Tumblelog by Soup.io
Newer posts are loading.
You are at the newest post.
Click here to check if anything new just came in.

March 30 2012

13:00

January 20 2012

15:20

Mediatwits #34: SOPA Protests Make a Difference; Yang Out at Yahoo

danny telegram.jpg

Welcome to the 34th episode of "The Mediatwits," the weekly audio podcast from MediaShift. The co-hosts are MediaShift's Mark Glaser and Rafat Ali. This week the show is mainly focused on the huge day of protest online Wednesday against the Stop Online Piracy Act (SOPA) and Protect IP Act (PIPA) before the U.S. Congress. After Wikipedia, Reddit and other sites went black, and millions signed petitions and called lawmakers, at least 40 representatives and Senators said they wouldn't support the bills in their current form. It was a breathtaking display of online organization that got results.

Special guest Danny Sullivan of Search Engine Watch discussed the role that Google played in educating people and helping them take action. Plus, Sullivan created one of the more creative memes by sending a telegram to Sen. Dianne Feinstein (D-Calif.) because she didn't have an active Twitter or Facebook page. (Click the image above-left to see the telegram at full size.) In other news, Chief Yahoo and company co-founder Jerry Yang announced he was stepping down as Yahoo tries again to turn the tanker around. Special guest Eric Jackson, an activist investor in Yahoo, talks about the brightened prospects for the web giant now that Yang has departed.

Check it out!

mediatwits34.mp3

Subscribe to the podcast here

Subscribe to Mediatwits via iTunes

Follow @TheMediatwits on Twitter here

Intro and outro music by 3 Feet Up; mid-podcast music by Autumn Eyes via Mevio's Music Alley.

Here are some highlighted topics from the show:

danny_sullivan headshot.jpg

Intro

1:10: Rafat is going away to get married and to take a long honeymoon trip

3:00: There are more serious issues that should get this much attention

5:00: A clear explanation of the SOPA and PIPA bills before Congress

7:15: Rundown of topics on the podcast

Huge day of protesting SOPA online

8:00: Special guest Danny Sullivan

11:10: Sullivan: Big media companies should make content easier to find, buy

13:00: Should be an easier way to pull down infringing sites

15:10: Sullivan explains why he did the telegram for Sen. Feinstein

19:00: Obama comes out against the bills in their current form

Yang out at Yahoo

Eric Jackson head.jpg

20:20: Special guest Eric Jackson

22:40: Jackson: Investors have shied away from Yahoo stock

25:40: Jackson is heartened by new CEO Scott Thompson

28:00: Jackson: Shareholders could get a special dividend

More Reading

SOPA protest by the numbers: 162M pageviews, 7 million signatures at Ars Technica

Your Guide to the Anti-SOPA Protests at MediaShift

Put Down the Pitchforks on SOPA at NY Times

Where Do Your Members of Congress Stand on SOPA and PIPA? at ProPublica

Protect IP Act Senate whip count at OpenCongress

Senator Ron Wyden To The Internet: Thank You For Speaking Up... But We're Not Done Yet at TechDirt

With Twitter, Blackouts and Demonstrations, Web Flexes Its Muscle at NY Times

Google Blackens Its Logo To Protest SOPA/PIPA, While Bing & Yahoo Carry On As Usual at Search Engine Land

Protests lead to weakening support for Protect IP, SOPA at CNET

Jerry Yang's Departure Means Major Transformations for Yahoo! at Forbes.com

Yahoo's Yang is gone. That was the easy part at CNET

With Yahoo co-founder Jerry Yang departed from board, Yahoo seeks a new course at Mercury News

Weekly Poll

Don't forget to vote in our weekly poll, this time about the anti-SOPA protests:


What do you think about the anti-SOPA protests?

Mark Glaser is executive editor of MediaShift and Idea Lab. He also writes the bi-weekly OPA Intelligence Report email newsletter for the Online Publishers Association. He lives in San Francisco with his son Julian. You can follow him on Twitter @mediatwit. and Circle him on Google+

This is a summary. Visit our site for the full post ».

January 18 2012

23:10

Your Guide to the Anti-SOPA Protests

Today was an important day in the history of the Internet and activism. While the U.S. Congress expected to quickly pass two bills, the Stop Online Piracy Act (SOPA) and Protect IP Act (PIPA), mounting opposition online has led them to reconsider. That all came to a head today when various sites such as Wikipedia and Reddit decided to black out their content, and others such as Google put up anti-SOPA messages on their sites. The following is a Storify aggregation of all those efforts, including explainers, stories, tweets, parody videos and more.

[View the story "A Guide to the Anti-SOPA Protests" on Storify]

Mark Glaser is executive editor of MediaShift and Idea Lab. He also writes the bi-weekly OPA Intelligence Report email newsletter for the Online Publishers Association. He lives in San Francisco with his son Julian. You can follow him on Twitter @mediatwit. and Circle him on Google+

This is a summary. Visit our site for the full post ».

January 13 2012

15:20

Mediatwits #33: CES Jumped the Shark?; SOPA Battles; Google+ in Search

Welcome to the 33rd episode of "The Mediatwits," the weekly audio podcast from MediaShift. The co-hosts are MediaShift's Mark Glaser and Rafat Ali. This week we have a special show focused on the Consumer Electronics Show (CES) happening in Las Vegas all week. Apple isn't there and Microsoft did its last keynote presentation there. Is the show losing momentum? Are we all burned out on gadgets and flatter TVs? We talk to two tech journalists on the CES floor, Rob Pegoraro and TechDirt's Mike Masnick, about the various new TV sets, tablets and smartphones. Plus, Masnick gives us an update about how the CEA and many folks at the show are overwhelmingly opposed to the two anti-piracy bills, SOPA and PIPA, before Congress.

Meanwhile, search giant Google caused a stir by integrating Google+ much more deeply into its search results. The new "Search Plus Your World" has been criticized as unfairly giving Google+ an advantage over Twitter and Facebook in search results. Google responded by saying that it was upset that Twitter didn't renew its contract to be included in search results. Will this move bring more trouble to Google, with the Feds already investigating the company over privacy issues?

