December 7, 2007
BBC: Journalists May Have Been Attacked Because of Their Work
Three BBC journalists working at the Moscow bureau may have been attacked because of their association with the network, the BBC says. It is requesting the assistance of the Russian government in protecting its employees from additional assaults. The BBC has been active in covering anti-government opposition during the run-up to the recent Russian elections. Read more here.
BBC Will Cut Jobs; Union Talks Strike
The BBC needs to make job cuts, and announced that it may not be able to do so through voluntary cutbacks. Thus, nearly two hundred journalists face the prospect that they may lose their positions, the network has announced. Meanwhile, the National Union of Journalists is considering a labor action, as talks between it and management continue. Read more here.
Committee To Protect Journalists Releases 2007 Report
The Committee to Protect Journalists has released its 2007 Report on the condition of journalists worldwide, which indicates among other things, that although the number of reporters jailed around the world is down slightly from the total in 2006, many countries still jail journalists without filing charges against them formally and many journalists face injury or death while attempting to do their jobs.
December 5, 2007
Christian Voice Loses Blasphemy Appeal Against BBC Over "Jerry Springer--The Opera"
After reserving its decision on the question, the British High Court has blocked a Christian group's bid to pursue BBC Director General Mark Thompson for blasphemy over the broadcast of the production Jerry Springer--The Opera. The justices told Christian Voice that the Theatres Act, 1968 protects the public production of plays and that the Broadcasting Act, 1990 regulates the circumstances under which prosecutions may be brought against such productions as Jerry Springer--The Opera. Under neither statute could the production be said to be blasphemous because it is aimed at parodying the U.S. talk show, and not at religion.
Singer Apologizes for Lyric, Agrees To Pay Damages
British singer Robbie Williams, formerly with the band Take That, has now apologized to the former manager of the band over lyrics in the song "The 90s". The lyrics suggested that manager Nigel Martin-Smith had "stolen funds," according to a story on the BBC website. In a hearing in court Mr. Martin-Smith's attorney indicated that the lyrics for the song had been changed before it was included on a recent album release. Mr. Williams agreed to pay court costs, other fees, and damages, a sum which may reach nearly a million dollars U.S., according to a story from Sky News.
December 4, 2007
Illinois Appellate Court Affirms Lower Court Decision Re Newspaper Editor's Statements About Former CEO: Not Actionable
An Illinois appellate court has affirmed a lower court's decision that a newspaper editor's statements in an email distributed to employees regarding the dismissal of a former CEO and publisher are not actionable. The former CEO had complained in particular because the email's contents reached beyond the employees. The court was required to determine whether the statements complained of were fact or opinion.
"At the time of the complaint, Hollinger was the owner of the Sun-Times and the Jerusalem Post. Rose began working for Hollinger and the Chicago Sun-Times in 1997. In June 1998, Rose became the publisher and chief executive officer (CEO) of the Jerusalem Post. He moved to Israel and worked in that position until he was fired on May 25, 2004. On May 27, 2004, Stephens, the editor-in-chief of the Jerusalem Post, sent an email to the editorial staff in Israel and New York. The content of the email, in its entirety, is as follows:
"Subject: memo from Bret Stephens to editorial staff Dear Colleagues, As some of you may have heard already, Tom Rose was this Tuesday terminated as Publisher and CEO of The Jerusalem Post. CFO Mark Ziman has taken his place as publisher on an interim basis. For those of us who have seen up close the damage Tom did to this newspaper, this is a happy event indeed. For those Tom damaged personally, with his abusive behavior and bizarre management style, it is happier still. So good riddance, Tom, good riddance. You will not be missed. So many of us have been waiting for this day, and fighting for it, that we may be forgiven for thinking that Tom’s departure brings our problems to an end. It does not. It will be some time before we can undo the damage he has wrought: To our finances, to our reputation, to our business relationships, to our morale, to the quality of our editorial product. What we can say is that, with Tom gone, we can begin to address our problems in a rational and purposeful way. Improvements will not necessarily come quickly. But I’m confident they will, in time, come. I hope each of you had a pleasant holiday. I look forward to seeing you next week. Yours, Bret."
