Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Wednesday, April 25, 2018

The Reporters Without Borders Rankings of Countries That Protect Press Freedom Is Out: U.S. Ranks 45th @RSF_inter

Reporters Without Borders ranks the United States 45th for press freedom for 2018 among countries it ranks, while Canada is in the top 20 in the world, at 18th. Norway is again first in the world, and Sweden is 2nd, while North Korea is at the bottom of the rankings. A sampling of countries that rank higher than the U.S.? The Czech Republic (34th), Germany (15th), Costa Rica (10th), the Netherlands (3rd).

 

More here from Reporters Without Borders. Here's the ranking for 2018.

April 25, 2018 | Permalink

Tuesday, April 24, 2018

Mossoff on The Telegraph @AdamMossoff

Adam Mossoff, George Mason University Law School, is publishing The Telegraph, in A History of Intellectual Property in 50 Objects (Dan Hunter and Claudy Op de Kamp, eds., Cambridge University Press, 2018) (forthcoming).

This chapter, written for the forthcoming monograph A History of Intellectual Property in 50 Objects, discusses the scientific, technological, and social context of Samuel F.B. Morse's invention of the telegraph in the 1830s in New York City. Morse’s invention was called the “Lightning Line” and he was called the “Lightning Man,” because of its use of electricity to operate an electro-magnet in making tics on a strip of paper—the dots and dashes also invented by Morse to use on his telegraph and eponymously called Morse Code. Lightning is an apt metaphor if only because it captures perfectly the communications revolution sparked by Morse’s invention, which is still occurring today via the Internet (its undersea fiber optic cables follow the same paths of the telegraph cables first laid in the 1850s). In making possible instantaneous communication of all information the world over, the telecommunications revolution wrought by Morse’s telegraph has impacted everything—industry, commerce, education, and even the English language. In its survey of this wide-ranging impact of Morse’s telegraph, it brings some added color to a man and his invention that most patent lawyers know only via a lawsuit that resulted in a famous Supreme Court decision in 1851, and that many others today know only as the creator of Morse Code.

Download the essay from SSRN at the link.

April 24, 2018 | Permalink

Wednesday, April 18, 2018

McPeak on Disappearing Data @socmediaJD

Agnieszka McPeak, University of Toledo College of Law, has published Disappearing Data at 2018 Wisconsin Law Review 17. Here is the abstract.

“Ephemeral” applications like Snapchat facilitate social interaction in a format that mimics the impermanence of face-to-face conversations. In the age of “big data” and the growing privacy concerns it raises, platforms offering ephemeral social media tools are meeting a market demand for smaller digital footprints. Additionally, these platforms are responding to regulatory pressure to embrace “privacy by design,” the idea that new technology should be built with privacy as a goal from the ground up. Indeed, ephemeral platforms, though imperfect in their impermanence, mark a positive shift in the direction of data minimization. But the Federal Rules of Civil Procedure provide for broad discovery of electronically stored information. And they mandate, along with other rules, preservation of potentially relevant data in anticipation of litigation. Preservation duties for this new brand of ephemeral data, however, have not been clearly defined. This article urges for a fair and balanced approach to defining preservation duties for disappearing data. While ephemeral content may be discoverable, onerous preservation duties are unwarranted and will negatively impact both corporate and individual litigants alike. For corporate interests, overly broad preservation duties lead to risk-averse companies stockpiling all things digital, often at great cost. For individuals, the law should recognize that mobile technology has become ubiquitous and social media is a key tool for personal expression, free speech, and social interaction. But individuals also have become the unwitting stewards of vast amounts of data, some of which is dynamic and ever-changing. Deletion or revision of personal information is a normal occurrence on social media platforms — indeed, some are a product of privacy by design. Overly broad preservation duties for individual litigants thus impose unwarranted burdens and are out of step with technological change.

Download the article from SSRN at the link.

