Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, January 19, 2021

Fagan on Two-Sided Social Media and Bad Faith Political Speech @EDHEC_BSchool

Frank Fagan, EDHEC Business School, is publishing Two-Sided Social Media and Bad Faith Political Speech in volume 29 of Research in Law and Economics (2021). Here is the abstract.

The First Amendment affords protection to political speech on the basis of its high value. However, political speakers who make inflammatory statements on both sides of an issue do not advance political projects. An entity that purchases inflammatory social media advertising, for instance, both for and against gun control, and generates offsetting reactions, simply raises the level of discursive conflict. This actor may be identified as a bad faith political speaker through relatively objective criteria. One-sided content producers, by contrast, even if they utter falsehoods and inflame discourse, cannot be so easily branded. The Gertz court, and First Amendment doctrine in general, correctly views this challenge as better handled outside of the courtroom. The novelty presented here is that evidence of two-sided content production can curtail the need for discretion and potentially close the door to many errors in judgment. Classifying two-sided inflammatory speech as low-value is relatively easy to administer judicially, consistent with economic efficiency, and increases the political bargaining space by reducing discursive conflict. It also has the advantage of prohibiting egregious outside interference in an election without the need to identify the geographic origin of the disruption.

Download the article from SSRN at the link.

January 19, 2021 | Permalink

Hudson on The Fighting Words Doctrine: Alive and Well in the Lower Courts @DavidLHudsonJr1

David L. Hudson, Jr., Belmont University College of Law, is publishing Essay: The Fighting Words Doctrine: Alive and Well in the Lower Courts in volume 19 of the University of New Hampshire Law Review (2020). Here is the abstract.

The fighting words doctrine is alive and well in the lower courts. The first part of this article briefly explains how the fighting words doctrine has fared in the U.S. Supreme Court. These results would seem to indicate that it would be rare indeed for a defendant’s words to fall under the fighting words exception. That is not always the case. The next part of this article provides a sampling of decisions in which lower courts have rejected First Amendment-based defenses to disorderly conduct, breach of the peace, or similar charges based on the fighting words doctrine. The final part of the essay then explains the specific factors or facts that cause lower courts to find that certain expression constitutes unprotected fighting words rather than protected speech.
Download the essay from SSRN at the link.

January 19, 2021 | Permalink

Tuesday, January 12, 2021

Conklin on The Big Problem With the Small Penis Rule: Why It Does Not Limit Defamation Liability @AngeloState

Michael Conklin, Angelo State University, has published The Big Problem with the Small Penis Rule: Why It Does Not Limit Defamation Liability. Here is the abstract.

The small penis rule is an informal strategy for limiting defamation liability for authors of fiction. The rule recommends that when an author utilizes a fictional character to defame a real-life person, he should also give the character a small penis—the logic being that in order to sue, a plaintiff would have to admit that he is the fictional character, therefore admitting that he has a small penis, and thus dissuading such litigation. In this first-ever Article to address the issue, evidence is provided for why this is an unwise strategy because it would likely cause an increase in defamation liability. Additionally, this Article covers alternatives available to authors of fiction, a real-life example from Michael Crichton, and the peculiarly gendered nature of the small penis rule.

Download the article from SSRN at the link.

January 12, 2021 | Permalink

Sunday, January 10, 2021

McKechnie on Government Tweets, Government Speech: The First Amendment Implications of Government Trolling @AF_Academy

Douglas B. McKechnie, United States Air Force Academy, is publishing Government Tweets, Government Speech: The First Amendment Implications of Government Trolling in volume 4 of the Seattle University Law Review. Here is the abstract.

