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May 31 2013

14:08

This Week in Review: Debating journalists’ role in DOJ seizures, and Facebook tackles hate speech

james-rosen-fox-news

Blame for both the DOJ and journalists: The story of the U.S. Department of Justice’s seizure of news organizations’ phone and email records moved into “who knew what and when” stage, especially regarding the case of Fox News reporter James Rosen. Fox didn’t know Rosen’s phone records and emails had been taken until it became public last week, but The Wall Street Journal reported this week that its parent company, News Corp., was notified by the DOJ in 2010 but didn’t tell Fox.

News Corp. issued some mixed signals in response, initially saying it had no record of notification from the DOJ but eventually conceding that it didn’t dispute the DOJ’s claim that notification was sent. The New Yorker’s Ryan Lizza put forward a theory as to why it’s in News Corp.’s interest to be more deferential to the Obama administration DOJ, but in Fox News’ interest to be more antagonistic. However, The Atlantic Wire’s Elspeth Reeve noted that Fox News doesn’t have a very good track record on advocating for journalists’ freedom in these cases.

The metastasizing issue — coupled with the DOJ’s seizure of what the Associated Press claims is “thousands and thousands” of its phone records — has led Attorney General Eric Holder to plan a meeting with the top representatives of several major news organizations to hash out guidelines for DOJ intrusion. Several news organizations, including The New York Times and AP, announced, however, that they wouldn’t attend the meeting because it’s set to be off the record. The Daily Beast’s Daniel Klaidman wrote a thorough piece on Holder’s regrets in these cases, saying that it’s not part of the progressive image in which he views himself, and Salon’s Alex Pareene explained why Holder’s likely to keep his job despite the outcry.

In a pair of stories, The New York Times reported on the remarkable scale of many of the Obama administration’s leak inquiries and journalists’ charges that such efforts are creating a chilling effect on investigative journalism on the federal government. Glenn Greenwald of The Guardian expressed his dismay at journalists’ lack of action against the administration’s actions: In the current climate, he said, “it’s very difficult to imagine the US press corps taking any meaningful steps to push back against these attacks. And as long as that’s true, it’s very hard to see why the Obama administration would possibly stop doing it.”

At the same time, several others argued that the press’s self-defense reaction is a bit too knee-jerk in this case. Slate’s Fred Kaplan and The Washington Post’s Walter Pincus both argued that Rosen’s source was not a whistleblower exposing corruption but someone simply breaking the law and revealing harmful information. And Reuters’ Jack Shafer contended that Obama has not declared war on the press, as his crusade against leaks has been much more on the supply side than the demand side.

Still others, including Peter Sterne of the New York Observer and Matthew Cooper of the National Journal, were concerned that the proposed shield law wouldn’t do enough to protect journalists. Kevin Drum of Mother Jones tried to find a middle way between their concern for journalists and the objections of those such as Pincus.

Facebook rape ad

Facebook, hate speech, and censorship: Yet another debate over Facebook’s control over its users’ content simmered this week, though it was a bit different from the privacy flaps of the past. A coalition of feminist groups called Women, Action, and the Media wrote an open letter to Facebook last week urging it to remove content that trivializes or glorifies violence against women, noting that Facebook already moderates what it considers hate speech and pornographic content.

The groups also campaigned to Facebook’s advertisers, succeeding in getting several of them to pull their advertising until Facebook took some action. Facebook ultimately responded by posting a statement saying it hadn’t policed gender-related hate speech as well as it should have and vowing to take several steps to more closely moderate such content. The New York Times has a good, quick summary tying together the advertiser campaign and Facebook’s response.

While Valleywag’s Sam Biddle argued that all Facebook did was try to placate those protesting rather than commit to any real action, while Forbes’ Kashmir Hill and Reuters’ Jack Shafer noted that Facebook probably didn’t do this out of any morally consistent concern over content, but simply because of advertiser pressure. Hill concluded that “the procedure appears to be that they will draw the line when advertisers start complaining to them,” and Shafer argued that Facebook has only pushed this discourse underground, further away from the voices of reason and shame.

And while everyone seemed to agree that Facebook’s well within its rights to police speech on its own platform (and that it’s clamping down on a particularly heinous form of speech in this case), they also wondered about the precedent. Mathew Ingram of GigaOM wondered about the slippery slope of what Facebook considers hate speech.

newsweek feature

Newsweek on the block (again): Variety reported that IAC is attempting to sell Newsweek, a month after its chairman, Barry Diller, called his purchase of the magazine a “mistake.” IAC shut down Newsweek’s print edition at the end of 2012, turning it into a web-only publication. As Variety noted, most every indicator at Newsweek — subscriptions, traffic, cash flow — is trending downward.

Newsweek confirmed the attempted sale with an internal memo, saying that Newsweek is drawing resources away from its sister site, The Daily Beast. Forbes’ Jeff Bercovici offered a more detailed explanation: Diller bought Newsweek thinking he needed a print publication to supplement its digital ad base, but since it’s failed at that, it’s become a mere distraction (and drag on the bottom line). Gawker’s Hamilton Nolan urged prospective buyers to stay away, though Mathew Ingram of paidContent offered some tips for its new owner: drop the paywall, aggregate, go deep on particular topics, develop a strong voice, and embrace mobile.

