Thursday, June 27, 2013
British Police Checking To See If Social Media Named Victim Of Sexual Offense In Violation Of Statute
Wednesday, June 26, 2013
EU Judge Advocate General: ISP Does Not Have To Remove Harmful, Sensitive Info That Turns Up During Web Search
In a case involving the interpretation of the EU's data protection directive and the so-called "right to be forgotten," an advocate general for the European Court of Justice has released an advisory opinion finding that an internet search engine service provider (in this case Google) does not have to remove information that an individual considers harmful or sensitive if the information turns up because of a search of the web if the provider does not itself control the information.
The Judge Advocate General wrote in part:
Read the entire advisory opinion here. The case is Google Spain v. Agencia Espanola de Proteccion de Datos (AEPD), Case C-131/12. More here from the New York Times.
In contemporary information society, the right to search information published on the internet by means of search engines is one of the most important ways to exercise that fundamental right. This right undoubtedly covers the right to seek information relating to other individuals that is, in principle, protected by the right to private life such as information on the internet relating to an indivdual’s activities as a businessman or politician. An internet user’s right to information would be compromised if his search for information concerning an individual did not generate search results providing a truthful reflection of the relevant web pages but a ‘bowdlerised’ version thereof.
An internet search engine service provider lawfully exercises both his freedom to conduct business and freedom of expression when he makes available internet information location tools relying on a search engine.
The particularly complex and difficult constellation of fundamental rights that this case presents prevents justification for reinforcing the data subjects’ legal position under the Directive, and imbuing it with a right to be forgotten. This would entail sacrificing pivotal rights such as freedom of expression and information. I would also discourage the Court from concluding that these conflicting interests could satisfactorily be balanced in individual cases on a case‑by‑case basis, with the judgment to be left to the internet search engine service provider. Such ‘notice and take down procedures’, if required by the Court, are likely either to lead to the automatic withdrawal of links to any objected contents or to an unmanageable number of requests handled by the most popular and important internet search engine service providers. In this context it is necessary to recall that ‘notice and take down procedures’ that appear in the ecommerce Directive 2000/31 relate to unlawful content, but in the context of the case at hand we are faced with a request for suppressing legitimate and legal information that has entered the public sphere. In particular, internet search engine service providers should not be saddled with such an obligation. This would entail an interference with the freedom of expression of the publisher of the web page, who would not enjoy adequate legal protection in such a situation, any unregulated ‘notice and take down procedure’ being a private matter between the data subject and the search engine service provider. It would amount to the censuring of his published content by a private party. It is a completely different thing that the States have positive obligations to provide an effective remedy against the publisher infringing the right to private life, which in the context of internet would concern the publisher of the web page.
As the Article 29 Working Party has observed, it is possible that the secondary liability of the search engine service providers under national law may lead to duties amounting to blocking access to third‑party websites with illegal contents such as web pages infringing IP rights, or displaying libellous or criminal information.
In contrast any generalised right to be forgotten cannot be invoked against them on the basis of the Directive even when it is interpreted in harmony with the Charter.
For these reasons I propose that the Court should answer the third preliminary question to the effect that the rights to erasure and blocking of data, provided for in Article 12(b), and the right to object, provided for by Article 14(a), of the Directive, do not extend to such a right to be forgotten as described in the preliminary reference.
Tuesday, June 25, 2013
Monday, June 24, 2013
Thursday, June 20, 2013
From the Hollywood Reporter: Fox has filed comments with the FCC asking for an end to the agency's current policy of regulating indecency. Fox said in part,
"Fox urges the Commission to conclude that it is legally required, and logically bound, to cease attempting to enforce broadcast indecency limits once and for all. Time and technology have marched inexorably forward, but the Commission’s untenable effort to define indecent content through a hodgepodge of inconsistent and uneven rulings remains stuck in a bygone era. Whatever validity may once have existed for indecency regulation, the time clearly has arrived to lay rest to the anachronistic notion that broadcast stations deserve anything less than the full First Amendment protection bestowed on all speakers by the Constitution."
The agency asked for comments concerning changes to its policy in April after the Supreme Court handed down its decision in Fox v. FCC. More here on reaction to the FCC request for comments from Newsmax.