President Trump has been accused of using @realDonaldTrump to troll his critics. While the President’s tweets are often attributed to his personal views, they raise important Constitutional questions. This article posits that @realDonaldTrump tweets are government speech and, where they troll government critics, they violate the Free Speech Clause. I begin the article with an exploration of President Trump’s use of @realDonaldTrump from his time as a private citizen to President. The article then chronicles the development of the government speech doctrine and the Supreme Court’s factors that differentiate private speech from government speech. I argue that, based on the factors in Walker v. Tex. Div., Sons of Confederate Veterans, Inc., @realDonaldTrump is government speech. After concluding the President’s tweets are government speech, the article moves to a less developed issue in the Court’s jurisprudence— whether the Constitution places limits on what the government may say. The Court has determined that the First Amendment has no bearing on the government’s freedom to choose what views it propounds. Still the Court has intimated that other Constitutional principles may act to restrain the government’s speech. I suggest that although the First Amendment does not prohibit the government from choosing among a variety of viewpoints, it restrains the government’s speech in other ways. I argue that, because the government may not interfere with an individual’s freedom of speech, the government violates its critics’ Free Speech Clause rights when it trolls them in an effort to dissuade them from speaking.

Download the article from SSRN at the link.

January 10, 2021 | Permalink

Monday, January 4, 2021

Bowman on Universities' Speech and the First Amendment @Prof_KBowman @NebLRev

Kristine L. Bowman, Michigan State University, is publishing Universities' Speech and the First Amendment in the Nebraska Law Review (2021). Here is the abstract. 

Increasingly, scholars and students alike suggest that university leaders should engage in speech to oppose racism and other systemic discrimination—and in May and June 2020, countless university leaders across the country did exactly that, expressing solidarity with the Black Lives Matter movement. That speech also contained implied answers to two questions: normatively, should a public university speak in this way, and legally, can it do so? Developing a robust answer to the second question is the focus of this Article, which brings together political scientist Corey Brettschneider’s conceptualization of government speech as persuasive or coercive; federal constitutional law (forum analysis doctrine and government speech doctrine); and recent changes in state law regarding free speech and public colleges and universities.

Download the article from SSRN at the link.

January 4, 2021 | Permalink

Monday, December 21, 2020

Chen on Fake News, Rational Deliberation, and Some Truths About Lies @profalankchen @WMLawReview

Alan K. Chen, University of Denver College of Law, has published Fake News, Rational Deliberation, and Some Truths About Lies at 62 William & Mary Law Review 357 (2020). Here is a link to the article.

December 21, 2020 | Permalink

Tuesday, December 15, 2020

Newly Published: Daniel Joyce, Informed Publics, Media, and International Law (Hart, 2020) @DAWJoyce @hartpublishing

Daniel Joyce, Senior Lecturer, UNSW Law Affiliated Research Fellow, Erik Castrén Institute, University of Helsinki, has published Informed Publics, Media and International Law (Hart Publishing, 2020). Here from the publisher's website is a description of the book's contents.

This book considers the significance of informed publics from the perspective of international law. It does so by analysing international media law frameworks and the 'mediatization' of international law in institutional settings. This approach exposes the complexity of the interrelationship between international law and the media, but also points to the dangers involved in international law's associated and increasing reliance upon the mediated techniques of communicative capitalism – such as publicity – premised upon an informed international public whose existence many now question. The book explores the ways in which traditional regulatory and analytical categories are increasingly challenged - revealed as inadequate or bypassed - but also assesses their resilience and future utility in light of significant technological change and concerns about fake news, the rise of big data and algorithmic accountability. Furthermore, it contends that analysing the imbrication of media and international law in the current digital transition is necessary to understand the nature of the problems a system such as international law faces without sufficiently informed publics. The book argues that international law depends on informed global publics to function and to address the complex global problems which we face. This draws into view the role media plays in relation to international law, but also the role of international law in regulating the media, and reveals the communicative character of international law.
A link to a sample chapter is available at the publisher's website.

December 15, 2020 | Permalink

Garry on The Erosion of Common Law Privacy and Defamation @USDKnudsonLaw

Patrick M. Garry, University of South Dakota School of Law, has published The Erosion of Common Law Privacy and Defamation: Reconsidering the Law's Balancing of Speech, Privacy, and Reputation at 65 Wayne Law Review 279 (2020). Here is the abstract.

