Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Thursday, October 6, 2011

The EU, Privacy, Academic Research, and Freedom of Expression

David Erdos, University of Oxford Faculty of Law, Centre for Socio-Legal Studies, has published Freedom of Expression Turned on its Head? Academic Social Research and Journalism in the European Union's Privacy Framework. Here is the abstract.

This article argues that mainstream interpreters have been wrong to hold that academic investigations into social (including historical and political) affairs may benefit only from restrictive “research” provisions of the European Union Privacy Framework, namely Data Protection Directive 95/46/EC and transposing national laws, and not from the far more liberal provisions provided for journalism, literature and art. Academic social investigation is clearly orientated towards the production of books, articles and other publications. It fits entirely within “literary” and possibly even “journalistic” processing. Even if such work also falls within “research” as per the Directive, the exemptions in the instrument cannot sensibly be read as imposing a rigid exclusivity requirement on processing. By imposing severe restraints on “high value” academic speech whilst granting “low-value” “infotainment” a much freer rein, the mainstream interpretation does nothing less than turn the logic of the European Convention on Human Rights (ECHR)’s freedom of expression jurisprudence on its head.

Download the paper from SSRN at the link.

October 6, 2011 | Permalink | TrackBack (0)

Kant and Copyright

Anne Barron, London School of Economics & Political Science Department of Law, is publishing Kant, Copyright and Communicative Freedom in Law and Philosophy (Forthcoming). Here is the abstract.

The rapid expansion of copyright worldwide has sparked numerous efforts to defend the public domain, often on the ground that an expansive public domain is a condition of a ‘free culture’. Yet questions remain about why the public domain is worth defending, what exactly a free culture is, and what role (if any) authors' rights might play in relation to it. From the standard liberal perspective shared by many critics of copyright expansionism, the protection of individual expression by means of marketable property rights in authors’ works serves as an engine of progress towards a fully competitive ‘marketplace of ideas’ - though only if balanced by an extensive public domain of non-propertized intellectual products from which users may draw in the exercise of their own expressivity. This article shows that a significantly different, and arguably richer, conception of what a free culture is and how authors’ rights underpin it emerges from a direct engagement with the philosophy of Immanuel Kant. 

The article first questions the widespread assumption - most recently reproduced in the IP context by Robert P. Merges' Justifying Intellectual Property (2011) - that Kant’s position is assimilable to contemporary liberal individualism. In fact, although the idea of freedom is at the heart of Kant’s philosophy, his understanding of freedom is not at all reducible to the ideas of individual liberty or personal autonomy at play in contemporary liberal thought. This emerges particularly clearly from his vindication of the public use of reason, famously articulated in an essay entitled 'An Answer to the Question: "What is Enlightenment?"', first published in 1784. What Kant envisages here is a principled freedom that presupposes a commitment to engage in 'mature' communicative interactions with others in public. Individual expressive liberty is only a condition, not constitutive, of this ‘freedom to make public use of one’s reason in all matters’; and progress towards a fully emancipated (i.e. ‘enlightened’) culture can only be achieved through the (self-)critical reflection that this 'thinking in community with others' demands. 

The article's main claim is that when Kant's rather less famous essay 'On the Wrongfulness of Unauthorized Publication' (1785) is read in relation to the arguments for 'publicity' he advanced only a year earlier, a necessary connection emerges between authors' rights (as distinct from copyrights) and what Jürgen Habermas has named the public sphere. I argue that from a Kantian perspective, it is the public sphere of open, inclusive and principled criticism - not the public domain as such - that should serve as the regulative idea for any evaluation of copyright law’s role in relation to the possibility of a free culture.

Download the essay from SSRN at the link.

October 6, 2011 | Permalink | TrackBack (0)

Tuesday, October 4, 2011

Daily Mail Accidentally Runs Wrong Amanda Knox Verdict

In its own "Dewey Beats Truman" moment, the Daily Mail ran the wrong Amanda Knox/Raffaele Sollecito story, reporting that the Italian appeals court had upheld both convictions, before yanking that story and replacing it with the correct version. To be fair, other British papers also initially ran with the incorrect version for a few minutes, apparently having misunderstood the judge's words (bad translation?)

In a post about the Daily Mail story, Roy Greenslade is highly critical of that paper's coverage, however, pointing out that quotations purporting to be from those prosecutors are, well, just that. In his critique, he explains why, while other British papers have suffered some criticism for not getting it right, the Daily Mail is being ravaged for getting it so totally wrong. In that paper's article, we get descriptions of Ms. Knox's complete collapse and quotes from happy prosecutors. Ms. Knox did, in fact, collapse, but from joy at the outcome. More here from The Hollywood Reporter.