Reading roundup: Despite the quiet week overall, there were several smaller stories to watch:

— Rob Fishman of BuzzFeed wrote a thoughtful piece questioning whether the social media editor might be an endangered species at news organizations, as engagement with social media becomes a deeper part of each journalists’ work and routines. Reuters’ Anthony De Rosa (more on him in a bit) said social media editors are more important than ever, and Digital First’s Mandy Jenkins countered that many news organizations (especially smaller ones) still have a need for someone dedicated to newsroom-wide social media integration and gave some useful advice about how to do it. Elsewhere in social media, Twitter said it wants to partner with media companies rather than become one of them, and Jeswin and Jesse Koepke talked on Medium about how undo Facebook’s massification of online social interaction.

— One of the news industry’s most prominent social media editors, Anthony De Rosa, announced he’s leaving Reuters to join Circa, the startup that summarizes top news stories by breaking them down into “atomic units.” PaidContent’s Mathew Ingram explained what Circa’s up to, and Fast Company’s Anjali Mullany published a Q&A with De Rosa about his plans there.

— A few News Corp. pieces: It announced it will officially split into a publishing company (called News Corp.) and an entertainment company (21st Century Fox) on June 28. It introduced its retooled News Corp. logo, and the new News Corp.’s head, Robert Thomson, declared that it would have “relentless” cuts in store after the split.

— BuzzFeed announced a new YouTube channel featuring video through a partnership with CNN. The Wall Street Journal explained what’s behind both companies’ move deeper into online video.

— Finally, a couple of smart pieces on the native advertising phenomenon: CUNY’s Jeff Jarvis made the case against news orgs getting into native advertising, and Publish2′s Scott Karp laid out some of the difficulties of making native advertising scale.

December 16 2009

07:24

Defamation and the internet: a consultation response to the Ministry of Justice

Last month I blogged about the consultation currently taking place on the law of defamation and the multiple publication rule. The deadline for that is today. Below I’ve published my own responses. If you feel I’ve got something wrong or missed something, please let me know.

Question 1. Taking into account the arguments set out [in the document], do you consider in principle that the multiple publication rule should be retained? If not, should a single publication rule be introduced? Please give reasons for your answers.

Comments: Based on the arguments set out, I do not believe that the multiple publication rule should be retained. The primary reason for this is that the burden of proof in these cases rests on the publishers, in situations where any records may well have disappeared. This is particularly problematic when employment within publishing is increasingly unpredictable, and employees – along with their records – are either frequently leaving or being made redundant from positions, or working for the organisation on a freelance basis. A single publication rule should be introduced.

In addition, the multiple publication rule is based on a print-based industry where defamatory material might be hard to access. In an industry that commonly publishes content online, with its concomitant findability, ease of distribution, and monitoring, it would be particularly unusual for a person not to become aware of defamatory content within a year of its publication.

Question 2. If the multiple publication rule were to be retained should there be an obligation to place a notice on an archive once the person responsible has been notified that the material is subject to defamation proceedings?

Comments: Yes. This would not only guard against other actions but also alert potential witnesses who may read the article or, in future, receive updates on it.

Question 3. Do you agree that if a single publication rule were to be introduced, it should apply to all defamation proceedings, not just those relating to online publications?

Comments: Yes. Otherwise someone could simply use online archives to find the material but visit the physical archives to support their case.

Question 4. If a single publication rule were introduced,

a) should it be made obligatory to remove or amend material held in other formats under the control of the same publisher in the event of a successful defamation action against the original publication of the material?

Yes. Clearly if material is found to be defamatory then the publisher should alter any defamatory material under their control.

b) should there be a provision that, where defamatory material is re-transmitted in a new format, the single publication rule would only protect the previous publisher and not the publisher of the new article?

No. The idea of an article, for example, linking to defamatory material being defamatory itself would seriously threaten the culture of transparency in web publication where authors are expected to link to their sources.

Question 5. 
b) Should online content that has been modified be regarded as a new publication?

No. This would discourage useful modifications and corrections as staff would then have to check the entire text every time a small element of it was brought to their attention. If every modification was considered a new publication, publishers would simply leave erroneous or outdated material unchanged.

Question 6. As an alternative to introducing a single publication rule, do you consider that the Defamation Act 1996 should be amended to extend the defence of qualified privilege to publications on online archives outside the one year limitation period for the initial publication, unless the publisher refuses or neglects to update the electronic version, on request, with a reasonable letter or statement by the claimant by way of explanation or contradiction? Please give reasons for your answer.

Comments: I am inclined to say ‘Yes’ here because it restricts the opportunity for profit-motivated legal action against published. However, such a move also runs the risk of inclining publishers to complying with such requests to avoid losing their qualified privilege. Both elements need to be factored in.

Question 7. Do you agree that if the multiple publication rule is retained, the limitation period should remain at one year from the date of publication (with discretion to extend)? If not, what limitation period would be appropriate and why?

Comments: Yes. As the current one year period is not causing problems, there appears little reason to extend to ten years.

Question 8. 
a) If a single publication rule were introduced, should the limitation period of one year run from the date of publication (with discretion to extend) or the date of knowledge (without discretion to extend)? If the latter, should there also be a ten year long-stop from the date of publication?

From publication. The introduction of date of knowledge is problematic to prove and makes preparation of a defence equally complicated. Given the accessibility of contemporaneous content, those with reputations are likely to monitor online media for mentions and become aware of defamatory content quickly. The increased ability of people to search, distribute and access content online makes it difficult to support any limitation period based on date of knowledge.

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