Tuesday, June 18, 2013
and grounds. The term “demonstration” includes demonstrations, picketing, speechmaking, marching, holding vigils or religious services and all other like forms of conduct that involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which is
reasonably likely to draw a crowd or onlookers. The term does not include casual use by visitors or tourists that is not reasonably likely to attract a crowd or onlookers." (Regulation Seven, adopted June 13, 2013).
Monday, June 17, 2013
Thursday, June 13, 2013
From the Hollywood Reporter: Head of Canadian regulatory agency CRTC (Canadian Radio-television and Telecommunications Commissions) Jean-Pierre Blais says he and his fellow commissioners are re-thinking the regulatory regime, particularly with regard to Netflix Canada. Canadian content on television, radio, and in other media has been a priority, but, says Mr. Blais, regulation for regulation's sake is not the goal. "[W]hat matters is having the audacity to do the right thing, the right way, for the right reasons in the right circumstances. Sometimes that means we, at the CRTC, have to step back. Boldly dare to let creative or market forces take over."
Wednesday, June 12, 2013
Yanel Mogaburo, Universidad Nacional de Quilmes, has published Representaciones Sobre El Aborto En La Prensa Argentina: Análisis Crítico Del Discurso De Los Medios Masivos De Comunicación (Abortion Representations in the Argentine Press: Critical Analysis of the Media Discourse) in Comunicación y Ciudadanía 2013. Here is the abstract.
El trabajo busca contribuir al conocimiento del proceso discursivo de construcción de las representaciones e identidades genéricas en torno a la problemática del aborto en el espacio público durante los primeros años del siglo xxi, a partir del análisis del discurso de los medios masivos de comunicación.
El análisis, enmarcado en la corriente del Análisis Crítico del Discurso, se centra en la cobertura que realizaron distintos medios gráficos de circulación nacional y local sobre tres casos emblemáticos de aborto no punible. Tiene como objetivo dar cuenta de las posturas de valor que adoptan los medios masivos de comunicación sobre la práctica social “aborto” y como, al mismo tiempo, negocian dichas posiciones con sus interlocutores reales o potenciales.
Este análisis encuentra sus fundamentos teóricos en la Teoría de la Valoración, que tiene como propósito principal presentar una reorganización comprehensiva y sistemática de los recursos lingüísticos que pueden ser usados para valorar la experiencia social.
Las conclusiones a las que llegamos a través del análisis de las voces y las valoraciones (appraisal theory) aparecidas en el corpus antes descripto, confirman nuestra hipótesis de que los medios masivos (como locutores) despliegan recursos que permiten el alineamiento o distanciamiento de las voces a favor y en contra del aborto, al mismo tiempo que reproducen las representaciones e identidades genéricas hegemónicas. Del análisis se desprende también que el aborto no punible en Argentina termina siendo criminalizado y la violencia que se ejerce sobre la mujer que aborta o desea abortar invisibilizada por los medios de comunicación.
The aim of this article is to show the discursive construction of gender identities and representation in the public sphere, during the first years of this century, from the analysis of the discourse of the news about the “problem of abortion” in three national newspapers and on national television.
The analysis, framed in feminist critical discourse analysis, focuses on the different media coverage on three emblematic cases of legal abortion. It aims to account for the value positions that adopt the mass media about social practice “abortion” and at the same time, to analyze the negotiation of those positions with their actual or potential readers/viewers.
This analysis finds its theoretical foundations in the Appraisal Theory, which has as main purpose to present a comprehensive and systematic reorganization of language resources that can be used to evaluate the social experience. The conclusions arrived at by analyzing the voices and valuations (appraisal theory) appeared in the corpus described above, confirm our hypothesis that the mass media (as speakers) deploy resources that enable the alignment or distance of the voices for and against abortion, while reproducing the hegemonic representations and gender identities.
The analysis shows that even in cases where the abortion is not punishable in Argentina, ends up being criminalized by the media that ignore or inflict violence on women who want to abort.
Download the article from SSRN at the link. The text is in Spanish.
Mira Burri, University of Bern Law School & The World Trade Institute has published Business as Usual? The Implementation of the UNESCO Convention on Cultural Diversity and EU Media Law and Policies in volume 3 of the European Law Review. Here is the abstract.
