Monday, October 31, 2011
Kaya Köklü, Sylvie Nerisson, and Felix Trumpke, all of the Max Planck Institute for Intellectual Property and Competition Law, have published Comments of the Max Planck Institute for Intellectual Property and Competition Law on the Commission Proposal for a Directive on Certain Permitted Uses of Orphan Works at IIC - International Review of Intellectual Property and Competition Law (Forthcoming) and 60 GRUR Int. 818-821 (2011). Here is the abstract.
The Max Planck Institute for Intellectual Property and Competition Law comments on the Commission's proposal for a new directive on certain permitted uses of orphan works - COM(2011)289. In principle,the Institute welcomes the proposal of the Commission, which, after years of discussion, is now attempting to create a legal framework allowing libraries in particular both to digitise their archives and to make such archives available in an online library or archive. Instead of addressing the digitisation of public collections or collections as such, the Commission limits itself to orphan works. From the Institute's point of view, this approach raises several - to some extent fundamental - concerns.
Download the article from SSRN at the link.
David F. Lindsay, Monash University Faculty of Law, has published Liability of ISPs for End-User Copyright Infringements: The First Instance Decision in Roadshow Films Pty Ltd v. iiNet Ltd (No 3) at 60 Telecommunications Journal of Australia 1 (2010). Here is the abstract.
In Roadshow Films Pty Ltd v. iiNet  FCA 24, Cowdroy J held that the ISP, iiNet, was not liable for authorising infringements of copyright committed by its subscribers downloading films by means of the BitTorrent peer-to-peer (P2P) system. This article critically analyses the decision of the trial judge, which is now on appeal to the full federal court, pointing out that key aspects of the reasoning are contrary to established law on authorisation liability, as well as to the text of the Copyright Act. As the article explains, while there are good grounds for an appeal, the outcome in the appeal court is far from certain. The article also examines the extent to which an ISP should be held liable for the infringing activities of its subscribers, concluding that this is a complex issue best dealt with by the legislature. If ISPs are to be given greater responsibility for the infringing activities of their subscribers, there may be a need for procedural safeguards to protect against unjust suspensions or terminations of subscriber accounts. In any case, the existing law on the indirect liability of Internet intermediaries, such as ISPs, is manifestly inadequate, and requires reform.
The full text is not available from SSRN.
Read the ruling discussed here.
Eric Null, Cardozo Law School, has published The Difficulty with Regulating Network Neutrality, at 29 Cardozo Arts and Entertainment Law Journal 459 (2011). Here is the abstract.
Network neutrality is, and has been, an essential design element of the Internet. Increasingly, there has been pressure to move from a neutral network to a network that is optimized for particular functions (such as video streaming), and technology has responded to that call through the creation of a powerful technology called Deep-Packet Inspection. DPI allows access providers to directly violate the neutrality principle because it provides a mechanism for unequal treatment of content. The tension between network neutrality and DPI is significant – so much so that the Federal Communications Commission (“FCC”) has intervened.
The FCC recently published its final Report and Order for Preserving the Open Internet in the Federal Register, which establishes a general principle that neutrality should be safeguarded. Despite this safeguard, the FCC provided for a reasonable network management exception to neutrality, which allows access providers to treat content unequally if the provider is reasonably managing its network. The reasonable network management exception is a broad exception. However, a broad exception, potentially overbroad, may not be the most prudent form for regulating network neutrality.
To determine what form is appropriate for network neutrality regulation, one should engage in a rules-versus-standards analysis specifically in this context. There is no obvious choice, but context can provide useful background when determining whether to regulate with rules or standards.
Network neutrality regulation should be written as a rule, not a standard. Establishing a rule-like regulation will deter non-neutral behavior by access providers, and will preserve the Internet’s neutral architecture and the benefits that equal treatment of content provides. In addition, rule-like regulations reduce the burden placed on enforcers, typically users, of the regulation. For these reasons, the reasonable network management exception should also be worded like a rule; those arguing for a broad, standard-like exception have not successfully demonstrated why a broad exception is required.
Download the article from SSRN at the link.
Friday, October 28, 2011
Clark University Professor Taner Akçam has won a case in the European Court of Human Rights defending his right to express his opinion concerning the prosecution of a Turkish journalist under the Turkish Criminal Code that forbids "denigrating Turkishness." As a result of Professor Akçam's writing, the Turkish government filed a case against him. Dr. Akçam filed his case under Article 34 of the European Convention on Human Rights.
The Court found:
65. The Court notes that the question concerning the alleged interference with the applicant’s right to freedom of expression hinges upon the prior establishment of whether the applicant has been affected by a measure which renders him a victim of a violation of his rights under Article 10 of the Convention.
66. In this connection, the Court reiterates its established jurisprudence that in order to claim to be the victim of a violation, a person must be directly affected by the impugned measure (see Ireland v. the United Kingdom, 18 January 1978, §§ 239-240, Series A, no. 25; Eckle, cited above; and Klass and Others v. Germany, 6 September 1978, § 33, Series A no. 28). The Convention does not, therefore, provide for the bringing of an actio popularis for the interpretation of the rights set out therein or permit individuals to complain about a provision of national law simply because they consider, without having been directly affected by it, that it may contravene the Convention (see Norris, cited above, § 31).
67. However, the Court has concluded that an applicant is entitled to “(claim) to be the victim of a violation” of the Convention, even if he is not able to allege in support of his application that he has been subject to a concrete interference (see, mutatis mutandis, Klass and Others, cited above, § 38). In such instances the question whether the applicants were actually the victims of any violation of the Convention involves determining whether the contested legislation is in itself compatible with the Convention’s provisions (for the compatibility of Article 301 of the Turkish Criminal Code see under B. below). While the present case refers to freedom of expression and not to surveillance as in the Klass and Others case, where the difficulties of knowing that one is under surveillance are a factor to be considered in the determination of victim status, the applicant has shown that he is subject to a level of interference with his Article 10 rights (see paragraph 80 below) The applicant has shown that he is actually concerned with a public issue (the question whether the events of 1915 qualify as genocide), and that he was involved in the generation of the specific content targeted by Article 301, and therefore he is directly affected.
68. Furthermore, it is also open to a person to contend that a law violates his rights, in the absence of an individual measure of implementation, if he is required either to modify his conduct because of it or risk being prosecuted (see Dudgeon v. the United Kingdom, 22 October 1981, § 41, Series A no. 45;Norris, cited above, § 31, and Bowman, cited above) or if he is a member of a class of people who risk being directly affected by the legislation (see Johnston and Others v. Ireland, 18 December 1986, § 42, Series A no. 112, and Open Door and Dublin Well Woman v. Ireland, 29 October 1992, Series A no. 246-A). The Court further notes the chilling effect that the fear of sanction has on the exercise of freedom of expression, even in the event of an eventual acquittal, considering the likelihood of such fear discouraging one from making similar statements in the future (see, mutatis mutandis, Lombardo and Others v. Malta, no. 7333/06, § 61, 24 April 2007; Association Ekin v. France (dec.), no. 39288/98, 18 January 2000; and Aktan v. Turkey, no. 20863/02, §§ 27-28, 23 September 2008).
69. Turning to the circumstances of the instant case, the Court notes that the applicant claimed that he had directly been affected by the investigation which was opened against him and that there was an ongoing risk that he would be subject to further investigation or prosecution under Article 301 for his opinions on the Armenian issue. The Government, for their part, asserted that the investigation in question had been terminated by a non-prosecution decision by the local public prosecutor and that, given the legislative amendment to the text of Article 301 in 2008, there was no risk of prosecution for the expression of opinions such as those held by the applicant.
70. In view of the above, the Court must ascertain whether the investigation commenced against the applicant for his views on the Armenian issue and the alleged ongoing threat of prosecution under Article 301 of the Criminal Code constituted interference in the circumstances of the present case.
