Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Thursday, August 8, 2013

The First Amendment and Digital Speech

Andrew Tutt, Yale University Law School, is publishing The New Speech in volume 41 of the Hastings Constitutional Law Quarterly (2014). Here is the abstract.

Could the government prevent Facebook from deleting an individual’s Facebook account without first following government-prescribed procedures? Could the government intervene to require Google to conduct its search engine rankings in a certain manner, or subject Google to legal liability for wrongful termination or exclusion? Could social networks and search engines be required to prominently reveal the criteria by which their algorithms sort, order, rank, and delete content? Could the government demand that some user information or data be deleted, withheld, made inalienable, non-transferable, ungatherable or uncollectable? Could the government engage in detailed regulation of the Intellectual Property and Privacy relationships that inhere between individual users and the platforms they engage?

All of these questions implicate the First Amendment as it is currently configured. And as these questions reveal, the same stresses that strained the institution of property when Charles Reich wrote The New Property in 1964 now confront The New Speech in 2014. The most important “speech” of the next century will be generated, intermediated, transformed, and translated by dominant institutions through powerful computers: petitions in front of the shopping mall replaced with calls for “Likes” and “Votes” on Facebook and Reddit; sports leagues replaced by leagues of Counter-Strike and Call of Duty; broadcast and cable news replaced by interactive, algorithmically-generated, computer-curated granularly distributed news memes spread via blogs and aggregators. 

As more and more of the activities that were once exclusively the province of the physical world become the province of the digital, more and more of the issues that once confronted the distribution and allocation of rights in property will confront the distribution and allocation of rights in Speech. While the great Speech debates of the twentieth century were about the content of speech — that is, what one could say, the great Speech debate of the twenty-first century will be about what counts as Speech and whose Speech counts. Will it be that of institutions and their sophisticated algorithms, or individuals and their impromptu communities?

These are questions courts are already confronting and they are getting the answers wrong. In contrast to scholars who by turns either deemphasize the transformative nature of the New Speech or argue that Courts will have little impact on its growth, this Article argues that potentially critical judicial missteps are already occurring. Just as the needs of modern industrial society were delayed and often stymied by the judiciary of the early twentieth century, if we fail to consider the implications of the speech decisions courts make now, the needs of the modern information society may be delayed and stymied by the judiciary of the early twenty-first.

This Article is an effort to explore the ways in which speech platforms represent a wholly new challenge to the First Amendment, one that will require the First Amendment to bend if we are to prevent the Lochnerization of the Freedom of Speech. It ties together various threads — the power of automation, the centrality and power of Internet media platforms, the doctrines developing in the courts, the actual acts of censorship in which these platforms regularly engage, and the core purposes the First Amendment was designed to serve — to make a sustained argument that we must think seriously about restructuring and dejudicializing the First Amendment if we are to avoid seeing the First Amendment transformed into a powerful shield for the very sorts of censorship it was written to prevent.


Download the article from SSRN at the link.

August 8, 2013 | Permalink | TrackBack (0)

A Look at the Evolution of the Right To Privacy

Alina Savoiu and Cătălin Căpăţînă Basarabescu have published The Right to Privacy in the Annals of the Constantin Brancusi University, no. 1  (2013). Here is the abstract.

The right to privacy, recognised internationally in different regions and cultures, becomes one of the individual's most important rights in today's society.This presentation aims to highlight the evolution of the concept of private life, its importance in a society of new technologies and the main international and national regulations which establish the right to private life.Romanian abstract:Dreptul la viaţă privată devine unul din cele mai importante drepturi ale omului în societatea contemporană, recunoscut pe plan internaţional în diferite regiuni şi culturi.Această prezentare intenţionează să sublinieze evoluţia conceptului de viaţă privată, importanţa acestuia într-o societate a noilor tehnologii şi principalele reglementări internaţionale şi naţionale ce consacră dreptul la viaţă privată.

Download the paper (which is in Romanian and English) from SSRN at the link.

August 8, 2013 | Permalink | TrackBack (0)

Wednesday, August 7, 2013

The US and EU Legal Regimes and the Right to Be Forgotten

Meg Leta Ambrose, Georgetown University, Communication, Culture, and Technology, has published Speaking of Forgetting: Analysis of Possible Non-EU Responses to the Right to Be Forgotten and Speech Exception. Here is the abstract.

The right to be forgotten is contentious partly because it highlights the difference between U.S. and E.U. prioritization of information privacy and freedom of expression. Recently a moderate amount of research has been undertaken to explore the conceptual issues underlying the right to be forgotten and how the right conflicts with the U.S. first amendment, but little has been written about its impending implementation and interoperability issues. While this is an E.U. Data Protection Regulation proposing to grant rights only to E.U. citizens, the world has a stake in this right for a number of reasons. This article will analyze the options for non-E.U. countries and data controllers, namely the U.S., to react to the establishment of such a right. These options are: (1) adopt the same right to be forgotten for themselves, (2) ignore right to be forgotten claims, (3) comply with right to be forgotten take down requests, or (4) seek to establish a modified version of the right to be forgotten. In assessing these options, the article will first address the reality of a right to be forgotten under U.S. law. Second, it will discuss compliance and jurisdictional issues if the right is ignored. Third, the article will look at the impact of full acceptance of the take-down regime, focusing on the potential chilling effects and abuse. Finally, it will propose that non-E.U. countries encourage a right to be forgotten that is less disruptive: a right to erasure that allows data subjects to directly request removal of data held privately by data controllers and a right to oblivion for publicly available information that is enforced similarly to defamation claims, requiring a court order.

