Friday, April 10, 2009
Appellate Court Reverses Trial Court; Suggests Test For Identification of Anonymous Posters In Defamation Action
In Independent Newspapers v. Brodie, the appellate court ruled that the trial judge abused his discretion when he ordered the defendants to identify anonymous posters in an Internet forum pursuant to a defamation action.
The Court reviewed the record and determined that Brodie had not identified the appropriate forum participants in his complaint. Because Brodie failed to assert his defamation action against the correct individuals, the Court reversed the trial judge’s order compelling the discovery of the forum participants’ identities.
The court also suggested the following test for trial courts to apply when confronted in future with a plaintiff's request to identify anonymous posters.
For guidance of the trial courts when future cases arise, the Court suggested a process to balance First Amendment rights with the right to seek protection for defamation, citing with approval the test from Dendrite Int’l, Inc. v. John Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001). Thus, when a trial court is confronted with a defamation action in which anonymous speakers or pseudonyms are involved, it should, (1) require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, including posting a message of notification of the identity discovery request on the message board; (2) withhold action to afford the anonymous posters a reasonable opportunity to file and serve opposition to the application; (3) require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster, alleged to constitute actionable speech; (4) determine whether the complaint has set forth a prima facie defamation per se or per quod action against the anonymous posters; and (5), if all else is satisfied, balance the anonymous poster’s First Amendment right of free speech against the strength of the prima facie case of defamation presented by the plaintiff and the necessity for disclosure of the anonymous defendant’s identity, prior to ordering disclosure.
Thursday, April 9, 2009
An appellate court has reduced Muntadhar al-Zeidi's sentence from three years to one year, citing his prior lack of a criminal record. Mr. al-Zeidi was convicted last month of throwing his shoes at former President George W. Bush. Read more here in a CBS news report.
London's police have issued an apology to media photographers who had difficulty covering the G20 summit last week. Some photographers say some officers used section 14 of the Public Order Act 1986 to prevent them from taking pictures of police altercations with demonstrators outside the G20 meeting. Read more here.
Ofcom may investigate a BBC host's comment about a jockey's teeth after both it and the BBC received numerous viewer complaints that the remark was offensive. Host Claire Balding urged jockey Liam Treadwell, who had just won the Grand National, to open his mouth so viewers could see his "gappy teeth." She then remarked that he could afford to get them fixed if he wanted. The BBC later apologized for Ms. Balding's comments. Read more here.
The French National Assembly has rejected an Internet piracy bill that would have allowed ISPs to turn off service to users who download material illegally. Many legislators failed to turn up for the vote, which turned out to be 21-15. The government says it will try again. Read more here.
Wednesday, April 8, 2009
FindLaw's Anita Ramasastry discusses the recent debate over whether Google Maps should be allowed to continue its mapping of local neighborhoods--it's been disinvited in parts of the UK, where some citizens find its activities intrusive and where it may be violating the law.
These Wyoming parents thought they had disabled the texting capability on that cell phone they gave their thirteen year old. Think again. They got a four figure bill when she racked up 10,000 text messages in a month. Oh, and they got a landline call from her school principal when she failed five classes. Yikes.
Ward Churchill, the controversial University of Colorado prof who sued after he lost his tenured position at the University of Colorado, won his lawsuit and a $1 damages award from the jury. Why the $1 award? One juror explained that the amount was a compromise between a lone holdout and the rest of the panel. Here's more analysis of the suit, the verdict, and, at the end of the day, what the entire argument means for academic speech and tenure from CBS' Andrew Cohen, Florida International (and NY Times blogger) Stanley Fish, and the L. A. Times.
A House of Lords committee studying the BBC license fee says part of it should be diverted to help support regional broadcasters that provide arts and news programming. The committee also noted the dangers of the BBC's possible cultural dominance of the airwaves. Read more here.
NPR reports that journalist Roxana Saberi, who has been detained for some time in Iran, is being charged with espionage. Her visa ran out in 2006 but she stayed in the country doing some reporting and gathering material for a book. U.S. government officials are trying to intervene in her case, according to the NPR story.
