Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Wednesday, November 14, 2018

Szabados on Conflicts Between Fundamental Freedoms and Fundamental Rights in the Case Law of the CJEU @eotvox_uni

Tamás Szabados, Eötvös Loránd University, Department of Private International Law and European Economic Law, is publishing Conflicts Between Fundamental Freedoms and Fundamental Rights in the Case Law of the Court of Justice of the European Union: A Comparison With the US Supreme Court Practice in volume 3 of European Papers (2018). Here is the abstract.

This Article analyses how the Court of Justice decides on conflicts between fundamental freedoms and fundamental rights in the EU. The practice of the Court will be compared with similar cases from the practice of the US Supreme Court where rights protecting economic activity and other rights come to conflict. This comparison demonstrates that the challenges faced by the Court of Justice regarding conflict of rights cases are not peculiar. The relevant case law of the Court has been the subject of criticism. The criticisms raised in relation to the way of resolving conflicts of rights by the Court of Justice could be eliminated either by the refinement of judicial argumentation of the Court or, following the example of US law, by legislation.

Download the article from SSRN at the link.

November 14, 2018 | Permalink

Tuesday, November 13, 2018

Geiger, Frosio, and Bulayenko on The EU Commission's Proposal To Reform Copyright Limitations @GCFrosio

Christophe Geiger, Giancarlo Frosio, and Oleksandr Bulayenko, all of the University of Strasbourg, CEIPI, have published The EU Commission’s Proposal to Reform Copyright Limitations: A Good but Far Too Timid Step in the Right Direction at 40 European Intellectual Property Review 4 (2018). Here is the abstract.

The European Commission’s planned copyright reform proposes to adapt EU law to the challenges emerging in the Digital Single Market (DSM). The European Commission would like to develop a—much needed—strategy to take copyright into the 21st century and make it functional to the DSM. In particular, new mandatory exceptions and limitations should contribute to improving the digital environment’s creative ecosystem. However, the goal of the proposal of lowering barriers to research and innovation in the EU DSM should be pursued more decisively by expanding the reform’s scope. This reform should be an opportunity to consider also additional exceptions and limitations, reflect on the future design of an opening clause, and achieve true harmonisation of the DSM by declaring mandatory all limitations and exceptions provided in past EU copyright instruments. Against this background, this paper would like to provide a preliminary assessment of the introduction of new exceptions and limitations for Text and Data Mining (TDM), teaching, and preservation of cultural heritage by drawing attention to selected aspects of the reform and considering room for improvement where necessary.

The full text is not available from SSRN.

November 13, 2018 | Permalink

Thursday, November 8, 2018

Keller on Internet Platforms: Observations on Speech, Danger, and Money @daphnehk @StanfordCIS

Daphne Keller, Stanford Law School Center for Internet and Society, has published Internet Platforms: Observations on Speech, Danger, and Money as Hoover Institution's Aegis Paper Series; 1807 (2018). Here is the abstract.

Policymakers increasingly ask Internet platforms like Facebook to “take responsibility” for material posted by their users. Mark Zuckerberg and other tech leaders seem willing to do so. That is in part a good development. Platforms are uniquely positioned to reduce harmful content online. But deputizing them to police users’ speech in the modern public square can also have serious unintended consequences. This piece reviews existing laws and current pressures to expand intermediaries’ liability for user-generated content. It discusses three ways that poorly designed laws can do damage — to First Amendment-protected online speech, national security, and the economy.

Download the article from SSRN at the link.

November 8, 2018 | Permalink

Monday, November 5, 2018

Rieger on Digitizing the Schoolhouse Gate @UFLaw

Joshua Rieger, University of Florida College of Law, has published Digitizing the Schoolhouse Gate: Protecting Students' Off-Campus Cyberspeech by Switching the Safety on Tinker's Trigger at 70 Florida Law Review 695 (2018). Here is the abstract.

