Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Thursday, September 28, 2017

Schnellenbach on the Behavioural Political Economy of Regulating Fake News @schnellenbachj

Jan Schnellenbach, BTU Cottbus-Senftenberg, Institute for Economics, Chair for Microeconomics; Walter Eucken Institute, is publishing On the Behavioural Political Economy of Regulating Fake News in Ordo – Jahrbuch für die Ordnung von Wirtschaft und Gesellschaft. Here is the abstract.

This paper analyzes how fake news may have an effect on individual decisionmaking in the political sphere. To this end, arguments from the standard model of voter behaviour with full rationality are discussed as well as arguments from Behavioural Political Economy, which incorporates systematic psychological biases. It is argued that, by and large, the main problem resulting from fake news will not be persuasion, but confirmation. Individuals may demand fake news in order to confirm settled beliefs that they already hold. In a next step, the possible unintended consequences of extensive regulation of fake news are discussed. It is argued that, besides standard arguments such as rent-seeking, a major problem is that the government takes a paternalistic stance towards citizens. Also, the vagueness of the concept of fake news implies that a prosecution of fake news providers or distributors will suffer from arbitrariness and lead to an erosion of free speech. Finally, it is shown that the existing empirical evidence on the vulnerability of citizens for manipulation through fake news does not warrant any major government intervention into the political discourse.

Download the article from SSRN at the link.

September 28, 2017 | Permalink

Wednesday, September 27, 2017

Apalara on Striking a Balance: Freedom of Expression and the Prohibition of Hate Speech and Offensive Remarks

Rahman Apalara, Faculty of Law, University of Lagos, has published Striking a Balance: Freedom of Expression and the Prohibition of Hate Speech and Offensive Remarks. Here is the abstract.

Freedom of expression is an important fundamental right because the right to speak one’s mind freely on important issues in society, access information and hold the powers that beto account plays a vital role in the healthy development process of any society. At the heart of the hateful and offensive speech restriction is the tension between individual liberty and social good or the collective interest of the public. Hate speech touches on contested issues of dignity, free expression, liberty and democracy. Thus, there is a conflict between the right to freely advocate however distasteful the idea may be and the right to be free from prejudice and discrimination. In some circumstances, speech is restrained and the right to non-discrimination is preferred over free speech. It is in that sense that the title of this work “Striking a Balance” is justified. This paper uses philosophical, practical and constitutional facts to illustrate the difficulty in striking the appropriate balance between the right to freedom of expression and other legally prohibited speech or remark. The paper will explore extensively the complexities brought about by the restriction of the right to freely express in this context against the backdrop of the provisions of the Constitution, international instruments and the approach of national and international Courts.

Download the article from SSRN at the link.