Check it out!

mediatwits33.mp3

Subscribe to the podcast here

Subscribe to Mediatwits via iTunes

Follow @TheMediatwits on Twitter here

Intro and outro music by 3 Feet Up; mid-podcast music by Autumn Eyes via Mevio's Music Alley.

Here are some highlighted topics from the show:

Intro

1:00: Background on the CES show

3:00: Journalists weary and tired of CES now?

4:00: The pain of CES

4:45: Rundown of topics on the show

Report from CES

portrait-with-cables.jpeg

5:15: Special guests from CES: Rob Pegoraro and Mike Masnick

6:10: How is this show different than previous shows?

7:50: Masnick: Thin TVs are impressive

10:40: Pegoraro: Color e-ink readers might boost e-readers

13:30: Masnick: Hard to see disruptive technology at first

CEA opposing SOPA

16:10: Many people at CES are opposing Stop Online Piracy Act, including Consumer Electronics Association

19:20: Why SOPA went too far

20:00: Pegoraro: History of greedy, restrictive bills put forward by entertainment industry

22:05: Masnick: When entertainment biz loses fights, they often still win

mike masnick hands.jpg

Google integrates Google+ in search

24:00: Mark gives background on move by Google

26:40: Why can't Google put social, private search in a new tab?

29:10: Facebook, Twitter are feeling left out of Google search

More Reading

CNET's Best of CES at CNET

CES XV at RobPegoraro.com

Tech Charms: Flying Cameras, Musical Purses at WSJ

Desperation Of SOPA/PIPA Supporters On Display At CES at TechDirt

Boo-Freaking-Hoo: RIAA Complains That 'The Deck Is Stacked' Against Them On CES Panels at TechDirt

Author of Controversial Piracy Bill Now Says 'More Study' Needed at WSJ Digits

Google's Results Get More Personal With Search Plus Your World at Search Engine Land

Is adding Google+ to search a red flag for regulators? at GigaOm

Search Plus Your World -- As Long As Its Our World at SearchBlog

Compete to Death or Cooperate to Compete? at SearchBlog

Weekly Poll

Don't forget to vote in our weekly poll, this time about the CES show:


The Consumer Electronics Show is...

Mark Glaser is executive editor of MediaShift and Idea Lab. He also writes the bi-weekly OPA Intelligence Report email newsletter for the Online Publishers Association. He lives in San Francisco with his son Julian. You can follow him on Twitter @mediatwit. and Circle him on Google+

This is a summary. Visit our site for the full post ».

January 04 2012

15:20

2012: Why the Web Is Not Dead and Other Flashpoints

First the easy predictions for the new year: In 2012 we'll see a rise of politics in the digisphere, along with reporting as if the phenomenon is a surprise; more strum over the Murdochs' drum; and a snazzy new iPad 3.

But, there are bigger rumblings afoot in the year ahead, too. Here's my second annual round of predictions for the digital world.

The Return of the Web

Far from the web being dead, we're going to see more and more media organizations figure out how to use it well.

Publishers have started to realize that putting their stock in proprietary apps for Apple devices reaches only a subset of the potential universe, making it hard to "monetize" the investment, not to mention support an entire operation.

Costly to develop, the apps also give Apple more control of customers and their data than the publishers like. To make it worse, attempts to make money through Apple's iAds have been lackluster.

Publishers have started to understand, too, that the latest web applications can, via a browser, handle a lot of the latest whiz-bang interactivity and nifty tools. HTML5, the latest web coding language, can help take advantage of tablet and browser functions such as location, swiping, screen size, portrait and landscape orientation, shaking, tilting and more.

The newer web applications are getting better at integrating with payment systems, preventing unauthorized copying, controlling font size, typeface and other aspects that preserve the look and feel of "the brand."

By using the web, publishers can more easily create something that works across screens, offers similar functionality to a native app built specially for Apple or Android, and gives them access to data and control of revenue.

It also means a lot of the same stuff that hooks into a plain old website (POW?) -- web analytics, certain types of javascript and more -- can be used without having to do a lot of difficult recoding and workarounds.

Look, for example, at the Google Chrome web store (you may need the Chrome browser) to see just a few web-based apps, including NPR's for news and Sports Illustrated's for photos -- some of which require a fee.

Filipe Fortes

The Kindle Cloud Reader, the Financial Times and WalMart's Vudu all went the web route, eschewing native iPad/Phone/Pod apps in favor of the browser to get consumers to buy and consume books, news and video, respectively.

The experience on a computer, tablet or phone can be quite similar to the one on a native app. App companies, too, are gearing up for more web-based functionality.

Flipboard, the iPad app Steve Jobs called a favorite, hired HTML5 expert Filipe Fortes away from Treesaver (a former client of my company). Apple, too, has been listing multiple jobs for those skilled in HTML5.

I'm not saying that native apps will go away -- just that we'll see more development of snazzy new media via the web, which itself is entering a more structured, app-like phase. (See last year's predictions for a discussion of Open vs. Closed philosophies.)

A Year of Legal Wrangling, Wheeling and Dealing

Last year brought a wave of patent acquisitions, including Google's $12.5 billion purchase of Motorola.

This year, we'll see deals done and court cases launched in which holders of various patents, especially in mobile, either sue each other or reach agreement to allow cross-usage. Apple will continue to pursue Google via phone makers over Android.

We'll see legislative and regulatory pushes on privacy and piracy, egged on by powerful lobbyists. (See Mark Glaser's previous piece for a rundown.)

I don't believe that any law will keep people from getting the media they want, though. People will find a way around it, without paying if need be.

Big Four Coop-etition

Just because others have predicted the clash of Google, Facebook, Amazon and Apple doesn't mean it's not worth mention here, too. But, it also doesn't mean it's absolute: They often help each other, as well.

In my media management class, we recently drew a representation of Amazon as a multi-faceted behemoth, and it dawned on me how formidable the company is as a media distributor.