Tuesday, April 7, 2009
Max Mosley has filed another lawsuit, this time a defamation suit against the tabloid News of the World. He won an invasion of privacy suit last year against the same paper for its coverage of his sex life. (Here's a link to the ruling). He is currently also pursuing that case before the European Court of Human Rights.
The Russell Brand/Jonathan Ross "Sachsgate" mess continued with a 150,000 pound fine for the BBC. Ofcom ruled that Mr. Brand and Mr. Ross left "gratuitously offensive, humiliating and demeaning" messages on Mr. Sachs' answering machine and that the network is responsible. Ofcom noted that
This list of weaknesses is all the more extraordinary considering that the senior management of BBC Radio always regarded Russell Brand as a ‘high risk’ series, and considering the assurances given to Ofcom that the compliance systems of BBC Radio would be improved after an earlier and very serious breach of the Code by The Russell Brand Show on BBC 6 Music in the summer of 2008. At that time the BBC gave Ofcom clear assurances about improvements made, or to be made, in the quality of its compliance generally and in BBC Radio in particular. The evidence in this case clearly showed that the necessary improvements were not implemented quickly or effectively. The risk for the BBC of breaching the Code was increased by the highly unsatisfactory compliance arrangements approved by the management of Radio 2 in May 2008 whereby Russell Brand should no longer be made in house but by an independent production company partly owned by Russell Brand. The Committee was deeply concerned by the failure or ineffectiveness of the BBC’s compliance, risk management and management procedures described above in relation to Radio 2 and the impact this had had in this case.
Read the full adjudication here.
The late Jade Goody's family is threatening The People with a lawsuit after the tabloid published photographs of the reality celeb's funeral. Other papers did not, acceding to the family's request for privacy.
Movie critic Roger Friedman has left his position at Fox News after reviewing the film X-Men Origins: Wolverine using an illegally downloaded copy. Mr. Friedman gave the film a good review, but that wasn't enough to salvage an act his employer called "reprehensible." The FBI is investigating how the copy, which was unauthorized and not identical to the officially released version of the film, got out onto the Internet.
Sunday, April 5, 2009
The AP reports that choreographer Alex Da Silva has been arrested on charges of rape. An arraignment is scheduled for Tuesday. Apparently he was investigated on similar charges in 2003, 2004, and 2005 but no charges were filed. Mr. Da Silva has worked on the Fox show "So You Think You Can Dance." Read more here.
Saturday, April 4, 2009
Assumptions about audiences shape the outcomes of First Amendment cases. Yet the Supreme Court rarely specifies what its assumptions about audiences are, much less attempts to justify them. Drawing on literary theory, this Article identifies and defends two critical assumptions that emerge from First Amendment cases involving so-called "core" speech. The first is that audiences are capable of rationally assessing the truth, quality, and credibility of core speech. The second is that more speech is generally preferable to less. These assumptions, which I refer to collectively as the rational audience model, lie at the heart of the "marketplace of ideas" metaphor, which has long been a target of criticism amongst First Amendment scholars. Now, however, cognitive psychology and behavioral economics provide empirical evidence that the assumptions of the rational audience model are demonstrably false in some commonplace settings. This Article nonetheless contends that behavioral economics has not yet made the case for jettisoning the rational audience model in the realm of core speech. As the Supreme Court has recognized, a legal test that looks at the "actual effects" of speech would be cumbersome and expensive to apply, and would therefore chill speech. But there are even more compelling reasons to adhere to a test focused on the "reasonable interpretation" of core speech. Because speech and expression are closely linked to individual autonomy, government constriction of core speech-particularly political speech-undermines the foundation of a self-governing democracy. Moreover, the rational audience model prevents public discourse from being reduced to the level of the least educated or least sophisticated audience member. The model calls on citizens to raise their cognitive capacities to meet the demands of public discourse, and it serves as a check on the government's increasingly powerful ability to drown out other speakers in that discourse. This Article concludes that the rational audience model represents a flawed but worthy ideal.
Download the paper from SSRN here.