April 18, 2018 | Permalink

Tuesday, April 17, 2018

Boyden on Daly v. Palmer, or the Melodramatic Origins of the Ordinary Observer @BruceBoyden

Bruce E. Boyden, Marquette University Law School, is publishing Daly v. Palmer, or the Melodramatic Origins of the Ordinary Observer in volume 68 of the Syracuse Law Review (2018). Here is the abstract.

Daly v. Palmer, decided in 1868, began as one zealous New York theater owner’s attempt to prevent his rivals from capitalizing on his greatest dramatic success—the famous “Railroad Scene,” in which a character is tied to railroad tracks by the villain and is rescued only seconds before an approaching train passes. But the decision, authored by future Supreme Court Justice Samuel Blatchford, proved to be a landmark in copyright law for almost seventy years. Daly was one of the first plaintiffs to claim infringement by nonverbatim copying from an artistic, not informational, work, and his case anticipated by several decades an explosion of such lawsuits at the turn of the century. As those difficult cases became legion, courts and treatise writers alike looked to Blatchford’s detailed analysis for guidance. Daly was innovative in two ways. Judge Blatchford extended copyright protection for plays beyond the printed text of the script, and held that the value of a work included the intangible impression made by the work on its audience when performed. Second, he measured infringement of such works by comparing the similarities in their sequence of events, even where no dialog was copied. Twentieth-century courts widely adopted Blatchford’s “sequence of events” test to determine if the narrative of one work infringed another. But eventually judges became dissatisfied with such piecemeal analysis, and, searching for an alternative, found Daly’s other holding: that the overall impression made upon the audience might matter. This article, part of the “Forgotten IP Cases” Symposium hosted by the Syracuse Law Review, traces the origins and subsequent career of what was for many decades one of the most widely cited infringement cases in copyright law. It explores why Daly was so influential, and how it was ultimately replaced by the Second Circuit’s decision in Arnstein v. Porter. The concluding section offers some thoughts on what causes a copyright opinion to gain or lose precedential value.

Download the article from SSRN at the link.

April 17, 2018 | Permalink

Friday, April 13, 2018

EU Commissioner For Justice May Suggest Regulation For Facebook, Other Social Media, To Control Hate Speech

The Guardian reports that the EU Commissioner for Justice and Consumers is displeased with news of Cambridge Analytica's use of data obtained from Facebook and may propose that the EU abandon its voluntary code of conduct concerning online hate speech. Instead, Commissioner Vera Jouraova may suggest that legislation could ensure that Facebook not harbor hate speech in future. In some EU member states, ISPs and platforms must remove hate speech and objectionable content or pay high fines.  More here.

April 13, 2018 | Permalink

Wednesday, April 11, 2018

Borgesius and Steenbruggen on The Right to Communications Confidentiality in Europe: Protecting Trust, Privacy, and Freedom of Expression @WSteenbruggen @fborgesius

Frederik Zuiderveen Borgesius, University of Amsterdam, IVir Institute for Information Law (IViR), and Wilfred Steenbruggen, Bird & Bird, have published The Right to Communications Confidentiality in Europe: Protecting Trust, Privacy, and Freedom of Expression. Here is the abstract.

In the European Union, the General Data Protection Regulation (GDPR) provides comprehensive rules for the processing of personal data. In addition, the EU lawmaker intends to adopt specific rules to protect confidentiality of communications, in a separate ePrivacy Regulation. Some have argued that there is no need for such additional rules for communications confidentiality. This paper discusses the protection of the right to confidentiality of communications in Europe. We look at the right’s origins as a fundamental right to assess the rationale for protecting the right. We also analyse how the right is currently protected under the European Convention on Human Rights and under EU law. We show that the right to communications confidentiality protects three values: trust in communication services, privacy, and freedom of expression. The right aims to ensure that individuals and businesses can safely entrust communication to service providers. Initially, the right protected only postal letters, but it has gradually developed into a strong safeguard for the protection of confidentiality of communications, regardless of the technology used. Hence, the right does not merely serve individual privacy interests, but also other interests that are crucial for the functioning of our information society. We conclude that separate EU rules to protect communications confidentiality, next to the GDPR, are justified and necessary to protect trust, privacy and freedom and expression.

Download the article from SSRN at the link.

