Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

A Member of the Law Professor Blogs Network

Friday, August 8, 2008

London Evening Standard Apologizes To Royal Family Over Cancer Story

The London Evening Standard has apologized for its story that Prince Philip, husband of Queen Elizabeth II, has prostate cancer. Further, it said, "We unreservedly apologise both to him and to his family for making this distressing allegation and for breaching his privacy." The Palace, which had earlier said it planned to take a complaint to the Press Complaints Commission, now says it considers the matter closed. Read more here.

August 8, 2008 | Permalink | TrackBack (0)

Au Revoir, Les Enfants, Or, Bad Day At Black Hat

The AP reports that three French reporters were summarily tossed from the Black Hat conference, currently going on in Las Vegas, for intercepting some fellow journalists' personal info. They were apparently outed when they asked "Wall of Sheep" workers to post their prizes. Baaad move.

August 8, 2008 | Permalink | TrackBack (0)

Happy Feet

For a Friday, via the NYT: here's a video of Matt Harding on an invitational dance with the folks at Yahoo, who've had a rough 2008. Great tour of Yahoo's employment divisions, but where's legal? No Terpsichorean attorneys? I would have liked to see that.

August 8, 2008 | Permalink | TrackBack (0)

Microsoft's Great Tibetan Wall

The New York Times's David Gallagher investigates why he can't have a hotmail account with the word "Tibet" in it--Microsoft explains. But readers question the non-political company explanation. Read more here.

August 8, 2008 | Permalink | TrackBack (0)

Thursday, August 7, 2008

Fourth Circuit Upholds Dimissal of Contractor Defamation Suit Against Talk Show Host, Air America

The Fourth Circuit has upheld the dismissal of a defamation action brought by CACI, a government contractor, against Randi Rhodes, a (former) Air America talk show host and Air America, over statements that Ms. Rhodes made on her show, concerning alleged abuse committed by CACI employees against Abu Ghraib detainees. Here's part of what the Court said.

In a diversity action filed in U.S. district court in Virginia, CACI sued Rhodes and Air America for defamation under Virginia law. CACI alleges that Rhodes's statements on her show (reprinted above) accuse the company of, among other things, torture, rape, murder, and misrepresenting its authority (with its employees impersonating military personnel) at the Abu Ghraib prison. According to CACI, Rhodes made the statements with reckless disregard as to whether they were false.

Rhodes and Air America made a motion for summary judgment, which the district court granted for the following reasons. First, the court concluded that Rhodes's statements ... that CACI tortured detainees at Abu Ghraib "are not demonstrably false" (and hence not defamatory). ... In the alternative, the district court held that these statements were not made with actual malice. Second, the district court concluded that Rhodes's statements... that CACI employees misrepresented their authority at Abu Ghraib are not demonstrably false. Again, the court held in the alternative that these statements were not made with actual malice. Third, the district court concluded that Rhodes's statements ... that "likened [CACI and other] independent contractors operating in Iraq, generally, to those that operated in apartheid South Africa" were non-actionable hyperbole. ... Fourth, the district court concluded that Rhodes's statements ... "regarding CACI's role in the rape and murder of Iraqi detainees at Abu Ghraib," ...were hyperbole, failed to assert actual facts about CACI, or were not made with actual malice. CACI appeals the award of summary judgment to Rhodes and Air America, and our review is de novo, Jennings v. Univ. of N.C., 482 F.3d 686, 694 (4th Cir. 2007) (en banc).

...

CACI sued Rhodes and Air America for defamation under Virginia law. In Virginia a statement is defamatory per se if it, among other circumstances, (1) "impute[s] to a person the commission of some criminal offense involving moral turpitude;" (2) "impute[s] to a person unfitness  [*28] to perform the duties of an office or employment of profit, or want of integrity in the discharge of the duties of such an office or employment;" or (3) "prejudice[s a] person in his or her profession or trade."

...


