Tuesday, August 19, 2014
The Guardian reports that Thomas Ridgeway, a Scotland Yard police officer, has been sentenced to one year in prison for for selling stories to the UK tabloid the Sun. The stories involved information about an actor who attempted suicide and police involved in sexual activity. Mr. Ridgeway's mother Sandra, who was involved in aiding and abetting, received an 18 week prison sentence and 26 weeks of probation. Mrs. Ridgeway received a payment of 1600 pounds and split the proceeds with her son. More here. Coverage here from the BBC.
Monday, August 18, 2014
FCC Chair Tom Wheeler issued this statement concerning the Office of Management and Budget plan to collect data in order to evaluate competition in the marketplace.
“Special access service has become increasingly important in the digital economy, enabling businesses large and small to connect to their customers around the globe. Consistent with the terms of OMB’s approval, we will move forward with data collection and fact-based analysis that will help the Commission better understand competition in this marketplace, and the impact on consumers as we pursue the Commission’s statutory mandate to ensure special access services are provided at reasonable rates and on reasonable terms and conditions.”
Friday, August 15, 2014
The new issue (volume 6, issue 1) of the Journal of Media Law is out.
Here is the table of contents.
COMMENT AND ANALYSIS
Observations on the House of Lords Select Committee on Communications Report on Plurality
Abstract: This article provides an overview of the chapters in the House of Lords Select Committee on Communications’ report on Media Plurality. It considers the House of Lords’ proposals in light of the existing regulatory/market environment and the proposals of other stakeholders, including the recommendations from Leveson. The conclusion is that the approach put forward in the House of Lords’ report represents a middle ground between different stakeholders; a weaker approach than the proposals in the Leveson report but more radical than those that are expected to be put forward by the current government. The article also assesses the legal feasibility of the proposals in light of existing statutes, EU law and the political chain of delegation as well as what would need to occur for the proposals to come to fruition.
Copyright Reform in Australia: Asking the Right Questions
Isabella Alexander and Michael Fraser
Abstract: In February 2014, the Australian Government released the Report of the Australian Law Reform Commission (ARLC), Copyright and the Digital Economy. In accordance with its Terms of Reference, the ALRC carried out a comprehensive review of the existing exceptions to copyright law, considering whether they were still appropriate in the digital age, and whether new exceptions should be enacted. The Inquiry stimulated strong opinions from members of the wider copyright community, which were expressed both in submissions to the Inquiry and in other fora. As was widely anticipated, the ALRC recommended that the current fair dealing provisions be replaced by a more general and flexible fair use provision. However, it also made a number of other recommendations and comments in respect of related areas such as orphan works and broadcasting.
Protecting Speech in Defamation Law: Beyond Reynolds-Style Defences
Andrew T Kenyon
Abstract: Communication practices have changed dramatically in recent years, allowing wider participation in public debate. This means those who are subject to defamatory speech can more easily consider ‘speaking back’ as their preferred response. It also suggests there could be value in a defamation defence that itself supported a discursive response to defamatory publication. In the context of England and Wales, the defence in s 4 of the Defamation Act 2013 is an attempt to develop a stronger defence for public interest speech, but one that does not take a response-based form. It is an example of developments in a wide range of common law jurisdictions, broadly parallel to Reynolds, which recognise the value in public speech. However, the history of both qualified privilege and fair report privilege suggests a slightly different model of defence is worth exploration. Indeed, parliamentary debates preceding the 2013 Act raised the possibility of making the defence in s 4 subject to publication of a form of response. That type of requirement has existed since the nineteenth century in some fair report privileges. It is a longstanding element of defamation law and offers interesting ideas for a discursive defence for contemporary conditions.
Procedural Controls and the Proper Balance between Public and Private Interests in Defamation Claims
Abstract: Claims in defamation involve courts in balancing of a number of interests. The Claimant’s interest in their reputation must be balanced with the Defendant’s interest in free expression. The Court’s interest in fair, efficient and proportionate adjudication must be balanced against the Claimant’s interest in vindicating their reputation. Much of the literature examining this balance has focused on the substantive law. This article seeks to consider how these interests have been balanced through procedural control mechanisms, such as summary judgment and strike out. In particular, the development of the court’s ability to strike out a claim as an abuse of process is been considered. It is argued that the ability to strike out in such cases performs an important role, but should not be used to prevent reputational vindication where this is worthwhile. Further, it is argued that whilst substantive and procedural changes may reduce the need for strike out, the courts should not remove this important tool from their toolbox.