April 11, 2018 | Permalink

Tuesday, April 10, 2018

Tan on Cultural (Re)Codings: Copyright, Trademarks, and the Right of Publicity @NUSingapore

David Tan, National University of Singapore, Faculty of Law, has publihsed Cultural (Re)Codings: Copyright, Trademarks and the Right of Publicity as NUS Law Working Paper No. 2018/010. Here is the abstract.

In his critique of consumption, Jean Baudrillard contends that the consumer no longer relates to a particular object in its specific utility, but to a set of objects in its total signification. Thus, increasingly, when consumers make their purchases, they do not simply select goods and services purely for their functional or utilitarian values, but are buying into the significations of these commodities in the construction of their self-identities. Objects of intellectual property (IP), in particular copyrighted works, trademarks and the celebrity personality, represent far more than a bundle of legal rights. They are invariably associated with a set of cultural narratives and semiotic meanings which are ultimately consumed. A well-known literary or artistic work does much more than simply educate, inform or entertain; it also functions as a signifier of a set of signified meanings. A trademark does not only designate the source or origin of goods. Famous brands like Louis Vuitton, Apple and Nike possess particular configurations of meanings that offer peculiarly powerful affirmations of belonging and recognition in the lives of their customers around the world. Celebrities, whose identities may be protected against commercial appropriation by the right of publicity, have become common points of reference for millions of individuals who may never interact with one another, but who have, by virtue of their participation in a mediated culture, a shared experience and a collective memory. This essay explores how the encoded narratives in certain objects of IP may be read as polysemous texts that invite playful semiotic recodings, culture jamming and poststructural disruptions. It also suggests how audiences who engage with works of copyright, trademarks and celebrities via such textual signification may avail themselves of a number of legal defenses under the current legal regime.

Download the article from SSRN at the link.

April 10, 2018 | Permalink

Feds Seize Backpage.com, Charge Founders With Facilitating Prostitution, Numerous Other Counts

From the Two-Way (NPR): Backpage founders Michael Lacey and James Larkin are facing federal charges of facilitating prostitution,  money laundering, and dozens of other counts after a federal grand jury indicted them; according to Time, the indictment was revealed Monday.  

Federal authorities seized the site last week.

California authorities had already charged Mr. Lacey and Mr. Larkin, along with Backpage CEO Carl Ferrer, with conspirary and other charges, but a judge found that Section 230 of the CDA provided them with immunity (see this Buzzfeed article). More here from Wired.

  

April 10, 2018 | Permalink

Monday, April 9, 2018

Zipursky on The Monsanto Lecture: Online Defamation, Legal Concepts, and the Good Samaritan

Benjamin C. Zipursky, Fordham University School of Law, is publishing The Monsanto Lecture: Online Defamation, Legal Concepts, and the Good Samaritan in volume 51 of the Valparaiso Law Review (2016). Here is the abstract.

Federal and state courts around the country – aided by academics on almost all sides – have completely misread the Communications Decency Act [“CDA”] § 230(c). This widely cited provision was designed to protect Internet service providers and certain Internet users from liability for the defamatory statements posted by others online. Congress did not want these actors to face a defamation-law equivalent of a duty to rescue strangers -- an affirmative duty to remove third parties’ defamatory statements about others. And it certainly did not want a service provider’s efforts to protect a stranger’s reputation to backfire by suddenly creating liability for everything the service provider failed to remove. So, like every state legislature has done for off-duty medical personnel who act as good Samaritans, Congress in 1996 created a law saying that good faith efforts to filter offensive or defamatory material do not create an affirmative duty to remove such material and do not open them up to liability. For good measure, the statute also laid down a basic rule that there is no liability simply for being the conduit of what others have posted or for failing to remove such postings from one’s own site, and it preempts any state law that does otherwise. The CDA thus ensures that states’ defamation law runs roughly parallel to duty-to-rescue doctrine in the common law of negligence as amended by good Samaritan statutes. Indeed, that is why “Good Samaritan” is in the title of CDA § 230(c). Under the sway of a talented First Amendment bar and in an academic culture hostile to common law concepts, judges around the country have selected an entirely different and misguided interpretation of § 230(c). They read the statute as, in effect, an abrogation of libel law’s classic republication rule, which states that a person who republishes a defamatory statement is liable as if she were the one who first said it. According to the overwhelmingly dominant interpretation of courts today, once someone says something defamatory, anyone who reposts it enjoys complete immunity from all state and federal law, even if the republisher knows the statement to be false and defamatory. Those academics who have rejected this interpretation tend to swing to the other extreme, advocating that website owners who have notice of a defamatory posting should be liable for failure to remove it. This too misses the point of the statute’s text. Through a detailed examination of libel doctrine and a close analysis of the case (Stratton Oakmont v. Prodigy) that generated the development of a protective federal statute, the article displays the correct reading of the statute and the importance of retaining a robust version of the republication rule online.