The "application of the state law of defamation" is limited, of course, by the First Amendment to the Constitution of the United States.... This appeal turns on the application of two of these limitations: (1) the actual malice standard that attaches to media coverage of public officials or public figures and (2) the protection for statements that cannot reasonably be interpreted as stating actual facts about an individual. ... The standard ensures that defamation cases involving issues of public concern are considered "against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government[,] public officials," and public figures.... Accordingly, a public official or public figure cannot "recover [] damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice' -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not."...As we have said, "[e]stablishing actual malice is no easy task, because the defamation plaintiff bears the burden of proof by clear and convincing evidence." ...In reviewing an order granting summary judgment, an appellate court must independently examine the record to determine whether the plaintiff has proffered sufficient evidence to prove actual malice by clear and convincing evidence....

The First Amendment also "provides protection for statements that cannot 'reasonably [be] interpreted as stating actual facts' about an individual."...This safeguard includes protection for "rhetorical hyperbole, a vigorous epithet" and "loose, figurative, or hyperbolic language."

...

Several of Rhodes's statements that CACI claims are defamatory -- those about misrepresentation of authority, torture, and rape at Abu Ghraib -- will be analyzed under the New York Times actual malice standard.  [W]e begin with a comment about the importance of the actual malice standard to a wide-open and vigorous discussion of critical public issues. Rhodes joined in just such a discussion in this instance. The general topic was the initiation and conduct of the war in Iraq; it included the United States government's use of contractors, including CACI, to perform certain military functions in the war effort; it also included the shocking abuses at Abu Ghraib and CACI's role there. Rhodes's criticism of CACI's role and conduct was unbridled, caustic, and indignant.

...

The district court determined "that CACI is a public figure because of [its] prominent role in the circumstances surrounding the events that occurred at Abu Ghraib -- an issue of grave public concern." ... CACI does not contest its status as a public figure.

...

The district court concluded that the Fay/Jones and Taguba reports "gave Ms. Rhodes reasonable grounds to make claims that CACI employees either directed United States military personnel or acted in the capacity of United States personnel when directing military personnel." ... Therefore, the district court concluded that Rhodes's statements about CACI employees misrepresenting their authority and inappropriately assuming positions of authority were not made with actual malice. We conclude that the two military reports, together with other sources, support the district court's determination.

...

On August 10, 2005, while speaking on her show about the treatment of Iraqi detainees at Abu Ghraib, Rhodes said in statement 1: "[T]he people that are torturing . . . are not our troops but it's CACI and Titan." ... The district court, in considering this statement, held that there was sufficient information in Rhodes's sources to prevent CACI from establishing that she spoke with actual malice. According to the court, CACI could not establish that Rhodes "recklessly disregarded the truth when alleging that CACI employees had tortured Iraqi detainees." ... We agree.

...

We are quite mindful that the accusation that a government contractor,  or indeed any public figure, bears responsibility for child rape is a grave one. The First Amendment, however, bars liability for such a defamatory accusation absent clear and convincing proof that the speaker made the accusation "with reckless disregard of whether it was false or not." ...The Supreme Court has made "clear that reckless conduct is not measured by whether a reasonably prudent [person] would have published [or spoken], or would have investigated before publishing [or speaking]."... Instead, there must be sufficient evidence to permit the conclusion that the defamatory statement was "made with [a] high degree of awareness of [its] probable falsity." ... Again, Rhodes relied on several sources for the child rape allegation. Of course, "simple reliance upon someone else's statement does not absolve an author or publisher of liability. Recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports." ... Rhodes relied on the Hersh speech, the Fay/Jones report, and the Guardian article for her statement that the rape of children (or juveniles) occurred at Abu Ghraib. She relied on the Taguba report and Brigadier General Karpinski's interview for the point that CACI bore general responsibility for the horrific abuses at Abu Ghraib, abuses that would include the rape of children. There is no evidence to suggest that these sources provided unreliable information or that Rhodes had "obvious reasons" to doubt what they said. ... Accordingly, we conclude that a reasonable jury could not find that Rhodes spoke with reckless disregard for the truth when she accused CACI of responsibility for the rape of children.

...

Several of Rhodes's statements that CACI challenges as defamatory are not actionable because they do not assert actual facts about CACI. As we noted above, the First Amendment protects statements "that cannot reasonably [be] interpreted as stating actual facts about an individual" or entity.... This category of protection allows for rhetorical hyperbole and other types of imaginative or exaggerated expression....

...