Exemplary Damages for Invasions of Privacy?
Abstract:As part of the government response to the Leveson Report, the Crime and Courts Act 2013 (UK) introduces new provisions on the availability of exemplary damages for media torts. This Act creates a statutory bar to the awarding of exemplary damages against a publisher who has become a member of an approved regulator but otherwise makes them available in narrowly defined circumstances. The article explores the extent to which the changes are likely to affect media publishers and, as part of this analysis, compares the new provisions with current English law as well as the relevant law in Australia, New Zealand and Canada. It also examines whether the new statutory regime is compatible with the UK's obligations under the European Convention on Human Rights. The article concludes that the statutory measures are to be welcomed because exemplary damages have an important but limited role in deterring particularly egregious media misconduct and the provisions provide more certainty to media publishers as to when they can be ordered. The article also argues that the new provisions on exemplary damages are compatible with the UK's obligations under the Convention.
Who Needs the Sub Judice Rule? Israel as a Test Case in the Relationship between Law and Media
Abstract:Recent coverage of criminal trials of senior government officials in Israel have served to underline the fact that the Israeli media has effectively rendered the statutory sub judice rule, prohibiting coverage of criminal trials, obsolete. The decline in the influence traditionally held by the Israeli political institutions in general and Israel's legislative body, the Knesset, and the Israeli Government in particular, has led to an upsurge in media confidence in covering and commenting on affairs normally monopolized by the courts. The position of the enforcement and prosecutorial bodies in Israel in allowing blatant media coverage of current and upcoming criminal trials, despite concerns about maintaining the integrity of judicial proceedings and the prejudicial influence that individual reports may have on such proceedings, demonstrates their inherent belief that such concerns are not enough to justify the greater disproportionate harm to the right of the public to freedom of information. Shown through the prism of actual trials of well known political figures in Israel, this article explores media influence on the trials themselves, at the same time that courts scramble to understand and deal with this new type of media intrusion.
Regulatory Gaming, Myopia and Ineptitude? Ofcom’s Intervention in the UK Pay–TV Market
Abstract:This article concerns the regulation of the UK pay-TV market, and the key lessons to be learnt from the media regulator's attempt to prise open access to premium content. The case represents a useful study on regulation more generally, and the need for regulators to exercise caution before intervening in markets, especially ones which are fast-moving in technological terms. It is also a lesson that regulators need to be wary of rivals who may engage in regulatory gaming. In such a situation the presence of the regulator may prevent the incumbent and rivals from reaching commercial deals, the latter preferring instead the prospect of imposed regulatory terms.
Petros Iosifidis, Global Media and Communication Policy: An International Perspective
A review by Peggy Valcke and Jeroen Verschakelen
Lee A Bygrave, Data Privacy Law: An International Perspective
A review by Daithí Mac Síthigh
Kari Karppinen, Rethinking Media Pluralism
A review by Rachael Craufurd Smith
Thursday, August 14, 2014
Washington Post reporter Wesley Lowery, arrested while covering the violence in Ferguson, Missouri, which has broken out after the shooting death of young Michael Brown. Mr. Lowery discusses being part of the story here for WaPo. More coverage here from the Washington Post. Another reporter, Ryan Reilly of the Huffington Post, was also arrested. Coverage here from HuffPo. Neither journalist was charged, and both have since been released. President Obama has spoken out against the arrests of Mr. Lowery and Mr. Reilly, saying, "Here in the United States of America, police should not be bullying and arresting reporters who are just doing their jobs. The local authorities, including police, have a responsibility to be transparent and open."
Martin Guggenheim, New York University School of Law, has published Violent Video Games and the Rights of Children and Parents: A Critique of Brown V. Entertainment Merchants Association in volume 41 of the Hastings Constitutional Law Quarterly (2014). Here is the abstract.
