Monday, February 16, 2015
James Stellios, Australian National University, ANU College of Law, has published The Second Limb of Lange: The Continuing Uncertainties with the Implied Freedom of Political Communication as ANU College of Law Research Paper No. 14-49. Here is the abstract.
The article considers four areas of continuing uncertainty with the application of the second limb of the Lange test arising out of a string of High Court cases over the last few years.
Download the paper from SSRN at the link.
Friday, February 13, 2015
An Egyptian judge has granted bail to two Al-Jazeera journalists pending their retrial for conspiracy and spreading false news. Mohamed Fahmy and Baher Mohamed had been in prison since 2013, along with their colleague Peter Greste, who was released and deported to his native Australia two weeks ago.
Monday, February 9, 2015
Rinella Cere, Sheffield Hallam University, Yvonne Jewkes, University of Hull, School of Law, and Thomas Ugelvik, University of Oslo, have published Media and Crime: A Comparative Analysis of Crime News in the UK, Norway and Italy in The Routledge Handbook of European Criminology (S. Body-Gendrot, M. Hough, K. Kerezsi, R. Levy and S. Snacken eds.; London & NY: Routledge, 2014). Here is the abstract.
Our aim in this chapter is to focus on news media, and to provide an overview of the ways in which some crimes are reported in some media in three different European countries: the UK, Norway and Italy . First, we will briefly map out the history and current terrain of the media landscape in each of the three countries. Second, we will explore news values and the aspects of crime that make it inherently ‘newsworthy’. Using Yvonne Jewkes’ (2004/2011) analysis of twelve cardinal news values that underpin the reporting of crime, victimization and justice in the UK – itself developed from a classic study of Norwegian news values first published by Johan Galtung and Mari Holmboe Ruge in 1965 – we will discuss the news values adhered to by media professionals. Following this, we will consider the reporting in each country of a single crime that shocked audiences around the world: the killing of 77 people in Norway on 22nd July 2011. Although an ‘extreme’ offence and therefore in many ways atypical (if any offence can be regarded as ‘typical’) this case illustrates two issues we think worth highlighting. First, it demonstrates the salience of the values that determine a potential story’s perceived newsworthiness. Second, it illustrates some of the subtle discrepancies underpinning crime news reporting in the UK, Norway and Italy, which themselves reflect broader social, cultural and political differences between the three countries, thus implicitly reminding us that there have been other atrocities that have not had the level of attention devoted to them that the murders in Oslo and on Utøya Island did in 2011.
Download the essay from SSRN at the link.
Saturday, February 7, 2015
Friday, February 6, 2015
The U.S. Copyright Office has released a new report "identifying the shortcomings of the current methods of licensing music in the United States, [and offering] an in-depth analysis of the law and industry practices, as well as a series of balanced recommendations to improve the music marketplace."
From the New York Times, discussion of FCC Chair Tom Wheeler proposal to regulate internet service under Title II. A slightly different view from the Times of India. Meanwhile, in Canada, the CRTC says yes to net neutrality. Decision here, discussion here.
Here's a link to FCC Commissioner Ajat Pai's comments on President Obama's plan to regulate the Internet.
Thursday, February 5, 2015
It appears that Canadian librarian Dale Askey's long dark battle over his right to express an honest opinion is nearly over. The Edwin Mellen Press has agreed to settle its second lawsuit against him over comments he made in his blog concerning the quality of its publications. It had earlier dropped the suit against Mr. Askey and his employer, MacMaster University. More here from the Chronicle of Higher Education's Ticker.
Tuesday, February 3, 2015
Daniel J. Gervais, Vanderbilt Law School, and Martin L. Holmes, Parker Poe Adams & Bernstein L.L.P., have published Fame, Property, and Identity: The Scope and Purpose of the Right Of Publicity in volume 25 of Fordham Intellectual Property, Media & Entertainment Law Journal.
This Article examines the overlaps between the right of publicity and rights granted by trademark law and other deception-based restrictions on the use of names and symbols. It shows that the right of publicity creates a more expansive right rooted in a variegated normative soil with elements of privacy, personhood, and property. The Article suggests a proper scope for the right of publicity that protects free speech. The issue of descendibility is also discussed.
Download the article from SSRN at the link.
Monday, February 2, 2015
Patricia I. Easteal, University of Canberra, Faculty of Law, Keziah Judd, University of Canberra, and Kate Holland, University of Canberra, University of Canberra, Faculty of Arts and Design, have published Enduring Themes and Silences in Media Portrayals of Violence Against Women at 48 Women Studies International Forum 103 (2015). Here is the abstract.