Privacy and reputation have come under siege because of new technologies, the general communications practices of society, and the changing journalism environment. At the same time, the common law's ability to provide an effective remedy for privacy and reputation harms has diminished. A major reason for this shortcoming is that the common law does not give enough weight to privacy and reputation when balanced against speech interests. Even in common law torts -- where the constitutional protections of speech may not apply -- free speech is seen as a vital foundation in the structure of democratic society. This Article argues that privacy and reputation are also vital foundations. What common law courts almost always fail to recognize are the broader social underpinnings of privacy and reputation, and how a healthy democratic society depends on a vibrant respect for individual privacy and reputation. Therefore, as this Article argues, courts should reconsider the common law's overweighing of speech in both privacy and defamation torts, because privacy and reputation (like speech) serve vital social roles and important individual interests.

Download the article from SSRN at the link.

December 15, 2020 | Permalink

Monday, December 14, 2020

Tushnet on The Kids Are All Right: The Law of Free Expression and New Information Technologies @Mark_Tushnet

Mark Tushnet, Harvard Law School, has published The Kids Are All Right: The Law of Free Expression and New Information Technologies. Here is the abstract.

Recently the literature on free expression has turned to the question, Should the law of free expression be adjusted because of the availability of new information technologies (hereafter NIT), and if so, how? The only thing about NIT that distinguishes them from traditional media is that disseminating expression via NIT is much less expensive than doing so via traditional media. The tenor of recent scholarship on NIT and free expression is that the invention of NIT does support some modification of free expression law. This Essay argues that that conclusion might be correct, but that many of the arguments offered in support move much too quickly. The Essay tries to slow them down and in so doing to suggest that the arguments require complex and contestable judgments about exactly how an expansion of expression might elicit new rules regulating it. My goal is to identify the lines of analysis that need to be pursued before we conclude that the existing law of free expression should be modified in response to NIT. In that somewhat limited sense the Essay is contrarian. The Essay examines and critiques Professor Tim Wu’s prominent version of the argument that the development of NIT should lead us to rethink the law of free expression. After laying out the paradigm underlying free expression law, that speech causes harm, the Essay examines two aspects of the argument that the more speech, the more harm, which might lead us to seek a new set of rules that jointly optimize speech and harm. One is that NIT should lead us to alter substantive First Amendment law because NIT lead us to reconsider the general balance we have struck among the values promoted by free expression. Section IV deals with that argument. The second is that NIT affect the mechanisms by which specific categories of speech cause specific harms. That argument calls for a more granular approach. To implement that approach the Essay looks at the mechanisms by which more speech might render the “rules in place” no longer socially optimal. It examines false statements that injure reputation (libel), expression that induces unlawful action (the subject of the traditional law of sedition); sexually explicit expression (obscenity and pornography); false statements that inflict no material harm (“fake news”); and threats (cyberstalking). A final section turns to arguments about the platforms used by NIT – Twitter, Facebook, and the like. (1) The platforms should be subject to the same limitations on speech regulation that apply to the government. These arguments sound in the state-action doctrine rather than in the First Amendment, and I have relatively little to say about them. (2) The platforms can be regulated through the application of antitrust or fiduciary law without violating the First Amendment. I discuss existing First Amendment doctrine about the application of “general” laws to the media and examine some issues that might arise in connection with tinkering with antitrust or fiduciary law as the vehicle for platform regulation. (3) The platforms should be held liable for the utterances they disseminate, holding constant the substantive rules of libel, threats, and the like. The Essay’s overall theme is that the First Amendment rules in place probably already accommodate the concerns that motivate arguments for adjusting the law of free expression. The First Amendment, that is, is not obsolete.

Download the article from SSRN at the link.

December 14, 2020 | Permalink

Friday, December 11, 2020

Call For Nominations: Harry W. Stonecipher Award For Distinguished Research on Media Law and Policy