September 27, 2017 | Permalink

Balkin on Free Speech In the Algorithmic Age @jackbalkin

Jack M. Balkin, Yale University Law School, is publishing Free Speech in the Algorithmic Society: Big Data, Private Governance, and New School Speech Regulation in the UC Davis Law Review (2018). Here is the abstract.
We have now moved from the early days of the Internet to the Algorithmic Society. The Algorithmic Society features the use of algorithms, artificial intelligence agents, and Big Data to govern populations. It also features digital infrastructure companies, large multi-national social media platforms, and search engines that sit between traditional nation states and ordinary individuals, and serve as special-purpose governors of speech. The Algorithmic Society presents two central problems for freedom of expression. First, Big Data allows new forms of manipulation and control, which private companies will attempt to legitimate and insulate from regulation by invoking free speech principles. Here First Amendment arguments will likely be employed to forestall digital privacy guarantees and prevent consumer protection regulation. Second, privately owned digital infrastructure companies and online platforms govern speech much as nation states once did. Here the First Amendment, as normally construed, is simply inadequate to protect the practical ability to speak. The first part of the essay describes how to regulate online businesses that employ Big Data and algorithmic decision making consistent with free speech principles. Some of these businesses are "information fiduciaries" toward their end-users; they must exercise duties of good faith and non-manipulation. Other businesses who are not information fiduciaries have a duty not to engage in "algorithmic nuisance": they may not externalize the costs of their analysis and use of Big Data onto innocent third parties. The second part of the essay turns to the emerging pluralist model of online speech regulation. This pluralist model contrasts with the traditional dyadic model in which nation states regulated the speech of their citizens. In the pluralist model, territorial governments continue to regulate speech directly. But they also attempt to coerce or co-opt owners of digital infrastructure to regulate the speech of others. This is "new school" speech regulation. Digital infrastructure owners, and especially social media companies, now act as private governors of speech communities, creating and enforcing various rules and norms of the communities they govern. Finally, end users, civil society organizations, hackers, and other private actors repeatedly put pressure on digital infrastructure companies to regulate speech in certain ways and not to regulate it in others. This triangular tug of war -- rather than the traditional dyadic model of states regulating the speech of private parties -- characterizes the practical ability to speak in the algorithmic society. The essay uses the examples of the right to be forgotten and the problem of fake news to illustrate the emerging pluralist model -- and new school speech regulation -- in action. As private governance becomes central to freedom of speech, both end-users and nation states put pressure on private governance. Nation states attempt to co-opt private companies into becoming bureaucracies for the enforcement of hate speech regulation and new doctrines like the right to be forgotten. Conversely, end users increasingly demand procedural guarantees, due process, transparency, and equal protection from private online companies. The more that end-users view businesses as governors, or as special-purpose sovereigns, the more end-users will expect -- and demand -- that these companies should conform to the basic obligations of governors towards those they govern. These obligations include procedural fairness in handling complaints and applying sanctions, notice, transparency, reasoned explanations, consistency, and conformity to rule of law values -- the "law" in this case being the publicly stated norms and policies of the company. Digital infrastructure companies, in turn, will find that they must take on new social obligations to meet these growing threats and expectations from nation states and end-users alike.
Download the article from SSRN at the link.

September 27, 2017 | Permalink

Tuesday, September 26, 2017

Johnson on Disentangling the Right of Publicity @Eric_E_Johnson

Eric E. Johnson, University of North Dakota School of Law, is publishing Disentangling the Right of Publicity in volume 111 of the Northwestern University Law Review (2017). Here is the abstract.

Despite the increasing importance attached to the right of publicity, its doctrinal scope has yet to be clearly articulated. The right of publicity supposedly allows a cause of action for the commercial exploitation of a person’s name, voice, or image. The inconvenient reality, however, is that only a tiny fraction of such instances are truly actionable. This Article tackles the mismatch between the blackletter doctrine and the shape of the case law, and it aims to elucidate, in straightforward terms, what the right of publicity actually is. This Article explains how, in the absence of a clear enunciation of its scope, courts have come to define the right of publicity negatively, through the application of independent defenses based on free speech guarantees and copyright preemption. This inverted doctrinal structure has created a continuing crisis in the right of publicity, leading to unpredictable outcomes and the obstruction of clear thinking about policy concerns. The trick to making sense of the right of publicity, it turns out, is to understand that the right of publicity is not really one unitary cause of action. Instead, as this Article shows, the right of publicity is best understood as three discrete rights: an endorsement right, a merchandizing entitlement, and a right against virtual impressment. This restructuring provides predictability and removes the need to resort to constitutional doctrines and preemption analysis to resolve everyday cases. The multiple-distinct-rights view may also provide pathways to firmer theoretical groundings and more probing criticisms.

Download the article from SSRN at the link.

September 26, 2017 | Permalink

Hilty and Moscon on Modernization of the EU Copyright Rules Position Statement of the Max Planck Institute For Innovation and Competition @MP_Innovation

Reto Hilty, Max Planck Institute for Innovation and Competition; University of Zurich; Ludwig Maximilian University of Munich, and Valentina Moscon, Max Planck Institute for Innovation and Competition; Università degli Studi di Trento - Faculty of Law, have published Modernisation of the EU Copyright Rules Position Statement of the Max Planck Institute for Innovation and Competition as Max Planck Institute for Innovation and Competition Research Paper No. 17-12. Here is the abstract.

On 14 September 2016 the European Commission published a package of proposals aimed at the modernisation of copyright within the digital single market. This copyright package is of particular interest to the Max Planck Institute for Innovation and Competition, which has been committed since its founding in 1966 to the analysis and development of intellectual property and competition law on the basis of established scientific principles. The Institute has responded to all of the proposals included in the copyright package in a Position Statement. It includes several parts and chapters examining whether the suggested provisions are adequate for reaching their intended objectives. In response to certain critical evaluations, a number of alternatives have been suggested. Each part and chapter has been published on the Institute’s website in the course of recent months. These have been brought together in the present e-book.