This Article closely examines the 2011 Supreme Court decision in Brown v. Entertainment Merchants Association, 131 S.Ct. 2729 (2011), which held that California’s effort to restrict children’s access to violent video games violated the First Amendment. The Article will show that the Supreme Court widely missed the mark in applying well-established First Amendment law to strike down California’s effort to limit a minor’s access to material reasonably deemed inappropriate by parents. The Court’s principal error was to mischaracterize the statute as a ban on the distribution of material deemed inappropriate by the Legislature. This allowed it to announce simplistically that the case was controlled by United States v. Stevens, 559 U.S. 460 (2010) which rejected “a freewheeling authority to declare new categories of speech outside the scope of the First Amendment,” 559 U.S. at 472, in declaring unconstitutional a federal statute that made it a crime to possess a depiction of animal cruelty if done “for commercial gain.”
Brown contains numerous flaws. If taken literally, it would broadly expand children’s First Amendment rights. But Brown is not really about children’s rights, it is more about allowing a wealthy corporate enterprise – the violent video industry, to continue sales to an important constituency, young males. In this Article, I demonstrate the many flaws in the majority’s opinion, including the irony that Justice Scalia gets to become a champion of children’s rights (for an extreme change). But my greatest criticism of Brown is the extent to which the Court ignores, even mocks, the plight of conservative parents who struggle with ways to keep material from their children that American law insists may not be generally banned but that reasonable parents may believe is nonetheless inappropriate for their children. I ultimately argue that a well-worded law (which the California statute was not) should be upheld as constitutional if its purpose was merely to prevent children from purchasing certain material themselves, without making it unlawful for children to have access to the materials with their parents’ permission (in much the same way minors currently may not access movie theatres).
Download the article from SSRN at the link.
Wednesday, August 13, 2014
András Koltay, Peter Pazmany Catholic University and the Hungarian Academy of Sciences, has published The Regulation of the Defamation of Public Figures in Europe, with Special Emphasis on the Hungarian Legal System in Media Freedom and Regulation in the new Media World (A. Koltay, ed., Budapest, Wolters Kluwer, 2014 (Forthcoming)). Here is the abstract.
This study presents the international background of the defamation of public figures. Then it provides a brief overview of the solutions applied in specific European countries, broken down by the most important problems. Later sections take a closer look at the Hungarian regulations and the jurisprudence of the Constitutional Court (CC) and ordinary courts, and examine the Strasbourg cases relating to Hungary, but with lessons for those outside the country too.
Download the essay from SSRN at the link.
Monday, August 11, 2014
Miiko A. Kumar and David Rolph, both of the University of Sydney Faculty of Law, have published An Appetite for Suppression: Non-Publication Orders, Open Justice and the Protection of Privacy in Perspectives on Privacy: Increasing Regulation in the USA, Canada, Australia and European Countries (Dieter Dorr and Russell L. Weaver, eds.; de Gruyter, 2014). Here is the abstract.
The principle of open justice is a fundamental doctrine of the common law. It is only departed from where it is strictly necessary to do so. Historically, then, merely because a court proceeding involved the public ventilation of private matters was not a sufficient basis for derogating from open justice. Recently, courts, legislatures and law reform bodies have been increasingly concerned about directly protecting privacy. The greater legal protections afforded to privacy have seen some challenges to the primacy of open justice. This chapter examines a number of recent cases in which high-profile litigants have attempted to obtain suppression or non-publication orders, in part to protect the privacy of their affairs from media scrutiny. It considers how the emerging tension between open justice and privacy might develop in the future and how it might be resolved.
Download the essay from SSRN at the link.
Friday, August 8, 2014
The FCC has announced it will begin hosting a series of Open Internet Roundtable Discussions to address concerns surrounding what it calls Internet openness. The agency notes that after the Verizon decision, its net neutrality rules are no longer an option. These Roundtables continue the process begun by the FCC's 2014 Open Internet NPRM (29 FCC Rcd 5561 (2014)).
The first Roundtable will be held in the Commission's Meeting room on September 16th, with subsequent Roundtables to be held on the 19th, and on dates in October (see the schedule at the link). The public is invited.
The FCC will also stream the sessions at http://www.fcc.gov/live.
