Friday, October 5, 2012
Sarah Ludington, Campbell University School of Law, Duke University School of Law, has published Aiming at the Wrong Target: The 'Audience Targeting' Test for Personal Jurisdiction in Internet Defamation Cases, at 73 Ohio State Law Journal. Here is the abstract.
In Young v. New Haven Advocate, 315 F.3d 256 (4th Cir. 2002), the Fourth Circuit crafted a jurisdictional test for Internet defamation that requires the plaintiff to show that the defendant specifically targeted an audience in the forum state for the state to exercise jurisdiction. This test relies on the presumption that the Internet — which is accessible everywhere — is targeted nowhere; it strongly protects foreign libel defendants who have published on the Internet from being sued outside of their home states. Other courts, including the North Carolina Court of Appeals, have since adopted or applied the test. The jurisdictional safe harbor (ironically) provided by the veryn ubiquity of the Internet is no doubt welcomed by media defendants and frequent Internet publishers (e.g., bloggers) whose use of the Internet exposes them to potentially nationwide jurisdiction for defamation. But it may go too far in protecting libel defendants from facing the consequences of their false and injurious statements. For every libel defendant insulated from jurisdiction in a remote location, there is also a libel plaintiff who has potentially been denied an effective remedy in a convenient location. This article argues that the jurisdictional test created in Young is flawed and particularly should not be applied to libel defendants. It concludes with a simple suggestion: that the appropriate test for personal jurisdiction over libel defendants in cases of Internet defamation is the standard minimum contacts analysis.
Download the article from SSRN at the link.
Film Dramatizing Navy Seal Raid On Osama Bin Laden Compound Will Air Just Before Presidential Election
Wednesday, October 3, 2012
Fabrizio Cafaggi and Federica Casarosa, both of the European University Institute Department of Law, have published Private Regulation, Freedom of Expression and Journalism: Towards a European Approach? as EUI Working Paper LAW 2012/20. Here is the abstract.
The increasing role of electronic media in news and, more generally, in content production is changing the scope and boundaries of the journalism profession and the instruments deployed to regulate the activity. Historically, journalism has primarily been self-regulated. The limits of public legislation, mainly driven by the constitutional constraints posed by the freedom of expression, have created different models of national private regulatory regimes across Europe. Media regulation is a multilevel architecture and national legal systems still play a primary role in designing rules concerning news production. Self-regulation reflects national approaches and varies according to legal and social regulatory cultures. Within the private sphere, different forms of regulation have been implemented reflecting the changing balance between the profession, the industries and the new players which have emerged after the Web revolution. The development of new media poses the following important challenges to that regulatory framework: the criteria to be used to define journalism; the distinction and the boundaries between professional and non-professional journalism; the distinction between commercial and social/not for profit content production.
This essay will examine these challenges looking at practice and litigation in European countries, identifying the different conflicting interests generating this litigation and the (private) regulatory responses. It will explore the differences between professional and industry regulation both within and across media: looking at the national and European or transnational regulatory scope of these regimes.
Download the paper from SSRN at the link.
Tuesday, October 2, 2012
Samantha Barbas, SUNY Buffalo Law School, is publishing The Sidis Case and the Origins of Modern Privacy Law in the Columbia Journal of Law & the Arts. Here is the abstract.
The American press, it’s been said, is freer to invade personal privacy than perhaps any other in the world. The tort law of privacy, as a shield against unwanted media exposure of private life, is very weak. The usual reason given for the weakness of U.S. privacy law as a bar on the publication of private information is the strong tradition of First Amendment freedom. But “freedom of the press” alone cannot explain why liberty to publish has been interpreted as a right to print truly intimate matters or to thrust people into the spotlight against their will. Especially in our time of heightened concerns with privacy and internet overexposure, we need a better explanation of why the law has struck the balance between media exposure and privacy in the way that it has. One answer can be found in the case of William James Sidis.
The Second Circuit case Sidis v. F.R. Publishing (1940) represents a foundational moment in the development of American privacy law. In Sidis, one of the most famous privacy cases in U.S. history, an eccentric former child genius unsuccessfully sued the New Yorker magazine for invasion of privacy when it published information about his private life. Sidis was the first case to address the conflict between the right to privacy and freedom of the press and to come out on the side of free expression. The Second Circuit held that the loss of Sidis’ privacy was an inevitable sacrifice to be made for the New Yorker’s right to publish freely, and the public’s “right to know.” In its conclusion that the public’s ability to obtain facts of all kinds through the mass media, from serious news to gossip about private affairs, is the prerogative of a democratic people, the Sidis court articulated what have become, in many ways, the ground rules for the modern information society.
Download the article from SSRN at the link.
Monday, October 1, 2012
Sunday, September 30, 2012
Fox News has apologized for its broacast of a carjacking, live car chase and ultimately, on-air suicide of the suspect. National anchor Shepard Smith explained that the network uses a five-second delay to avoid the possibility that it might broadcast just such a thing as he narrated the events unfolding to his viewers, but as he realized what the carjacking was planning, he urged, "Get off it! Get off it!" to the control room. Mr. Smith apologized profusely, saying what had just happened "did not belong on TV," but the damage was done. Fox News also apologized, calling the broadcast the result of "severe human error." Other cable networks, including CNN, did not air live coverage.