Download the text from SSRN at the link.

September 26, 2017 | Permalink

Alexander on Free Speech and Paying Fines With Coins

Peter C. Alexander, UALR-Bowen School of Law, has published A Penny for Your Thoughts: Free Speech and Paying Fines with Coins. Here is the abstract.

In October, 2016, the city of Springfield, Illinois encroached on the First Amendment rights of its citizens and hardly anyone noticed! The City Council approved an ordinance that significantly limits the payment of debts owed to the city with coins. Specifically, the new law provides that “Cash payments [to the City] may be limited to no more than $20 in coinage of which not more than $5 may be in pennies. Overpayments will be applied to any existing debt if applicable.” Municipalities may be inconvenienced when citizens use coins to pay their fines or taxes, but legislation to prevent citizens from doing so runs afoul of the U.S. Constitution. This essay is a reminder of how easily First Amendment rights can be forgotten.

Download the article from SSRN at the link.

September 26, 2017 | Permalink

Monday, September 25, 2017

Bygrave on Data Protection By Design and By Default: Deciphering the EU's Legislative Requirements

Lee A. Bygrave, University of Oslo, is publishing Data Protection by Design and by Default: Deciphering the EU's Legislative Requirements in volume 4 of the Oslo Law Review (2017). Here is the abstract.

In this paper, a critical examination is conducted of Article 25 of the European Union’s General Data Protection Regulation (Regulation 2016/679). Bearing the title ‘data protection by design and by default’, Article 25 requires that core data protection principles be integrated into the design and development of systems for processing personal data. The paper outlines the rationale and legal heritage of Article 25, and shows how its provisions proffer considerably stronger support for data protection by design and by default than is the case under the 1995 Data Protection Directive (Directive 95/46/EC). The paper further shows that this strengthening of support is in keeping with jurisprudence of the European Court of Human Rights and the Court of Justice of the European Union. Nonetheless, it is herein argued that Article 25 suffers from multiple flaws, in particular a lack of clarity over the parameters and methodologies for achieving its goals, a failure to communicate clearly and directly with those engaged in the engineering of information systems, and a failure to provide the necessary incentives to spur the ‘hardwiring’ of privacy-related interests. Taken together, these flaws will likely hinder the traction of Article 25 requirements on information systems development.

Download the article from SSRN at the link.

September 25, 2017 | Permalink

Marique and Slautsky on Freedom of Information in France: Law and Practice @YseultMarique

Yseult Marique, University of Essex School of Law; Université Libre de Bruxelles (ULB), Faculty of Law, and Emmanuel Slautsky, Université Libre de Bruxelles (ULB), Faculty of Law, have published Freedom of Information in France: Law and Practice as part of EGPA 2017 CONFERENCE Milan, Italy, 28th August-1st September 2017. Here is the abstract.

In France, a 1978 statute granted every person the right to obtain communication of documents held by an administration within the framework of its public service mission, regardless of their form or medium. This marked a stark break away from a tradition of administrative secrecy and sought to improve the relations between the French State and its citizens. As in other jurisdictions, the French legislation on freedom of information (FOI) aims to find a balance between the right to access public information (a democratic requirement and a prerequisite for the exercise of fundamental rights), and other competing interests (privacy, competition and public order and security). This equilibrium is constantly reshaped under the influence of technological developments and of an increasing commodification of public information. Changes and adaptation occur either through legislative changes (such as the 2016 statute on “Republique numérique”) as well as in practice, e.g. through the combined interaction of an independent authority – the Commission d’accès aux documents administratifs (CADA) – and the French administrative judge, the Council of State. This paper examines the law and the practice of FOI in France. Besides a short historical account, it will be based on classic doctrinal scholarship, strongly supplemented by an empirical investigation, involving interviews with different actors in the field (especially members of the CADA and legislators etc.) and the analysis of empirical data available in official sources such as annual reports of the CADA and of the Council of State. Part of a broader research undertaken by Professors Dacian C. Dragos, Polona Kovač and Bert Marseille on transparency in Europe, this paper assesses the effectiveness of the FOI in France, from an institutional and practical perspective.

Download the article from SSRN at the link.