71. The Court observes that the applicant is a history professor whose research interest includes the historical events of 1915 concerning the Armenian population. He has published numerous books and articles on the Armenian issue, a subject which is considered sensitive in Turkey. He thus belongs to a group of people who can easily be stigmatised for their opinions on this subject and be subject to investigations or prosecutions under Article 301 of the Criminal Code as a result of criminal complaints that can be lodged by individuals belonging to ultranationalist groups who might feel offended by his views (see, mutatis mutandis, Johnston and Others, cited above, § 42).
72. Indeed, in the instant case, the investigation against the applicant was commenced as the result of a criminal complaint by an individual who alleged essentially that the applicant had committed the offence of denigrating Turkishness under Article 301 of the Criminal Code by his editorial opinion in the AGOSnewspaper (see paragraph 8 above). The applicant was summoned to the local public prosecutor’s office and asked to answer the criminal complaints against him (see paragraph 9 above). Even though the public prosecutor in charge of the investigation issued a decision of non-prosecution holding that the applicant’s views were protected under Article 10, this did not necessarily mean that the applicant would be safe from further investigations of that kind in the future. It appears that two other criminal complaints were lodged by individuals alleging that the applicant had denigrated Turkishness under Article 301 by his articles in the AGOS newspaper and that the investigations were terminated by decisions of the local public prosecutors not to prosecute (see paragraphs 14, 15 and 18 above).
73. The Court refers to its findings in the Dink case (cited above), where the first applicant was prosecuted following a criminal complaint lodged by an extremist group of individuals and convicted under Article 301 for his opinion on the Armenian issue, that is, for denigrating Turkishness. In the eyes of the public, particularly ultranationalist groups, Mr Dink’s prosecution and conviction was evidence that he was an individual who insulted all persons of Turkish origin. As a result of this perception or stigma attached to him Mr Dink was later murdered by an extreme nationalist (see Dink, cited above, § 107).
74. The Court notes that, as in the case of Mr Dink, the applicant has been the target of an intimidation campaign which presented him as a “traitor” and a “spy” to the public on account of his research and publications on the Armenian issue (see paragraphs 34-36 above). Following this campaign, the applicant received hate mails from a number of individuals who insulted and threatened him with death (see paragraph 41 above).
75. This being so, the Court considers that while the applicant was not prosecuted and convicted of the offence under Article 301, the criminal complaints filed against him by extremists for his views on the Armenian issue had turned into a harassment campaign and obliged him to answer charges under that provision. It can therefore be accepted that, even though the impugned provision has not yet been applied to the applicant’s detriment, the mere fact that in the future an investigation could potentially be brought against him has caused him stress, apprehension and fear of prosecution. This situation has also forced the applicant to modify his conduct by displaying self-restraint in his academic work in order not to risk prosecution under Article 301 (see, mutatis mutandis, Norris, cited above, § 31, and Bowman, cited above).
76. As regards the future risk of prosecution, the Government contended that the applicant was unlikely to suffer prejudice in the future because certain safeguards had been introduced by the amendment of Article 301 which had significantly reduced prosecutions under this provision. In this regard, they attached great importance to the fact that in order to commence prosecutions under Article 301 public prosecutors needed to obtain authorisation from the Ministry of Justice. With reference to statistical data, the Government pointed out that the large majority of these requests were refused by the Ministry of Justice, who applied the principles established in the Court’s jurisprudence in Article 10 cases (see paragraphs 27-29 above).
77. In the Court’s opinion, however, the measures adopted by the Government to prevent largely arbitrary or unjustified prosecutions under Article 301 do not seem to provide sufficient safeguards. It transpires from the statistical data provided by the Government that there are still significant number of investigations commenced by public prosecutors under Article 301 and that the Ministry of Justice grants authorisation in a large number of cases: according to the Government’s contention, between 8 May 2008 and 30 November 2009 the Ministry of Justice received 1,025 requests for authorisation to institute criminal proceedings under Article 301 and granted prior authorisation in 80 cases (approximately 8% of the total requests). The Court notes that the Government did not explain the subject matter or nature of the cases in which the Ministry of Justice granted authorisation. However, the statistical information provided by the applicant indicates that the percentage of prior authorisations granted by the Ministry of Justice is much higher and that these cases mainly concern the prosecution of journalists in freedom of expression cases (see paragraphs 30-33 above). Moreover, as noted by the Human Rights Commissioner of the Council of Europe, a system of prior authorisation by the Ministry of Justice in each individual case is not a lasting solution which can replace the integration of the relevant Convention standards into the Turkish legal system and practice, in order to prevent similar violations of the Convention (see paragraph 48 above).
78. In any event, the Court considers that even though the Ministry of Justice carries out a prior control in criminal investigations under Article 301 and the provision has not been applied in this particular type of case for a considerable time, it may be applied again in such cases at any time in the future, if for example there is a change of political will by the current Government or change of policy by a newly formed Government (see, mutatis mutandis, Norris, cited above, § 33). Accordingly, the applicant can be said to run the risk of being directly affected by the provision in question.
79. Moreover, the Court observes that the established case-law of the Court of Cassation must also be taken into consideration when assessing the risk of prosecutions under Article 301. In this connection, the Court reiterates its criticism in the Dink judgment in regard to the interpretation of Article 301, particularly the concepts of “Turkishness” or the “Turkish nation”, by the Court of Cassation (cited above, § 132). In that case the Court found that the Court of Cassation sanctioned any opinion criticising the official thesis on the Armenian issue. In particular, criticism of denial by State institutions of genocide claims in relation to the events of 1915 was interpreted as denigration or insulting “Turkishness” or the “Turkish nation” (ibid.).
80. Likewise, the Şişli Criminal Court’s conviction of the editor and owner of the AGOS newspaper of an offence under Article 301 of the Turkish Criminal Code for accusing the Turkish nation of genocide confirms the stance of the judiciary (see paragraph 13 above).
81. The Court further observes that thought and opinions on public matters are of a vulnerable nature. Therefore the very possibility of interference by the authorities or by private parties acting without proper control or even with the support of the authorities may impose a serious burden on the free formation of ideas and democratic debate and have a chilling effect.
82. In view of the foregoing, the Court concludes that the criminal investigation commenced against the applicant and the standpoint of the Turkish criminal courts on the Armenian issue in their application of Article 301 of the Criminal Code, as well as the public campaign against the applicant in respect of the investigation, confirm that there exists a considerable risk of prosecution faced by persons who express “unfavourable” opinions on this matter and indicates that the threat hanging over the applicant is real (see Dudgeon, cited above, § 41). In these circumstances, the Court considers that there has been an interference with the exercise of the applicant’s right to freedom of expression under Article 10 of the Convention.
83. For the above reasons, the Court dismisses the Government’s preliminary objection concerning the applicant’s alleged lack of victim status.
B. Whether the interference was prescribed by law
85. The applicant alleged that Article 301 of the Criminal Code did not provide sufficient clarity and failed to provide adequate protection against arbitrary interference.
86. The Government did not comment on this point since they considered that there had been no interference in the present case. However, they provided explanations regarding the concepts of “Turkishness” and the “Turkish nation”. They maintained that following the amendment of the text of Article 301 the concept of “Turkishness” had been replaced by that of the “Turkish nation”. Yet these concepts did not have any racial or ethnic connotations. They should instead be understood as referring to Turkish citizenship as defined by Article 66 of the Turkish Constitution.
87. The Court reiterates that the relevant national law must be formulated with sufficient precision to enable the persons concerned – if need be with appropriate legal advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see, among many other authorities, Grigoriades v. Greece, 25 November 1997, § 37, Reports 1997-VII). Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Whilst certainty is highly desirable, it may entail excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are a question of practice (see Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 49, Series A no. 30, and Flinkkilä and Others v. Finland, no. 25576/04, § 65, 6 April 2010).
88. The Court notes that in the above-mentioned Dink judgment, the question arose whether the legal norms implied by the term “Turkishness” were sufficiently accessible and foreseeable for the applicant. While the Court expressed some doubts on this question, it preferred not to examine it in the circumstances of that case (see Dink, cited above, § 116).