Not only has Amazon created a proprietary portable platform in the Kindle Fire, but Amazon Prime now includes music, video and borrowed e-books, along with free shipping, all for the same $79 yearly fee.

Amazon is also a content producer through its IMDb movie and TV site and its new book publishing imprint. In the past, it has produced at least one movie and a show hosted by Bill Maher.

Its financial position makes it stronger than many others. For Amazon, advertising is supplementary revenue, unlike for most media companies, like Google or Facebook. It makes its real money through e-commerce, web hosting and as a Content Distribution Network (CDN) that even competitors such as Netflix use.

Is there any company with big ambitions that Google doesn't compete with in some way? From Google Offers in coupons, to Places in location, to Google+, to its suite of document and email products, Google Reader, iGoogle, Google Voice, Analytics and on and on, the company is spread through nearly every digital media and interactive sphere.

Like many a media company, Google makes most of its money from ads, on search and through YouTube. Google's share dwarfs all others in digital, and will continue to generate serious cash flow in 2012.

Meanwhile, it's chipping away at Apple's perceived dominance in smartphones with its Android operating system, which is on more smartphones than any other. Its mobile ad company, AdMob, is getting accolades and market share.

Android's feature set challenges Apple's iOS (see legal wrangling, above) and its newer versions seamlessly hook into Google applications like Places, Picasa photos, Maps, Books, Music, Gmail, Docs and more.

The Kindle Fire, based on a "branched" version of Android, is the first tablet to come close to denting the iPad's market share.

Facebook founder Mark Zuckerberg says everything -- search, media, commerce -- is better when your friends help you find, evaluate and understand it.

He and COO Sheryl Sandberg told broadcast journalist Charlie Rose in November that Facebook cooperates rather than competes with the rest of the digital universe.

That is, unless you notice that the social network competes head-on with Google for ad dollars in targeted cost-per-click advertising.

Facebook has also beefed up search, is gathering tons of data via the "like" and Facebook Connect APIs, and is grabbing some of the best Silicon Valley talent that used to work at Google, including Sandberg. It has incorporated some of Google+'s favorite features.

You could build the case for cooperation by noting that Facebook now works well on Android and iOS apps. Amazon includes Facebook's "like" button on its pages, and allows sending of gift cards through Facebook Connect.

Mainly, though, Facebook competes for attention, often called the currency of the digital age. Every hour someone spends socially networking or consuming media through its pages is time they don't spend on YouTube, Amazon, Kindle or iTunes.

Apple is, well, Apple -- one of the great brands of all time. Though we'll see a little bit of concern over Jobs' absence -- maybe a little stumble or two -- the company should continue to rack up oohs, ahhs, and sales as it turns out new devices.

Even if its focus slips a tad, the company can use its billions of dollars of cash to try just about anything, and even fail a few times.

No one tops Apple's ability to charge for digital content via iTunes and Apps, and content distributors will have to play along even as they beef up their web app offerings.

If the rumored Apple television comes to pass, we'll see more frisson in the media sphere, and more pull from Apple against Amazon's efforts to wrest away sales of music and video -- a battle that's continued for years.

Relative to the big four, traditional media companies are playing on the weaker side of an uneven field. They are masters of content production, but that content is expensive and doesn't scale and acquire new customers as cheaply as an engineer's algorithm can.

Honorable Mentions

A few other trends merit some mention. There will be continued froth among ad networks and exchanges, and those buying and selling data around them, with consolidation and some shakeouts.

I see a continued push and pull among human- vs. machine-driven solutions. As Facebook tweaks its Edge Rank algorithm, companies like Demand Media will try to regain ground in search results and companies like Trada will introduce humans to the ad-optimization equation. (I hope to write more about this human-vs.-machine issue at a later date.)

At least one of the big six book publishers may have to fold or merge at some point, though that may not happen just yet. It's a truism that in the digital age, middlemen with decreased marketing, distribution and production muscle get squeezed. Amazon, Google Books and iBooks are helping apply the pincers.

There's likely to be activity in the hyperlocal space. Local news services such as Patch and many more localized efforts such as New York's DNAInfo will need to show investors they're gaining ground.

Location-based services like Foursquare, Gowalla (now owned by Facebook), and Google Places will increasingly hook into and compete with the hyperlocals. "Location-based marketing" is already a buzz word.

Where Does This Leave You?

Like last year, I'll say this to media operators: Don't bet on just one horse. Pay attention to who has access to and shares the data you help generate. Offer your media on as many popular platforms as is feasible, and make some level of it easy to share.

Make sure your business model accounts for sharing of your content, including sharing you may not appreciate. No regulation will protect your content completely.

If you're a consumer, don't expect Apple or Android to do everything you need or want, but you may want to weave your media tech life around one or the other for simplicity's sake. Do expect to be delighted and infuriated as you upgrade your computer only to discover some of your favorite old stuff doesn't work as well. (And by old, I mean from like two years ago.)

Me, I'll play with my new Android phone, my new MacBook Pro, consider the new iPad and any new Kindle, keep hacking my Windows computers, getting media any way I can (I still use a VCR sometimes!), and learning with great enjoyment.

Happy New Year!

An award-winning former managing editor at ABCNews.com and an MBA (with honors), Dorian Benkoil handles marketing and sales strategies for MediaShift, and is the business columnist for the site. He is SVP at Teeming Media, a strategic media consultancy focused on attracting, engaging, and activating communities through digital media. He tweets at @dbenk and you can Circle him on Google+.

This is a summary. Visit our site for the full post ».

December 01 2011

15:20

July 26 2011

19:25

Your Guide to the U.K. Phone-Hacking Scandal (or 'Hackgate')

From time to time, we provide an overview of one broad MediaShift topic, annotated with online resources and plenty of tips. The idea is to help you understand the topic, learn the jargon, and take action. We've previously covered Twitter, local watchdog news sites, and Net neutrality, among other topics. This week MediaShift U.K. correspondent Tristan Stewart-Robertson looks at the phone-hacking scandal.

