political upheaval, insurgency or states of emergency;
· Setbacks in Venezuela, Argentina, Brazil and other Latin American countries, in some cases due to state action, in others due to a deteriorating security environment;
· Aggressive efforts by the Russian government to further marginalize independent media voices, punctuated by plans to regulate the internet;
· Stagnation in the Middle East/North Africa region, bringing to a halt several years of modest progress."
Paris Hilton's Sentence
Observers of the Paris-ian scene suggest that Ms. Hilton's 45-day jail sentence isn't likely to change her behavior because the publicity will tend to add to her celebrity, reports AP writer Sandy Cohen. After talking to experts in the industry, Ms. Cohen says that they believe part of Ms. Hilton's public image includes "bad behavior". Said one publicist, "The premise of her fame is being naughty." That tendency to ignore authority may fuel her charm in some quarters. Read more here. Read the charges that led to her appearance in court, and the judge's eventual ruling against her here.
HBO Head Arrested in Las Vegas
HBO CEO Chris Albrecht was arrested early Sunday morning outside the MGM Grand in Las Vegas after the de la Hoya-Mayweather match after police observed him in an altercation with a woman believed to be his girlfriend. Read more here.