89. However, the Court considers that it is required to address this question in the present case. It notes that Article 301 of the Criminal Code – and Article 159 of the former Criminal Code – had been subjected to several amendments since the adoption of the first Turkish Criminal Code in 1926. It appears that the last amendment introduced to the text of the impugned provision came after a number of controversial cases and criminal investigations brought against well known figures in Turkish society, such as prominent writers and journalists like Elif Şafak, Orhan Pamuk and Hrant Dink, for their unfavourable opinions on sensitive issues (see paragraphs 25 and 26 above). Thus, abusive or arbitrary applications of this provision by the judiciary compelled the Government to revise it with a view to bringing it into line with the requirements of Article 10 of the Convention as interpreted by the Court.
90. To that end, three major changes were introduced to the text of Article 301. Firstly, the terms “Turkishness” and “Republic” were replaced by “Turkish Nation” and “State of the Republic of Turkey”. Secondly, the maximum length of imprisonment imposable on those found guilty was reduced and considerations of aggravating circumstances were excluded. Thirdly and lastly, an additional security clause was added to the text, which now provides that any investigation into an offence defined under that provision shall be subject to the permission of the Minister of Justice (see paragraphs 43 and 44 above). It is clear from this last amendment that the legislator’s aim was to prevent arbitrary prosecutions under this provision.
91. Be that as it may, the Court must ascertain whether the revised version is sufficiently clear to enable a person to regulate his/her conduct and to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Grigoriades, cited above, § 37).
92. In this connection, the Court notes that despite the replacement of the term “Turkishness” by “the Turkish Nation”, there seems to be no change or major difference in the interpretation of these concepts because they have been understood in the same manner by the Court of Cassation (see paragraph 45 above). Accordingly, the legislator’s amendment of the wording in the provision in order to clarify the meaning of the term “Turkishness” does not introduce a substantial change or contribute to the widening of the protection of the right to freedom of expression.
93. In the Court’s opinion, while the legislator’s aim of protecting and preserving values and State institutions from public denigration can be accepted to a certain extent, the scope of the terms under Article 301 of the Criminal Code, as interpreted by the judiciary, is too wide and vague and thus the provision constitutes a continuing threat to the exercise of the right to freedom of expression. In other words, the wording of the provision does not enable individuals to regulate their conduct or to foresee the consequences of their acts. As is clear from the number of investigations and prosecutions brought under this provision (see paragraphs 28-33 and 47 above), any opinion or idea that is regarded as offensive, shocking or disturbing can easily be the subject of a criminal investigation by public prosecutors.
94. As noted above, the safeguards put in place by the legislator to prevent the abusive application of Article 301 by the judiciary do not provide a reliable and continuous guarantee or remove the risk of being directly affected by the provision because any political change in time might affect the interpretative attitudes of the Ministry of Justice and open the way for arbitrary prosecutions (see paragraphs 75-77 above).
95. It follows therefore that Article 301 of the Criminal Code does not meet the “quality of law” required by the Court’s settled case-law, since its unacceptably broad terms result in a lack of foreseeability as to its effects (see Amann v. Switzerland [GC], no. 27798/95, § 50, ECHR 2000-II; and Vajnai v. Hungary, no. 33629/06, § 46,8 July 2008).
96. The foregoing considerations are sufficient to enable the Court to conclude that the interference in question was not prescribed by law.
There has accordingly been a violation of Article 10 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
97. Lastly, the applicant alleged a violation of Article 7 of the Convention in that Article 301 of the Criminal Code was so vague and broad that an individual could not discern from its wording which acts or omissions might result in criminal liability. He maintained, lastly, that the impugned provision also breached Article 14 of the Convention because of its highly discriminatory consequences.
98. In the light of all the material in its possession, the Court finds that the applicants’ submissions do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
99. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
100. The applicant claimed 11,200 euros (EUR) in respect of pecuniary damage and EUR 75,000 for non-pecuniary damage.
101. The Government invited the Court not to make any awards in respect of pecuniary damage on account of the applicant’s failure to submit any evidence in support of his claims. The Government also considered that the claim for non-pecuniary damage was excessive and therefore unacceptable.
102. The Court observes that the applicant has not submitted any evidence to enable the Court to assess and calculate the damage suffered by him; it therefore rejects this claim.
103. As regards the applicant’s claim for non-pecuniary damage, the Court considers that the finding of a violation constitutes sufficient just satisfaction in the circumstances of the present case.
104. As to the legal costs and expenses, in the absence of any quantified claim, the Court makes no award.
Read the ECHR ruling here.
An appellate New Jersey superior court has affirmed a grant of summary judgment to an author and publisher in the matter of Trump v. O'Brien. Donald Trump had argued that Timothy O'Brien's book TrumpNation: The Art of Being The Donald, and his publishers TimeWarner and Warner Books had defamed Mr. Trump. The lower court ruled that Mr. Trump, as a public figure could not demonstrate actual malice. The plaintiff asserted that he had so demonstrated and in addition, that Mr. O'Brien was an agent of the publishers. The appellate court agreed with the lower court. Below is an excerpt from the ruling.
A major focus of the parties' argument centers on O'Brien's anonymous sources. In that regard, Trump argues that the information supplied was false, that O'Brien deliberately disregarded contrary information, and that O'Brien's reliance on his sources demonstrates actual malice. We disagree.
The Supreme Court has held:
A finding of actual malice may not be based solely on the character of the published statement. ...Nor may it be based solely on the publisher's failure to seek independent verification of the information. ...The two in combination, however, may support a conclusion of recklessness. Public figure libel plaintiffs can recover fora defamatory falsehood whose substance makes substantial danger to reputation apparent, on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers. ...Thus, an inference of actual malice may arise when a false report is published solely in reliance on confidential sources if (1) the content of the report is such as to be defamatory as a matter of law, (2) the defendant knew or should have known of some reasonable means of verifying its accuracy, and (3) the failure to verify rises to the level of a gross violation of the standards of responsible journalism. If the recklessness approaches the level of publishing a knowing, calculated falsehood, the decision whether the defendant acted with reckless disregard for the truth should be submitted to the jury. ....
We do not find that standard to have been met in this case. O'Brien has certified that he re-interviewed his three confidential sources prior to publishing their net worth estimates, and he has produced notes of his meetings with them both in 2004 and in 2005. The notes are significant, in that they provide remarkably similar estimates of Trump's net worth, thereby suggesting the accuracy of the information conveyed. ...
Further, the accounts of the sources contain significant amounts of additional information that O'Brien was able to verify independently. In answers to interrogatories, he listed that information as:
(1) plaintiff's interest in the limited partnerships that owned the West Side Yards project, (2) plaintiff's negotiations with Hilton in the mid-1990s regarding the potential sale of plaintiff's casino company, (3) plaintiff's business dealings with Kenneth Shapiro and Daniel Sullivan; (4) negotiations regarding the restructuring of Trump Hotels and Casino Resorts, Inc. in 2004; (5) the sale of Fred Trump's [*18] real estate portfolio in Brooklyn in 2004; (6) plaintiff's interest in 40 Wall Street and the level of borrowings relating to that property; (7) plaintiff's interest in the CM Building and litigation surrounding that interest; (8) plaintiff's interest in Trump International Hotel and Tower on Columbus Circle in New York; (9) plaintiff's financial condition and the restructuring of plaintiff's outstanding debt during certain periods.
That the source has provided other reliable information is recognized as an indicator of reliability in criminal cases involving informants. ... It has also been recognized as significant in a defamation context to demonstrate the absence of actual malice. ...
In support of their argument that O'Brien's reliance on his confidential sources was proper, defendants cite Sprewell v. NYP Holdings, Inc., 43 A.D.3d 16, 841 N.Y.S.2d 7 (App. Div. 1st Dept. 2007). In that case, then New York Knicks player, Latrell Sprewell, claimed he was libeled by defendant, Marc Berman, a reporter for The New York Post, when he wrote an article, based in part on information provided by confidential sources, stating that Sprewell had broken his shooting hand in September 2002 by hitting a wall on his boat during an altercation but did not promptly report the injury to the team. Berman noted that Sprewell denied that he broke his hand in the manner Berman claimed. ...