Irrespective of the diverse stances taken on the effect of the UNESCO Convention on Cultural Diversity in the external relations context, since its wording is fairly open-ended, it is clear to all observers that the Convention’s impact will largely depend on how it is implemented domestically. The discussion on the national implementation of the Convention, both in the policy and in the academic discourses, is only just emerging, although six years the Convention’s entry into force have passed. The implementation model of the EU can set an important example for the international community and for the other State Parties that have ratified the UNESCO Convention, as both the EU and its Member States acting individually, have played a critical role in the adoption of the Convention, as well as in the longer process of promoting cultural concerns on the international scene. Against this backdrop, this article analyses the extent to which the EU internal law and policies, in particular in the key area of media, take into account the spirit and the letter of the UNESCO Convention on Cultural Diversity. Next to an assessment of the EU’s implementation of the Convention, the article also offers remarks of normative character – in the sense of what should be done to actually attain the objective of protecting and promoting cultural diversity. The article seeks to critically evaluate the present state of affairs and make some recommendations for calibration of future policies.
Download the article from SSRN at the link.
Monday, June 10, 2013
Jeanne C. Fromer, New York University School of Law, and Mark A. Lemley, Stanford Law School, are publishing The Audience in Intellectual Property Infringement in volume 112 of the Michigan Law Review (2014). Here is the abstract.
Every IP right has its own definition of infringement. In this paper, we suggest that this diversity of legal rules is largely traceable to differences in the audience in IP cases. Patent, trademark, copyright, and design patent each focus on a different person as the fulcrum for evaluating IP infringement. The fact that patent law focuses on an expert audience while trademark looks to a consumer audience explains many of the differences in how patent and trademark cases are decided. Expert audiences are likely to evaluate infringement based on the technical similarity between the plaintiff’s and defendant’s works. Consumers, by contrast, are likely to pay more attention to market substitution and less attention to how things work under the hood. Understanding the different audiences in IP infringement is critical to understanding how the IP regimes define infringement.
The focus on audience has normative as well as descriptive implications. Neither patent law, with its focus on experts and technical similarity, nor trademark law, with its market-based consumer focus, has it entirely correct. Rather, we suggest that as a general matter infringement of an IP right should require both technical similarity and market substitution. Assessing infringement through the expert’s eyes ensures that the law prevents closely related works in the field while allowing later contributions to the field that are sufficiently different. The consumer vantage point ensures that we protect IP owners only when they have been harmed in the marketplace.
IP owners who want to show infringement should have to show both that the defendant’s work is technically similar to their own from the expert’s vantage point and that the defendant’s use causes the plaintiff market harm. Copyright law, which does look both to experts and to consumers at various points in infringement analysis, is on the right track.
Download the article from SSRN at the link.
Two Men First Identified as "Possible Suspects" In Boston Marathon Bombing Suing New York Post For Defamation
Two young men whose photographs were published in the New York Post and identified as "possible suspects" being sought by police in the Boston Marathon bombing are now suing the paper for defamation and negligent infliction of emotional distress. Salaheddin Barhoum and Yassine Zaimi say the newspaper's negligence in identifying them caused them to fear that others might do them physical harm, given the magnitude of the event. The Post has issued a statement that reads: "We stand by our story. The image was emailed to law enforcement agencies yesterday afternoon seeking information about these men, as our story reported. We did not identify them as suspects." Read the complaint here.
Thursday, June 6, 2013
Jorge R. Roig, Charleston School of Law, is publishing Emerging Technologies and Dwindling Speech in volume 16 of the University of Pennsylvania Journal of Constitutional Law (2013). Here is the abstract.
Inspired in part by the recent holding in Bland v. Roberts that the use of the “Like” feature in Facebook is not covered by the Free Speech Clause, this article makes a brief foray into the approach that courts have taken in the recent past towards questions of First Amendment coverage in the context of emerging technologies. Specifically, this article will take a closer look at how courts have dealt with the issue of functionality in the context of First Amendment coverage of computer source code. The analysis of this and other recent experiences, when put in a larger context, reflects a continuing dissatisfaction on the part of both courts and legislatures with the current Supreme Court doctrine on First Amendment coverage. From this discussion, we can also derive some meaningful normative insights regarding the interplay between emerging technologies and First Amendment coverage doctrine. Finally, this article hopes to serve as a stepping stone in a more profound and long term pursuit of a comprehensive theory of constitutional individual rights coverage issues that might serve us well as the future brings unexpected changes in our society.
Download the article from SSRN at the link.