Thursday, August 7, 2014
From the New York Times, an article discussing the disappearance and presumed detention of journalist Jacob Rezaian, his wife, and a photographer by the Iranian government. Mr. Rezaian, a dual Iranian/US citizen who works for the Washington Post, does not seeem to have been reporting on any sensitive or hot-button issues. Anthony Bourdain, who visited with Mr. Rezanian and his wife earlier this summer, commented on their situation for CNN here. According to the Washington Post, the U. S. goverment has indicated that it has no current information on Mr. Rezaian's situation.
Monday, August 4, 2014
Sinaloa Legislature Says It Will Repeal New Statute Prohibiting Mexican Media From Reporting On Crime
Based on criticism at home and abroad of a law passed last week, the Sinaloa (Mexico), legislature indicated yesterday it would repeal a measure that limited the ability of journalists to report on crime in the state. The BBC reported on the law and on reporters' reaction to the effects of that law here. The statute, effective beginning October 15 in the state of Sinaloa, was intended to help attack the power of the Sinaloa drug cartel. However, journalists said it would also prevent them from informing the public both about the actions of the drug lords and the actions of law enforcement. More here on the statute from the Latino Post, here from Global Post.
Gregory S. Gordon, University of North Dakota School of Law, has published The Forgotten Nuremberg Hate Speech Case: Otto Dietrich and the Future of Persecution Law in volume 75 of the Ohio State Law Journal (2014). Here is the abstract.
Among international jurists, the conventional wisdom is that atrocity speech law sprang fully formed from two judgments issued by the International Military Tribunal at Nuremberg (IMT): the crimes against humanity conviction of Nazi newspaper editor Julius Streicher, and the acquittal on the same charge of Third Reich Radio Division Chief Hans Fritzsche. But the exclusive focus on the IMT judgments as the founding texts of atrocity speech law is misplaced. Not long after Streicher and Fritzsche, and in the same courtroom, the United States Nuremberg Military Tribunal (NMT) in the Ministries Case, issued an equally significant crimes against humanity judgment against Reich Press Chief Otto Dietrich, who was convicted despite the fact that the charged language did not directly call for violence. So why is the Dietrich judgment, a relatively obscure holding, issued sixty-five years ago, so significant today, after the development of a substantial body of ad hoc tribunal jurisprudence on atrocity speech? It is because the seemingly antithetical holdings in Streicher and Fritzsche are more than just the subject of academic discourse. The next generation of atrocity speech decisions, it turns out, is at loggerheads about the relationship between hate speech and persecution as a crime against humanity. Trial chambers for the International Criminal Tribunal for Rwanda (ICTR) have found that hate speech, standing alone, can be the basis for charges of crimes against humanity (persecution). A trial chamber for the International Criminal Tribunal for the former Yugoslavia has reached the opposite conclusion. And surprisingly, these judicial decisions, like the academic commentary, have completely ignored the Dietrich judgment. This Article fills in this significant gap in the judicial and academic literature by historically situating Dietrich, elucidating its holding and relationship to the IMT and ad hoc tribunal decisions, explaining its significance for current and future hate speech cases (including those in Kenya, Burma and Sudan) and offering an explanation for why it has lain in obscurity for over six decades. The Article concludes that judicial reliance on the Dietrich judgment would extricate the law from the Streicher-Fritzsche jurisprudential gridlock and permit development of doctrine that is more coherent and human rights-oriented. It would also help illuminate an important but long overlooked chapter in legal history.
Download the article from SSRN at the link.
Tulisa Contostavlos, the singer accused of drug dealing based on evidence supplied by "fake sheikh" Mazher Mahmood, says she may sue him in civil court now that the case against her has collapsed. Mr. Justice McCreath halted the trial when he decided that the evidence Mr. Mahmood had presented to him was too tainted to allow the case to proceed. Roy Greenslade, a Guardian commentator, has quoted Mr. McCreath's ruling here. The judge says in part:
It should not be forgotten that Mr Mahmood is the sole progenitor of this case; the sole investigator; the sole prosecution witness; a man who has exercised his journalistic privilege to create a situation in which the identities of others involved in the investigation are unknown to the defence (or the prosecution or even to me); someone who appears to have gone to considerable lengths to get Ms Contostavlos to agree to involve herself in criminal conduct, certainly to far greater lengths than would have been regarded as appropriate had he been a police investigator.