In determining that summary judgment should have been granted by the trial court, even assuming that Berman's statements as to how Sprewell injured his hand were false, the appeals court noted that the information in Berman's articles was not reported as uncontrovertible fact, but rather, the author disclosed that the articles were based on the reports of two confidential informants and that the information was denied by Sprewell. ... The court also noted that the record had demonstrated that Berman subjectively believed the information, and that a partial description of the interior of Sprewell's boat provided additional evidence of reliability. Ibid.
Defendants argue that the facts of the present matter are akin to Sprewell and likewise support summary judgment in their favor. We conclude that defendants' position has merit. In this regard, we note that, contrary to Trump's position, O'Brien does not adopt the low estimates of net worth set forth by his anonymous sources. In his deposition, O'Brien testified: "I had good reason to believe [the sources] felt the numbers were accurate, and I had very, very good reason to believe that they were." However, in the book, O'Brien did not cite the sources' views as fact, but instead utilized their lower figures as an illustration of the spread in estimates of Trump's wealth, while suggesting that, in his own view, Trump's net worth was far less than he claimed it to be. O'Brien's opinions in this regard were not actionable, because they were absolutely privileged.
Further, as in Sprewell, O'Brien reported Trump's denial of the accuracy of the low net worth figures, although his statement, touting his abilities as a builder, can be construed as less of a denial than an avoidance of the issue presented. Even if that denial had been absolute, which it certainly was not, publication of a statement in the face of denial, however vehement, does not constitute actual malice.
Additionally, as we have previously stated, O'Brien confirmed much of the information provided by the confidential sources, and, like the reporter in Sprewell, he sought to confirm the net worth numbers. In this regard, we note that in claiming that overwhelming evidence established the scale of Trump's wealth, Trump relied in large measure on a 2004 Statement of Financial Condition prepared by Weiser L.L.P., Certified Public Accountants, to which O'Brien was allegedly given access on three occasions including during the course of the April 21, 2005 meeting.
However, a preface to that Statement demonstrates its limited value as an accurate representation of Trump's net worth. There, the accountants cautioned that they had "not audited or reviewed the accompanying statement of financial condition and, accordingly, do not express an opinion or any other form of assurance on it." Further, the accountants noted significant departures from generally accepted accounting principles, and stated "[t]he effects of the departures from generally accepted accounting principles as described above have not been determined." Among the issues they found to exist was the fact that estimates of amounts to be received in the future did not reflect rights that were non-forfeitable, fixed and determinable and not dependent on future services. The values of Trump's closely held businesses were not expressed in terms of assets net of liabilities, and the ownership percentages of each closely held business held by Trump was not disclosed. Additionally, the tax consequences on Trump's holdings were not set forth. As a result, the accountants concluded:
Because the significance and pervasiveness of the matters discussed above make it difficult to assess their impact on the statement of financial condition, users of this financial statement should recognize that they might reach different conclusions about the financial condition of Donald J. Trump if they had access to a revised statement of financial condition prepared in conformity with generally accepted accounting principles.
Gerald Rosenblum, an accountant who participated in compiling the 2004 Statement of Financial Condition, was asked in his deposition whether he was aware of all liabilities of Trump and his related entities. He responded: "I asked the client to provide me with a list of liabilities as they existed at June 30th, 2005. The client presented me with a list, in essence. I'm not certain to this day that I was aware of all of Mr. Trump's liabilities at that point in time, and I sought no corroboration."
While O'Brien may have had "unprecedented" access to evidence of Trump's financial position, nothing in the record suggests that such access was sufficient to permit an accurate estimate of his net worth. Further, it is indisputable that Trump's estimates of his own worth changed substantially over time and thus failed to provide a reliable measure against which the accuracy of the information offered by the three confidential sources could be gauged. The following exchange from Trump's deposition is illustrative of this point:
Q Now, Mr. Trump, have you always been completely truthful in your public statements about your net worth of properties?
A I try.
Q Have you ever not been truthful?
A My net worth fluctuates, and it goes up and down with markets and with attitudes and with feelings, even my own feelings, but I try.
Q Let me just understand that a little bit. Let's talk about net worth for a second. You said that the net worth goes up and down based upon your own feelings?
A Yes, even my own feelings, as to where the world is, where the world is going, and that can change rapidly from day to day. Then you have a September 11th, and you don't feel so good about yourself and you don't feel so good about the world and you don't feel so good about New York City. Then you have a year later, and the city is as hot as a pistol. Even months after that it was a different feeling.
So yeah, even my own feelings affect my value to myself.
. . . .
Q When you publicly state what you're worth, what do you base that number on?
. . . .
A I would say it's my general attitude at the time that the question may be asked. And as I say, it varies.
Further, as defendants note in their brief, other sources recognized the difficulty of estimating Trump's net worth and the wide spread of plausible values. Defendants quote a September 9, 2004 article in The Washington Post, which stated:
Actually, it's hard to know exactly what percent of Trump's net worth is tied to the casino business, because most of Trump's portfolio is in privately held companies that don't report earnings. He's described himself as "a billionaire many times over," but who knows? There are skeptics out there who believe Trump has $300 million, tops. And the guy has a reputation for, let's say, shading the news in a light that reflects his enthusiasms.
An April 12, 2004 article, published in Time magazine stated:
How rich is the Donald? To interviewers, he hints that his wealth is somewhere between $2 billion and $6 billion. Rival developers estimate it's nowhere near even the lower figure.
The article continued by reporting on his successful redevelopment of a building at 40 Wall Street, but then balanced it with a report of his casinos "[s]wamped with debt" and the statement that "Trump has become more front man than hands-on developer."
An older Fortune article, published on April 3, 2000, noted that
Trump delights in the sort of elaborate shell games and impenetrably complex deals that frustrate the most conscientious efforts to assess a person's true worth. "It's always good to do things nice and complicated," he once told an interviewer, "so that nobody can figure it out."
That difficulty is compounded by Trump's astonishing ability to prevaricate. . . . [W]hen Trump says he owns 10% of the Plaza Hotel, understand that what he actually means is that he has the right to 10% of the profit if it's ever sold. When he says he's building a "90-story building" next to the U.N., he means a 72-story building that has extra-high ceilings.
And, finally, defendants point to a January 19, 2000 article in The Wall Street Journal that noted Trump's boasts of his success but then stated:
But a look at the major sources of his wealth, including the Trump Place apartment development on New York City's west side, the 70-story Trump World Tower project and the midtown General Motors Building, shows that several of his billions are based on profits that are far in the future — and far from guaranteed.
In summary, we find no evidence to support Trump's conclusion that the confidential sources utilized by O'Brien were fictitious. ...Further we find no evidence to suggest that O'Brien's reliance on the confidential sources suggested actual malice on O'Brien's part under the standards established by Maressa, supra, 89 N.J. at 199-200, 445 A.2d 376, and Sprewell, supra, 841 N.Y.S.2d at 11. We find no basis for Trump's argument that O'Brien had "obvious reasons to doubt the veracity of [his] informants or the accuracy of [their] reports."... There were no significant internal inconsistencies in the information provided by the confidential sources, nor was there "reliable" information that contradicted their reports, so as to provide evidence of actual malice. ... Nothing suggests that O'Brien was subjectively aware of the falsity of his source's figures or that he had actual doubts as to the information's accuracy. ...
Thursday, October 27, 2011
David S. Han, New York University School of Law, is publishing Autobiographical Lies and the First Amendment's Protection of Self-Defining Speech in volume 87 of the New York University Law Review (2012). Here is the abstract.
This article explores, through the lens of speech I refer to as “autobiographical lies,” the extent to which the First Amendment protects one’s ability to craft one’s public persona. Thus far, courts and commentators have generally neglected to address the degree to which this particular autonomy-based value - the interest in individual self-definition - carries distinct weight under the First Amendment. This is unsurprising, since it is rare that an issue arises directly implicating this interest in a manner that isolates it from more traditional free speech principles.