Download the article from SSRN at the link.

April 9, 2018 | Permalink

Friday, April 6, 2018

DHS Seeks To Monitor Media, Plans To Set Up a Database To Do So

Bloomberg News reports that the Department of Homeland Security wants to set up a database to track journalists, bloggers, and other members of the media to identify, among other things, their coverage and "sentiment" toward the agency. Several companies have already indicated interest in the contract. Seems like an interesting development given some recent political attacks on the press and suggestions that journalists ought to be licensed.

April 6, 2018 | Permalink

Penney on Whether Cyber Harrassment Laws Encourage Online Speech @jon_penney

Jon Penney, University of Oxford, Oxford Internet Institute; Citizen Lab, University of Toronto; Princeton University, Center for Information Technology Policy; Harvard University, Berkman Klein Center for Internet and Society; Dalhousie University, Schulich School of Law; has published Can Cyber Harassment Laws Encourage Online Speech? in Perspectives on Harmful Speech Online (Urs Gasser, Robert Faris, Amar Ashar, and Nikki Bourassa, eds., Berkman Klein Center Research Publication No. 2017-08).

Do laws criminalizing online harassment and cyberbullying "chill" online speech? Critics often argue that they do. However, this article discusses findings from a new empirical legal study that suggests, counter-intuitively, that while such legal interventions likely have some dampening effect, they may also facilitate and encourage more speech, expression, and sharing by those who are most often the targets of online harassment: women. Relevant findings on this point from this first-of-its-kind study are set out and discussed along with their implications.

 

Download the text from SSRN at the link.

April 6, 2018 | Permalink

Tuesday, April 3, 2018

Buccafusco, Grubow, and Postman on Preserving Film Preservation from the Right of Publicity @cjbuccafusco @Jared_V_Grubow

Christopher Buccafusco, Jared Vasconcellos Grubow, and Ian J. Postman, all of the Cardozo School of Law, have published Preserving Film Preservation from the Right of Publicity at 2018 Cardozo Law Review de novo 1. Here is the abstract.

Emerging digital tools are enabling movie studios to "reanimate" living and deceased actors for inclusion in new creative works. In addition, these same tools will also offer opportunities for preserving and restoring existing movies that have been heavily damaged. Digital restoration of existing film stock, thus, provides an important contribution to preservation and distribution of culture. Recently, however, actors have begun pushing for more expansive rights of publicity to prevent nonconsensual uses of their likenesses in newly created works. But whatever the merits of those arguments, publicity rights should not be allowed to stymie restoration and distribution of already created films. We argue that courts and legislators must find that the First Amendment, copyright law, and general principles of public policy restrain the assertion of publicity rights against film preservation and restoration.

Download the article from SSRN at the link.

April 3, 2018 | Permalink

Conrad on Matal v. Tam: A Victory for the Slants, a Touchdown for the Redskins, But an Ambigious Journey for the First Amendment and Trademark Law @Sportslaw1

Mark A. Conrad, Fordham University School of Business, is publishing Matal v. Tam — A Victory for the Slants, A Touchdown for the Redskins, But an Ambiguous Journey for the First Amendment and Trademark Law in the Cardozo Arts and Entertainment Law Journal. Here is the abstract.

