Wednesday, December 16, 2009
The European Court of Human Rights has ruled in favor of the media on the issue of the protection of journalists' sources. The Financial Times, the Independent, the Guardian, the Times, and Reuters had appealed a British court ruling that they turn over documents to a Belgian firm, alleging that to do so would have allowed the firm to identify an anonymous source. The ECHR ruled that handing over the documents would violate Article 10 of the European Convention of Human Rights (freedom of expression).
59. The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society and that, in that context, the safeguards guaranteed to the press are particularly important. Furthermore, protection of journalistic sources is one of the basic conditions for press freedom. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result, the vital “public watchdog” role of the press may be undermined and the ability of the press to provide accurate and reliable reporting may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect that an order for disclosure of a source has on the exercise of that freedom, such a measure cannot be compatible with Article 10 unless it is justified by an overriding requirement in the public interest (see Goodwin, cited above, § 39).
60. The Court recalls that as a matter of general principle, the “necessity” of any restriction on freedom of expression must be convincingly established. It is for the national authorities to assess in the first place whether there is a “pressing social need” for the restriction and, in making their assessment, they enjoy a certain margin of appreciation. In the present context, however, the national margin of appreciation is circumscribed by the interest of democratic society in ensuring and maintaining a free press. This interest will weigh heavily in the balance in determining whether the restriction was proportionate to the legitimate aim pursued. The Court reiterates that limitations on the confidentiality of journalistic sources call for the most careful scrutiny by the Court (Goodwin, cited above, § 40).
61. The Court's task, in exercising its supervisory function, is not to take the place of the national authorities but rather to review the case as a whole, in the light of Article 10, and consider whether the decision taken by the national authorities fell within their margin of appreciation. The Court must therefore look at the interference and determine whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” (Handyside v. the United Kingdom, 7 December 1976, § 50, Series A no. 24 and Goodwin, cited above, § 40).
62. The Court reiterates that under the terms of Article 10 § 2, the exercise of freedom of expression carries with it duties and responsibilities which also apply to the press. Article 10 protects a journalist's right – and duty – to impart information on matters of public interest provided that he is acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999-I and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999-III).
63. In the case of disclosure orders, the Court notes that they have a detrimental impact not only on the source in question, whose identity may be revealed, but also on the newspaper against which the order is directed, whose reputation may be negatively affected in the eyes of future potential sources by the disclosure, and on the members of the public, who have an interest in receiving information imparted through anonymous sources and who are also potential sources themselves (see, mutatis mutandis, Voskuil v. the Netherlands, no. 64752/01, § 71, 22 November 2007). While it may be true that the public perception of the principle of non-disclosure of sources would suffer no real damage where it was overridden in circumstances where a source was clearly acting in bad faith with a harmful purpose and disclosed intentionally falsified information, courts should be slow to assume, in the absence of compelling evidence, that these factors are present in any particular case. In any event, given the multiple interests in play, the Court emphasises that the conduct of the source can never be decisive in determining whether a disclosure order ought to be made but will merely operate as one, albeit important, factor to be taken into consideration in carrying out the balancing exercise required under Article 10 § 2.
ii. Application of the principles to the present case
64. The Court recalls that, in the Goodwin case, it was concerned with the grant of an order for the production of the applicant journalist's notes of a telephone conversation identifying the source of the disclosure of information in a secret draft corporate plan of the claimant company which had disappeared, as well as of any copies of the plan in his or his employer's possession. The order had been made by the domestic courts primarily on the grounds of the threat of severe damage to the company's business, and consequently to the livelihood of its employees, which would arise from disclosure of the information in their corporate plan while refinancing negotiations were continuing. The Court noted that a vital component of the threat of damage to the company had already been neutralised by an injunction to prevent dissemination of the confidential information by the press. While accepting that the disclosure order served the further purpose of bringing proceedings against the source to recover possession of the missing document and to prevent further dissemination of the contents of the plan, as well as of unmasking a disloyal employee or collaborator, the Court observed that, in order to establish the necessity of disclosure for the purposes of Article 10, it was not sufficient for a party seeking disclosure to show merely that it would be unable without disclosure to exercise the legal right or avert the threatened legal wrong on which it based its claim. The considerations to be taken into account by the Convention institutions in their review under Article 10 tipped the balance in favour of the interest of a democratic society in securing a free press. On the facts of that case, the Court stated (at § 45) that it could not find that the company's interests
“......in eliminating, by proceedings against the source, the residual threat of damage through dissemination of the confidential information otherwise than by the press, in obtaining compensation and in unmasking a disloyal employee or collaborator were, even if considered cumulatively, sufficient to outweigh the vital public interest in the protection of the applicant journalist's source”.