Background

To still use the terms "phone hacking" or "News of the World" to describe the scandal engulfing the British media is now somewhat insufficient.

"Hackgate," as it's often called on Twitter, has really been going on since 2002, but didn't explode until July 4, 2011 and has since dominated the news in the U.K. and increasingly abroad.

Without question, The Guardian has been the leader on the phone-hacking story from day one, and reporter Nick Davies will most certainly be the runaway candidate for "reporter of the year" at next year's British Press Awards. The paper's multimedia coverage and interactive features on a continually moving and expanding story are second to none.

The New York Times has also been a leader on the story, particularly with its September 2010 investigation into the subject.

Glossary of Terms

"Blagging": It might sound like a quaint English term, but it, too, is illegal. As the BBC summarizes, the Data Protection Act 1998 prevents someone from pretending to be another person for the purposes of gaining access to private data, such as medical records.

Phone hacking: The technical term for what private investigators, and some reporters, were doing for the News of the World is actually "illicit voice message interception." It's illegal to access someone else's cell phone messages, usually by having one person call the phone, and while it is engaged, a second person calls and gets access to the messages. Most people wouldn't think to change the standard manufacturer's code, such as 9999 or 0000, to protect voicemail, and so it's usually quite easy to access.

"Pinging" or phone tracking: Police can track a suspect's cell phone by triangulation from nearby cell phone towers. But as the Guardian exposed, the News of the World allegedly paid police to access such tracking. If proven, both the bribery and obtaining of private data would be punishable.

Public Interest: When the British media talks about what is in "the public interest," this is quite broad but has a specific legal backing which is referred to as The Reynolds Defense. The full case is here, but Wikipedia has a summary of it.

Regulation: Many commentators, when talking about possible statutory regulation of the press, cite the flaws of self-regulation, which currently takes the form of the Press Complaints Council and its code of practice. But regulation could mimic the Broadcasting Act 1996 which dictates fairness and balance in television news, and can invoke large fines for breaches.

Main Cast of characters

Andy Coulson: Editor of the News of the World. He resigned in 2007 when phone hacking was first exposed with the criminal convictions of former royal correspondent Clive Goodman and private detective Glenn Mulcaire. Coulson later was appointed as chief of communications for Prime Minister David Cameron before resigning again this year.

james murdoch.jpg

James Murdoch: Chairman and chief executive of News Corp., Europe, and son of Rupert, he authorized out-of-court settlements for phone hacking, which he later said he regretted because he did not have all the information about the extent of the criminality. His evidence in front of a House of Commons select committee has now been questioned.

Rupert Murdoch: Chairman and CEO of News Corp. Political leaders considered he was essential to have on their side to be able to win British elections.

Rebekah Wade: Editor of the News of the World, then its sister paper The Sun, and then chief executive of News International until her resignation during the hacking scandal. She was editor at the time of the alleged hacking of the phone of murdered 13-year-old school girl Milly Dowler, which turned the public against News International.

Timeline

In 2005, a story about medical treatment of Prince William led Buckingham Palace to suspect interference with his voicemail.

Goodman, the News of the World royal reporter, was jailed in 2007 as was private investigator Mulcaire. Coulson resigned as editor, and everyone claimed it was just a few bad apples.

In 2009, the Guardian returned to the story and exposed out-of-court settlements to public figures, suggesting there were thousands more potential victims, including celebrities and politicians.

On July 4, 2011, the Guardian revealed the hacking of Milly Dowler's phone, which turned public attention dramatically to the story.

After an outcry from the public and a campaign on Twitter and Facebook to get advertisers
to drop the News of the World, News International announced that the July 10 issue of the News of the World would be the last after 168 years.

The next week, News Corp. announced it would stop its attempt to take over all of BSkyB.
And in the ultimate climax, the following week, James and Rupert Murdoch and Wade gave evidence to a House of Commons select committee.

The dominant digital coverage

20110721.GU.hackingtimelinegraphicwb.jpg

The phone-hacking story traditionally would have started in print on July 5. Instead, the Guardian released it online first on July 4, giving other media a chance to pick up the story for the next day and hitting the social media sphere much earlier than Tuesday morning.

That very much fits into the strategy announced by the Guardian last month of digital first. Most, if not all, of the revelations from the phone-hacking scandal were broken online before print editions hit the streets in a battle for the public attention -- and frequently mid-afternoon so ideally placed to catch the 6 p.m. TV newscasts and an American audience five or more hours behind.

Online coverage has also allowed for detailed timelines and data visualizations in the Guardian, as well as crowdsourcing from the Guardian and Telegraph (see below).

Digital reaction

When news of the hacking of Milly Dowler's phone first broke, outrage ensued on social media such as Facebook and Twitter. Although the public did not initially have papers in front of them to target particular advertisers with the News of the World, a campaign soon started.

Parenting forum Mumsnet helped drive the online campaign and pulled its own campaign from Sky television, which at the time News Corp. was trying to acquire.

Again, the Guardian was at the forefront of providing information, publishing the Twitter addresses of the top 50 News of the World advertisers.

Twitters users became perhaps the most active during the James and Rupert Murdoch testimony in front of Britain's Select Committee on July 19, showing the speed of social media reaction. Within minutes of a protestor throwing a shaving-cream pie at Murdoch senior and the right-hook reaction from wife Wendi Deng, #piegate shot onto the Twitter trending list, only to be overtaken minutes later with #wendi.

Crowdsourcing and Data Visualization

The Guardian and Telegraph have both invited readers and users to get involved in sorting through data. The Telegraph released articles from the past decade in the News of the World that mention phone calls, voicemails and emails. The Guardian's crowdsourced list of potential victims is currently offline to check accuracy. The Atlantic has also praised such efforts to tackle the volume of potential phone-hacking victims and associated data.

Investigations

  • The Leveson Inquiry will be the formal and broad investigation into the media's practices and ethics, as well as publishers' involvement with politics and the police.
  • Operation Weeting is the formal inquiry by the Metropolitan Police into phone hacking and more, and is a follow-up to the previous failed police inquiries. A total of 60 officers are now on the case.
  • The Serious Fraud Office in the U.K. is said to be considering an investigation.