Secondary-school students regularly engage in cyberspeech both inside and outside the schoolhouse gate. Internet-era forms of communication allow these students to produce off-campus cyberspeech that can easily be accessed or brought onto campus by other students or faculty. As early as the 1990s, public-school administrations began punishing students for off-campus cyberspeech, accessed or brought onto campus, that the administrations deemed threatening, intimidating, harassing, or generally inappropriate for the school setting. Parents continue to challenge public-school administrations' punishments of their children by filing civil suits in federal courts claiming these administrations violated their children's First Amendment right to free speech. Whether parents' challenges are successful usually turns upon whether the students' off-campus speech causes, or can be reasonably forecasted to cause, a substantial disruption to school administration under Tinker's substantial-disruption test. This Note addresses the conflict that arises when public-school administrations punish students for off-campus cyberspeech, pitting a student's right to free speech against a school's duty to provide students a safe, nurturing environment. This Note discusses how federal circuit and district courts apply different standards for triggering Tinker's test and explains why the holdings and dicta in Tinker and its progeny cases challenge the application of Tinker's test to off-campus cyberspeech cases. This Note offers a dual proposal that more accurately reflects the Court's school-speech jurisprudence and better protects students' right to free speech. First, federal circuit and district courts should decline to apply Tinker's test to off-campus cyberspeech cases. Tinker and its progeny support greater protections for off-campus speech. At minimum, lower federal courts should use a more stringent standard for triggering Tinker's test. Second, if federal courts continue to apply Tinker's test, then states should enact laws prohibiting school officials from punishing students for off-campus cyberspeech, except when that speech constitutes a true threat to the school community or is adjudicated as unlawful, as in cases of cyberbullying, harassment, or defamation.

The full text is not available from SSRN.

November 5, 2018 | Permalink

Hidy on Social Media Use and Viewpoint Discrimination @xuwcb

Kathleen Hidy, Xavier University College of Business, is publishing Social Media Use and Viewpoint Discrimination: A First Amendment Judicial Tightrope Walk With Rights and Risks Hanging in the Balance in the Marquette Law Review. Here is the abstract.

This Article examines the judicial reaction by United States courts to viewpoint discrimination challenges involving social media disputes and investigates the risks of a rights-centric approach to these legal claims. Increasingly, social media users in the United States rely on social media networking platforms for their consumption and dissemination of news and information and their exchange of ideas and opinions. As the national conversation and court of public opinion in the United States move online, courts of law face difficult questions about how social media use impacts bedrock constitutional principles surrounding free speech and debate. The constitutional limits of viewpoint discrimination under United States Supreme Court First Amendment jurisprudence provide the legal framework to address such questions. However, lower courts struggle to apply this jurisprudence in their adjudication of viewpoint discrimination claims brought by social media users. This Article analyzes the risks posed by this judicial reaction to a rights-centric approach to these viewpoint discrimination claims.

The full text is not available from SSRN.

November 5, 2018 | Permalink

Friday, November 2, 2018

Ireland-Piper and Crowe on Whistleblowing, National Security, and the Constitutional Freedom of Political Communication @drjoncrowe

Danielle Ireland-Piper and Jonathan Crowe, both of Bond University School of Law, have published Whistleblowing, National Security and the Constitutional Freedom of Political Communication at 46 Federal Law Review 341 (2018). Here is the abstract.

Whistleblowers promote the values of responsible government and the rule of law by drawing attention to criminal or other forms of wrongdoing in publicly accountable organisations. This article explores the relationship between whistleblowing, national security and the implied freedom of political communication under the Australian Constitution. Legislation such as the Crimes Act 1914 (Cth) ('Crimes Act'), the Australian Security Intelligence Organisation Act 1979 (Cth) ('ASIO Act') and the Australian Border Force Act 2015 (Cth) ('Border Force Act') makes it an offence to reveal certain types of information obtained as a Commonwealth officer. The Public Interest Disclosure Act 2013 (Cth) ('PIDA') offers limited protection to whistleblowers in the Commonwealth public sector, but this protection does not extend to information relating to intelligence operations. We argue that blanket criminalisation of unauthorised disclosure by Commonwealth officers or contractors under s 70 of the Crimes Act, along with similar prohibitions in s 35P of the ASIO Act and s 42 of the Border Force Act, offend the implied freedom of political communication by failing to strike an adequate balance between national security and organisational secrecy, on the one hand, and public debate and discussion, on the other. The courts should read down these laws to protect disclosures that hold significant public interest for discussion and debate over government policy or the performance of government officials.