We have made a thorough and independent examination of the whole record, and we are satisfied that each of Rhodes's statements that CACI challenges as defamatory is protected by the First Amendment: either it was not made with reckless disregard for the truth or it did not state actual facts about CACI (it was rhetorical hyperbole, for example). This case reminds us that "[i]t is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public [issues], and this opportunity is to be afforded for vigorous advocacy" that may be caustic and even exaggerated.... This essential privilege minimizes the danger of self-censorship on the part of those who would criticize, thus allowing robust debate about the actions of public officials and public figures (including military contractors such as CACI) who are conducting the country's business.

Read the entire ruling here. The case is CACI Premier Technology v. Rhodes, 2008 U.S. App. LEXIS 16576.

August 7, 2008 | Permalink | TrackBack (0)

ASA Douses Daily Telegraph For Bottled Water Ad

The Advertising Standards Authority has told the Daily Telegraph and its parent company, the Telegraph Media Group, that an ad it ran for a giveaway bottle of water saying "Lower your blood pressure with our free spring water" was unacceptable since it might lead consumers not to seek medical advice for serious health conditions. The ASA also told the Telegraph Media Group that it had breached another part of the advertising code by making "medicinal claims for an unauthorised product."

A national press front-page flash stated "LOWER YOUR BLOOD PRESSURE WITH OUR FREE SPRING WATER".  The promotion was detailed inside the newspaper and claimed "the first spring water developed especially to tackle the growing problem of high blood pressure ... 120/80, named after the optimum blood pressure level, is the first spring water in the UK to contain dairy peptides, which are derived from milk protein and clinically proven to be effective in the lowering and management of blood pressure.

...

Works with Water [the provider of the product, Ed.] said they took extreme care to ensure they did not mislead consumers by claiming or implying that their products could treat, prevent or cure disease or discourage essential treatment for a serious medical condition.  They said the first paragraph of the main editorial copy made a positive statement raising awareness of the prevalence of increased blood pressure in the UK.  They argued that throughout the communication, emphasis was placed on the fact that medical research has shown that the daily consumption of 4 g of dairy peptides could help to lower blood pressure in people with mild hypertension.  They said they were careful to highlight that 120/80 contained half of the recommended daily intake of dairy peptides and that drinking two bottles per day was "beneficial" and "a simple addition to lifestyle" (sic).  They said they stated on their website that the product was designed to be used alongside other healthy lifestyle choices and was not intended to be a replacement for drugs prescribed in hypertension treatment.  They also detailed the wording on packaging which included advice to consult a doctor if high blood pressure was suspected.

Works with Water said the headline on the article inside the newspaper should have stated "Free spring water for every reader to help lower your blood pressure" to be consistent with the main editorial copy, but the word "help" was omitted due to a proofing error for which they accepted full responsibility.  They said they were not responsible for the front page flash or content, which were down to the Telegraph's editorial discretion at the time of going to print.  They recognised that it would be sensible and responsible to include the on-pack and website statements in all future press promotions.  They added that they did not intend to repeat the promotion, and they would seek guidance from CAP Copy Advice before publishing future promotions.

The Telegraph said they had been alerted to the problematic wording by CAP on the day the ad appeared and had immediately halted the promotion.  They said the procedures they had in place to prevent such occurrences had not been properly followed, and the relevant personnel had been reminded of their obligations to the CAP Code.  They said every effort would be made to avoid a similar occurrence in future.....

The ASA noted the copy should have stated "help lower your blood pressure".  We also noted the numerous references to lowering blood pressure and the claim "the UK's first spring water developed especially to tackle the growing problem of high blood pressure".  We considered that readers could infer that the product would treat high blood pressure.  We concluded that the ad could discourage readers from seeking essential medical treatment for a serious medical condition.

On this point, the ad breached CAP Code clause 50.3 (Heath & Beauty products and therapies)

...

We noted Works With Water believed their product did not require a marketing authorisation because the active ingredients were relatively mild and it was not an alternative to medication.  However, we understood from Lancashire Trading Standards department that a claim to lower blood pressure was considered to be medicinal under the Food Labelling Regulations 1996.  We concluded that the ad made medicinal claims for an unauthorised product.

On this point, the ad breached CAP Code clause 50.11 (Medicines)

...

