Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, September 29, 2020

Martin Johnson, LSU Journalism Dean, Passes Away

Louisiana State University has let us know of the sudden death of Martin Johnson, dean and professor at the university's Manship School. The dean passed away in his sleep last night. His wife Sherri, a professor in the History Department, and his son survive him.

Dean Johnson was a leader in the field of journalism and mass communications, and the author of  Changing Minds or Changing Channels (2013) as well as other publications. He had led the Manship School for two years. The Baton Rouge Advocate has more here, LSU's student paper The Reveille here


September 29, 2020 | Permalink

Saturday, September 26, 2020

Craig and Tarantino on An Hundred Stories in Ten Days': COVID-19 Lessons For Culture, Learning, and Copyright Law @CraigCarys @bobtarantino

Carys J. Craig, Osgoode Hall Law School, and Bob Tarantino, Dentons Canada LLP, are publishing 'An Hundred Stories in Ten Days': COVID-19 Lessons for Culture, Learning, and Copyright Law in the Osgoode Hall Law Journal. Here is the abstract.

In the face of a pandemic, copyright law may seem a frivolous concern; but its importance lies in the ever-expanding role that it plays in either enabling or constraining the kinds of communicative activities that are critical to a flourishing life. In this article, we reflect on how the cultural and educative practices that have burgeoned under quarantine conditions shed new light on a longstanding problem: the need to recalibrate the copyright system to better serve its purposes in the face of changing social and technological circumstances. We begin by discussing how copyright restrictions have manifested in a variety of contexts driven by the coronavirus lockdown, focusing first on creative engagement and then on learning, foregrounding the damage done by encoding a permission-first approach into governance structures and digital platforms. These stories unsettle the common copyright narrative—the one that tells us that copyright encourages learning and the creation and dissemination of works—laying bare its disconnect from the current realities of our digital dependency. Turning to consider the justifications for copyright control, we underscore the critical role of user rights and substantive technological neutrality in crafting a flexible and fair copyright system for the future. The article concludes with some lessons that might be drawn from these tales of copyright in the time of COVID-19 to inform the development of new digital copyright norms for whatever “new normal” emerges.

Download the article from SSRN at the link.

September 26, 2020 | Permalink

Wilson and Land on Hate Speech on Social Media @richardawilson7

Richard Ashby Wilson and Molly K. Land, both of University of Connecticut School of Law, are publishing Hate Speech on Social Media: Towards a Context-Specific Content Moderation Policy in the Connecticut Law Review. Here is the abstract.

For all practical purposes, the decision of social media companies to prohibit hate speech on their platforms means that the longstanding debate in the United States about whether to limit hate speech in the public square has been resolved in favor of greater regulation. Nonetheless, revisiting these debates provides several insights essential for developing more empirically-based and narrowly tailored policies regarding online hate. First, a central issue in the hate speech debate is the extent to which hate speech contributes to violence. Those in favor of more robust regulation claim a connection to violence, while others dismiss these arguments as too tenuous to support regulation. The data generated by social media, however, now allow researchers to begin to empirically test whether there are visible, measurable harms resulting from hate speech. These data can assist in developing evidence-based policies to address the most significant harms of hate speech, while avoiding overbroad regulation that is inconsistent with international standards. Second, reexamining the U.S. debate about hate speech also reveals the serious missteps of social media policies that prohibit hate speech without regard to context. The policies that social media companies have developed attempt to define hate speech solely with respect to the content of the message. As the early advocates of limits on hate speech made clear, the meaning, force, and consequences of speech acts are deeply contextual, and it is impossible to understand the harms of hate speech without reference to local political realities and the power asymmetries between social groups. Regulation that is abstracted from this context will inevitably be overbroad. This Article revisits these hate speech debates and considers how they map onto the platform law of content moderation, where emerging evidence indicates a correlation between hate speech online, virulent nationalism, and violence against minorities and activists. It then concludes by developing specific recommendations to bring greater consideration of context into the policies and procedures of social media content moderation.