Download the article from SSRN at the link.

November 2, 2018 | Permalink

Thursday, November 1, 2018

Wischmeyer on The German Network Enforcement Act 2017

Thomas Wischmeyer, Institut für Staatswissenschaft und Rechtsphilosophie, Albert-Ludwigs-Universität Freiburg; Faculty of Law, Bielefeld University, is publishing ‘What is Illegal Offline is Also Illegal Online’ – The German Network Enforcement Act 2017 in Fundamental Rights Protection Online: The Future Regulation of Intermediaries (Bilyana Petkova & Tuomas Ojanen, eds., Elgar 2019). Here is the abstract.

Constitutional democracies traditionally entrust courts with the regulation of speech rather than administrative agencies. According to basic liberal wisdom, judges are equipped best to strike a fair balance between freedom of expression, personality rights and the necessities of a democratic society. Additionally, the one-case-at-a-time-approach of the judiciary seems to be most adequate in order to deal with the highly particularized and dynamic public sphere. Proposals to involve bureaucrats in speech regulation are quickly dismissed as government censorship. However, with the massive proliferation of harmful speech in the Internet, the judicial system is less and less capable to enforce legal standards online. Not only are courts in many jurisdictions still struggling with the adaption of traditional legal doctrines to the internet. They also lack the resources for dealing with the sheer number of cases. To fill this gap, online platforms and intermediaries – Facebook, Twitter, YouTube, etc. – have stepped in and have started to regulate speech on their own. The “new governors of speech,” as Kate Klonick has called them, employ internal content moderation systems which curate and shape online speech and determine, which speech is acceptable and which is not. While the internal speech codes are loosely based on existing legal norms, in particular on U.S. first amendment jurisprudence, they also take into account the economic interests of the platform providers. This development raises serious questions of transparency and democratic accountability. In line with the traditional model, individuals have recently begun to challenge decisions of platform providers before the courts. So far, these complaints have had little or no success. Against this backdrop, a debate has emerged on whether or not to authorize an administrative agency with the online enforcement of free speech principles as defined by constitutional law and interpreted by the courts. In 2017, the German legislator has taken up this idea and has enacted the Netzwerkdurchsetzungsgesetz (“Network Enforcement Law”), which gives the federal bureaucracy the power to evaluate and assess the internal speech policies of major online platforms. The Act applies the idea of “regulated self-regulation” to online speech and threatens to impose severe penalties on large platforms in case of non-compliance. The initial reaction by most constitutional lawyers was quite critical. However, the first practical experiences with the new law are encouraging. On this basis, the paper analyzes the Netzwerkdurchsetzungsgesetz and asks, whether the new law adequately distributes the responsibility for preventing harmful speech between the three major stakeholders: intermediaries, the administration, and the courts. While the German law has its weaknesses, the paper argues that its general approach is convincing. Online platforms have made harmful speech a commodity, which can easily be bought, accessed, and distributed on a global scale – and which warrants a modification of the traditional model of speech regulation.
Download the essay from SSRN at the link.

November 1, 2018 | Permalink

Tudon on Net Neutrality (A Primer)

Jose Tudon M., ITAM Business School, has published A Primer on Net Neutrality. Here is the abstract.

The Economist puts it best: “The details around network neutrality, the principle that internet-service providers (ISPs) must treat all sorts of web traffic equally, can be mind-numbingly abstruse. But they fuel passion, nonetheless.” A primer already exists in Greenstein, Peitz and Valletti (2016). However, the purpose here is to summarize the discussion and trade-offs in a couple of pages, starting with “what is net neutrality?”.