"Rose alleges Stephens took no steps to ensure the email was not forwarded beyond its original recipients. He says the email was sent to several freelance journalists around the world and forwarded to other people in Illinois and New York. Excerpts from the email were published in at least two newspaper articles available on the Internet. He alleges Stephens made the defamatory statements in the course of his employment, "with the intent to injure Rose personally and to interfere with Rose’s efforts to obtain employment following his termination."
According to the appellate court, "Rose alleges Stephens’ statements add up to imputation he is unable to perform his professional duties, thus per se defamation. The posture of this appeal does not call on us to decide whether Stephens’ email contains defamatory words. We will assume, as the parties apparently do in this appeal, there is at least some defamation. The question we must answer is whether the defamatory words are actionable....That is, statements that are defamatory per se may enjoy constitutional protection as expressions of opinion....First, we look at some of the decisions that have brought us to the fact versus opinion contest we must resolve. Before 1990, courts perceived a fundamental distinction between statements of fact and statements of opinion for first amendment purposes. Bryson, 174 Ill. 2d at 99. The distinction was grounded in dictum contained in Gertz v. Robert Welch, Inc.... Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact." In Milkovich v. Lorain Journal Co....the United States Supreme Court held the above passage from Gertz was not intended to create a "wholesale defamation exemption" for anything labeled an "opinion." Rejecting what it called "the creation of an artificial dichotomy between ‘opinion’ and fact," the Court held there is no separate first amendment privilege for statements of opinion.... A false assertion of fact can be libelous even though couched in terms of an opinion....Courts evaluate the totality of the circumstances in each case, but the emphasis is on whether the statement is capable of objective verification....
"We consider whether a reasonable reader would understand the "damage to our finances" phrase as Stephens’ opinion or his factual assertion, bearing in mind "[t]he test is restrictive: a defamatory statement is constitutionally protected only if it cannot be reasonably interpreted as stating actual fact."...We look to the three "considerations" used by the supreme court in Solaia to separate fact from opinion....First, whether the statement has a precise and readily understood meaning. The meaning of "damage" is fairly clear, when taken in isolation. Our dictionary defines it as "loss due to injury; injury or harm to *** property."... Webster’s defines "finances" as: "the pecuniary affairs or resources of a ***company."...While the words at issue, when parsed separately, might be understandable, they do not exist in a vacuum. They refer to a business enterprise, the Jerusalem Post. The company’s "pecuniary affairs or resources" is a broad term, an outer shape without an inner core. The reasonable reader cannot know which pecuniary affairs or resources are being referred to. Different readers will have different views of the meaning of the phrase....We do not believe the phrase at issue has a "precise core of meaning for which a consensus of understanding exists."... Second, whether the statement is verifiable. That is, whether the alleged defamatory statement contains an objectively verifiable assertion....No specific location of injury is provided. Nor is one inferred in some undisclosed defamatory manner. One cannot tell whether it is a matter of profit and loss. Or assets and liabilities. Or net worth. And so on....Third, we look to the statement’s literary or social context to see whether it signals that it has factual content. Here, Stephens’ email represents a mean-spirited sendoff of a discharged publisher for no apparent institutional purpose. It was gloating ("So good riddance, Tom, good riddance. You will not be missed."). Stephens was not making a case or stating an argument. He did not claim "to be in possession of objectively verifiable facts."
"We recognize this is a close case. As Professor Graham has written: "A clear line between fact and opinion is impossible to draw." M. Graham, Cleary & Graham’s Handbook of Illinois Evidence § 701.1, at 516 (8th ed. 2004). But draw it we must. We conclude Stephens’ intemperate words in the email are constitutionally protected opinions."
Read the entire opinion here.
The case is Rose v. Hollinger International, 314 Ill. Dec. 292; 874 N. E. 2d 202 (2007).
WGA Proposes Rate Scheme Based on Viewership
Dissatisfied with counterproposals, the Writers Guild apparently plans to propose a flexible royalty plan that would compensate writers based on the number of viewers who see their work via the new technology, rather than plans based on traditional percentages favored by the studios. Part of the reason stems from unhappiness with the low returns that these traditional percentages yield for WGA members. Meanwhile, negotiations continue in secret locations. Read more here in a Hollywood Reporter story (subscription may be required).