Recently, however, litigation has arisen surrounding the constitutionality of the Stolen Valor Act, a federal statute that criminalizes lying about having received military honors. The Act’s regulation of a particular subset of speech - knowing, factual falsehoods about oneself - uniquely crystallizes the question of whether, and to what extent, the self-definition interest merits protection under the First Amendment. By and large, there is no strong reason rooted in traditional First Amendment interests to protect these sorts of autobiographical lies. But if the self-definition interest has any meaningful constitutional force, then circumstances would surely exist under which such speech merits First Amendment protection, since freely choosing what to tell others about oneself - whether truth, half-truth, or falsehood - is a vital means of controlling how one defines oneself to the world.
After reviewing the Stolen Valor Act litigation (which has thus far divided the courts), this article outlines the doctrinal origins and basic characteristics of the self-definition interest. I argue that if one takes seriously the Supreme Court’s repeated assertions that the First Amendment is designed, at least in part, to preserve individual autonomy, then courts should accord at least some distinct constitutional weight to this interest. I then explore some of the practical implications of recognizing a constitutionally protected self-definition interest and apply these observations to the Stolen Valor Act, concluding that the Act, as currently constituted, should be deemed unconstitutional. Finally, I observe that a constitutionally protected right to define one’s public persona via one’s speech fits comfortably within the Constitution’s general protection of interests deemed essential to individual “personhood.”
Download the article from SSRN at the link.
Wednesday, October 26, 2011
The UK Advertising Standards Authority has upheld a complaint against the supermarket chain Morrisons, which mounted an ad campaign featuring as a prize a trip to Disneyland Paris. The campaign showed children "pestering" their parents to take them to Morrisons where they could get trading cards that might include the winning holiday prize. Parents complained that the campaign aired during times when children were watching television; Morrisons countered that the commercials aired generally during adult viewing times.
The ASA ruled
the ad appeared on several children’s television channels and would therefore have been seen by children. We also noted that the ad featured children and offered collectable Disney cards, as well as the chance to win a holiday to Disneyland Paris. We considered these to be factors which would hold a strong appeal amongst children. We noted that in each family scenario, the children were offered a trip to Morrisons in an attempt cheer them up and that in each instance the children’s mood was shown to improve at the prospect of visiting Morrisons. We also noted that in the supermarket scene, the child was shown to hurriedly take the cards from an adult in excitement and eagerly open the packet. We noted that upon discovering a winning card the child’s face was illuminated in gold and the child was shown to be overjoyed at having won. We also noted that the final scene featured a child waking up an adult early in the morning to go to Morrisons. In that context, we considered that the ad depicted the opportunity to collect Disney cards and to win a trip to Disneyland Paris as something that would be highly desirable to children.
We were therefore concerned that the ad could encourage children to ask their parents or guardians to visit Morrisons in order to obtain the Disney cards and the chance to win a holiday to Disneyland Paris. On that basis, we concluded that the ad breached the Code.
Read the entire ruling here.
Tuesday, October 25, 2011
Brad A. Greenberg, University of California, Los Angeles, School of Law, has published More Than Just a Formality: Instant Authorship and Copyright's Opt-Out Future in the Digital Age in volume 59 of the UCLA Law Review (2012). Here is the abstract.
The Digital Age has forever changed the role of copyright in promoting the progress of science and the arts. The Era of Instant Authorship has indeed provided copyright to countless authors unmotivated by copyright incentives, but it has also made it impracticable for copyright to return to a system requiring author adherence to formalities such as notice and registration. Though many intellectual property scholars today argue for “reformalizing” copyright, they fail to fully consider the consequences of shifting from the current opt-out copyright system to an opt-in regime.
This Comment fills that gap by exploring how an opt-in regime would work in a world with countless authors. It ultimately argues that returning to an opt-in copyright system via formalities would actually disincentivize authors who are presently motivated by copyright. Finally, this Comment then concludes with a discussion of why an opt-out system that automatically grants authors rights is supported by the different theories of the U.S. Constitution’s Copyright Clause.
Download the Comment from SSRN at the link.
Monday, October 24, 2011
Anthony E. Mauro, American Lawyer Media, has published Let the Cameras Roll: Cameras in the Court and the Myth of Supreme Court Exceptionalism at 1 Reynolds Courts & Media Law Journal 259 (2011). Here is the abstract.
Unlike almost every other public institution in the United States, the Supreme Court of the United States has never allowed the broadcast news media to bring the tools of their trade – cameras and microphones – into its courtroom for coverage of its proceedings. That defiant stance is born of fear of change, nostalgia, a self-interested desire for anonymity, but most of all exceptionalism: the Court’s view of itself as a unique institution that can and should resist the demands of the information age.
This article reviews the history of the long and unsuccessful effort to change the Court’s mind, and to examine whether the Court’s exceptionalist self-image or the other reasons it offers for its resistance to cameras can or should stand in the way of the demands of the modern era of access and transparency.
If the three-year experiment with cameras in civil proceedings at the federal district court level shows positive results, the Supreme Court may finally realize that the time has arrived to allow cameras in.
Download the article from SSRN at the link.
Hans Jarle Kind and Gurrorm Schjelderup, Norwegian School of Economics and Business Administration, and Frank Staehler, University of Tuebingen, Department of Economics, have published Newspaper Differentiation and Investments in Journalism: The Role of Tax Policy as NHH Department of Economics Discussion Paper No. 16/2011. Here is the abstract.
Many countries levy reduced-rate indirect taxes on newspapers, with proclaimed policy goals of stimulating investment in journalism and ensuring low newspaper prices. However, by taking into account the fact that the media industry operates in two-sided markets, we find the paradoxical result that the consequences of a low-tax regime might be quite the opposite; low investments and high prices. We also show that the low-tax regime tends to increase newspaper differentiation. If the advertising market is relatively small, the newspapers might invest too little in journalism and be too differentiated from a social point of view. In this case a tax increase will be welfare-enhancing.
Download the paper from SSRN at the link.
Friday, October 21, 2011
Supreme Court of Canada Holds That Publication of Hyperlink To Defamatory Material Is Not Itself Defamatory
The Supreme Court of Canada has held that publication of a hyperlink to defamatory material that appears on another website is not actionable as defamation. The case is Crookes v. Newton. From the opinion:
In the common law of defamation, publication has two components: (1) an act that makes the defamatory information available to a third party in a comprehensible form, and (2) the receipt of the information by a third party in such a way that it is understood.
In the context of Internet hyperlinks, a simple reference, absent evidence that someone actually viewed and understood the defamatory information to which it directs third parties, is not publication of that content. In order to satisfy the requirements of the first component of publication, the plaintiff must establish, on a balance or probabilities, that the hyperlinker performed a deliberate act that made defamatory information readily available to a third party in a comprehensible form. An act is deliberate if the defendant played more than a passive instrumental role in making the information available. In determining whether hyperlinked information is readily available, a court should consider a number of factors, including whether the hyperlink is user-activated or automatic, whether it is a shallow or a deep link, and whether the linked information is available to the general public (as opposed to being restricted). Any matter that has a bearing on the ease with which the referenced information could be accessed will be relevant to the inquiry.
For an action in defamation to succeed, the plaintiff must also satisfy the requirements of the second component of publication on a balance of probabilities, namely that a third party received and understood the defamatory information. This requirement can be satisfied either by adducing direct evidence or by asking the court to draw an inference based on, notably, whether the link was user-activated or automatic; whether it was a deep or a shallow link; whether the page contained more than one hyperlink and, if so, where the impugned link was located in relation to others; the context in which the link was presented to users; the number of hits on the page containing the hyperlink; the number of hits on the page containing the linked information (both before and after the page containing the link was posted); whether access to the Web sites in question was general or restricted; whether changes were made to the linked information and, if so, how they correlate with the number of hits on the page containing that information; and evidence concerning the behaviour of Internet users. Once the plaintiff establishes prima facie liability for defamation, the defendant can invoke any available defences.