Download the article from SSRN at the link.

November 1, 2018 | Permalink

Illinois Supreme Court Rejects Media Request For Access To Sealed Motions In Criminal Case Prior To Jury Selection

The Supreme Court of Illinois has reversed a lower court ruling which would have allowed access to motions in limine sealed in a criminal case prior to jury selection. Intervenors were members of the media, who argued that the public had a First Amendment right of access to the documents. The Court found " no tradition of access to discovery material not yet admitted at trial....Information that surfaces during pretrial discovery may be unrelated, or only tangentially related, to the underlying cause of action." (Footnotes omitted). Additionally, although there is a recognized common law right of access to public records, "the common-law right of access to judicial records is not absolute. ...We have recognized that "[e]very court has supervisory power over its own records and files, and access [may be] denied where court files might[ ] become  a vehicle for improper purposes." (Footnotes omitted).

The case is People v. Zimmerman (Docket No. 122261) (opinion filed October 18, 2018).

 

Decision not final until the expiration of the 21 day petition for rehearing period.

November 1, 2018 | Permalink

Taylor on the Sources of Free Speech in U.S. Higher Education @UTAustin

ZW Taylor, University of Texas, Austin, has published Sources of Free Speech in U.S. Higher Education: What the Law Tells Us. Here is the abstract.

This critical literature review discusses how U.S. law has addressed the issue of free speech on college campuses. Ultimately, colleges and universities are tasked with balancing First Amendment rights with the safety of their students, faculty, staff, and campus members. In the future, more legislation should continue to inform how colleges and universities draft hate and bias policies and campus speech policies, meant to balance First Amendment rights and the aforementioned safety of educational stakeholders and the general public.

Download the article from SSRN at the link.

November 1, 2018 | Permalink

Wednesday, October 31, 2018

Gordon on Atrocity Speech Law @ProfGSGordon

Gregory S. Gordon, The Chinese University of Hong Kong Faculty of Law, has published Atrocity Speech Law: Foundation, Fragmentation, Fruition -- Introduction in Gregory S. Gordon, Atrocity Speech Law: Foundation, Fragmentation, Fruition (Oxford University Press, 2017).

Hate speech is widely considered a precondition for mass atrocity and since World War II a large body of case law has interpreted the key offenses criminalizing such discourse: (1) incitement to genocide and (2) persecution as a crime against humanity. But the law has developed in a fragmented and ineffective manner. Surprisingly, though, no single volume has furnished a comprehensive analysis of the entire jurisprudential output and the relation of each of its parts to one another and to the whole. This book fills the gap in the scholarly literature and provides needed perspective for courts, government officials and scholars. Part 1, “Foundation,” explores the historical relationship between speech and atrocity and the foundations of the current legal framework. Part 2, “Fragmentation,” details the discrepancies and deficiencies within that framework. Part 3, “Fruition,” proposes fixes for the individual speech offenses and then suggests a more comprehensive solution: a “Unified Liability Theory,” pursuant to which there would be four criminal modalities placed in one statutory provision and applying to genocide, crimes against humanity, and war crimes: (1) incitement (applying to speech seeking but not resulting in commission of atrocities); (2) speech abetting (covering non-catalytic speech synchronous with commission of atrocities); instigation (applying to speech seeking commission, and resulting in, atrocities); and ordering (criminalizing commands to commit atrocity within a superior-subordinate relationship). Apart from the issue of fragmentation, experts have failed to find an accurate designation for this body of law. “International Incitement Law” or “International Hate Speech Law,” two of the typical labels, do not capture the law’s breadth or its proper relationship to mass violence. So with a more holistic and accurate approach in mind, this book proposes a new name for the overall body of international rules and jurisprudence: “atrocity speech law.”

Download the introduction from SSRN at the link.

October 31, 2018 | Permalink

Balkin on The First Amendment in the Second Gilded Age @jackbalkin

Jack M. Balkin, Yale Law School, is publishing The First Amendment in the Second Gilded Age in the Buffalo Law Review, 2019 (Forthcoming). Here is the abstract.