CALL FOR NOMINATIONS: HARRY W. STONECIPHER AWARD FOR DISTINGUISHED RESEARCH ON MEDIA LAW AND POLICY

The Law and Policy Division of the Association for Education in Journalism and Mass Communication (AEJMC) seeks nominations for the 2020 Harry W. Stonecipher Award for Distinguished Research on Media Law and Policy. The award honors the legacy of Harry W. Stonecipher, who died in 2004. Stonecipher was an acclaimed and influential First Amendment educator. He nurtured a number of distinguished media law scholars during his 15-year career at Southern Illinois University, Carbondale, beginning in 1969. The Stonecipher Award for Distinguished Research on Media Law and Policy is open to all journalism, First Amendment and communication scholars within and outside AEJMC. The award will be bestowed on research that most broadly covers freedom of expression as a whole, not just journalism. The award is not limited to research that centers on media-specific issues. It can include First Amendment speech and press issues more broadly. The successful nomination also might be global in scope, rather than U.S.-centric, given that media law and policy as a research topic is inextricably intertwined with the rest of the world in the 21st century. Preference will be given to research with a strong theoretical component that demonstrates the potential to have a lasting influence on freedom of expression scholarship. All methodologies — empirical, qualitative, historical, etc. — are welcome. Nominations may be for monographs, peer-reviewed journal articles, law review articles or book chapters (but not entire books). Self-nominations are encouraged, one per author. In order to be considered for the award, the research must have been published between Jan. 1, 2020, and Dec. 31, 2020. Nominations should be sent to Dr. Dean Smith at High Point University via e-mail — dsmith1@highpoint.edu — by Feb. 7, 2021. Please include STONECIPHER in the subject line. The winner will be announced ahead of the AEJMC’s national convention in August, and the award will be presented then.

December 11, 2020 | Permalink

Thursday, December 3, 2020

Huang on Freedom of Speech as a Right to Know @DukeLaw

Tao Huang, Duke University School of Law, is publishing Freedom of Speech as a Right to Know in volume 89 of the University of Cincinnati Law Review (2020). Here is the abstract.

Since its birth, the right to know and the related practice of open information were based on the constitutional right of free speech. The opposite point, which is understudied, is also true: the right to know also forms the basis of freedom of speech, or even, freedom of speech is mainly the right to know. On the one hand, to know is necessary for expression, as it serves both the interests of speakers and listeners, and the normative values behind them; on the other, to know is more urgently needed for us to express ourselves in the information era. To reshape the freedom of speech by the right to know has both implications for theory and practice. In designing the right in practice, we need to compare different modes of legislation and consider its scope and strength.

Download the article from SSRN at the link.

December 3, 2020 | Permalink

Feldman on Free-Speech Formalism Is Not Formal @uw_law

Stephen Matthew Feldman, University of Wyoming College of Law, has published Free-Speech Formalism Is Not Formal at 12 Drexel L. Rev. 723 (2020). Here is the abstract.

Legal formalism proclaims that cases can be resolved through the logical application of abstract rules or doctrines. Courts supposedly apply formal rules in an apolitical or neutral fashion. The conservative justices on the Supreme Court have increasingly adjudicated First-Amendment claims from a formalist perspective, particularly in cases focused on the democratic process. This Essay argues that formalism is not formal. Formalism cannot deliver on its own claim to political neutrality, to deciding pursuant to pure law. Law and politics always intertwine in Supreme Court decision making. Thus, political considerations have infused not only the legal profession's widespread commitment to formalism but also, and perhaps more important, the Roberts Court's First-Amendment decisions. A focus on the recent gerrymandering decision, Rucho v. Common Cause, demonstrates how formalism influences free-speech cases without being determinative. In the conclusion, the Essay argues that court-packing might be the only viable progressive response to the conservative bloc's free-speech decisions undermining democracy.

Download the article from SSRN at the link.

December 3, 2020 | Permalink

Facebook Announces It Will Remove Misinformation About COVID-19 Vaccines

In a recent post, Facebook has announced it is beginning to remove false information about COVID-19 vaccines. 

Given the recent news that COVID-19 vaccines will soon be rolling out around the world, over the coming weeks we will start removing false claims about these vaccines that have been debunked by public health experts on Facebook and Instagram. This is another way that we are applying our policy to remove misinformation about the virus that could lead to imminent physical harm. This could include false claims about the safety, efficacy, ingredients or side effects of the vaccines. 

 

More here. 

December 3, 2020 | Permalink

Former Google Employees Allege Company Retaliated Against Them For Union Activity

From Buzzfeed:

Four Google employees who lost their jobs last month say the company terminated their employment because they were involved in protected labor activity. Now they're asking the NLRB to investigate Google's actions. More here. 