65. In the Court of Appeal in the present case, Sedley LJ found that the “relatively modest leak” of which Interbrew was entitled to complain did not diminish the seriousness for Interbrew of its repetition. He concluded that the public interest in protecting the source of such a leak was not sufficient to withstand the countervailing public interest in allowing Interbrew to seek justice against the source (see paragraph 27 above). What was said to matter critically in arriving at this conclusion was the evident purpose of X, which was “on any view a maleficent one, calculated to do harm whether for profit or for spite ...”.
66. The Court notes that in Goodwin, it did not consider allegations as to the source's “improper motives” to be relevant to its finding that there was a violation of Article 10 in that case, notwithstanding the High Court's conclusion that the source's purpose, in the Goodwin case, in disclosing the leaked information was to “secure the damaging publication of information which he must have known to be sensitive and confidential” (see Goodwin, §§ 15 and 38, where it was argued by the Government that the source had acted mala fide and should therefore not benefit from protection under journalists' privilege of non-disclosure of sources). While the Court considers that there may be circumstances in which the source's harmful purpose would in itself constitute a relevant and sufficient reason to make a disclosure order, the legal proceedings against the applicants did not allow X's purpose to be ascertained with the necessary degree of certainty. The Court would therefore not place significant weight on X's alleged purpose in the present case.
67. As regards the allegations that the leaked document had been doctored, the Court recalls the duties and responsibilities of journalists to contribute to public debate with accurate and reliable reporting. In assessing whether a disclosure order is justified in cases where the leaked information and subsequent publication are inaccurate, the steps taken by journalists to verify the accuracy of the information may be one of the factors taken into consideration by the courts, although the special nature of the principle of protection of sources means that such steps can never be decisive but must be considered in the context of the case as a whole (see paragraph 63, above). In any event, the domestic courts reached no conclusion as to whether the leaked document was doctored, the Court of Appeal observing that it had no way of knowing, any more than the applicants, whether X, if cornered, would demonstrate that he had simply assembled authentic documents from different places within Interbrew, GS and Lazards. The Court likewise considers that it has not been established with the necessary degree of certainty that the leaked document was not authentic. The authenticity of the leaked document cannot therefore be seen as an important factor in the present case.
68. It remains to be examined whether, in the particular circumstances of the present case, the interests of Interbrew in identifying and bringing proceedings against X with a view to preventing further dissemination of confidential information and to recovering damages for any loss already sustained are sufficient to override the public interest in the protection of journalistic sources.
69. In this respect, the Court observes at the outset that where an unauthorised leak has occurred, a general risk of future unauthorised leaks will be present in all cases where the leak remains undetected (see Goodwin, §§ 17-18 and 41). In the present case, the Court notes that Interbrew received notice, prior to publication of the initial FT article, that a copy of the leaked document had been obtained and that there was an intention to publish the information it contained. In contrast to the stance taken by the company in the Goodwin case, Interbrew did not seek an injunction to prevent publication of the allegedly confidential and sensitive commercial information. Moreover, the aim of preventing further leaks will only justify an order for disclosure of a source in exceptional circumstances where no reasonable and less invasive alternative means of averting the risk posed are available and where the risk threatened is sufficiently serious and defined to render such an order necessary within the meaning of Article 10 § 2. It is true that in the present case the Court of Appeal found that there were no less invasive alternative means of discovering the source, since Kroll, the security and risk consultants instructed by Interbrew to assist in identifying X, had failed to do so. However, as is apparent from the judgments of the domestic courts, full details of the inquiries made were not given in Interbrew's evidence and the Court of Appeal's conclusion that as much as could at that time be done to trace the source had been done by Kroll was based on inferences from the evidence before the court.
70. While, unlike the applicant in the Goodwin case, the applicants in the present case were not required to disclose documents which would directly result in the identification of the source but only to disclose documents which might, upon examination, lead to such identification, the Court does not consider this distinction to be crucial. In this regard, the Court emphasises that a chilling effect will arise wherever journalists are seen to assist in the identification of anonymous sources. In the present case, it was sufficient that information or assistance was required under the disclosure order for the purpose of identifying X (see Roemen and Schmit v. Luxembourg, no. 51772/99, § 47, ECHR 2003-IV).
71. The Court, accordingly, finds that, as in the Goodwin case, Interbrew's interests in eliminating, by proceedings against X, the threat of damage through future dissemination of confidential information and in obtaining damages for past breaches of confidence were, even if considered cumulatively, insufficient to outweigh the public interest in the protection of journalists' sources.
72. As to the applicants' complaint that there was an inequality of arms during the Norwich Pharmacal proceedings which constituted a breach of the procedural aspect of their right to freedom of expression, the Court considers that, having regard to its above findings, it is not necessary to examine this complaint separately.