September 25, 2017 | Permalink

Wednesday, September 20, 2017

Fox Fights Back Against Defamation Lawsuit Brought Over Seth Rich Story

From NPR: Fox News is trying to derail a defamation lawsuit filed by Rod Wheeler, who alleges that the network has attributed statements to him in an article regarding a story about the death of Seth Rich in order to make the story more credible. Mr. Wheeler says the statements do not represent him; Fox News says they are like those he has made, and in any case he is a Fox employee. Fox says that as an employee, Mr. Wheeler must agree to arbitration with the network and cannot press his claims in court. Fox has since retracted the article.  More here from Newsweek. 

September 20, 2017 | Permalink

Monday, September 18, 2017

Sobel on Artificial Intelligence's Fair Use Crisis @BKCHarvard

Benjamin L. W. Sobel, Harvard University Berkman Klein Center for Internet & Society, is publishing Artificial Intelligence's Fair Use Crisis in the Columbia Journal of Law & the Arts. Here is the abstract.

As automation supplants more forms of labor, creative expression still seems like a distinctly human enterprise. This may someday change: by ingesting works of authorship as “training data,” computer programs can teach themselves to write natural prose, compose music, and generate movies. Machine learning is an artificial intelligence (AI) technology with immense potential and a commensurate appetite for copyrighted works. In the United States, the copyright law mechanism most likely to facilitate machine learning’s uses of protected data is the fair use doctrine. However, current fair use doctrine threatens either to derail the progress of machine learning or to disenfranchise the human creators whose work makes it possible. This Article addresses the problem in three parts: using popular machine learning datasets and research as case studies, Part I describes how programs “learn” from corpora of copyrighted works and catalogs the legal risks of this practice. It concludes that fair use may not protect expressive machine learning applications, including the burgeoning field of natural language generation. Part II explains that applying today’s fair use doctrine to expressive machine learning will yield one of two undesirable outcomes: if US courts reject the fair use defense for machine learning, valuable innovation may move to another jurisdiction or halt entirely; alternatively, if courts find the technology to be fair use, sophisticated software may divert rightful earnings from the authors of input data. This dilemma shows that fair use may no longer serve its historical purpose. Traditionally, fair use is understood to benefit the public by fostering expressive activity. Today, the doctrine increasingly serves the economic interests of powerful firms at the expense of disempowered individual rightsholders. Finally, in Part III, this Article contemplates changes in doctrine and policy that could address these problems. It concludes that the United States’ interest in avoiding both prongs of AI’s fair use dilemma offers a novel justification for redistributive measures that could promote social equity alongside technological progress.

Download the article from SSRN at the link.

September 18, 2017 | Permalink

Langvardt on Regulating Online Content Moderation @DetroitMercyLaw

Kyle Langvardt, University of Detroit Mercy School of Law, is publishing Regulating Online Content Moderation in volume 106 of the Georgetown Law Journal (2018). Here is the abstract.

The Supreme Court held in 2017 that “the vast democratic forums of the Internet in general, and social media in particular,” are “the most important places…for the exchange of views.” Yet within these forums, speakers are subject to the closest and swiftest regime of censorship the world has ever known. This censorship comes not from the government, but from a small number of private corporations – Facebook, Twitter, Google – and a vast corps of human and algorithmic content moderators. The content moderators’ work is indispensable; without it, social media users would drown in spam and disturbing imagery. At the same time, content moderation practices correspond only loosely to First Amendment values. Recently-leaked internal training manuals from Facebook reveal that its content moderation practices are rushed, ad-hoc, and at times incoherent. The time has come to consider legislation that would guarantee meaningful speech rights in online spaces. This Article evaluates a range of possible approaches to the problem. These include 1) an administrative monitoring and compliance regime to ensure that content moderation policies hew close to First Amendment principles; 2) a “personal accountability” regime handing control over content moderation to users; and 3) a relatively simple requirement that companies disclose their moderation policies. Each carries serious pitfalls, but none is as dangerous as option 4): continuing to entrust online speech rights to the private sector.

Download the article from SSRN at the link.

September 18, 2017 | Permalink

Friday, September 8, 2017

Pedrioli on Pope Francis and the Limits of Freedom of Expression @ABFResearch

Carlo A. Pedrioli, American Bar Foundation, has published Pope Francis and the Limits of Freedom of Expression in Comparative Perspectives on Freedom of Expression 197 (Russell L. Weaver, Steven I. Friedland & Mark D. Cole eds., 2017). Here is the abstract.