How do we pay for the digital public sphere? In the Second Gilded Age, the answer is primarily through digital surveillance and through finding ever new ways to make money out of personal data. Digital capitalism in the Second Gilded Age features an implicit bargain: a seemingly unlimited freedom to speak in exchange for the right to surveil and manipulate end users. To protect freedom of speech in the Second Gilded Age we must distinguish the values of free speech from the judicially created doctrines of the First Amendment. That is because the practical freedom to speak online depends on a privately owned and operated infrastructure of digital communication to which the First Amendment does not apply. As a result, the protection of digital free expression has increasingly begun to detach from the judicial doctrines of the First Amendment. This makes the First Amendment increasingly irrelevant to protecting digital speech. Indeed, in the Second Gilded Age, the judicially created doctrines of First Amendment law become most important as potential obstacles to reform. They create constitutional difficulties for attempts to regulate private infrastructure owners in order to protect free speech values and personal privacy. Protecting freedom of speech in the Second Gilded Age requires us to focus on the political economy of digital speech: how we pay for the digital public sphere, the dangers the digital political economy creates for end users, and the kinds of reforms that would best protect their interests in speech and privacy. This essay uses the Facebook/Cambridge Analytica scandal of March 2018 to explain how the conditions that make free speech possible have changed from the twentieth to the twenty-first centuries. That controversy is a characteristic scandal of the Second Gilded Age because it centers on how digital infrastructure companies make their money and how they affect the public sphere in the process. The scandal also highlights a central problem for freedom of speech in the Second Gilded Age: Digital privacy undergirds our freedom of expression, but the way we pay for freedom of expression perpetually threatens our digital privacy and subjects us to dangers of manipulation and overreaching. The great irony is that an era that promised unbounded opportunities for freedom of expression is also an era of increasing digital control and surveillance. The same technological advances allow both results. The essay concludes by briefly introducing a reform proposal advocated in my previous work: that we should consider digital media companies as information fiduciaries who have duties of care, confidentiality, and loyalty toward their end users.

Download the article from SSRN at the link.

October 31, 2018 | Permalink

Tuesday, October 30, 2018

The Committee To Project Journalists' Global Impunity Index For 2018

The Committee to Protect Journalists has published its Global Impunity Index for 2018, a list which indicates the countries in which governments tolerate the murder of members of the media. At the top of the list is Somalia, followed by Syria, Iraq, South Sudan, and the Philippines. Here's the report, which includes the complete list and an explanation of CPJ's methodology.

October 30, 2018 | Permalink

Mainstream Media Reports On Trump's Persisting Anti-Press Message

The Washington Post reports on Trump's continuing anti-mainstream media rhetoric here (subscription may be required) as does CNN here.

October 30, 2018 | Permalink

West on Presidential Attacks on the Press @sonjarwest @UGASchoolofLaw

Sonja West, University of Georgia School of Law, is publishing Presidential Attacks on the Press in the Missouri Law Review. Here is the abstract.

President Donald Trump’s habit of hurling invectives at the press is disturbing. It undermines the work of the press and breaks long-standing norms that presidents show respect for the role of the Fourth Estate. But insults alone rarely raise First Amendment issues. Presidents have long used the bully pulpit to respond to or criticize news reports. Even Trump’s near daily verbal assaults on reporters and news organizations can be considered part of our country’s “uninhibited, robust, and wide-open” marketplace of ideas. Presidents have opinions too, and journalists should be able to handle his rants. Yet there are also times when Trump’s lashing out at the press go beyond mere name-calling, and he instead attempts to use the power of his presidency to punish or silence press organizations that displease him. In these instances, Trump is unsheathing an entirely different kind of weapon. When a president crosses the line from insulting the press to turning the wheels of government as a means to retaliate against news organizations for their reporting, the potential First Amendment violations become very real. The goals of this short Article are modest. It seeks simply to differentiate the various ways Trump has attacked the press, to emphasize that we should not view them all through the same constitutional lens, and to bring attention to the most serious type of offense. Unsurprisingly, it is Trump’s attempts to employ the power of the federal government to retaliate against the press that raise the most troubling constitutional concerns.