December 3, 2020 | Permalink

Wednesday, November 25, 2020

Cowle, Rawson, and Rowe on Whether Audit Firms Care About Media Coverage @UArkansas

Elizabeth N. Cowle, Caleb Rawson, and Stephen P. Rowe, all of the University of Arkansas, have published Do Audit Firms Care about Media Coverage? An Investigation of Audit Firm Response to News Coverage. Here is the abstract.

We examine how auditors respond to news coverage of their firm and evaluate the extent to which national news outlets function as a watchdog over audit firms. We find that when media coverage includes issues specific to the audit opinion (i.e., restatements, adverse internal control opinions, fraud), audit firms respond by increasing audit attention (increased fees, reporting delay, and late filings). We find that this is amplified among clients with issues similar to those discussed in the media coverage. In contrast, we find that when news coverage does not relate to audit reporting decisions, firms decrease fees and issue audit opinions sooner. Additional analyses reveal that audit firms respond to high levels of news coverage at peer firms, suggesting that firms try to preemptively manage their reputation even when they are not under direct media scrutiny, and negative news has significant costs for firms’ client growth and retention. Collectively, our evidence suggests that the news media functions as an effective informal oversight mechanism of auditing firms by driving increased auditor attention and improved audit quality.

Download the article from SSRN at the link.

November 25, 2020 | Permalink

Bell on John Stuart Mill's Harm Principle and Free Speech: Expanding the Notion of Harm

Melina Bell, Washington & Lee University, has published John Stuart Mill's Harm Principle and Free Speech: Expanding the Notion of Harm at 2020 Utilitas 1. Here is the abstract.

This article advocates employing John Stuart Mill's harm principle to set the boundary for unregulated free speech, and his Greatest Happiness Principle to regulate speech outside that boundary because it threatens unconsented-to harm. Supplementing the harm principle with an offense principle is unnecessary and undesirable if our conception of harm integrates recent empirical evidence unavailable to Mill. For example, current research uncovers the tangible harms individuals suffer directly from bigoted speech, as well as the indirect harms generated by the systemic oppression and epistemic injustice that bigoted speech constructs and reinforces. Using Mill's ethical framework with an updated notion of harm, we can conclude that social coercion is not justified to restrict any harmless speech, no matter how offensive. Yet certain forms of speech, such as bigoted insults, are both harmful and fail to express a genuine opinion, and so do not deserve free speech protection.

Download the article from SSRN at the link.

November 25, 2020 | Permalink

Thursday, November 19, 2020

GDPR Compliance in Light of Heavier Sanctions to Come—at Least in Theory @wgvoss @BouthinonH

Reprinted with permission from the Oxford Business Law Blog and with permission of the authors:

 

GDPR Compliance in Light of Heavier Sanctions to Come—at Least in Theory

Gregory Voss and Hugues Bouthinon-Dumas

Ridiculously low ceilings on administrative fines hindered the effectiveness of EU data protection law for over twenty years. US tech giants may have seen these fines as a cost of doing business. Now, over two years after the commencement of the European Union’s widely heralded General Data Protection Regulation (GDPR), the anticipated billion-euro sanctions of EU Data Protection Authorities, or ‘DPAs’, which were to have changed the paradigm, have yet to be issued. Newspaper tribunes and Twitter posts by activists, policymakers and consumers evidence a sense of unfulfilled expectations. DPA action has not supported the theoretical basis for GDPR sanctions—that of deterrence. However, the experience to date and reactions to it inspire recommendations for DPAs and companies alike.