This paper looks at different ways of conceptualising the influence of media with respect to its potential to reinforce or transform public opinion about violence against women. We engage the question of whether media portrayals of the issue are essentially conservative and how this conservatism may be communicated behind a mask of factual objectivity and through brief and simplistic narratives. Our sample of the relevant research literature shows that by using several framing techniques, the ‘reality’ of family violence, sexual assault and sexual harassment is constructed via a recurrent theme of mutuality of responsibility for the violence. Such reportage may obstruct the feminist understanding of these harms as gendered and reflective of male dominance, sexism and misogyny. It also may impede and delay feminist aims of better ensuring women’s safety from violence and of improving victims’ access to justice.
Download the article from SSRN at the link.
Philip N. Howard, Princeton University, Woodrow Wilson School for Public and International Affairs; University of Washington, School of International Studies, and Columbia University School of International & Public Affairs; and Orsolya Gulyas, Central European University, have published Data Breaches in Europe: Reported Breaches of Compromised Personal Records in Europe, 2005-2014. Here is the abstract.
Methodology. The sample frame includes major media news reports on compromised personal records and is unique for:
- sampling 28 European Union member countries, plus Norway and Switzerland;
- sampling from 2005 through the third quarter of 2014;
- sampling credible news sources in national languages;
- high social science standards for event database construction, with multiple sourcing, inter-coder reliability tests, recoding, and specific exclusion criteria.
Findings. A data breach is defined as any incident involving the loss or exposure of digital personal records. Personal records are defined as a) data containing privileged information about an individual that cannot be readily obtained through other public means and b) this information only known by an individual or by an organization under the terms of a confidentiality agreement. Preliminary analysis reveals that over the last decade:
Some 229 data breach incidents involved the personal records of people in Europe. Globally, all these incidents resulted in the loss of some 645 million records, though not all of these breaches exclusively involved people in Europe. Within Europe, we confirmed 200 cases involving people in Europe, and 227 million records lost in Europe-specific breaches.
The total population of the countries covered in this study is 524 million, and the total population of internet users in these countries is 409 million. Expressed in ratios, this means that for every 100 people in the study countries, 43 personal records have been compromised. For every 100 internet users in the study countries, 56 records have been compromised.
Fully 51 percent of all the breaches involved corporations and 89 percent of all the breached records were from compromised corporations. Among all the kinds of organizations from which personal records have been compromised, 41 percent of the incidents involved clear acts of theft by hackers, but 57 percent of the incidents involved organizational errors, insider abuse, or other internal mismanagement (2 percent unspecified).
The level of sophistication and detail in journalism about issues of privacy and personal data has increased, but is largely driven by national “mandatory reporting” rules in particular countries. In other words, we know most about data leaks in countries where organizations are required to report that personal records have been compromised.Download the paper at the link.
David S. Han, Pepperdine University School of Law, has published Rethinking Speech-Tort Remedies at 2014 Wisconsin Law Review 1135. Here is the abstract.
Courts generally craft speech-tort jurisprudence as a binary proposition. Any time state tort law and the First Amendment come into potential conflict, courts typically hold either that the First Amendment comes into play and the defendant is completely exempt from traditional tort liability, or that it does not come into play and the plaintiff is entitled to the full complement of tort remedies. In other words, courts generally adopt an unspoken assumption that in speech-tort cases, liability and full tort remedies necessarily go hand-in-hand.
This rigid approach, however, significantly limits courts’ ability to craft a nuanced balance between First Amendment and tort interests. In individual cases, it forces them to choose only one set of interests to be vindicated to the complete exclusion of the other, and on a jurisprudential level, it gives courts only the bluntest of instruments to tailor speech-tort doctrine to widely varying facts. Furthermore, the current approach exacerbates the distributional problem inherent to speech-tort cases: any time the First Amendment intervenes to completely invalidate a subset of common law tort liability, plaintiffs left without liability or remedy are effectively forced to subsidize the costs of free speech, the benefits of which are shared broadly by the public at large.
In this Article, I argue that courts should incorporate a greater degree of remedial flexibility into speech-tort doctrine. Rather than simply adhere to an all-or-nothing approach, courts should consider intermediate approaches in which the First Amendment applies not to vitiate a finding of tort liability but merely to limit or eliminate the damages to which plaintiffs are entitled. These approaches allow courts to shape the complex balance of speech and tort interests with a scalpel rather than a chain saw, both on a case-by-case basis and on the broader level of doctrinal design.
In recent years, this remedy-based approach to speech-tort jurisprudence has rarely been discussed by courts and commentators, while the shadow cast by the First Amendment over tort law has expanded well beyond the defamation context. This calcification of a rigid, binary approach to speech tort cases represents a significant lost opportunity for courts to design more sensible and equitable doctrines. By providing a detailed account of the benefits underlying the use of flexible remedies, evaluating potential critiques to such an approach, and laying out concrete examples of what a remedy-based regime might look like in practice, this Article seeks to rekindle judicial, legislative, and academic interest in adopting such approaches within speech-tort doctrine.