Since 1946, Section 2(a) of the Lanham Act, the law governing trademarks, prohibited the registration of trademarks deemed “immoral, deceptive, or scandalous;” or those which may “disparage” individuals. This provision was the subject of a challenge by an Asian-American dance-rock band named “The Slants” after the trademark examiner refused to register the mark because it was deemed “disparaging” to Asians. Tam, a member of the group, challenged the decision, primarily on First Amendment grounds, and the Supreme Court, in several opinions which produced a unanimous result, concluded that the provision unconstitutionally barred the registration. What was a major victory for Tam raises a number of issues which will be explored in this article. The first involves the rights of Native Americans to challenge names and logos of sports teams many deem disparaging. Although Tam limits the Section 2(a) option for Native Americans, the article asks whether there are there other ways to challenge such marks. The second issue involves the dissection of the “unanimous” opinion by the Supreme Court, which was really a series of concurrences cobbled together to produce an inconclusive whole. Because of this split, the article concludes that the court missed an opportunity to create a more definitive First Amendment standard and did not resolve the issue of whether there should be room for such a provision for trademarks that are entirely commercial and those which may have extra-commercial social and political significance.

Download the article from SSRN at the link.

April 3, 2018 | Permalink

Sunday, April 1, 2018

Zick on The Dynamic Free Speech Clause: Free Speech and Its Relation To Other Constitutional Rights @WMLawSchool

Timothy Zick, William & Mary Law School, has published Introduction to The Dynamic Free Speech Clause: Free Speech and Its Relation to Other Constitutional Rights (Oxford Univ. Press, 2018)

This is a draft of the Introduction to my forthcoming book, The Dynamic Free Speech Clause: Free Speech and Its Relation to Other Constitutional Rights (Oxford Univ. Press, 2018).

Download the introduction from SSRN at the link.

April 1, 2018 | Permalink

Wednesday, March 28, 2018

Sicker and Lehr on Telecom Deja Vu: A Model For Sharing in Broadband Access @whlehr

Douglas Sicker, Carnegie Mellon University, and University of Colorado, Boulder, Department of Computer Science, and William Lehr, Massachusetts Institute of Technology; Computer Science and Artificial Intelligence Laboratory, have published Telecom Déjà Vu: A Model for Sharing in Broadband Access. Here is the abstract.

There is significant debate over whether there remains a last-mile broadband bottleneck. In this paper we explore what might be the nature of this bottleneck and review options for regulatory responses, building on earlier work on how this fits within the larger context of communications policy reform. We include "déjà vu" in the title because the last-mile bottleneck challenge is hardly a new problem. Implementing a policy response to it was a major factor underpinning the enactment of the legislative reforms embodied in the Telecommunications Act of 1996 (TA96) and inspired proposals for corporate divestitures to create "LoopCos," including helping to motivate the restructuring of British Telecommunications into OpenReach. Earlier proposals for Open Network Interconnection and more recently the debate over Network Neutrality rules are part of this long and continuing telecommunications policy debate. Throughout this long debate there have been continued challenges to the core premise of whether, in fact, last-mile access poses an economic bottleneck that justifies a regulatory response, and if so, whether there exists a response that might actually help rather than further aggravate the economic situation. Many of those supporting activist interventions such as the unbundling and resale provisions imposed on incumbent local exchange carriers (ILECs) as part of the TA96 or the restrictions on network management practices embodied in the FCC's 2016 Open Internet Order argue that the incumbent providers have excessive market power, while those opposed to such interventions argue that either technical or market developments have already or soon will eliminate(d) the last-mile bottleneck, or that the proposed remedies are worse than the prospective harms. These on-going arguments have persisted over decades that have witnessed significant changes in the communications technologies, markets, industry structure and policy frameworks. As we confront this issue anew, in light of the challenge of what sorts of policy interventions may be needed to confront our broadband Internet future, it is worthwhile considering what the earlier debates and experiences may teach us about the range of policy options. As in our earlier work that looked at the overall agenda for communications policy reform, we eschew consideration of political and legacy reform problems (while recognizing that these will be critical factors in deciding what may actually occur), focusing instead on assessing the range of engineering and business/economic options that would be available in a greenfield approach. In this paper, our focus is limited to identifying the nature of the last-mile bottleneck and the challenges of implementing a suitable framework for managing shared access to broadband platforms in light of current technology and market expectations. In too much of the debate, discussants have not been adequately clear in specifying their theoretic or policy goal assumptions regarding the nature of the bottleneck and their standards for determining the circumstances or metrics for assessing whether regulatory intervention would even be justified. We believe a range of reasonable views are possible and that being clear about these assumptions and theoretic constructs will assist in reviewing the historic lessons and summarizing the available options. In so doing, we hope to refocus the discussion on the forest and help policymakers from getting lost in the trees.