None of that, taken on its own or taken together, was sufficient to allow me as a matter of law to halt this case. But there now must be added to the miix two very important factors.
First, there are strong grounds for believing that Mr Mahmood told me lies when he gave evidence to me on the 27th of June.
Secondly, there are also strong grounds for believing that the underlying purpose of these lies was to conceal the fact that he had been manipulating the evidence in this case by getting Mr Smith to change his account.
Mr. Mahmood, a Sun newspaper reporter, has used his "fake sheikh" disguise over the years in undercover investigations. The paper has now suspended him, pending investigation. More here from Reuters.
Thursday, July 31, 2014
Two former editors of the now shuttered tabloid News of the World are facing court dates. The Crown Prosecution Service is bringing charges against Neil Wallis and Jules Stenson for conspiracy it alleges they engaged in with former editor Andy Coulson and others to intercept voicemail of persons in the news between 2003 and 2007. Mr. Wallis was deputy editor of NotW, and Mr. Stenson was features editor of the paper.
Mr. Coulson was convicted on hacking charges earlier this year and sentenced to prison.
More here from the Guardian.
Tuesday, July 29, 2014
Three French TV networks have failed to obtain official approval to move some of their channels from pay to free television, after regulatory agency Conseil Supérieur de l’Audiovisuel (CSA) said it thought the market for advertising was insufficient to support free TV. The three networks, TF1, M6, and Vivendi (Canal +), are now apparently examining their financial options.
Thursday, July 24, 2014
RonNell Andersen Jones, Brigham Young University School of Law, is publishing Press Definition and the Religion Analogy in the Harvard Law Review Forum. Here is the abstract.
In a Harvard Law Review Forum response to Professor Sonja West's symposium article, "Press Exceptionalism," Professor RonNell Andersen Jones critiques Professor West's effort to define "the press" for purposes of Press Clause exceptions and addresses the weaknesses of Professor West's analogy to Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC in drawing these definitional lines. The response highlights distinctions between Press Clause and Religion Clause jurisprudence and urges a more functional approach to press definition.
Download the essay from SSRN at the link.
Read Professor West's article via SSRN here.
Heli Askola, Monash University Faculty of Law, is publishing `Taking the Bait? Lessons from a ‘Hate Speech' Prosecution, in the Canadian Journal of Law and Society (2014). Here is the abstract.
This article uses one case study to explore the use of criminal "hate speech" provisions against populist politicians. In a high-profile Finnish case, a populist politician was found guilty of hate speech after a 4-year criminal process. Though the prosecution was ultimately successful, the various problems with the case helped boost the political popularity of the accused, who was turned into a well-known public figure and Member of Parliament. The case might thus be seen to warn against tackling populist politicians through the criminal law. However, further analysis of the political context and a comparison with the Dutch prosecution against anti-immigration politician Geert Wilders complicate this conclusion. This article examines the consequences of hate speech prosecutions of politicians and sheds light on the conditions under which they can achieve (some of) their aims. The case also has lessons for other jurisdictions about when hate speech prosecutions of politicians are likely to be successful in terms of countering prejudice and disempowering those who spread it for electoral purposes.
The full text is not available from SSRN.
Wednesday, July 23, 2014
The ECtHR, Internet Publishers, and Reputational Injury Under the European Convention on Human Rights
Neville Cox, Trinity College (Dublin), has published Delfi AS v Estonia: The Liability of Secondary Internet Publishers for Violation of Reputational Rights Under the European Convention on Human Rights at 77 Modern Law Review 619 (2014). Here is the abstract.
In October 2013, the European Court of Human Rights in Delfi AS v Estonia upheld a decision of the Estonian Supreme Court to impose liability on the owners of an internet news portal for defamatory comments which had been posted on their website by anonymous third parties. This note suggests that the decision is important in the context of publications with a ‘public interest’ element to them, because it appears to afford more protection to the right to reputation (deriving from the Article 8 right to privacy) and less to freedom of expression than was formerly the case. It is further argued that the Court's emphasis on the positive obligation of states to protect this right to reputation may mean that the existing English law in this area, including, potentially section 5 of the Defamation Act 2013, is inconsistent with the ECHR jurisprudence.
The full text is not available from SSRN.
Tuesday, July 22, 2014