The ad must not appear again in its current form.  We advised Works With Water to seek guidance from the CAP Copy Advice team on future advertising campaigns.

Read the entire ruling here.

[Cross-posted to Law and Magic Blog].

August 7, 2008 | Permalink | TrackBack (0)

It's Girl Talk, Girl Talk...Talkin' 'Bout You, Talking' Bout Me...Me and Mrs. Jones....

D. J. Girl Talk (warning: music) uses sampling to create new songs from existing ones, and says his creations are protected by the fair use doctrine. Read more in a New York Times article here.

August 7, 2008 | Permalink | TrackBack (0)

Wednesday, August 6, 2008

Georgia Supreme Court Rejects Newspaper's Request For Police Records Under Open Records Law; Investigation, Begun in 1992, Is "Pending"

Because a 1992 police investigation is categorized as pending, the Georgia Supreme Court has reversed an appellate court and denied a newspaper's request for access to the records of the investigation under the Georgia Open Records Act. Said the Court,

The Open Records Act provides for the right of citizens to inspect public records, stating that, except those which by order of a court of this state or by law are prohibited or specifically exempted from being open to inspection by the general public, [they] shall be open for a personal inspection by any citizen of this state at a reasonable time and place; and those in charge of such records shall not refuse this privilege to any citizen. OCGA § 50-18-70 (b). Other than the specific statutory exemptions, this has been the law since 1959. Ga. L. 1959, p. 88, § 1. In 1976, this Court recognized the need for a strong “pending investigation” exemption:

"Statements, memoranda, narrative reports, etc. made and maintained in the course of a pending investigation should not in most instances, in the public interest, be available for inspection by the public. However, once an investigation is concluded and the file closed, either with or without prosecution by the state, such public records in most instances should be available for public inspection…. Generally, the public records that are prepared and maintained in a current and continuing investigation of possible criminal activity should not be open for public inspection. On the other hand, and again generally, public records prepared and maintained in a concluded investigation of alleged or actual criminal activity should be available for public inspection."

...

Thereafter ... this Court articulated a "pending prosecution" exemption, adopting "the federal rule that a law-enforcement proceeding, to justify non-disclosure of a public record, must be an imminent adjudicatory proceeding of finite duration." ...

In 1988, the legislature codified the exemptions for pending investigations and prosecutions in OCGA § 50-18-72 (a) (4). That subsection provides that the following are exempt from public disclosure:

Records of law enforcement, prosecution, or regulatory agencies in any pending investigation or prosecution of criminal or unlawful activity, other than initial police arrest reports and initial incident reports; provided, however, that an investigation or prosecution shall no longer be deemed to be pending when all direct litigation involving said investigation and prosecution has become final or otherwise terminated. …

...

Exempting each investigation which does not result in prosecution until it is concluded and the file is closed does not constitute an unreasonable public policy choice. As noted above, that policy protects the right to privacy of individuals named in investigative records and the integrity of investigations. It is a hard fact of law enforcement, of which the General Assembly was undoubtedly aware, that crimes sometimes remain unsolved for years until a break in the case, whether from a formerly reluctant witness or some new connection of previously seized evidence to a particular suspect.

...

It is not for this Court to set arbitrary time limits on how long an investigation can be kept open without tangible progress, when the legislature avoided any such time restrictions. Instead, the General Assembly made the legislative judgment that the only records in any pending investigations that must be disclosed in the public interest are "initial police arrest reports and initial incident reports. …"

...

The trial court here found as a matter of law that the starting time for compliance with the three-day requirement began when the employee in control of the requested police investigation records received Appellee's request. That employee responded within three business days. However, several days before that employee's receipt of the request, someone else at Appellant's offices had signed a certified mail receipt for the letter containing the request.