The text is not available from SSRN.

March 28, 2018 | Permalink

Tuesday, March 27, 2018

Bambauer on Paths or Fences: Patents, Copyrights, and the Constitution @dbambauer

Derek E. Bambauer, University of Arizona College of Law, is publishing Paths or Fences: Patents, Copyrights, and the Constitution in the Iowa Law Review. Here is the abstract.

Congressional power over patents and copyrights flows from the same constitutional source, and the doctrines have similar missions. Yet the Supreme Court has approached these areas from distinctly different angles. With copyright, the Court readily employs constitutional analysis, building fences to constrain Congress. With patent, it emphasizes statutory interpretation, demarcating paths the legislature can follow, or deviate from (potentially at its constitutional peril). This Article uses empirical and quantitative analysis to show this divergence. It offers two potential explanations, one based on entitlement strength, the other grounded in public choice concerns. Next, the Article explores border cases where the Court could have used either fences or paths, demonstrating the effects of this pattern. It sets out criteria that the Court should employ in choosing between these approaches: countermajoritarian concerns, institutional competence, pragmatism, and avoidance theory. The Article argues that the key normative principle is that the Court should erect fences when cases impinge on intellectual property’s core constitutional concerns – information disclosure for patent and information generation for copyright. It concludes with two examples where the Court should alter its approach based on this principle.

Download the article from SSRN at the link.

March 27, 2018 | Permalink

California Appellate Court Finds In Favor of FX in "Feud" Publicity Rights Lawsuit

A California appellate court has tossed Olivia de Havilland's lawsuit against FX and writer Ryan Murphy alleging that they portrayed her in a false light and infringed her right of publicity by using her life story in the series "Feud." Wrote the court in part, 

Whether a person portrayed in one of these expressive works is a world-renowned film star -- “a living legend” -- or a person no one knows, she or he does not own history.  Nor does she or he have the legal right to control, dictate, approve, disapprove, or veto the creator’s portrayal of actual people....De Havilland alleges causes of action for violation of the statutory right of publicity and the common law tort of misappropriation.  De Havilland grounds her claims on her assertion -- which FX does not dispute -- that she “did not give [her] permission to the creators of ‘Feud’ to use [her] name, identity[,] or image in any manner.”  De Havilland also sues for false light invasion of privacy based on FX’s portrayal in the docudrama of a fictitious interview and the de Havilland character’s reference to her sister as a “bitch” when in fact the term she used was “dragon lady.”  De Havilland seeks to enjoin the distribution and broadcast of the television program and to recover money damages.  The trial court denied FX’s special motion to strike the complaint.  The court concluded that, because Feud tried to portray de Havilland as realistically as possible, the program was not “transformative” under Comedy III Productions and therefore not entitled to First Amendment protection.  As appellants and numerous amici point out, this reasoning would render actionable all books, films, plays, and television programs that accurately portray real people.  Indeed, the more realistic the portrayal, the more actionable the expressive work would be.  The First Amendment does not permit this result.  We reverse.

 

Read the entire ruling here.  Listen to the oral argument here.

Jennifer Rothman discusses the ruling here.