In Numbers

Deaths: 1 [Sean Hoare]

Arrests: 9 [Neville Thurlbeck, Ian Edmondson, James Weatherup, Terenia Taras, Coulson, Goodman, an unidentified 63-year-old man, Neil Wallis and Brooks]

Charges: 0

Allegations dropped: 1 [Press Association reporter Laura Elston]

Convictions: 2 [Goodman, Mulcaire]

Resignations: 4 [Brooks (News Int), Coulson (technically well before the scandal blew up, and twice, from News Int and Conservative Party), Sir Paul Stephenson (police), John Yates (police), Les Hinton (Dow Jones)]

Fired: 1 [Matt Nixson, features editor at The Sun and former NOTW employee]

Laid Off: 200 [News of the World staff, according to its former political editor]

Tristan Stewart-Robertson is a Canadian freelance reporter based in Glasgow, Scotland, operating as the W5 Press Agency.

This is a summary. Visit our site for the full post ».

July 08 2011

20:04

Who Is Ultimately Responsible for the U.K. Phone-Hacking Scandal?

The revelations coming out by the hour in the U.K. phone-hacking scandal are breathtaking. What began as supposedly a rogue operation by a gossip reporter and a private investigator have now allegedly widened to include many more editors, reporters, investigators, bribes to police and the shutdown of the best-selling newspaper in the English language -- the News of the World. (You can get more details from our MediaShift report as well as on today's podcast.)

The question is: Who is ultimately responsible for this scandal? The people who did the hacking, which was illegal, or their bosses who had knowledge of their actions? Should top executives at News International be axed? And what about the police and Parliamentary inquiries that may have ignored evidence of wrongdoing? Just how far does this escalate? Share your thoughts in the comments below and vote in our poll.




Who is ultimately responsible for the U.K. phone-hacking scandal?online survey

This is a summary. Visit our site for the full post ».

May 19 2011

18:45

In Lithuania, an Overdue Crackdown on Online Hate Speech

Online hate speech is becoming more and more widespread in Lithuania and until recently, comments like, "The world needs Hitler again to do the cleansing job," which was posted on a website called Delfi, or "Expel dirty Roma people out of Lithuania" would have gone unheeded by criminal justice.

"Although the Lithuanian Criminal Codex includes sufficient law provisions to prosecute instigators of hate and enmity, these provisions have been largely ignored by criminal judges," Vitoldas Maslauskas, former Vilnius County prosecutor, said last month.

Most law enforcement officials, Maslauskas said, ranging from high-level prosecutors to ordinary investigators, turn a blind eye to the practice of web hate speech for one simple reason: Criminal judges are swamped under real-life infringements and don't have time to chase down Internet bashers who, as a result, go untouched online.

Combatting Hate Speech

tja.png

One non-governmental organization though, the Tolerant Youth Association (TJA), is slowly but surely helping to harness the hate speech, with and without help from criminal justice.

"Although we have been actively carrying out various tolerance-inducing projects since the establishment of our association in 2005, it is only in recent years that we have been fighting against the practice of online hate speech," said Arturas Rudomanskis, chairman of TJA.

The association has initiated 58 pre-trial investigations this year into cases instigating hate and enmity: "It represents a rise of nearly double compared to last year's figure of 30-plus-something cases," Rudomanskis said.

"Until last year, we would pinpoint online hate-mongers to prosecutors. This year, however, we changed our tactics by creating an autonomous system allowing people to file complaints against online bashers directly to the prosecutor's office. This has undoubtedly worked out well, as conscious people extensively report hate cases to prosecutors," Rudomanskis said.

Thanks to the efforts of the Tolerant Youth Association, the online slanderers mentioned at the beginning of this article have been traced, prosecuted and punished.

Only a few years ago, it is likely that they would have escaped the law.

Bringing online slanderers to justice

The man instigating hate against Roma people turned out to be a 28-year-old manager of a company in the city of Utena in northeast Lithuania.

The District Court of Utena ruled that the man incited hate against Roma people and instigated to discriminate against them on the basis of their ethnicity. In his affidavit, the manager admitted the wrongdoing and justified his act by arguing that he had only voiced his opinion. He received a fine of LTL 1,300, which is roughly the equivalent of $535.

In such cases, local courts often seize the offenders' computers as the tools of crime. However, the Utena District Court decided not to confiscate the manager's computer.

Zamzickiene.jpg

A 36-year-old inhabitant of the town of Anyksciai, who had urged to have "all gays" slain in an online response to an article about the first-ever Lithuanian gay pride parade, whimpered at the District Court of Anyksciai, explaining that he had merely intended to express his discontent against the gay march.

The judge was not impressed and punished him with a fine of nearly 400 euros ($570). District prosecutor Vigandas Jurevicius admitted the case was the first of its kind in his career.

"I launched the investigation following a complaint by the Tolerant Youth Association. To be honest, had it not been for the complaint, I would have not sought prosecution, as it is simply impossible to keep track of the post flow on the Internet," the prosecutor acknowledged.

Just starting the fight

In the meantime, TJA chairman Arturas Rudomanskis notes that the number of Internet surfers who report online slanderers is increasing and calls for a "more substantial" involvement of Lithuanian criminal justices against online hate speech.

"Actually, we have just started the fight," he said. "We are far away from seeing any major breakthrough just yet. However, I see much more support in Lithuanian society and in the media for online perpetrators of hate to be addressed in full force by the law."

According to Rudomanskis, online hate speech cases that reach court break down as follows: 70 percent of the cases are related to hate against homosexuals, and the rest is equally split between anti-Semitic and xenophobic abuse.

"Obviously, Lithuania remains one of the most homophobic countries in the European Union. This is directly reflected in Internet posts," Rudomanskis said.

TJA has succeeded in shutting down a gay hate-laden website set up by a member of an ultranationalist Lithuanian organization, as well as its Facebook page filled with anti-gay slurs.