Although OCGA § 50-18-70 (f) refers to the "individual" in control of the public record, the restrictive signification "private or natural person" is not necessarily inherent in the word "individual." Black's Law Dictionary, p. 696 (5th ed. 1979). Furthermore, both § 50-18-70 (f) and § 50-18-72 (h) refer to action, within three business days, by "the public officer or agency" in control of the requested records. A review of these statutes and the Open Records Act as a whole does not clearly indicate the legislative intent with respect to the starting point for the response time....However, "[t]he very purpose of the Open Records Act 'is to encourage public access to government information and to foster confidence in government through openness to the public.' [Cit.]"... Appellee persuasively argued in the Court of Appeals that, if the response time begins only when the specific employee in charge of the records receives the request, "the agency would be able to extend the response time indefinitely, or even avoid sending the required response, by failing to forward the request to the appropriate employee in a timely manner after it has received the request." We approve the Court of Appeals' holding that agencies should not be allowed to circumvent the statute's time restrictions through inaction or malfeasance. We find that construing OCGA § 50-18-70 (f) to mean

that the agency must respond to an Open Records Act request within three business days after the agency receives the request is necessary to prevent governmental abuse and to uphold the purposes of the Act. Accordingly, because the undisputed evidence showed that [Appellant] failed to respond to [Appellee's] Open Records Act request within three business days of receiving the request, the trial court erred in finding as a matter of law that [Appellant] did not violate OCGA § 50-18-70 (f).

Athens Newspapers v. Unified Govt. of Athens-Clarke County, supra at 472 (3). Appellant's policy arguments, including that the three-day limit provides an unreasonably short time for large public agencies to process requests, are properly addressed to the Legislature.

Read the opinion here.

August 6, 2008 | Permalink | TrackBack (0)

William Patry Closes Down His Copyright Blog

William Patry, who offered informed and insightful discourse for a number of years on his copyright blog, has closed it down, and the archives also seem to have disappeared. In his final post, Mr. Patry explains why. First, too many people are confusing his personal views with his position as Senior Copyright Counsel as Google. Although he has taken great pains to differentiate the two, he feels he cannot continue to fight those who out of laziness or perversity muddy the waters. Mr. Patry also says, "On top of this there are the crazies, whom it is impossible to reason with, who do not have a life of their own and so insist on ruining the lives of others, and preferably as many as possible....In the end, I concluded that it is no longer possible for me to have a blog that will be respected for what it is, a personal blog. I don't draw any grand conclusions from this and hope others don't either. The decision was 100% mine. No one at Google ever asked, suggested, or hinted that I should end the blog. To the contrary, in keeping with Google's deep commitment to free speech, the company encourages blogs like mine, and has stood completely behind me."

Further, he seems to be tired of writing about copyright law, at least in this format. "It is profoundly depressing, after 26 years full-time in a field I love, to be a constant voice of dissent. I have tried various ways to leaven this state of affairs with positive postings, much like television news shows that experiment with "happy features." I have blogged about great articles others have written, or highlighted scholars who have not gotten the attention they deserve; I tried to find cases, even inconsequential ones, that I can fawn over. But after awhile, this wore thin, because the most important stories are too often ones that involve initiatives that are, in my opinion, seriously harmful to the public interest. I cannot continue to be so negative, so often. Being so negative, while deserved on the merits, gives a distorted perspective of my centrist views, and is emotionally a downer."

A shame. Read his last post here. I hope he uses some of that free time to develop his great ideas further into a copyright book.

August 6, 2008 | Permalink | TrackBack (0)

Moderators For Presidential, Vice-Presidential Debates Set

Bob Schieffer, Tom Brokaw, and Jim Lehrer will moderate three Presidential candidate debates this fall, according to a story in the Hollywood Reporter. Gwen Ifill will handle the honors for the single Veep debate in St. Louis. Nice to see that a woman will be involved, since Katie Couric's chance at moderating a debate was cancelled. Read more here.

August 6, 2008 | Permalink | TrackBack (0)

Palace Denies Prince Philip Has Cancer, Plans to Complain To Press Complaints Commission Over London Standard Story

Buck House has fired off a salvo over the London Evening Standard's story about the Duke of Edinburgh's possible prostate cancer, and plans to carry the campaign to the Press Complaints Commission. The Palace denies the story and alleges that it breaches Prince Philip's right to privacy. The paper quoted "unnamed sources" in its original story, which now seems to be unavailable on the Standard's website. However, a number of media had already picked up the story, including the Australian press. The Daily Mail, which had apparently run the story (it came up in a Google search for "prince philip cancer abc") seems to have eliminated the article; at least, I could not find it on the website. Some media have picked up both the story and the denial, including the Times of London.  ITV says simply that Buckingham Palace is "downplaying the report." Very interesting. Read more here in a Guardian article.