Prior to the January 2015 terrorist attack on the French publication Charlie Hebdo, Charlie Hebdo had cultivated a reputation for satire of topics such as government, business, and religion. Various Charlie Hebdo depictions of the Muslim prophet Muhammad had been particularly controversial. The January 2015 attack on the Charlie Hebdo office came at a time of rising anti-Muslim sentiment in Europe. A poor economy, high unemployment, and ongoing immigration had contributed to this sentiment. The tensions were the greatest in France, which, in early 2015, had as many as six million Muslims and a legacy of colonialism in Algeria, Syria, and North Africa. In the midst of all of this tension, which included discussion over how far freedom of expression in an open society should go, Argentine Pope Francis entered the scene. When a journalist asked Francis about the limits of freedom of expression, the Pope, using an analogy, stated that if a friend of his insulted the Pope’s mother, the friend should expect the Pope to punch him. Apparently thinking that freedom of expression needed robust defense, various voices in the U.S. media promptly critiqued the Pope’s comments. The Pope’s comments shortly after the attack on Charlie Hebdo presented an opportunity to look at the limits of freedom of expression from another perspective, a religious one. Since religious voices play a role in the public sphere, considering freedom of expression from a religious viewpoint is important. Although somewhat different from a traditional U.S. perspective on the speech that the Charlie Hebdo cartoons constituted, the Pope’s perspective nonetheless was consistent with existing theology of the Catholic Church. To develop such a thesis, this paper proceeds by offering the following: a more detailed and contextualized summary of the papal remarks, an overview of relevant principles of U.S. free speech law and an application of those principles to the Charlie Hebdo cartoons, and an overview of relevant principles of Catholic theology and an application of those principles to the cartoons. The result should be an improved understanding of an additional perspective on how far freedom of expression in an open society should go.
Download the essay from SSRN at the link.

September 8, 2017 | Permalink

Thursday, September 7, 2017

Rothman on The Role of Custom in Intellectual Property @profrothman

Jennifer E. Rothman, Loyola Law School, Los Angeles, is publishing In the Shadow of the Law: The Role of Custom in Intellectual Property in I Research Handbook on the Economics of Intellectual Property Law (Peter Menell and Ben Depoorter, eds., Edward Elgar Publishing, 2018). Here is the abstract.

Custom, including industry practices and social norms, has a tremendous influence on intellectual property (“IP”) law, from affecting what happens outside of the courts in the trenches of the creative, technology, and science-based industries, to influencing how courts analyze infringement and defenses in IP cases. For decades, many scholars overlooked or dismissed the impact of custom on IP law in large part because of a belief that the dominant statutory frameworks that govern IP left little room for custom to play a role. In the last ten years, however, the landscape has shifted and more attention has been given to considering how custom affects IP entitlements both outside and inside the courtroom. This book chapter in the Research Handbook on the Economics of Intellectual Property Law focuses on the theoretical frames that inform the incorporation of custom into the law, and documents some of the practices and norms of various communities that use IP. I criticize the frequent and unreflected reliance on custom to determine the scope of IP rights, suggesting guidelines for when it can nevertheless be a sometimes useful tool for providing insights about IP laws. This analysis is partially informed by traditional common law limits on the incorporation of custom into the law. The chapter concludes with some recommendations for future areas of research for scholars based on my framework for thinking about custom in the context of IP laws.

Download the essay from SSRN at the link.

September 7, 2017 | Permalink

La Diega on the Internet of Citizens: A Lawyer's View on Some Technological Developments in the United Kingdom and India @guidonld

Guido Noto La Diega, Northumbria University, has published The Internet of Citizens: A Lawyer's View on Some Technological Developments in the United Kingdom and India at 12 The Indian Journal of Law and Technology 53 (2017). Here is the abstract.