The role of journalists in tackling online hate

"We have to admit that there are many angry people in Lithuania," said Zita Zamzickiene, the Lithuanian ombudsman for Journalism Ethics. "This is partly due to our recent heritage that goes back to the Soviet era. Homosexuals and ethnic minorities, unfortunately, fall in the category of people who most often become a punching bag. We can tackle the intolerance by educating our people and carrying out prevention programs."

Obviously, Lithuanian journalists can play a key role in curbing Internet slanderers by educating the population and promoting universal human values such as tolerance. For a small country like Lithuania that is still suffering from the post-Soviet syndrome, it may be an issue of utmost priority.

Linas Jegelevicius, 40, Lithuanian, obtained his master's degree in journalism at the Vilnius University Institute of Journalism. Between 1994 and 2004, he lived in New York and Miami, where he contributed to the Miami newspaper Wire. From 2001 until 2003, he edited and published his own newspaper, South Beach AXIS. Jegelevicius currently works as an editor for the regional newspaper Palangos tiltas, in the resort town of Palanga in the west of Lithuania. He also contributes as a freelance journalist to several English language publications, including The Baltic Times and Ooskanews.com. He has published two books, and his interests include politics, economics, journalism, literature, the English language (particularly urban English), psychology, traveling and human rights.

ejc-logo small.jpg

This story was originally published by the European Journalism Centre, an independent non-profit institute dedicated to the highest standards in journalism, primarily through the further training of journalists and media professionals. Follow @ejcnet for Twitter updates, join us on Facebook and on the EJC Online Journalism Community.

This is a summary. Visit our site for the full post ».

April 20 2011

18:49

Tasini Lawsuit Against Huffington Post Has No Merit

Jonathan Tasini's at it again.

Last week, the writer and labor activist declared war on Arianna Huffington, first promising to make her "a pariah in the progressive community" and then threatening to make her life "a living hell." He went on, in a splendid variation of Howard Beale's "I'm mad as hell" speech, to say that unpaid Huffington Post bloggers are "modern-day slaves" on "Arianna's...plantation."

In short, Tasini's a real charmer.

He made those comments in the shadow of a class-action lawsuit he filed April 12 against the HuffPost and its parent company, AOL. Tasini claims that all unpaid HuffPost bloggers -- he was one of them, until two months ago -- deserve a share of the site's estimated $315 million buyout value. Specifically, his magic number is $105 million. He wants not a penny less. Why that much? Because "justice" demands it, of course.

Weak Legal Theories

The lawsuit really is two things: It's interesting and it's a loser. On the one hand, the suit raises some provocative big-picture questions. Should media sites pay their content creators? If so, how would those relationships be structured? If not, how would the supply of free content affect the creative market? On the other hand, a trial court is not the best forum for those questions, and the suit relies on weak legal theories.

The big theory, the one I'll focus on here, is unjust enrichment. Tasini argues that Huffington Post has generated enormous revenue by inviting people to blog for the site on a volunteer basis, in exchange for exposure. The low production costs have lifted the HuffPost's value, with the "entirety of the financial gain" going to the site. The bloggers have received no money, even though their content has generated a portion of the revenue. As a result, the HuffPost has been unjustly enriched.

nln-jonathan-tasini-s.jpg

So goes Tasini's argument, and needless to say it's unpersuasive. The theory of unjust enrichment stems from the principle that one person should not be allowed to enrich herself at the expense of another. It applies in cases where no legal contract exists. After all, if a legal contract existed, then its terms would dictate the relationship between the parties -- their rights and obligations. On a claim of unjust enrichment, the court can impose the obligation of one party to pay the other, in the absence of a contract, if doing so would be fair and right.

In the Southern District of New York, where Tasini filed his lawsuit, a person "seeking relief under a theory of unjust enrichment...must demonstrate (1) that the defendant benefited; (2) at the plaintiff's expense; and (3) that equity and good conscience require restitution." In other words, Tasini needs to show that the HuffPost benefited from the posts written by the unpaid bloggers, that the HuffPost benefited at the expense of those bloggers, and that requiring the HuffPost to repay them is the fair and right thing to do.

I bet Tasini could satisfy the first two elements, either by submitting evidence about the amount of revenue that the Huffington Post realized from each freebie post, or by submitting evidence about the savings in production costs that HuffPost realized by using unpaid bloggers. However, I don't think that "equity and good conscience require" the HuffPo to repay them. Thus, Tasini couldn't satisfy the third element.

Not 'Modern-Day Slaves'

It's easy to think of the unpaid bloggers as helpless -- as victims of a tidal wave of digital-industrial capitalism. But that's too generous. I'd like to see writers get paid just as much as the next guy, but the HuffPost bloggers chose to write for free. They're not "modern-day slaves," contrary to what Tasini said, and their relationship with the site has been informal, at best. As Lauren Kirchner wrote in February, in the Columbia Journalism Review:

The thousands of unpaid bloggers...have signed no agreement with the site, and are under no obligation to submit their stories with any regularity. They do not receive assignments. If they have an idea for a post but then decide not to write it, they are not penalized by the site's editors in any way...When bloggers no longer feel it's in their interest -- or that it's disproportionately too much in AOL/HuffPo's interest -- then they'll quit, which they have every right to do...Every individual writer has his or her own individual motivations for contributing for the site.

Tasini offers no evidence that he expressed to the HuffPost any expectation of payment. Nor does he offer evidence that the site expressed to him that he'd be paid. In short, he had no reasonable basis to believe he'd get any money. For these reasons and in light of Kirchner's comments, I just can't say that "equity and good conscience require" the Huffington Post to repay the bloggers.

If they want to get paid, they shouldn't write for free.

Jonathan Peters is a lawyer and the Frank Martin Fellow at the Missouri School of Journalism, where he's working on his Ph.D. and specializing in the First Amendment. An award-winning freelancer, he has written on legal issues for a variety of newspapers and magazines. He can be reached at jonathan.w.peters@gmail.com.

This is a summary. Visit our site for the full post ».