In our working paper, EU General Data Protection Regulation Sanctions in Theory and in Practice, forthcoming in Volume 37 of the Santa Clara High Technology Law Journal later in 2020, we explore the theoretical bases for GDPR sanctions and test the reality of DPA action against those bases. We use an analysis of the various functions of sanctions (confiscation, retribution, incapacitation etc) to determine that their main objective in the GDPR context is to act as a deterrent, inciting compliance. To achieve deterrence, sanctions must be severe enough to dissuade. This has not been the case under the GDPR as shown through an examination of actual amount of the sanctions, which is paradoxical, given the substantial increase in the potential maximum fines under the GDPR. Sanctions prior to the GDPR, with certain exceptions, were generally capped at amounts under €1 million (eg £500,000 in the UK, €100,000 in Ireland, €300,000 in Germany and €105,000 in Sweden). Since the GDPR has applied, sanctions have ranged from €28 for Google Ireland Limited in Hungary to €50 million for Google Inc in France, far below the potential maximum fine of 4% of turnover, or approximately €5.74 billion for Google Inc. based on 2019 turnover. While the highest sanctions under the GDPR have been substantially greater than those assessed under the prior legislation, they have been far from the maximum fines allowed under the GDPR.

Nonetheless, this failure of DPAs, especially the Irish DPA responsible for overseeing most of the US Tech Giants, has not gone unnoticed, as shown by EU institutional reports on the GDPR’s first two years. Indeed, increased funding of DPAs and greater use of cooperation and consistency mechanisms are called for, highlighting the DPAs’ current lack of means. Here, we underscore the fact that, in the area of data protection, there has been perhaps too much reliance on national regulators whereas in other fields (banking regulation, credit rating agencies etc), the European Union has tended to move toward centralization of enforcement. Despite these short-fallings, the GDPR’s beefing-up of the enforcement toolbox has allowed for actions by non-profit organizations mandated by individuals (such as La Quadrature du Net that took action against tech giants after the GDPR came into force), making it easier for individuals to bring legal proceedings against violators in the future, and an EU Directive on representative actions for the protection of consumer collective interests is in the legislative pipeline.

On the side of businesses, there has been a lack of understanding of certain key provisions of the GDPR and, as compliance theorists tell us, certain firms may be overly conservative and tend to over-comply out of too great of a fear of sanction. This seems to be the case with the GDPR’s provisions regarding data breach notifications, where unnecessary notifications have overtaxed DPAs. The one-stop-shop mechanism, which is admittedly complex, also created misunderstanding. This mechanism allows the DPA of the main establishment in the European Union of a non-EU company to become the lead supervisory authority in procedures involving that company, which potentially could lead to companies’ forum-shopping on this basis. However, there is also a requirement that the main establishment has decision-making power with respect to the data processing to which the procedure relates. Failure to consider the latter requirement could result in companies selecting main establishments in countries where there is not such decision-making power, and thereby halt attempts at forum-shopping for a lead supervisory authority for certain processing.  One example of this culminated in the French DPA (CNIL)’s largest fine so far, imposed on Google, whereas the latter argued that the Irish DPA was its lead supervisory authority.

As we explain in our paper, a lack of GDPR enforcement carries risks. Not only does it undercut the deterrent effect of the GDPR, but it also provides a tenuous basis for risk assessment by companies. While the GDPR’s first two years involved a sort of grace period when DPAs focused on educating companies and spent time painfully investigating complaints to litigation-proof their cases, some companies model their risk assessment of regulation based on enforcement histories. If there is a push for greater enforcement, which EU institutional reports would tend to foreshadow, the basis for companies’ models will be inaccurate. Furthermore, such dependence on risk evaluation ignores potential benefits to firms of increased trust and efficiency involved with expanding compliance to adopt a higher data protection compliance standard applied to customers worldwide.

Thus, we argue, not only should DPAs sanction offenders, but DPAs should sanction them severely when justified, establishing the necessary deterrence effect for EU data protection law. Moreover, DPA’s communication should in many cases be modified to stop downplaying sanctions: such communication is counterproductive to the desired effect of sanctions. Companies, on the other hand, should take efforts to understand fully the GDPR, and embrace compliance, leaving behind data protection forum-shopping as a potentially ineffective action. Furthermore, the typical securities lawyer warning that, ‘past performance is no guarantee of future results’, may be a forewarning to companies using past sanctions to create their compliance risk-assessment models that the results may not be accurate for the future.

Gregory Voss is an Associate Professor in the Human Resources Management & Business Law Department at TBS Business School.