So, what does the Daily Mail say today about Ms. Knox? That she is on her way back to the U.S., all smiles. The paper also explains its misstep with regard to yesterday's inaccurate "conviction story."

October 4, 2011 | Permalink | TrackBack (0)

The Photographer's Copyright

Justin Hughes, Cardozo Law School, has published The Photographer’s Copyright – Photograph as Art, Photograph as Database as Cardozo Legal Studies Research Paper No. 347. Here is the abstract.

This Article explores the interaction between copyright law and photography, the 19th century technological development that most challenged copyright’s conceptual underpinnings. Prior to this article, neither courts nor commentators have seen the parallelism between copyright ability issues for photographs and the same issues for compilations of data. After exploring those parallels, the Article describes how originality-based copyright protects far fewer photos than most people believe; why courts stretch notions of originality to protect much photography; the possibility of less robust, incentive-based protection systems; and how technological developments challenge the fragile conceptual framework established in the 19th and 20th centuries for copyright protection of photography.

Download the paper from SSRN at the link.



October 4, 2011 | Permalink | TrackBack (0)

Criminal Defamation In Italy

Findlaw's Cynthia Hsu on Amanda Knox's criminal libel conviction.

October 4, 2011 | Permalink | TrackBack (0)

Student Athletes and Social Media

Marcus Allan Hauer has published The Legal Issues of Banning Student-Athletes’ Social Media Speech. Here is the abstract. 

An increasing number of public universities have banned their student-athletes from using twitter out of fear of players tweeting something that will embarrass the team and the school. This brings up important questions of whether these bans are constitutional, as these are public universities and the bans preemptively restrict the speech of the players. To further complicate the matter, some schools impose the ban only on football players and do not extend the ban to other student-athletes. The question is timely, as the bans are relatively new, and appear to have first gained attention within the six months. This topic is relevant because were a case to be brought in court, it is unclear how a court would decide the legality of the issue. The question is, are these bans constitutional?

Download the paper from SSRN at the link.


October 4, 2011 | Permalink | TrackBack (0)

Monday, October 3, 2011

The Media's Effect on the Public's Trust in the Police

Katrin Hohl, London School of Economics, Methodology Institute, has published The Role of the Mass Media in Public Trust in the Police, in Just Authority? Public Trust and Police Legitimacy (J. Jackson, B. Bradford, E. Stanko and K. Hohl, Routledge, Forthcoming). Here is the abstract.

This study tests the effect of the media, in particular the press, on public opinions of and trust in the police. It does so within the theoretical framework of procedural justice theory adapted to the British context. Procedural justice theory postulates that cooperation and compliance with the police, the courts and the law flow from the perception that they are legitimate and trustworthy authorities. Legitimacy and trust, in turn, are largely based on perceptions of procedural fairness – believing that the police or the courts treat one with fairness and respect, and that one’s views are heard and taken into account (Tyler and Huo 2002). 

The empirically study combines a large-scale content analysis of reporting on policing in five major British newspapers between April 2007 and March 2010 with population representative survey data on public trust fielded continuously over the same three-year period. The study finds little evidence for an effect of the staple of media reporting on policing – ongoing crime investigations – on public trust in the police. Despite the great variability in media reporting over the three-year period – with some high profile events and stretches of both high and low intensity of reporting on policing – public confidence in the police remained very stable. Reporting on police misconduct, how the police treat members of the public in direct encounters and acts of police community engagement have a small effect on public confidence. These findings suggests public trust is rooted in perceptions and beliefs about procedural fairness and police community engagement more than in judgements of police effectiveness and competence in dealing with crime.

Download the essay from SSRN at the link.

October 3, 2011 | Permalink | TrackBack (0)

"Star Map" Seller Headed To Court

The owners of the home in which Michael Jackson died are suing a woman who sells tourist maps to celebrities' homes, saying the business she carries on close to their doorstep is a nuisance. The map seller, Linda Welton, defends herself by pointing to an earlier lawsuit against her mother, who carried on the same activity, and filed in 1978, which her mother won, and in which the city's ordinance was held to be unconstitional.

October 3, 2011 | Permalink | TrackBack (0)

The Defamatory Tweet?

Julie Hilden, who now blogs at's Verdict, writes here about the treatment tweets ought to get if an individual thinks the tweeter has defamed him or her. Using Courtney Love's current legal problems over possibly defamatory tweets as the springboard for her analysis, Ms. Hilden looks at ways to analyze the issue.

October 3, 2011 | Permalink | TrackBack (0)