February 10 2011

19:40

5Across: Online Privacy and the 'Do Not Track' Debate



MP_internetprivacy_small.jpg

The debate around online privacy has largely centered around advertising that is targeted at people depending on where they have been online. While somewhat creepy, those ads are perhaps the least of our worries. What many of us don't realize is that there are multiple parties tracking our moves online, some harmless and some possibly nefarious.

In fact, one of our MediaShift readers pointed out that PBS.org itself has at least seven trackers on its site:

I found that on the PBS.org site there are 7 trackers active, they are AddtoAny, Comscore Beacon, Disqus, DoubleClick, Foresee, Google AdSense, and Google Analytics...I found these because I use a Firefox add-on called 'Ghostery' that blocks trackers.

While the FTC considers a "Do Not Track" database, and Rep. Jackie Speier (D-Calif.) plans to introduce a "Do Not Track Me Online 2011" bill tomorrow in Congress, the debate about who can track us where online is heating up. The idea for such a database would be that consumers could opt-out in one simple way from all tracking online, similar to the "Do Not Call" database for telemarketers. But online, things aren't so simple. Some tracking is for analytics, some is to help tailor a site to your preferences, and some to target ads. We convened a group of privacy experts, journalists and publishers to discuss -- and debate -- the limits to what companies and government could track about us online. Check it out!

5Across: Online Privacy

onprivacy.mp4

>>> Subscribe to 5Across video podcast <<<

>>> Subscribe to 5Across via iTunes <<<

Guest Biographies

Ryan Calo runs the Consumer Privacy Project at the Stanford Center for Internet and Society. A graduate of Dartmouth College and Michigan Law School, Calo clerked on the U.S. Court of Appeals for the Sixth Circuit and practiced privacy and telecommunications law at Covington & Burling LLP before joining Stanford Law School in 2008. Calo works on the intersection of law and technology, including privacy and robotics. His work been covered by the New York Times, Wall Street Journal, and other major news outlets.

Declan McCullagh is the chief political correspondent for CNET and runs the Privacy Inc. blog there. Previously he was a senior correspondent for CBS News' website and Washington bureau chief for Wired. He is a private pilot and lives on the San Francisco peninsula with his wife and 15-month old son.

Joanne McNabb is chief of the California Office of Privacy Protection, and is a Certified Information Privacy Professional and co-chair of the International Association of Privacy Professionals' Government Working Group. She serves on the Privacy Advisory Committee to the U.S. Department of Homeland Security and is a Fellow of the Ponemon Institute. Before starting the Office of Privacy Protection, McNabb worked in public affairs and marketing, in both the public and private sectors, including five years with an international marketing company in France. She attended Occidental College and holds a master's degree in Medieval Literature from the University of California, Davis.

Lee Tien is a senior staff attorney at the Electronic Frontier Foundation, a non-profit public interest group focusing on online civil liberties. He went to college at Stanford and law school at UC-Berkeley. He works on a wide range of privacy and security issues including electronic surveillance, cybersecurity, online tracking, national ID systems, location tracking, electronic health records, and the smart energy grid.

Anne Toth is the Chief Trust Officer for Yahoo, where she has managed a wide array of policy issues related to privacy, community, user-generated content, child safety, advertising standards, online accessibility, mobile products, and consumer direct marketing. Toth has been active in leading industry trade association efforts around interest-based advertising, serves on the board of directors of the Network Advertising Initiative and Future of Privacy Forum Advisory Board. She has testified before Congress in DC and the Article 29 Working Party in Brussels on matters related to online privacy. Prior to joining Yahoo, Toth was a research economist at the Fremont Group, a San Francisco-based private investment company affiliated with Bechtel.

If you'd prefer to watch sections of the show rather than the entire show, I've broken them down by topic below.

Where's the Harm?

The 'Do Not Track' Debate

Big Brother is Watching

Differing Takes on Privacy

Free Speech vs. Privacy

Credits

Mark Glaser, executive producer and host
Corbin Hiar, research assistant

Charlotte Buchen, camera

Serene Fang, audio

Location: Vega Project & Kennerly Architecture office space in San Francisco

Special thanks to: PBS and the Knight Foundation

Music by AJ the DJ

*****

What do you think? Do you like the idea of a "Do Not Track" database? How much do you worry about your privacy while going online? Share your thoughts in the comments below.

Mark Glaser is executive editor of MediaShift and Idea Lab. He also writes the bi-weekly OPA Intelligence Report email newsletter for the Online Publishers Association. He lives in San Francisco with his son Julian. You can follow him on Twitter @mediatwit.

This is a summary. Visit our site for the full post ».

February 07 2011

18:49

Will U.S. Government Crack the Whip on Online Privacy?

This week MediaShift will be running an in-depth special report on Online Privacy, including a timeline of Facebook privacy issues, a look at how political campaigns retain data, and a 5Across video discussion. Stay tuned all week for more stories on privacy issues.

MP_internetprivacy_small.jpg

Online privacy is the new openness.

After years of telling all on the Internet, of tweeting about armpit rashes and tantric sex, we may have gone too far, shared too much. We may have lost control of the information that we reveal about ourselves and of the way others use that information. Which is a bad thing.

That's the thinking, at least, behind two government reports released at the end of 2010. The first one, produced by the Federal Trade Commission (FTC), outlines a plan to regulate the "commercial use of consumer data." The second one, produced by the Commerce Department, recommends that the federal government "articulate certain core privacy principles" for the Internet. Together they show that online privacy is very much on the public agenda.

FTC ENDORSES "DO NOT TRACK"

The FTC report, titled Protecting Consumer Privacy in an Era of Rapid Change, begins by noting that "consumer information is more important than ever" and that "some companies appear to treat it in an irresponsible or even reckless manner." It says data about consumer online activity and browsing habits are "collected, analyzed, combined, used, and shared, often instantaneously and invisibly."

google optout.JPGFor example, if I browse online for a product, which I often do, then advertisers could collect and share information about me, including my search history, the websites I visit and the kind of content I view. Likewise, if I participate in a social networking site, which I do, then third-party applications could access the stuff I post on my profile. Today my only lines of defense would be to adjust the privacy controls on my browser, to download a plug-in, or to click the opt-out icon that sometimes appears near an ad.