73. In conclusion, the Court finds that there has been a violation of Article 10 of the Convention.
The case is Financial Times Ltd. and others v. the United Kingdom (application no. 821/03).
Read more here.
[Hat tip to Matt Duffy].
Tuesday, December 15, 2009
Monday, December 14, 2009
PANELISTS ANNOUNCED FOR DEC. 15 WORKSHOP ON
Speech, Democracy and the Open Internet
WASHINGTON -- The Federal Communications Commission will hold a staff workshop on speech and democratic engagement as part of the Commissions’ open Internet proceeding. The workshop will examine the relationship between the Internet's openness and democratic speech and participation, including its impact on "citizen journalism," as well as blogging, political organizing, and cultural expression.
WHAT: Speech, Democratic Engagement, and the Open Internet
WHEN: Tuesday, Dec. 15, 1:00 p.m.
WHERE: FCC Commission Room,
445 12th St. SW
Washington, D.C. 20554
PANELISTS: Stuart Benjamin, FCC, Moderator
Michele Combs, Christian Coalition
Glenn Reynolds, Instapundit
Jonathan Moore, Rowdy Orbit
Ruth Livier, YLSE
Garlin Gilchrist, Center for Community Change
Bob Corn-Revere, Davis Wright Tremaine
Jack Balkin, Yale Law School
Andrew Schwartzman, Media Access Project
The workshop will be open to the public; however, admittance will be limited to the seating available. Audio/video coverage of the workshop will be broadcast live with open captioning over the Web on www.openinternet.gov.
Reasonable accommodations for persons with disabilities are available upon request. Please include a description of the accommodation you will need. Individuals making such requests must include their contact information should FCC staff need to contact them for more information. Please send an e-mail to email@example.com or call the Consumer & Governmental Affairs Bureau: 202-418-0530 (voice), 202-418-0432 (TTY).
This article traces the development of copyright law in commercial prints and labels, looking at the history of the 1874 Act which placed registration of copyrights in the Patent Office (the "unwanted" copyrights because the Library of Congress had no desire for them), as well as the two Supreme Court cases which dealt with this act - Higgins v. Keuffel and Bleistein v. Donaldson Lithographing. In so doing the development of the scope of copyright law in both the constitutional and normative senses is addressed, specifically the importance of the preamble to the intellectual property clause as a substantive limit of Congressional legislation in the nineteenth century. Statistics are also included, demonstrating the development and use of this copyright law.
Download the paper from SSRN at the link.
This Article examines the evolution of the law governing libel suits against anonymous “John Doe” defendants based on Internet speech. Between 1999 and 2009, courts crafted new First Amendment doctrines to protect Internet speakers from having their anonymity automatically stripped away upon the filing of a libel action. Courts also adapted existing First Amendment protections for hyperbole, satire and other non-factual speech to protect the distinctive discourse of Internet message boards. Despite these positive developments, the current state of the law is unsatisfactory. Because the scope of protection for anonymous Internet speech varies greatly by jurisdiction, resourceful plaintiffs can make strategic use of libel law to silence their critics. Meanwhile, plaintiffs who are truly harmed by cybersmears will find little effective recourse in libel law. Though disheartening, the current state of the law may be a testament to the difficulty of balancing speech and reputation in the Internet age.
Download the article at the link.
Friday, December 11, 2009
Golf legend Tiger Woods has gotten an injunction from an English court prohibiting publication of nude photographs in the media, assuming such photographs exist. His lawyers are not admitting that such pictures do exist, nor under what circumstances they might have been snapped. Here's more from CNN World News. Here's a link to a letter from Mr. Woods' attorneys and a copy of the injunction issued by the Court (courtesy of TMZ.com).
Judge Tells Jon Gosselin To Stop Making Media Appearances, Making Comments About "Jon & Kate Plus 8"
Granting the preliminary injunction that TLC requested in the matter, a judge has told Jon Gosselin to cease making media appearances unless they are unpaid and must stop making public comments about the show without permission. Mr. Gosselin was not in the courtroom for the hearing. The case goes to trial in the spring. Read more here.
Thursday, December 10, 2009
Wednesday, December 9, 2009
One goal of the American Recovery and Reinvestment Act of 2009 (“ARRA”) is to provide all Americans with access to affordable broadband services, particularly to those Americans living in rural markets where demand and cost conditions do not favor network deployment. At the same time, there is growing support for regulations that may effectively force network operators to “invest their way out” of congestion rather than manage traffic to improve network efficiency and quality. In this BULLETIN, we demonstrate that such rules are likely to affect disproportionately networks located in rural areas or smaller networks in urban markets given the cost disadvantages faced by such firms. Since these markets are a central target of both the ARRA’s stimulus funding and required National Broadband Plan, the imposition of strong “network management” provisions are likely to result in lower quality service and less availability in rural areas and potentially reduce competition in urban areas, as well as to reduce the effectiveness of stimulus grants and other subsidies. Further, we present some evidence indicating an elastic response of subsidy levels to increases in costs resulting from such regulations; specifically, a 1% increase in deployment costs arising from regulation increases the subsidy required for ubiquitous coverage by nearly 2%. Accordingly, policymakers seeking to expand quickly and efficiently broadband availability in rural markets should carefully and explicitly compare the benefits and costs from network management regulatory mandates, with a particular eye on disproportionate effects across market types.