Here, N acted as more than a mere conduit in making the hyperlinked information available. His action was deliberate. However, having regard to the totality of the circumstances, it cannot be inferred that the first, shallow hyperlink made the defamatory content readily available. The various articles were not placed on N’s site’s home page and they had separate addresses. The fact that the reader had to take further action in order to find the defamatory material constituted a meaningful barrier to the receipt, by a third party, of the linked information. The second, deep hyperlink, however, did make the content readily available. All the reader had to do to gain access to the article was to click on the link, which does not constitute a barrier to the availability of the material. Thus, C has satisfied the requirements of the first component of publication on a balance of probabilities where this link is concerned. However, the nature of N’s article, the way the various links were presented and the number of hits on the article do not support an inference that the allegedly defamatory information was brought to the knowledge of some third person. The defamation action with respect to either of the impugned hyperlinks cannot succeed.
 To prove the publication element of defamation, a plaintiff must establish that the defendant has, by any act, conveyed defamatory meaning to a single third party who has received it (McNichol v. Grandy,  S.C.R. 696, at p. 699). Traditionally, the form the defendant’s act takes and the manner in which it assists in causing the defamatory content to reach the third party are irrelevant:
There are no limitations on the manner in which defamatory matter may be published. Any act which has the effect of transferring the defamatory information to a third person constitutes a publication. [Footnotes omitted.]
(Stanley v. Shaw, 231 B.C.A.C. 186, 2006 BCCA 467, at para. 5, citing Raymond E. Brown, The Law of Defamation in Canada (2nd ed. (loose-leaf)), at para. 7.3)
See also Hiltz and Seamone Co. v. Nova Scotia (Attorney General) (1997), 164 N.S.R. (2d) 161 (S.C.), at para. 21, aff’d in part (1999), 173 N.S.R. (2d) 341 (C.A.); Grant, at para. 119; “Truth” (N.Z.) Ltd. v. Holloway,  1 W.L.R. 997 (P.C.); Lambert v. Thomson,  O.R. 341 (C.A.),per Rowell C.J.O.; see also Pullman v. Walter Hill & Co.,  1 Q.B. 524, at p. 527, per Lord Esher M.R.
 Mr. Crookes argues that, under this definition, a person who includes a hyperlink on a webpage has “published” any defamatory remarks to which the hyperlink leads, because that person has done an act which “has the effect of transferring the defamatory information” to any third person who clicks on the link.
 Under this sole disseminator/sole reader paradigm, the breadth of activity captured by the traditional publication rule is vast. In R. v. Clerk (1728), 1 Barn. K.B. 304, 94 E.R. 207, for example, a printer’s servant, whose only role in an act of publication was to “clap down” the printing press, was found responsible for the libels contained in that publication, despite the fact that he was not aware of the contents (p. 207). In Hird v. Wood (1894), 38 S.J. 234 (C.A.), pointing at a sign displaying defamatory words was held to be evidence of publication. Other cases have also held that acts merely facilitating communication can amount to publication: see, e.g., Buchanan v. Jennings,  UKPC 36,  1 A.C. 115; Polson v. Davis, 635 F.Supp. 1130 (D. Kan. 1986), aff’d 895 F.2d 705 (10th Cir. 1990); Crain v. Lightner, 364 S.E.2d 778 (W. Va. 1987), at p. 785; and Spike v. Golding(1895), 27 N.S.R. 370 (C.A.). And in McNichol v. Grandy, the defendant was found to be liable when he raised his voice and made defamatory statements that were overheard by someone in another room.
 The publication rule has also captured the following range of conduct:
[The defamatory meaning] may be communicated directly by the defendant either orally, or in some written or printed form, or by way of a symbolic ceremony, dramatic pantomime, mime, brochure, gesture, handbill, letter, photograph, placard, poster, sign, or cartoon. It may be inscribed on a blackboard, posted on a mirror or a telephone pole, or placed on the wall of a building or the gable wall of the defendant’s property, or on the front of a cheque, or entered in a database, or accessed on or downloaded from a website on the internet. It may appear on an ariel banner flown behind an airplane, or someone’s attention may be drawn by the defendant to a poster, or a defamatory writing already in circulation. A third party may be given access to defamatory material, or defamatory matter may be left in a place where others can see it, or the defendant may request others to go to a place where the defamatory information is available to see and read it, or it may be set into motion as a result of the defendant’s death. In each case there is publication.
(Brown, at para. 7.3)
 Defendants obtained some relief from the rule’s significant breadth with the development of the “innocent dissemination” defence, which protects “those who play a secondary role in the distribution system, such as news agents, booksellers, and libraries”: Allen M. Linden and Bruce Feldthusen,Canadian Tort Law (8th ed. 2006), at pp. 783-84; see also Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45,  2 S.C.R. 427 (“SOCAN”), at para. 89; Philip H. Osborne, The Law of Torts (4th ed. 2011), at p. 411. Such “subordinate distributors” may escape liability by showing that they “have no actual knowledge of an alleged libel, are aware of no circumstances to put them on notice to suspect a libel, and committed no negligence in failing to find out about the libel” (SOCAN, at para. 89; Vizetelly v. Mudie’s Select Library Ltd.,  2 Q.B. 170 (C.A.), at p. 180; Brown, at para. 7.12(6)(c); and also Sun Life Assurance Co. of Canada v. W. H. Smith & Son Ltd.,  All E.R. Rep. 432, at pp. 434 and 436).
 Recently, jurisprudence has emerged suggesting that some acts are so passive that they should not be held to be publication. In Bunt v. Tilley,  EWHC 407, 3 All E.R. 336 (Q.B.), considering the potential liability of an Internet service provider, the court held that in order to hold someone liable as a publisher, “[i]t is not enough that a person merely plays a passive instrumental role in the process”; there must be “knowing involvement in the process of publication of the relevant words” (para. 23 (emphasis in original); see also Metropolitan International Schools Ltd. v. Designtechnica Corp.,  EWHC 1765 (Q.B.)).
 Acknowledging these developments, the question on this appeal is whether a simple reference — like a hyperlink — to defamatory information is the type of act that can constitute publication. Some helpful guidance on this point is available in two American cases. In Klein v. Biben, 296 N.Y. 638 (1946), the New York Court of Appeals decided that a statement saying “For more details about [the plaintiff], see the Washington News Letter in The American Hebrew, May 12, 1944” was not a republication of the May 12 libel.
 And in MacFadden v. Anthony, 117 N.Y.S.2d 520 (Sup. Ct. 1952), a complaint of defamation was dismissed in a case where a radio host “called attention to [an allegedly defamatory] article in Collier’s Magazine” (p. 521). Relying on Klein, the court concluded that referring to the article was neither a republication nor a publication of the libel.
 These cases were relied on in Carter v. B.C. Federation of Foster Parents Assn., 2005 BCCA 398, 42 B.C.L.R. (4th) 1, where the plaintiff alleged that, by mentioning the Internet address of an online discussion forum, the publisher of a newsletter was responsible for republishing defamatory comments published on that site. Relying on MacFadden and Klein for the proposition that “reference to an article containing defamatory comment without repetition of the comment itself should not be found to be a republication of such defamatory comment” (at para. 12), Hall J.A. held that there was no publication.
 I agree with this approach. It avoids a formalistic application of the traditional publication rule and recognizes the importance of the communicative and expressive function in referring to other sources. Applying such a rule to hyperlinks, as the reasons of Justice Deschamps demonstrate, has the effect of creating a presumption of liability for all hyperlinkers, an untenable situation in my view.
 A reference to other content is fundamentally different from other acts involved in publication. Referencing on its own does not involve exerting control over the content. Communicating something is very different from merely communicating that something exists or where it exists. The former involves dissemination of the content, and suggests control over both the content and whether the content will reach an audience at all, while the latter does not. Even where the goal of the person referring to a defamatory publication is to expand that publication’s audience, his or her participation is merely ancillary to that of the initial publisher: with or without the reference, the allegedly defamatory information has already been made available to the public by the initial publisher or publishers’ acts. These features of references distinguish them from acts in the publication process like creating or posting the defamatory publication, and from repetition.