Download the article from SSRN at the link.

October 30, 2018 | Permalink

Monday, October 29, 2018

Magaldi and Davis on Trolling Twitter: Defamation in an Online World

Jessica Magaldi, Pace University, and Wade Davis, Minnesota State University, Mankato, are publishing Trolling Twitter: Defamation in an Online World in volume 10 of the Journal of Critical Incidents. Here is the abstract.

The Critical Incident stems from an extended exchange of comments over Twitter between film actor James Woods and an anonymous Twitter user under the pseudonym “Abe List.” Both users seemed to revel in the messy, rambunctious and often impolite milieu of Twitter. In the course of their Twitter war, Abe List tweeted, “cocaine addict James Woods still sniffing and spouting.” The comment made use of the popular internet meme of asking whether someone is “high” or “smoking crack” to challenge that person’s position as crazy or outrageous. Woods sued Abe List, characterizing his tweet as defamation alleging that Abe List jeopardized Woods’ good name and reputation. Had the 140-character free-for-all that the two engaged in left Abe List vulnerable to a claim of defamation? Could Abe List be liable for tweets that were very much like Woods’ own tweets?

Download the article from SSRN at the link.

October 29, 2018 | Permalink

Wednesday, October 24, 2018

Lakier on Imagining an Antisubordinating First Amendment @UChicagoLaw

Genevieve, Lakier, University Lakier, University of Chicago Law School, is publishing Imagining an Antisubordinating First Amendment in volume 119 of the Columbia Law Review (2018). Here is the abstract.

Over the past forty years, the political economy of the First Amendment has undergone a significant shift. If in the early and mid-twentieth century, litigants that won First Amendment cases tended to be civil right groups like the NAACP, proponents of minority religions, and other representatives of the marginalized and the disenfranchised, these days, the winners in First Amendment cases are much more likely to be corporations and other economically and politically powerful actors. Scholars have provided two explanations for the change. Some have argued that it is a consequence of the decision to extend constitutional protection to commercial speech and to corporate speakers. By interpreting the guarantee of freedom of speech too expansively, they argue, the Court has allowed the First Amendment to be “hijacked” by corporations and other business groups and turned into a tool of economic deregulation and corporate power. Others attribute the shift in the demographics of the First Amendment’s beneficiaries to the excessive libertarianism of the contemporary Court. They argue that it is the Court’s tendency to treat free speech interests as more important than almost any other competing interest that has produced a First Amendment jurisprudence that is so good for corporations, relative to everyone else. In this Essay, I suggest a third explanation. I argue that the shift in the First Amendment’s political economy is not entirely—or even primarily—a consequence of an excessively expansive interpretation of the Speech Clause’s scope. Nor is it a result of the Court’s free speech libertarianism. Indeed, in what follows I challenge the idea that the contemporary Court is particularly libertarian when it comes to freedom of speech. What it reflects instead is the Court’s embrace over the past several decades of a highly formal conception of the First Amendment equality guarantee. Taking stock of the present state of contemporary free speech jurisprudence thus requires taking stock of this change in the Court’s understanding of expressive equality. It also has normative implications. If the problem posed by the contemporary free speech doctrine is simply that it renders too much ordinary economic activity subject to judicial scrutiny, and that it makes that judicial scrutiny too demanding when it applies, then the obvious response is to narrow the scope of the First Amendment and to weaken the intensity of its protections. But if the problem with contemporary free speech doctrine is an egalitarianism that tends to favor both government and private power, what we need is not a weaker and a narrower First Amendment but a different First Amendment: one that functions better to protect the expressive freedom of the powerless. What we need to change, in other words, is not the strength of the speech right but its meaning. This Essay begins the work of charting out that alternative, what I call, “antisubordinating,” First Amendment by pointing to the areas of case law in which the Court has attempted to vindicate a more substantive conception of expressive equality. It looks to the Speech Clause’s past in an effort to think more creatively about its future.