August 6, 2008 | Permalink | TrackBack (0)

U. S. Department of State Issues Press Release On Conviction of Dr. Saad Eddin Ibrahim

The U. S. Department of State has issued a statement criticizing the conviction of dual national (U.S.-Egypt) Dr. Saad Eddin Ibrahim for defaming Egypt. Here is the text.

We are disappointed by the recent conviction in Egypt of democracy activist Dr. Saad Eddin Ibrahim. On August 2, Dr. Ibrahim was convicted of harming Egypt’s reputation through his writings in the foreign press and was sentenced to two years in prison. Lawsuits should not be used to undermine the principles of freedom of expression. We strongly advocate – in all countries – the protection of civil and political rights, including freedom of speech and due process.

August 6, 2008 | Permalink | TrackBack (0)

Lawrence Lessig's Last Word (On This Topic, and Then, On To Other Things)

According to his blog, Lawrence Lessig is producing his last book, titled Remix, on the intersection of IP and the digital age. It's due for release this fall.

August 6, 2008 | Permalink | TrackBack (0)

Tuesday, August 5, 2008

Tory Politician Says Men's Mags Disrespectful to Women, Lead to Destruction of Families

British Conservative party politician Michael Gove today said that men's magazines encourage young people to think of women as sex objects and lead to the destruction of the family. He contrasted the tone of these magazines with those aimed at women readers, which he said were more mature. Said Mr. Gove, "We should ask those who make profits out of revelling in, or encouraging, selfish irresponsibility among young men what they think they're doing." Read more here in a Guardian story. He's gotten quite a response. See here, here, and here.

August 5, 2008 | Permalink | TrackBack (0)

Iranian Reporter Executed

Yaghoob Mirnehad, an Iranian journalist linked to the Jundallah movement, has been executed by the Iranian government. He was sentenced to death in February for "allegedly associating with a militant group and threatening national security," according to a Guardian article. Mr. Mirnehad was a reporter for the newspaper Mardomsalari.

August 5, 2008 | Permalink | TrackBack (0)

Thai Government Bans Sales of "Grand Theft Auto" After Cab Driver Found Slain, Teen Arrested

A Thai teenager has allegedly killed a cab driver by copying scenes from the video game Grand Theft Auto, and the local distributor has stopped sales in the country. The government has now banned sales of the game. The teen apparently told police that he used the game as a blueprint for the killing after playing the game repeatedly. Read more here in a Guardian story and in an Agence France Presse story.

August 5, 2008 | Permalink | TrackBack (0)

At Circuit City, They Don't Get MAD, They Give $20 Gift Cards

After somebody at corporate told the Circuit City stores that actually sell magazines to pull the August issue of Mad Magazine because it poked fun at Circuit City, the higher ups are making nice.First, they restored the mag to the selling floor. Second, they've apologized to Mad. See, they can take a joke. Read more here.

August 5, 2008 | Permalink | TrackBack (0)

Monday, August 4, 2008

Lying Writ Large

Thomas Mallon reviews the autobiography of the literary forger Lee Israel in yesterday's New York Times Book Review.

August 4, 2008 | Permalink | TrackBack (0)

Madeleine McCann Files Released

The Madeleine McCann police files have been made public. Read more here.

August 4, 2008 | Permalink | TrackBack (0)

FCC Tells Comcast Not To Block BitTorrent Use

In a three to two vote, the FCC told Comcast that it had illegally blocked users from using file-sharing software, and gave the company until the end of the year to desist from the practice. Said Kevin J. Martin, the FCC Chair, "We are preserving the open character of the Internet...We are saying that network operators can’t block people from getting access to any content and any applications.” Comcast had prevented users from using BitTorrent, which allows the downloading of video and music files. The company defended itself by saying that such use by a few customers would tend to overload its servers to the detriment of many others, who did not use the application. The FCC decision is likely to fuel further discussion of the network neutrality issue. Comcast is likely to appeal. Here's a link to the FCC release. Read more here in a New York Times article.

August 4, 2008 | Permalink | TrackBack (0)