Download the article from SSRN at the link.
From the New York Times: A French judge has ruled that Google must remove links to defamatory material in search engines across all its domains, after a plaintiff sued, arguing that the harm extends worldwide, not just in the EU. The ruling extends a debate that arises out of the Google Spain and Google v. Costeja Gonzalez case (2014), decided by the European Court of Justice, in which the ECJ ruled that Google must consider requests to remove links to material if the search results "appear to be inadequate, irrelevant or no longer relevant or excessive in the light of the time that had elapsed." Here is a link to a factsheet on the "right to be forgotten" guidelines issued by EU Privacy Commissioners. More here from the Guardian on the French ruling.
Sunday, February 1, 2015
Media are reporting that Egypt has extradited journalist Peter Greste, who reports for al-Jazeera, to his native country of Australia. Mr. Greste had been convicted of "false reporting" along with two other al-Jazeera journalists, and had been held for more than a year. Recently, an Egyptian appellate court had overturned the convictions and ordered a retrial. The other reporters are apparently still in prison. The campaign to free them has been gaining worldwide attention for months, led by their families and reporters in many countries. More here from CNN, here from Reuters.
Friday, January 30, 2015
From CNN: Oregon State University reports that Oregon State Police cited a former OSU student for public indecency for filming herself engaging in an indecent act while in the OSU Library last fall. It seems the video was later uploaded to the site Pornhub.com (it's now deleted). More here from the Oregonian.
Thursday, January 29, 2015
Police have arrested a man wielding a pistol who forced his way into the NOS (Nederlandse Omroep Stichting) television station in Hilversum, the Netherlands, around 7 p.m. local time. He apparently wanted air time; it is not clear what, if anything, he wanted to say on air. The staff and others evacuated the building. More here from the Telegraph (with video).
Wednesday, January 28, 2015
Margot E. Kaminski, Ohio State University Law School & Yale University Law School, and Shane Witnov, University of California, Berkeley, School of Law, have published The Conforming Effect: First Amendment Implications of Surveillance, Beyond Chilling Speech in volume 49 of the University of Richmond Law Review (2015). Here is the abstract.
First Amendment jurisprudence is wary not only of direct bans on speech, but of the chilling effect. A growing number of scholars have suggested that chilling arises from more than just a threat of overbroad enforcement — surveillance has a chilling effect on both speech and intellectual inquiries. Surveillance of intellectual habits, these scholars suggest, implicates First Amendment values. However, courts and legislatures have been divided in their understanding of the extent to which surveillance chills speech and thus causes First Amendment harms.
This article brings First Amendment theory into conversation with social psychology to show that not only is there empirical support for the idea that surveillance chills speech, but surveillance has additional consequences that implicate multiple theories of the First Amendment. We call these consequences “the conforming effect.” Surveillance causes individuals to conform their behavior to perceived group norms, even when they are unaware that they are conforming. Under multiple theories of the First Amendment — the marketplace of ideas, democratic self-governance, autonomy theory, and cultural democracy — these studies suggest that surveillance’s effects on speech are broad. Courts and legislatures should keep these effects in mind.
Download the article from SSRN at the link.
Marketa Trimble, University of Nevada, Law Vegas, School of Law, is publishing The Multiplicity of Copyright Laws on the Internet in the Fordham Intellectual Property, Media & Entertainment Law Journal. Here is the abstract.
From the early days of the Internet, commentators have warned that it would be impossible for those who act on the Internet (“Internet actors”) to comply with the copyright laws of all Internet-connected countries if the national copyright laws of all those countries were to apply simultaneously to Internet activity. A multiplicity of applicable copyright laws seems plausible at least when the Internet activity is ubiquitous — i.e., unrestricted by geoblocking or by other means — given the territoriality principle that governs international copyright law and the choice-of-law rules that countries typically use for copyright infringements.
This Article posits that the multiplicity of applicable national copyright laws on the Internet is not as significant a problem for law-abiding Internet actors as some commentators fear. What makes the multiplicity workable for Internet actors are the realities — or inefficiencies — of cross-border copyright enforcement that de facto limit the number of potentially applicable national copyright laws. This Article reviews the solutions that have been proposed to address the multiplicity problem and examines the objections to the proposals that have already been or could be raised. The Article then analyzes the current realities of copyright enforcement on the Internet and contrasts the realities with the anticipated workings of the proposed solutions.
Download the article from SSRN at the link.