Download the article from SSRN at the link.

September 26, 2020 | Permalink

Thursday, September 24, 2020

Scalzini on The New Related Right for Press Publishers: What Way Forward? @SilviaScalzini

Silvia Scalzini, Luiss Guido Carli University Department of Law, is publishing The New Related Right for Press Publishers: What Way Forward? in Handbook of European Copyright Law (Eleanora Rosati, ed., Routledge, 2020) (Forthcoming). Here is the abstract.

Following the entry into force of Directive 2019/790/EU, a new related right has been added to the EU catalogue (Article 15). Indeed, a new right has been introduced in favour of press publishers for the reproduction and making available to the public of press publications in respect of online uses by information society service providers. The main aim of the EU reform is to support the sustainability of the press by creating a level playing field between digital services and press publishers, where the latter may find a way to recoup a return on their investments. This objective is clearly reflected in the construction of the right, which is inherently unbalanced regarding opposing rights and interests, thus risking to (further) fragmenting the consistency of EU copyright and related rights system. After a necessary review of the interests at stake, the chapter discusses the main concerns raised by the introduction of the right at the EU level. Then it moves to the analysis of the effects of the first national implementation of Article 15 on the competitive dynamics between press publishers and digital platforms. The chapter concludes with a glimpse into some conceivable ways forward to avoid inconsistencies and unintended consequences, while at the same time (possibly) fostering the fairness and the well-functioning of copyright-focused markets.

Download the essay from SSRN at the link.

September 24, 2020 | Permalink

Thursday, September 17, 2020

Reporters Committee For Freedom of the Press Hiring For Legal Fellow, Other Positions @rcfp

The Reporters Committee for Freedom of the Press is hiring immediately for a new legal fellow position that will expand its capacity to better identify, support, and address the legal needs of journalists of color, newsrooms led by people of color, and reporters covering issues pertinent to communities of color, across the country. Supported by the Borealis Racial Equity in Journalism Fund, the Borealis Legal Fellow will be part of a team of Reporters Committee attorneys who provide pro bono legal services to individual journalists, including documentary filmmakers, and news organizations.

Applications will be considered on a rolling basis. The position is for one year, with the possibility of an extension for an additional year. More information about the posting is available here

Additionally, the Reporters Committee is also hiring for multiple 2021 legal fellowships. More information about these positions is available here.

September 17, 2020 | Permalink

Wednesday, September 16, 2020

From the Law Commission of Ontario: Defamation Law in the Internet Age: Final Report (2020) @LCO_CDO

The Law Commission of Ontario has published Defamation Law in the Internet Age: Final Report (March 2020).

This is the Final Report of the Law Commission of Ontario’s (LCO’s) Defamation Law in the Internet Age project.
The LCO’s project examined Ontario’s defamation laws and how they should be updated to account for “internet speech,” including social media, blogs, internet platforms and digital media. The Report concludes that law reform is needed to modernize defamation and better protect freedom of expression in an online world. These reforms should build on successful common law developments and Ontario’s anti-SLAPP legislation.
The Final Report makes 39 recommendations addressing Ontario’s Libel and Slander Act, the substantive law of defamation, publication, notice, limitation periods, injunctions, jurisdiction, take-downs, internet intermediaries and related issues.
Major recommendations include: • Ontario should introduce a new Defamation Act to promote access to justice and adapt defamation law to the realities of the internet. The new Act should include provisions:
o Encouraging alternative dispute resolution of online defamation disputes;
o Establishing a new notice regime for defamation complaints;
o Establishing a “single publication rule”;
o Establishing a two-year limitation period for defamation actions; and,
o Expanding courts’ authority to order interlocutory injunctions to take-down online content in limited, prescribed circumstances. • The new Defamation Act should also establish new legal responsibilities for internet platforms that host third party content accessible to Ontarians.
These duties should include obligations to: o Pass on notice of defamation complaints to online publishers; and,
o Take down content if the publisher of the content does not respond to notice. • Internet platforms that do not fulfill these duties should be liable for court fines. In order to protect free expression, intermediary platforms should not be considered publishers where they passively host third party content.
A full list of recommendations is in Appendix A of the Report.