This article is a useful tool for both Asian and European readers as regards some of the state-of-the-art technologies revolving around the Internet of Things (‘IoT’) and their intersection with cloud computing (the Clouds of Things, ‘CoT’) in both the continents. The main legal issues will be presented, with a focus on intellectual property, consumer protection, and privacy. India and the United Kingdom are selected because they are at the forefront of the IoT innovation in their respective countries. The IoT is an expanding and heterogeneous universe encompassing all Things which are capable of connectivity and are equipped with sensing and actuating capabilities. One can find Things in very diverse sectors, from agriculture to manufacturing, retail, healthcare, leisure, domotics, urban development, etc. Therefore, not only is providing an exhaustive and static definition of the IoT nearly impossible (or at least pointless), but also the endeavour of providing a complete picture of the phenomenon would be a cumbersome path towards failure. Consequently, I will give account only of the highlights of the IoT in India and the United Kingdom. In India, the IoT will be analysed through the prism of net neutrality, smart cities, manufacturing, computer-related inventions, and a recent bill on the surveillance aspects of the world’s largest biometric database (Aadhaar). In turn, I will look at the British context by analysing some (quasi) regulatory acts with a focus on privacy and consumer protection. One last caveat. When it comes to new technologies, one tends to be either ‘apocalyptic’ or ‘integrated’. Either the technology will save us all by leveraging a revolution leading to a disruptive innovation, or it will destroy our lives and the world will go to the dogs. I take a middle position and believe that through education, collective awareness, and soft law, one will be able to keep the human being at the centre of innovation, to unite people rather than divide them, to empower them and alleviate discrimination and poverty. What is important is neither should one delegate to technology nor to rely entirely on government: if the IoT is to actually become a revolution, it will do so due to the commitment of each and every one of us who will contribute to create the Internet of Citizens.

Download the article from SSRN at the link.

September 7, 2017 | Permalink

Charge Dropped Against Public News Service Reporter Who Asked Questions of HHS Secretary Tom Price

The local prosecutor has dropped charges against journalist Dan Heyman (Public News Service), who was charged with "willful disruption of governmental processes" for asking questions of HHS Secretary Tom Price a few months ago. Mr. Price was at the West Virginia Capitol building when Mr. Heyman, walking alongside him, pressed him for answers about health-care policy. Shortly afterward, Mr. Price was arrested.  Had he been convicted, he would have faced up to six months in jail.

The Washington Post quotes Mr. Heyman's attorney as saying that because Mr. Heyman had audio evidence of the encounter, as well as video evidence provided by the state, he could demonstrate that the reporter agreed to move away physically from Mr. Price. 

PNS and the prosecutor's office issued a joint statement announcing withdrawal of the charges.  More here from PNS. 

For the text of the joint statement, see the pinned tweet for the Public News Service @PNS_News.

September 7, 2017 | Permalink

Schuster on Public Choice Theory, the Constitution, and Public Understanding of the Copyright System @Prof_Schuster

W. Michael Schuster II, Oklahoma State University, is publishing Public Choice Theory, the Constitution, and Public Understanding of the Copyright System in the UC Davis Law Review. Here is the abstract.

The U.S. Constitution commands that copyright laws must benefit society by promoting the progress of science and the useful arts. Building on past research in public choice theory, this Article posits that Congress has deviated from this utilitarian goal, and the only means to correct the state of affairs is via pressure from the electorate. However, reform is unlikely if the citizenry lacks sufficient knowledge to recognize that copyright laws should be, but are currently not, designed to maximize public benefit. The following study uses novel survey data to establish that the U.S. electorate poorly understands the copyright regime and is thus unlikely to exert the necessary influence to effect reform. This Article then discusses the implications of these findings and proposes means to return copyright to its Constitutional moorings.

Download the article from SSRN at the link.

September 7, 2017 | Permalink

Reynolds on The LImits of Statutory Interpretation: Towards Explicit Engagement, By the Supreme Court of Canada, With the Charter Right to Freedom of Expression in the Context of Copyright

Graham J. Reynolds, University of British Columbia, Faculty of Law, has published The Limits of Statutory Interpretation: Towards Explicit Engagement, by the Supreme Court of Canada, with the Charter Right to Freedom of Expression in the Context of Copyright at 41 Queen's Law Journal 455 (2016). Here is the abstract.