 Hyperlinks are, in essence, references. By clicking on the link, readers are directed to other sources. Hyperlinks may be inserted with or without the knowledge of the operator of the site containing the secondary article. Because the content of the secondary article is often produced by someone other than the person who inserted the hyperlink in the primary article, the content on the other end of the link can be changed at any time by whoever controls the secondary page. Although the primary author controls whether there is a hyperlink and what article that word or phrase is linked to, inserting a hyperlink gives the primary author no control over the content in the secondary article to which he or she has linked. (See David Lindsay, Liability for the Publication of Defamatory Material via the Internet, Research Paper No. 10, University of Melbourne Centre for Media, Communications and Information Technology Law (2000), at pp. 14 and 78; M. Collins, The Law of Defamation and the Internet, at paras. 5.42 and 2.42 to 2.43.)
 These features — that a person who refers to other content generally does not participate in its creation or development — serve to insulate from liability those involved in Internet communications in the United States: see Communications Decency Act, 47 U.S.C. § 230 (1996); see also Jack M. Balkin, “The Future of Free Expression in a Digital Age” (2009), 36 Pepp. L. Rev. 427, at pp. 433-34; Zeran v. America Online Inc., 129 F.3d 327 (4th Cir. 1997); Barrett v. Rosenthal, 40 Cal.4th 33 (Cal. 2006); Fair Housing Council of San Fernando Valley v. Roommates.Com LLC, 521 F.3d 1157 (9th Cir. 2008).
 Although the person selecting the content to which he or she wants to link might facilitate the transfer of information (a traditional hallmark of publication), it is equally clear that when a person follows a link they are leaving one source and moving to another. In my view, then, it is the actual creator or poster of the defamatory words in the secondary material who is publishing the libel when a person follows a hyperlink to that content. The ease with which the referenced content can be accessed does not change the fact that, by hyperlinking, an individual is referring the reader to other content . (See Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34,  2 S.C.R. 801, at paras. 97-102.)
 Hyperlinks thus share the same relationship with the content to which they refer as do references. Both communicate that something exists, but do not, by themselves, communicate its content. And they both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content neutral — it expresses no opinion, nor does it have any control over, the content to which it refers.
 This interpretation of the publication rule better accords with our Court’s recent jurisprudence on defamation law. This Court has recognized that what is at stake in an action for defamation is not only an individual’s interest in protecting his or her reputation, but also the public’s interest in protecting freedom of expression: Hill v. Church of Scientology of Toronto,  2 S.C.R. 1130.
 Pre-Charter approaches to defamation law in Canada largely leaned towards protecting reputation. That began to change when the Court modified the “honest belief” element to the fair comment defence in WIC Radio Ltd. v. Simpson, 2008 SCC 40,  2 S.C.R. 420, and when, in Grant, the Court developed a defence of responsible communication on matters of public interest. These cases recognize the importance of achieving a proper balance between protecting an individual’s reputation and the foundational role of freedom of expression in the development of democratic institutions and values (Grant, at para. 1; Hill, at para. 101).
 Interpreting the publication rule to exclude mere references not only accords with a more sophisticated appreciation of Charter values, but also with the dramatic transformation in the technology of communications. See June Ross, “The Common Law of Defamation Fails to Enter the Age of theCharter” (1996), 35 Alta. L. Rev. 117; see also Jeremy Streeter, “The ‘Deception Exception’: A New Approach to Section 2(b) Values and Its Impact on Defamation Law” (2003), 61 U.T. Fac. L. Rev. 79; Denis W. Boivin, “Accommodating Freedom of Expression and Reputation in the Common Law of Defamation” (1996-1997), 22 Queen’s L.J. 229; Lewis N. Klar, Tort Law (4th ed. 2008), at pp. 746-47; Robert Danay, “The Medium is not the Message: Reconciling Reputation and Free Expression in Cases of Internet Defamation” (2010), 56 McGill L.J. 1; the Hon. Frank Iacobucci, “Recent Developments Concerning Freedom of Speech and Privacy in the Context of Global Communications Technology” (1999), 48 U.N.B.L.J. 189; and Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), at p. 870.
 The Internet’s capacity to disseminate information has been described by this Court as “one of the great innovations of the information age” whose “use should be facilitated rather than discouraged” (SOCAN, at para. 40, per Binnie J.). Hyperlinks, in particular, are an indispensable part of its operation. As Matthew Collins explains, at para. 5.42:
Hyperlinks are the synapses connecting different parts of the world wide web. Without hyperlinks, the web would be like a library without a catalogue: full of information, but with no sure means of finding it.
(See also Lindsay, at pp. 78-79; Mark Sableman, “Link Law Revisited: Internet Linking Law at Five Years” (2001), 16 Berkeley Tech. L.J. 1273, at p. 1276.)
 The centrality of the role of hyperlinks in facilitating access to information on the Internet was also compellingly explained by Anjali Dalal in “Protecting Hyperlinks and Preserving First Amendment Values on the Internet” (2011), 13 U. Pa. J. Const. L. 1017:
Hyperlinks have long been understood to be critical to communication because they facilitate access to information. They provide visitors on one website a way to navigate to internally referenced words, phrases, arguments, and ideas. Under this view, if the Internet is an endless expanse of information where “any person . . . . can become a pamphleteer” then “[h]yperlinks are the paths among websites, creating the bustling street corners for distribution of those pamphlets and inviting passersby to engage more deeply with the issues raised.”
. . .While the concerns motivating cases brought against hyperlinks are often legitimate, limiting the use of links poses a significant danger to communication and future innovation. [Citations omitted; pp. 1019 and 1022.]
 The Internet cannot, in short, provide access to information without hyperlinks. Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression. The potential “chill” in how the Internet functions could be devastating, since primary article authors would unlikely want to risk liability for linking to another article over whose changeable content they have no control. Given the core significance of the role of hyperlinking to the Internet, we risk impairing its whole functioning. Strict application of the publication rule in these circumstances would be like trying to fit a square archaic peg into the hexagonal hole of modernity.
 I do not for a moment wish to minimize the potentially harmful impacts of defamatory speech on the Internet. Nor do I resile from asserting that individuals’ reputations are entitled to vigorous protection from defamatory comments. It is clear that “the right to free expression does not confer a licence to ruin reputations” (Grant, at para. 58). Because the Internet is a powerful medium for all kinds of expression, it is also a potentially powerful vehicle for expression that is defamatory. In Barrick Gold Corp. v. Lopehandia (2004), 71 O.R. (3d) 416 (C.A.), at para. 32, Blair J.A. recognized the Internet’s “tremendous power” to harm reputation, citing with approval the following excerpt from Lyrissa Barnett Lidsky “Silencing John Dow: Defamation & Discourse in Cyberspace” (2000), 49 Duke L.J. 855, at pp. 863-64:
Although Internet communications may have the ephemeral qualities of gossip with regard to accuracy, they are communicated through a medium more pervasive than print, and for this reason they have tremendous power to harm reputation. Once a message enters cyberspace, millions of people worldwide can gain access to it. Even if the message is posted in a discussion forum frequented by only a handful of people, any one of them can republish the message by printing it or, as is more likely, by forwarding it instantly to a different discussion forum. And if the message is sufficiently provocative, it may be republished again and again. The extraordinary capacity of the Internet to replicate almost endlessly any defamatory message lends credence to the notion that “the truth rarely catches up with a lie.” The problem for libel law, then, is how to protect reputation without squelching the potential of the Internet as a medium of public discourse. [Blair J.A.’s emphasis removed.]
 New activities on the Internet and the greater potential for anonymity amplify even further the ease with which a reputation can be harmed online:
The rapid expansion of the Internet coupled with the surging popularity of social networking services like Facebook and Twitter has created a situation where everyone is a potential publisher, including those unfamiliar with defamation law. A reputation can be destroyed in the click of a mouse, an anonymous email or an ill-timed Tweet.