September 16, 2020 | Permalink

Tuesday, September 15, 2020

Goldman on How Section 230 Enhances the First Amendment @ericgoldman

Eric Goldman, Santa Clara University School of Law, has published How Section 230 Enhances the First Amendment in the American Constitutional Society Issue Brief (2020). Here is the abstract.

This Issue Brief explores how Section 230 interacts with the First Amendment. It begins by discussing Section 230’s substantive benefits, then discusses its procedural benefits, and concludes by arguing that proposals to eliminate Section 230 would create critical gaps in the law that the First Amendment would not adequately back-fill. Losing Section 230 would substantially reshape the Internet for the worse. Yet, shockingly, that is exactly the direction so many of our political leaders apparently think we should go.

Download the essay from SSRN at the link.

September 15, 2020 | Permalink

Thursday, September 10, 2020

Goodyear on Copyright Liability as a Model for Restricting Fake News

Michael Goodyear, University of Michigan Law School, is publishing Is There No Way to the Truth? Copyright Liability as a Model for Restricting Fake News in volume 34 of the Harvard Journal of Law & Technology. Here is the abstract.

A proliferation of fake news has flooded U.S. websites and social media. From misinformation affecting the 2016 election to individuals making profits off of creating false stories, the United States desperately needs a legal response to the fake news crisis. However, U.S. law has effectively forestalled any attempts to bring fake news to heel. The First Amendment has been held to protect fake news. The Communications Decency Act, codified as Section 230, protects online platforms from the remaining potential sources of vicarious liability for fake news. Instead, gradually, self-regulation by websites has started to fill this void. Proposed solutions have tried to look forward, suggesting revisions to the First Amendment and Communications Decency Act doctrine, or analyzing self-regulation by websites. However, these proposals have ignored an already existing model for regulating unwanted conduct online: the Digital Millennium Copyright Act. The Digital Millennium Copyright Act imposes certain obligations on online service providers to remove copyright infringing content posted on their websites in exchange for a liability safe harbor. While copyright and fake news are different, ten distinct principles can be elucidated from the Digital Millennium Copyright Act. These principles provide insights into how online regulations could advance, whether through websites’ own self-regulation, or in codified law if the First Amendment and § 230 regime is relaxed in the future. Keywords: Fake News, Digital Millennium Copyright Act, Fake News Regulation, Section 230, Communications Decency Act

Download the article from SSRN at the link.

September 10, 2020 | Permalink

Tuesday, September 1, 2020

Cheah and Barros Sierra Cordera on Section 230 and the Twitter Presidency

Michael Cheah, Vimeo, Inc.; University of Miami School of Law,  and Erika Barros Sierra Cordera, Vimeo, Inc., have published Section 230 and the Twitter Presidency in Northwestern University Law Review Online, 2020. Here is the abstract.

In response to Twitter’s decision to label one of the President’s tweets misleading, the Trump White House issued an executive order to limit Section 230 of the Communications Decency Act via agency rule-making. In the Order, Trump calls for the Federal Communications Commission (FCC) to “interpret” Section 230 in a manner that curtails websites’ ability to remove and restrict user speech. This article analyzes the Order and concludes that this effort will fail. First, the FCC does not have rule-making authority to issue the proposed rules. Second, the proposed rules cannot be issued because they are inconsistent with the statute. Finally, we discuss the policy implications of the proposed rules and argue that they would actually lead to less speech and engagement on the Internet, not more of it.

Download the article from SSRN at the link.

September 1, 2020 | Permalink