Download the article from SSRN at the link.

October 24, 2018 | Permalink

Tuesday, October 23, 2018

Clarke and Piper on A Legal Framework to Govern Online Political Expression by Public Servants @Carleton_U

Amanda Clarke, Carleton University School of Public Policy and Administration, and Benjamin Pipe, National Judicial Institute, have published A Legal Framework to Govern Online Political Expression by Public Servants at 21 Canadian Labour and Employment Law Journal 1 (2018). Here is the abstract.

This paper considers the extent to which public servants should be allowed to engage in political activities in online fora such as Facebook, Twitter, and YouTube. The question of the appropriate balance between the principle of political neutrality binding public servants and their Charter-protected right to political expression has been extensively addressed in the case law. However, the framework set out in the existing jurisprudence was developed in the context of more traditional forms of political engagement, and fails to provide clear guidance in an age when the political activities of public servants, like those of Canadians as a whole, have to a large degree migrated to social media and other platforms on the web. In an effort to remedy this deficiency, the authors lay the foundation for a revised framework for assessing the permissibility of online political activity by public servants, consisting of four analytical factors: the level and nature of a public servant’s position; the visibility of the online activity; the substance of the online activity; and the identifiability of the online actor as a public servant. Adopting this test, the authors contend, would enable adjudicators to strike a reasonable balance between freedom of expression and the principle of political neutrality, by recognizing that in today’s world both politics and life as a public servant play out online.

Download the article from SSRN at the link.

October 23, 2018 | Permalink

Friday, October 19, 2018

Facebook Now Facing Claims of Fraud In Lawsuit Over User Video Viewing Metrics

Some advertisers are suing Facebook over what they say is overestimation of user video viewing, which they say meant advertisers were more inclined to pay for video ads on Facebook than on other social media. Plaintiffs now allege that Facebook knew for at least a year before its announcement of the overestimation that its metrics were problematic. From the complaint: "Internal records recently produced in this litigation suggest...that Facebook's action rises to the level of fraud....Facebook did not discover its mistake one month before its public announcement. Facebook engineers knew for over  a year, and multiple advertisers had reported aberrant results caused by the miscalculation....Yet Facebook did nothing to stop its dissemination of false metrics."

 

More here from the BBC,  here from CNBC.  here from Gizmodo.

Here's a link to the amended class action complaint.

October 19, 2018 | Permalink

Myhand on Redefining the Reasonable Person in Police Encounters @UALawSchool

Taurus Myhand, University of Alabama School of Law; American Bar Association, Journal of the Legal Profession, is publishing Redefining the Reasonable Person in Police Encounters: The Impact of the Mainstream News Media's Portrayal of Modern Police Conduct in the University of Detroit Mercy Law Review. Here is the abstract.

Who is the “reasonable person”? There is little doubt that every competent legal professional, both in law practice and in the academic setting, has spent a great deal of time attempting to define the reasonable person. “Reasonableness is largely a matter of common sense.” In police encounters, the definition is certainly important to the outcome of questionable police conduct. How the reasonable person is defined often determines whether a police officer has infringed on an individual’s Fourth Amendment guarantee to be secure in their person against unreasonable searches and seizures. As the narratives of the news media shape how some individuals view police conduct, undoubtedly, the changed attitudes will affect how those individuals respond should they be involved in a future police encounter. This article explores the need for the courts to apply a redefined reasonable person analysis to the Mendenhall test in light of the changing perceptions of modern police conduct due to, at least partly, the mainstream news media’s unprecedented coverage and depictions of police violence. To that end, news media outlets exert an enormous amount of influence over how consumers perceive stories related to police conduct through the power of “framing”. The way a story is framed determines how individuals think about a particular issue or event. In fact, the framing has led to the Pavlovian Conditioning of many of the news media’s consumers, resulting in the need for redefining the reasonable person in police encounters by the courts.

Download the article from SSRN at the link.

October 19, 2018 | Permalink