Download the paper from SSRN at the link.

August 7, 2013 | Permalink | TrackBack (0)

Tuesday, August 6, 2013

Journal of Media Law, Volume 5, Issue 1 (2013)

The Journal of Media Law, Volume 5, Issue 1 (2013) is available. Check out the contents further here.



Volume 5 . Number 1 . 2013

Comment and Analysis

Animal Defenders International: Speech, Spending, and a Change of Direction in Strasbourg

Jacob Rowbottom

Abstract: This article looks at the decision of the Grand Chamber of the European Court of Human Rights in Animal Defenders International, in which the Court found the UK's ban on political advertising on the broadcast media not to violate freedom of expression. In addition to examining the Court's reasoning, the article considers the previous decisions on political advertising, compares the ECtHR's approach to that taken by the US Supreme Court in Citizens United, and outlines the main differences in the dissenting opinions.


Google: Friend or Foe of Ad-Financed Content Providers?

Thomas Hoppner

Abstract: The more content provided to Google by publishers, the more attractive the search engine becomes. However, the more content is consumed on Google, the less traffic reaches the content providers. But blocking the content for Google is not an option for content providers either. Antitrust authorities or the legislator will have to intervene in the end. This article examines the underlying tensions between Google and providers of premium content such as news, images and videos and outlines possible regulatory instruments to address the conflict.


Closed Data: Defamation and Privacy Disputes in England and Wales

Judith Townend

Abstract: The Coalition Government has prioritised 'open data' as a 'powerful tool' to 'empower citizens', with a 'transparency commitment' to publish more crime and anonymised sentencing data and the Ministry of Justice has set out an open data strategy covering both civil and criminal courts. However, legal researchers frequently encounter inaccessible or 'closed' data, when they attempt to access basic information concerning civil cases. Better-organised and more open information would help inform public debates relating to procedural and substantive civil law - the discussion around libel reform and privacy-related interim injunctions, for example. This paper will argue that a lack of public data about defamation and privacy litigation, indicated by the Impact Assessment for the Defamation Bill 2012 and the report by the Master of the Rolls' Committee on Super-Injunctions in 2011, hampers the policy-making process, public debate and academic research around these issues of public interest.


Honour in a Time of Twitter

Megan Richardson

Abstract: This note reflects on to the debate which took place about Lord McAlpine?s alleged pedophilia on Twitter in Autumn 2012 and in the wake of the revelation that the allegations were false his response in invoking the law of defamation against his detractors. Contrary to those who criticised McAlpine for taking this step, arguing that online public debate would be imperiled as a result, this note accepts that law should play a role in framing the parameters of online communication?and points out that historically the public sphere has not been a lawless sphere but has rather been framed by laws such as defamation.



Theory and Doctrine of ‘Media Freedom’ as a Legal Concept

Jan Oster

Abstract: The evolution of the blogosphere, the phenomenon of media convergence, and the reputed decline of the traditional media in both its public influence and in its quality, raise questions as to whether the media should still be endowed with special privileges, what its duties and responsibilities are, and what 'the media' actually is. The objective of the article is to develop a theoretical and doctrinal framework for the definition and treatment of 'the media' as a legal concept. In order to set the right incentives for journalists and media entities to behave in a prudent and diligent manner, the article argues in favour of a functional and content-based approach as a third way between statutory regulation and media self-regulation. Rather than arguing that because a person or institution is to be categorised as 'journalist' or 'media' they enjoy certain privileges and have to abide by standards of conduct, the article suggests that if a person or institution contributes to matters of public interest in accordance with certain standards of conduct, then they are to be conceived of as media and should enjoy special privileges.


Access to Information as a Human Right in the Case Law of the European Court of Human Rights

Päivi Tiilikka

Abstract: The author examines whether the right to obtain information held by state or city authorities is considered to be a human right guaranteed by the European Convention on Human Rights (ECHR, or 'the Convention'). The research question is studied by analysing the practice of the European Court of Human Rights (ECtHR, or 'the Court'). According to ECtHR case law, the right to obtain information may be based on Article 2 of the ECHR (guaranteeing the right to life), on Article 6 (guaranteeing fair trial), on Article 8 (guaranteeing the right to private and family life), and, finally, on Article 10 (guaranteeing freedom of expression). However, there is no general right to obtain information from public authorities and access official documents. The ECHR is still able to bring added value to many access-to-information cases. It brings the scrutiny and supervision of the ECtHR into play, and the Convention and the Court that interprets it set the minimum standard for publicity of information.