Hugues Bouthinon-Dumas is an Associate Professor in the Public and Private Policy Department at ESSEC Business School.

This article originally appeared with slightly different formatting on the Oxford Business Law Blog (OBLB) and is reproduced with permission and thanks.

 

November 19, 2020 | Permalink

Wednesday, November 18, 2020

Voss and Bouthinon-Dumas on the EU General Data Protection Regulation Sanctions in Theory and In Practice @wgvoss @BouthinonH

W. Gregory Voss, Toulouse Business School, and Hugues Bouthinon-Dumas, ESSEC Business School, are publishing EU General Data Protection Regulation Sanctions in Theory and in Practice in volume 37 of the Santa Clara High Tech. L.J. (2020). Here is the abstract.

Prior to the application of the EU General Data Protection Regulation (GDPR), one of the results of the relatively-low-level of legislatively permitted data protection violation administrative fines was, arguably, a lack of compliance by U.S. Tech Giants, among others. At least on paper, this changed under the GDPR. This study approaches the issue of GDPR sanctions, not through the lens of a future catastrophe, but though a development first of the theoretical grounds for sanctions, prior to a view of the practical side of them. In doing so, it is somewhat unique and adds to the GDPR literature. Furthermore, it engages the legal strategy and compliance literature to bring its results home to inform companies as to the risks involved and to provide strategic recommendations both for companies and for regulators. Among the several sub-goals of sanctions, this study determines that the most relevant for an analysis of GDPR sanctions—which are administrative, regulatory and financial sanctions, in large part—is the deterrence function, beyond the symbolic functions. This demands effective and substantial administrative fines. While these are not the only sanctions available under the GDPR—this study also sets out a range of possible sanctions, such as judicial compensation and orders to halt data processing—they are perhaps the most characteristic of data protection enforcement. However, through what is referred to as the one-stop-shop mechanism, the Irish DPA is the lead authority for most of the U.S. Tech Giants, and it has failed to act against them up to now, resulting in a potential lack of deterrence. This study argues that, on the one hand, companies should embrace compliance, and the other hand, truly dissuasive administrative fines must be issued in order for the sanctions to have their necessary deterrence effect.

Download the article from SSRN at the link.

November 18, 2020 | Permalink

Thursday, October 29, 2020

Lemley on Disappearing Content @marklemley

Mark A. Lemley, Stanford Law School, has published Disappearing Content. Here is the abstract.

One of the great advantages of digital content has been that for the last forty years, people have had access to whatever content they want whenever they wanted it. That is starting to change. We’re moving backwards. Content is disappearing – not just becoming available only in limited times or circumstances, but becoming entirely unavailable. It doesn’t need to be that way. It is now cheap and easy enough to make all content available. If the copyright owner can’t or won’t continue to provide a published work, others should be permitted to pick up the slack. Fair use should encompass a right of access to published content. That right, like all of fair use, ought to have limits and exceptions. I discuss a number of complications and reasons why copyright owners might lawfully remove content. But a basic right to continued access to published work is consistent with the fundamental purposes of copyright. In the past we might have aspired to a world in which all the works of history were available forever. But that’s now an achievable goal. The dead hand control of copyright shouldn’t stand in the way.

Download the article from SSRN at the link.

October 29, 2020 | Permalink

Tuesday, October 27, 2020

Arbel on Slicing Defamation by Contract @ProfArbel

Yonathan A. Arbel, University of Alabama School of Law, has published Slicing Defamation by Contract at Chicago Law Review Online (2020). Here is the abstract.

In considering the problem of fake news, many debate the merits of expanding media liability through the tort doctrine of defamation. In this Essay I present an alternative: assigning liability for false accusations by contract. I develop and examine the utility of using truth bounties — contractual agreements to pay a bounty to anyone who can falsify a story. On reflection, contractual tools appear more productive and robust than tort liability; in particular, truth bounties can encourage responsible media reporting, crowd-source the search for truth, send a refined signal of trust in the story, and chill false reports. Truth bounties are also realistic and compatible with the incentives of media outlets, although some of the procedural details need to be developed for mass adoption.

Download the essay from SSRN at the link.

October 27, 2020 | Permalink