Don Imus Is Back, Apologetic
Don Imus is back on the airwaves, this time on the Citadel Broadcasting network, again apologetic for his remarks over the Rutgers women's basketball team once again, but asserting that nothing else has changed. Said Mr. Imus, "Other than that, not much has changed. Dick Cheney is still a war criminal, Hillary Clinton is still Satan and I'm back on the radio." Read more here.
The Law of Googling
Greg Lastowka, Rutgers School of Law, Camden, has published "Google's Law." Here is the abstract.
Google has become, for the majority of Americans, the index of choice for online information. Through dynamically generated results pages keyed to a near-infinite variety of search terms, Google steers our thoughts and our learning online. It tells us what words mean, what things look like, where to buy things, and who and what is most important to us. Google's control over results constitutes an awesome ability to set the course of human knowledge.
As this paper will explain, fortunes are won and lost based on Google's results pages, including the fortunes of Google itself. Because Google's results are so significant to e-commerce activities today, they have already been the subject of substantial litigation. Today's courtroom disputes over Google's results are based primarily, though not exclusively, in claims about the requirements of trademark law. This paper will argue that the most powerful trademark doctrines shaping these cases, initial interest confusion and trademark use, are not up to the task they have been given, but that trademark law must continue to stay engaged with Google's results.
The current application of initial interest confusion to search results represents a hyper-extension of trademark law past the point of its traditional basis in preventing consumer confusion. Courts should reject initial interest confusion doctrine due to its tendency to grant trademark owners rights over search results that could easily operate against the greater public interest. On the other hand, the recent innovation of trademark use doctrine improperly relieves trademark law of any role in the supervision of the shape of Google's search results. The absence of any state involvement in the shape Google's results will effectively cede the structure of our primary online index to Google's law. Google may enjoy substantial public goodwill, but what is best for Google will not always be what is best for society.
Part I of this article describes the history of Google and its business model. Google is not the only search engine today, but it is the leading search engine in terms of United States market share. Additionally, Google is playing the most important role today in search engine litigation. It is a unique search engine in many respects. During its evolution, Google followed a very different path than many of its competitors. Today its competitors are largely imitating its model, yet are unable to dethrone its centrality in search. Understanding how Google rose to prominence is essential to understanding its motives and how it might act in the future.
Part II of this article sets forth the contemporary law pertaining to search results. It begins with a short discussion of recent (failed) attempts to regulate Google's results through laws other than trademark. It then describes current theories of trademark law. It concludes by summarizing how trademark law has been applied to search engines, starting with early meta tag cases and concluding with Google's current attempts to insulate itself from liability under an expanded doctrine of trademark use.
Part III criticizes the current application of trademark law to search engines. It argues that the judicial innovations of both initial interest confusion and trademark use are inconsistent with the traditional purpose of trademark law and the new realities of the e-commerce marketplace. It concludes that a simple focus on the likelihood of confusion standard, which some courts have already supported, is overdue. It concludes by explaining why, despite the fact that trademark law today will likely permit Google's current practices, Google's bid for the carte blanche freedom permitted by trademark use doctrine should be rejected by courts. In its relatively new role as a protector of the social value of indices, trademark law must retain the ability to curb potential abuses of the commercial power enjoyed by Google.
Download the entire paper from SSRN here.
December 3, 2007
Fake YouTube Video Targets Canadian Professor
According to Canadian TV, someone posted a doctored video on YouTube suggesting that a Dalhousie University professor of engineering was actively "pimping" for his wife and daughters. University officials apparently became aware of the video after they received news of it through email. They asked YouTube to remove the video, which it has done, and then asked Halifax police to investigate the incident. Dalhousie President Tom Traves issued the following statement to Dalhousie students. In part, he said, "I am sending this note to you for several reasons: to voice my personal disgust for this sort of anonymous and hateful attack; to underline that this is not regarded as a prank, but as a vicious assault against which we will take all legal measures possible. Finally, on behalf of the entire Dalhousie Community, to offer our support to Dr. Ghaly and his family." He speculated that the video might be a hate crime under Canadian law. Read more here in a CTA.ca story and here in a story from CBC News.