March 27, 2018 | Permalink

Wednesday, March 21, 2018

Wilson on Incitement on Trial: Prosecuting International Speech Crimes: Chapter 1 @richardawilson7

Richard Ashby Wilson, University of Connecticut School of Law, is publishing Incitement on Trial: Prosecuting International Speech Crimes: Chapter 1 in Incitement on Trial: Prosecuting International Speech Crimes (Cambridge Univeristy Press, 2017) (Law and Society Series). Here is the abstract.

International and national armed conflicts are usually preceded by a media campaign in which public figures foment ethnic, national, racial or religious hatred, inciting listeners to acts of violence. Incitement on Trial evaluates the efforts of international criminal tribunals to hold such inciters criminally responsible. This is an unsettled area of international criminal law, and prosecutors have often struggled to demonstrate a causal connection between speech acts and subsequent crimes. This book identifies 'revenge speech' as the type of rhetoric with the greatest effects on empathy and tolerance for violence. Wilson argues that inciting speech should be handled under the preventative doctrine of inchoate crimes, but that once international crimes have been committed, then ordering and complicity are the most appropriate forms of criminal liability. Based in extensive original research, this book proposes an evidence-based risk assessment model for monitoring political speech.

Download the chapter from SSRN at the link.

March 21, 2018 | Permalink

Tuesday, March 20, 2018

Douglas on A Global Injunction Against Google @uwanews

Michael Douglas, University of Western Australia, has published A Global Injunction Against Google at 134 The Law Quarterly Review 181 (2018). Here is the abstract.

In Google Inc v Equustek Solutions Inc, 2017 SCC 34, the Supreme Court of Canada upheld an order which enjoined Google to de-index the websites of the defendants to an intellectual property dispute. Google offers a global service and this was a global injunction, which will impact web searches conducted anywhere in the world. As Abella J. explained for the majority (at [41]): "The problem in this case is occurring online and globally. The Internet has no borders — its natural habitat is global. The only way to ensure that the interlocutory injunction attained its objective was to have it apply where Google operates — globally."

Download the article from SSRN at the link.

March 20, 2018 | Permalink

Monday, March 12, 2018

Young on Assessing Canada's Newest Public Interest Speech Protections @hilaryanyoung

Hilary Young, University of New Brunswick, Fredericton, Faculty of Law, has published Responsible Communication and Protection of Public Participation: Assessing Canada's Newest Public Interest Speech Protections. Here is the abstract.

This article assesses two new Canadian laws for protecting speech on matters of public interest: defamation's responsible communication defence and the anti-SLAPP provisions in Ontario's Protection of Public Participation Act. The former was adopted by the Supreme Court of Canada in 2009 and seeks to protect speech on matters of public interest – especially journalism. The latter is a procedural mechanism for having actions dismissed at an early stage if they are grounded in expression on a matter of public interest. The article considers the cases and commentary to date in assessing whether the laws’ stated goals are being met. Given the symposium’s focus on “weaponized defamation” (defined as the “use of defamation and privacy torts by people in power to threaten press investigations”), the article pays particular attention to how these laws protect, or fail to protect, journalism. Its focus is, however, broader than weaponized defamation, in that responsible communication and the PPPA provisions are not limited to “those in power” or to “press investigations”. But it is also narrower in that it considers only defamation, not privacy. Both mechanisms are useful tools for protecting speech on matters of public interest, but each has flaws, either inherently or that have developed through their application, that prevent them from better achieving their aims. Responsible communication, although flexible and broad in principle, has been narrowly applied. As a result, communication is found not to be responsible when it arguably is. In addition, the defence is being treated as applicable only to journalists, which is, in my view, a misreading of the Supreme Court of Canada’s Grant decision. As a result, the potential of the responsible communication defence to protect speech on matters of public interest is not being met. Ontario’s PPPA has been successful in getting some SLAPP suits dismissed. However, the serious consequences of a successful PPPA motion mean that courts are sometimes interpreting its provisions unduly narrowly. In addition, it seems that proceedings are rarely dealt with expeditiously, diluting the advantage of the PPPA over a summary judgment motion, for example.

Download the article from SSRN at the link.

March 12, 2018 | Permalink