In this essay prepared in celebration of Judge Frank Easterbrook’s 25th year on the bench, I focus on what copyright students learn from him. Three of his dozen or so copyright opinions turn up repeatedly in copyright casebooks: Nash v. CBS, Inc.; Lee v. A.R.T. Co.; and ProCD, Inc. v. Zeidenberg. This is a surprising success rate for a judge from the copyright-starved 7th Circuit. Judge Easterbrook has an eye for fundamental questions, writes opinions that are brief while treating issues fully and has a distinctively lively Easterbrookian style, one that he preserves by refusing to outsource his opinions to his clerks.
Nash poses a key conceptual question: if only one person believes something to be a fact, is it a copyright fact? We confront the idiosyncratic fact, that is a claim of fact that may be believed by only one person and by no one else. Nash is casebook-worthy alone because of the factual situation it encompasses, as it is the law-school hypo come alive. The opinion nails down a key conceptual boundary question for copyright: copyright facts and actual facts may have little to do with each other.
Lee answers the age-old question: what does glue do? Annie Lee created postcards of her original art. A.R.T. Co. glued postcards to tiles and sold them. In doing so, does A.R.T. violate Lee’s exclusive right to make derivative works as set forth in Section 106(2)? Lee is a refreshingly brief opinion, little more than five columns in F3d, yet, like Nash, it poses in simple fashion a basic question about the operation of copyright. Boundary cases are particularly important because legal analysis frequently builds off of what is taken as given: if x is right, then y must follow. Lee does exactly that for derivative works, an area of increasing importance for copyright.
Finally. ProCD is one of Easterbrook’s best-known decisions, studied by contract students and copyright students alike. ProCD is the opinion that the copyright casebooks love to hate. Easterbrook validates the contract that limits the subsequent use of the ProCD database and wrestles with the tricky question of the interaction between copyright and contract.
Student learn to pay close attention to the text of the copyright statute and to appreciate how that text operates in critical boundary settings. The opinions are written with a distinctive élan, with a little bit of law and economics thrown in, though less than you might expect given Frank’s deep academic roots. Students should understand that the business of deciding cases is a different one than of engaging in an abstract academic inquiry. Easterbrook on copyright is somehow a work of interest, fun and yet discipline all at the same time.
Download the article from SSRN at the link.
Several female law students were the subject of derogatory comments on AutoAdmit.com, a message board about law school admissions. When one of the women asked the website administrator to remove certain comments, the administrator posted her request, prompting further attacks. An undergraduate student’s rape was revealed on a gossip site, JuicyCampus.com, where posters engaged in a cruel session of “blame the victim.” Another student on that site was falsely identified, by name, as being a stalker, bi-polar, and suicidal. When officials at her university asked JuicyCampus.com to remove the most egregious posts, the company refused. These recent cases have brought the vexing problem of cyber harassment to the public’s attention. Under Section 230 of the Communications Decency Act of 1996, websites are not liable as publishers for the content on their sites so long as they are not involved in its creation. Accordingly, much of the relevant scholarship has focused on repealing Section 230 or imposing liability upon posters. The immunity that website sponsors have as publishers should not mean that they have no obligation whatsoever for the activity on their website. Website sponsor - the entities that own the domain name and control the activity on a website - have a proprietary interest in their websites. Accordingly, they should be subject to the same standard of conduct as other proprietors.
Download the article from SSRN at the link.
Tuesday, December 8, 2009
Carol Loeb Schloss writes about her years-long battle with the Joyce estate, and the assistance she received from Lawrence Lessig and the Stanford Law School Center for Internet and Society's Fair Use Project, and others. While she eventually won her lawsuit, she has concerns about the rights of other scholars. Says Professor Schloss in part.
[M]y legal victory obscures several major questions that should concern every humanities scholar on American college campuses. What role should colleges play in protecting their faculty in potential copyright disputes? Why should copyrights, when they are generated by faculty members, be excluded from university risk-management policies? Why does a special Fair Use Project like the one at Stanford have to exist at all? The underlying lack of protections exposed by this case indicates that humanities scholars throughout the country would benefit from a restructuring of university risk management.