(Bryan G. Baynham, Q.C., and Daniel J. Reid, “The Modern-Day Soapbox: Defamation in the Age of the Internet”, in Defamation Law: Materials prepared for the Continuing Legal Education seminar, Defamation law 2010 (2010))
 But I am not persuaded that exposing mere hyperlinks to the traditional publication rule ultimately protects reputation. A publication is defamatory if it both refers to the plaintiff, and conveys a defamatory meaning: Grant, at para. 28. These inquiries depend, respectively, on whether the words used or “the circumstances attending the publication are such as would lead reasonable persons to understand that it was the plaintiff to whom the defendant referred” (Brown, at para. 6.1), and whether the words would “tend to lower a person in the estimation of right-thinking members of society” (Botiuk v. Toronto Free Press Publications Ltd., at para. 62). Defamatory meaning in the words may be discerned from “all the circumstances of the case, including any reasonable implications the words may bear, the context in which the words are used, the audience to whom they were published and the manner in which they were presented” (Botiuk, at para. 62, citing Brown (2nd ed. 1994), at p.1-15). (See Brown, at paras. 5.2, 5.4(1)(a) and 6.1; Knupffer v. London Express Newspaper, Ltd.,  A.C. 116 (H. L.); Butler v. Southam Inc., 2001 NSCA 121, 197 N.S.R. (2d) 97; Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9,  1 S.C.R. 214, at paras. 63 and 112; Botiuk, at para. 62.)
 Where a defendant uses a reference in a manner that in itself conveys defamatory meaning about the plaintiff, the plaintiff’s ability to vindicate his or her reputation depends on having access to a remedy against that defendant. In this way, individuals may attract liability for hyperlinking if the manner in which they have referred to content conveys defamatory meaning; not because they have created a reference, but because, understood in context, they have actually expressed something defamatory (Collins, at paras. 7.06 to 7.08 and 8.20 to 8.21). This might be found to occur, for example, where a person places a reference in a text that repeats defamatory content from a secondary source (Carter, at para. 12).
 Preventing plaintiffs from suing those who have merely referred their readers to other sources that may contain defamatory content and not expressed defamatory meaning about the plaintiffs will not leave them unable to vindicate their reputations. As previously noted, when a hyperlinker creates a link, he or she gains no control over the content linked to. If a plaintiff wishes to prevent further publications of the defamatory content, his or her most effective remedy lies with the person who actually created and controls the content.
 Making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content. Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be “published” by the hyperlinker. Such an approach promotes expression and respects the realities of the Internet, while creating little or no limitations to a plaintiff’s ability to vindicate his or her reputation. While a mere reference to another source should not fall under the wide breadth of the traditional publication rule, the rule itself and the limits of the one writer/any act/one reader paradigm may deserve further scrutiny in the future.
 I am aware that distinctions can be drawn between hyperlinks, such as the deep and shallow hyperlinks at issue in this case, and links that automatically display other content. The reality of the Internet means that we are dealing with the inherent and inexorable fluidity of evolving technologies. As a result, it strikes me as unwise in these reasons to attempt to anticipate, let alone comprehensively address, the legal implications of the varieties of links that are or may become available. Embedded or automatic links, for example, may well prove to be of consequence in future cases, but these differences were not argued in this case or addressed in the courts below, and therefore need not be addressed here.
Thursday, October 20, 2011
Two Swedish journalists are on trial in Ethiopia, charged with terrorism. They do admit to entering the country illegally but not to the terrorist acts. They had entered the country with some members of an opposition group, the Ogaden National Liberation Front (ONLF). More here from the Guardian.
Amazon, which owns IMDB, the internet movie website, is facing a lawsuit from an anonymous plaintiff who alleges it invaded her privacy by publishing her age in the "IMBD Pro" section of its database. The actress says website personnel obtained the information as a result of the credit card transaction flowing from her purchase of the IMDB Pro service. She alleges that publication of her real age has resulted in a loss of employment offers, since she actually looks substantially younger than her chronological age. IMDB Pro says it obtained her actual age from her agent. More here from the San Francisco Chronicle online, here from FindLaw.
Wednesday, October 19, 2011
Los Angeles police detective Sal LaBarbera is popular on Twitter (he has 3500 followers) for his enthusiastic sharing of life on the mean streets via his tweets, but some say he has crossed the line with a recent posting of a photograph of a crime scene. The picture of a murder victim has shocked some, and led to a discussion of how law enforcement interact with the public on social media websites. More here from the Washington Post, here from LA Weekly, here from the Daily Mail.
Michael Gervais, Yale Law School, has published Cyber Attacks and the Laws of War. Here is the abstract.
In the past few decades, cyber attacks have evolved from boastful hacking to sophisticated cyber assaults that are integrated into the modern military machine. As the tools of cyber attacks become more accessible and dangerous, it’s necessary for state and non-state cyber attackers to understand what limitations they face under international law.
This paper confronts the major law-of-war issues faced by scholars and policymakers in the realm of cyber attacks, and explores how the key concepts of international law ought to apply.
This paper makes a number of original contributions to the literature on cyber war and on the broader subject of the laws of war. I show that many of the conceptual problems in applying international humanitarian law to cyber attacks are parallel to the problems in applying international humanitarian law to conventional uses of force. The differences are in degree, not of kind. Moreover, I explore the types of cyber attacks that states can undertake to abide by international law, and which ones fall short.
Download the paper from SSRN at the link.
Robert Faris, Jillian York, Hal Roberts, Ethan Zuckerman, and John G. Palfrey Jr., all of Harvard Law School, have published the International Bloggers and Internet Control: Full Survey as Berkman Center Research Publication No. 2011-07. Here is the abstract.
In December 2010, we surveyed a sample of international bloggers to better understand how, where, why, and by whom various online circumvention and anonymity tools are being used.
This document includes the full survey results for the Berkman Center’s International Bloggers and Internet Control survey. For a full description of the methods of this survey and a summary and discussion of the findings, see: International Bloggers and Internet Control.
This document includes the full aggregated results from the survey, except for unstructured text answers, which were removed for privacy reasons.
Download the paper from SSRN at the link.
Monday, October 17, 2011
Edward Lee, Chicago-Kent College of Law, has published Copyright, Death, and Taxes in volume 47 of the Wake Forest Law Review (2011). Here is the abstract.
The Copyright Act of 1976 is due for a major revision in the 21st century, in order to keep pace with the advances in digital technologies. This Article offers a new alternative for copyright reform: tax law. Using the tax system as a way to modernize our copyright system offers several advantages. Most important, tax law can fix problems in our copyright system without violating the Berne Convention or TRIPS Agreement, and without requiring amendment to either treaty. Tax law can also be used to incentivize the copyright industries to adopt new, innovative approaches to copyright in ways that voluntary reforms like Creative Commons cannot. The tax approach has the added benefit of offering, beyond the “one size fits all” approach, greater tailoring of copyrights by both industries and individuals – which may, in turn, lead to greater efficiency.
Download the article from SSRN at the link.
Thursday, October 13, 2011
R. Randall Kelso, South Texas College of Law, and Charles D. Kelso, University of the Pacific, McGeorge School of Law, have published The Constitutional Jurisprudence of Justice Kennedy of Speech. Here is the abstract.
Justice Kennedy’s basic principles in free speech cases are supporting political freedom, supporting individual autonomy, and protecting freedom to teach, learn and innovate. Given these principles, his opinions in free speech cases protect free speech from government regulation unless the government can provide strong reasons for any restrictive action and show that the means it has chosen to carry out its purposes are closely tailored to its goals. At a minimum, judicial review is by strict scrutiny for content-based regulations, and intermediate review for content neutral time, place, and manner regulations. In some cases, Justice Kennedy has indicated a preference for a stronger, absolute rule of unconstitutionality for content-based regulations which do not fall into one of the traditional exceptions of free speech doctrine, such as obscenity, defamation, words tantamount to an act otherwise criminal, impairing some other constitutional right, an incitement to lawless action, or speech calculated to bring about imminent harm that the state has substantive power to regulate. Given his entire body of decisions regarding the freedom of speech over his quarter century on the Court, no Justice on the modern Court has been more consistently protective of the First Amendment freedom of speech than Justice Kennedy.
Download the paper from SSRN at the link.