In its post-2002 copyright jurisprudence, the Supreme Court of Canada has clarified that the Copyright Act grants a significant degree of latitude to non-copyright owning parties to express themselves using copyrighted works. This outcome is attributable neither to the SCC having interpreted provisions of the Copyright Act according to Charter values nor to the SCC having weighed provisions of the Copyright Act against the section 2(b) right to freedom of expression. Rather, it has resulted from the SCC interpreting provisions of the Copyright Act through the lens of the purpose of copyright, as re-articulated by the SCC. The author argues that despite the positive outcomes for the expression interests of non-copyright owning parties that have thus far resulted from the SCC’s post-2002 copyright jurisprudence, relying on statutory interpretation as the sole mechanism through which to protect freedom of expression fails to adequately protect this Charter right in the context of copyright. In order to ensure that this right is adequately protected, the SCC should, where appropriate, explicitly engage with the Charter right to freedom of expression in the context of copyright.
Download the article from SSRN at the link.

September 7, 2017 | Permalink

Wednesday, September 6, 2017

Slane on Search Engines and the Right To Be Forgotten: Squaring the Remedy With Canadian Values on Personal Information Flow @UOIT

Andrea Slane, University of Ontario Institute of Technology (UOIT), Legal Studies, has published Search Engines and the Right to Be Forgotten: Squaring the Remedy with Canadian Values on Personal Information Flow. Here is the abstract.

In Canada, the data protection regime governing the private sector has yet to be interpreted to obligate search engines and other information processors that primarily deal in publicly accessible online information to abide by fair information practices. In a recent case, the Office of the Privacy Commissioner of Canada (OPC) endorsed a complainant’s pursuit of a declaratory court order, which would allow the complainant to appeal to Google to honour its voluntary search alteration policies. The European Union, however, requires search engines to honour complainant’s requests directly, because search engines are primarily commercial business ventures that collect, process, and package information, regardless of the public nature of their source. Search engine results are in this sense a product sold by the search engine company – not directly to the user, but rather to advertisers and other data brokers with an interest in search result content and compilation. In light of this view of search engines as data controllers, this article considers what a Canadian right to be forgotten might look like.

Download the article from SSRN at the link.

September 6, 2017 | Permalink

Rambo on When the First Amendment Should Protect Judges From Their Unethical Speech @TAMULawSchool

Lynne H. Rambo, Texas A&M University School of Law, is publishing When Should the First Amendment Protect Judges from Their Unethical Speech? in the Ohio State Law Journal. Here is the abstract.

Judges harm the judicial institution when they engage in inflammatory or overtly political extrajudicial speech. The judiciary can be effective only when it has the trust of the citizenry, and judicial statements of that sort render it impossible for citizens to see judges as neutral and contemplative arbiters. This lack of confidence would seem especially dangerous in times like these, when the citizenry is as polarized as it has ever been. Ethical codes across the country (based on the Model Code of Judicial Conduct) prohibit judges from making these partisan, prejudicial or otherwise improper remarks. Any discipline can be undone, however, if a court finds the discipline in violation of the First Amendment. Many courts have not even recognized this, and others have been confused about the proper First Amendment analysis to apply. Because the ethical code restrictions on speech are content-based, they would ordinarily receive strict scrutiny. But the great harm that judges’ unethical speech can pose warrants granting the state greater discretion in the disciplinary process. Specifically, the free speech rights of judges facing discipline for unethical extrajudicial speech should be subject not to strict scrutiny, but to the doctrine applied to public employees in Pickering v. Board of Education. Under Pickering, extrajudicial speech that does not involve a matter of public concern — such as racist or sexually harassing remarks — would not be protected at all. Extrajudicial speech that does involve a matter of public concern would have the court balance the judge’s interest in speaking against the state’s interest in prohibiting the speech. Additionally, a presumption of validity would accompany any ethical code provision that provided notice to judges in advance specifically what they are not to say and why.

Download the article from SSRN at the link.

September 6, 2017 | Permalink

Tuesday, September 5, 2017

Stemler on Implications of the CDA on Liability Within the Sharing Economy @MillenialProf1

Abbey Stemler, Indiana University, Kelley School of Business, Department of Business Law, has published Death by Ten Thousand Duckbites? Implications of the Communications Decency Act on Liability within the Sharing Economy. Here is the abstract.

The Communications Decency Act (CDA) is a 1996 law that has been used as an immunity shield for online platforms, especially those in the sharing economy. Stretched beyond recognition to protect companies from everything from fraud to invasion of privacy claims, it is now time to revisit this antiquated law. This Article explores the legislative history of the CDA, its current applications and limitations, and international approaches to platform liability. It concludes by presenting model legislation to improve the CDA.

The full text is not available from SSRN.

September 5, 2017 | Permalink