Anti-Terror Laws and the News Media in Australia Since 2001: How Free Expression and National Security Compete in a Liberal Democracy

Jacqui Ewart, Mark Pearson and Joshua Lessing

Abstract: This article backgrounds the Australian experience with national security laws using case studies to highlight tensions between Australia's security laws and the media's Fourth Estate role. It compares the Australian and UK human rights contexts and suggests a cautious approach to the renewal of such laws, particularly those restricting public debate about national security and its impact on human rights.


Death of a Convention: Competition between the Council of Europe and European Union in the Regulation of Broadcasting

Daithí Mac Síthigh

Abstract: This article considers a dispute between the European Union and Council of Europe regarding their respective roles in the broadcasting field, so as to explain and assess its relevance for the development at the international level of media law and policy. The dispute is a long-running one and dates back to the adoption of the first EEC Directive and Council Convention on this subject in 1989. It is argued that the expansion of the scope of EU broadcasting law and the consolidation of the European Commission's role in external affairs left little room for the Council to continue to exercise influence over the regulation of the electronic media in the way it has done for some time. The exact nature of the dispute between the institutions, and the response of a vocal member state, is ascertained through consideration of published minutes and internal correspondence, set in the context of doctrinal and political developments. The article concludes with analysis of possible future actions for the Council.


Book Reviews

Katrien Lefever, New Media and Sport: International Legal Aspects

A review by Rachael Craufurd Smith


Mark Warby QC, Nicole Moreham and Iain Christie (eds), Tugendhat and Christie, The Law of Privacy and the Media

A review by Eric Barendt



August 6, 2013 | Permalink | TrackBack (0)

Monday, August 5, 2013

Amazon Founder Buys Washington Post

Jeff Bezos, founder of, has purchased the Washington Post for $250 million. More here from Hollywood Reporter and here from CNN.

August 5, 2013 | Permalink | TrackBack (0)

Cloud Computing and Information Privacy

Paul M. Schwartz, of the University of California, Berkeley, Law School, has published Information Privacy In the Cloud, in volume 161 of the University of Pennsylvania Law Review (2013). Here is the abstract.

Cloud computing is the locating of computing resources on the Internet in a fashion that makes them highly dynamic and scalable. This kind of distributed computing environment can quickly expand to handle a greater system load or take on new tasks. Cloud computing thereby permits dramatic flexibility in processing decisions – and on a global basis. The rise of the cloud has also significantly challenged established legal paradigms. This Article analyzes current shortcomings of information privacy law in the context of the cloud. It also develops normative proposals to allow the cloud to become a central part of the evolving Internet. These proposals rest on strong and effective protections for information privacy that are sensitive to technological changes. 

This Article examines three areas of change in personal data processing due to the cloud. The first area of change concerns the nature of information processing at companies. For many organizations, data transmissions are no longer point-to-point transactions within one country; they are now increasingly international in nature. As a result of this development, the legal distinction between national and international data processing is less meaningful than in the past. Computing activities now shift from country to country depending on load capacity, time of day, and a variety of other concerns. The jurisdictional concepts of EU law do not fit well with these changes in the scale and nature of international data processing. 

A second legal issue concerns the multi-directional nature of modern data flows, which occur today as a networked series of processes made to deliver a business result. Due to this development, established concepts of privacy law, such as the definition of “personal information” and the meaning of “automated processing” have become problematic. There is also no international harmonization of these concepts. As a result, European Union and U.S. officials may differ on whether certain activities in the cloud implicate privacy law. 

A final change relates to a shift to a process-oriented management approach. Users no longer need to own technology, whether software or hardware, that is placed in the cloud. Rather, different parties in the cloud can contribute inputs and outputs and execute other kinds of actions. In short, technology has provided new answers to a question that Ronald Coase first posed in “The Nature of the Firm.” New technologies and accompanying business models now allow firms to approach “make or buy” decisions in innovative ways. Yet, privacy law’s approach to liability for privacy violations and data losses in the new “make or buy” world of the cloud may not create adequate incentives for the multiple parties who handle personal data.

Download the article from SSRN at the link.

August 5, 2013 | Permalink | TrackBack (0)

Acting Commissioner Clyburn's Statement On Nomination of Mike O'Rielly To FCC

NEWS Federal Communications Commission 445 12th Street, S.W. Washington, D. C. 20554

This is an unofficial announcement of Commission action.

Release of the full text of a Commission order constitutes official action.

Statement of Acting Chairwoman Clyburn on the Nomination of Mike O’Rielly as an FCC Commissioner Washington, D.C.

Acting Chairwoman Mignon Clyburn has issued the following statement on Mike O’Rielly’s nomination as an FCC Commissioner:

“I congratulate Mike O'Rielly on his nomination as an FCC Commissioner, and look forward to his Senate confirmation. I am also excited about working with Mike on the many important issues facing the Commission as we continue our mission of service to the American people.”


August 5, 2013 | Permalink | TrackBack (0)