That's not good enough, according to the FTC report, which is intended to be a roadmap for lawmakers and companies as they develop policies and practices to protect consumer privacy. To that end, the FTC made three proposals.

First, companies should build "privacy protections into their everyday business practices." More specifically, they should provide "reasonable security for consumer data," they should collect "only the data needed for a specific business purpose," they should retain "data only as long as necessary to fulfill that purpose," they should safely "dispose of data no longer being used," and they should create "reasonable procedures to promote data accuracy." In addition, they should implement "procedurally sound privacy practices throughout their organizations."

Although it's unclear what would constitute a "specific business purpose," those suggestions to a great degree reflect existing law. Section 5 of the FTC Act, which prohibits unfair or deceptive practices, can be used to nail companies that fail to secure consumer information. Similarly, the Gramm-Leach-Bliley Act requires financial institutions to take certain steps to secure their information, and the Fair Credit Reporting Act requires consumer agencies to ensure that the entities receiving their information have a permissible reason to receive it. The latter also imposes "safe disposal" obligations on those entities.

Second, companies should "provide choices to consumers about their data practices in a simpler, more streamlined way." This would allow consumers in some transactions to choose the kind and amount of information they reveal about themselves. I say "in some transactions" because companies would have to distinguish between "commonly accepted data practices" and those "of greater concern."

The former includes ordinary transactions in which consumer consent is implied, e.g., I buy a book through Amazon, and I give the company my shipping address. No big deal, says the FTC. The latter, however, includes activities and transactions in which consent is not implied, e.g., an online publisher allows a third party to collect data about my use of the publisher's website. Big deal, says the FTC.

consumers_choice.jpgWhere consent is not implied, consumers "should be able to make informed and meaningful choices," and those choices should be "clearly and concisely described." In the context of online advertising, that means I would be able to choose whether to allow websites to collect and share information about me. The most practical way to give me that choice, according to the FTC, is to place a persistent setting on my browser to signal whether I consent to be tracked and to receive targeted ads. This "do not track" mechanism could give consumers the type of control online that they have offline with the "do not call" list for telemarketers.

Third, companies should "make their data practices more transparent to consumers." They should ensure that their privacy policies are "clear, concise and easy-to-read," and in some circumstances they should allow consumers to check out the data kept about them. Those circumstances remain unclear, but the report says if a company maintains consumer data that are used for decision-making purposes, then it could be required to allow consumers to review that data, essentially to give them the chance to correct any errors.

It's a good thing for the FTC to encourage companies to revisit their privacy policies. Most of them are long and dense and monuments to legalese, and some companies seem to notify me every week about changes to their terms and conditions. Nowhere is their ineffectiveness more apparent than in the world of mobile devices, which often spread privacy policies across dozens of screens, 50 words at a time. On the Internet, meanwhile, it would take consumers hundreds of hours [PDF file] to read the privacy policies they typically encounter in one year. That's hardly helpful to the consumer.

All in all, the FTC report has received mixed reviews. Some say its recommendations won't stop the information free-for-all, while others say it's promising and a step in the right direction. In any case, the commission will need the help of Congress to implement the plan, and that help isn't a sure thing.

COMMERCE DEPT. CALLS FOR PRIVACY CODES

The Commerce Department report, very sexily titled Commercial Data Privacy and Innovation in the Internet Economy: A Dynamic Policy Framework [PDF file], begins by noting that consumer privacy must address "a continuum of risks," such as minor nuisances and unfair surprises, as well as the disclosure of sensitive information in violation of individual rights. The report's purpose is to stimulate discussion among policymakers, and it includes recommendations in four areas.

First, the government should "revitalize" the FTC's Fair Information Practice Principles, a code that addresses how organizations collect and use personal information and the reasonableness of those practices. The amended code should "emphasize substantive privacy protection rather than simply creating procedural hurdles." The specifics are similar to those in the first section of the FTC report: the code should call on companies to be more transparent, it should articulate clear purposes for data collection, it should limit the use of data to those purposes, and it should encourage company audits to enhance accountability.

Screenshot-code.pngSecond, the government should "enlist the expertise and knowledge of the private sector" to develop voluntary codes for specific industries that promote the safeguarding of personal information. To make that happen, the Commerce Department should create a Privacy Policy Office to bring the necessary stakeholders together, and the FTC would enforce the codes once they've been voluntarily adopted.

Well, this makes me think of the old saw that socialism is good in theory but doesn't work. Whether or not that's true, too often the same can be said (truthfully) of voluntary codes. To make this scheme work, at the very least, the FTC should be given rulemaking authority to develop binding codes in the event the private sector doesn't act. Alternatively, as the report suggests, the FTC could ramp up its enforcement of existing privacy laws, to encourage companies to buy in to the voluntary codes, on the theory that the buy-in would entitle them to a legal safe harbor. In other words, complying with a voluntary code would create a presumption of compliance with any privacy legislation based on the amended Fair Information Practice Principles.

Third, the government should be mindful of its global status as a leader in privacy policy. On the one hand, it should develop a regulatory framework for Internet privacy that "enhances trust and encourages innovation," and on the other hand, it should work with the European Union and other trading partners to bridge the differences, in form and substance, between their laws and U.S. law. As the report notes, although privacy laws vary from country to country, many of them are based on similar values.

Fourth, Congress should pass a law to standardize the notification that companies are required to give consumers when data-security breaches occur. Lawmakers also should address "how to reconcile inconsistent state laws," because the differences among them have created undue costs for businesses and have made it more difficult for consumers to understand how their information is protected throughout the country.

In the privacy world my sympathies are chiefly with the consumer, but the patchwork of state security breach notification (SBN) laws is a very real challenge for businesses. Not long ago, I worked with a company that had offices in a number of states, and as a result, it had to comply with a number of different state SBN laws. They were variations on the same theme, of course, but the differences had to be accommodated. The devil was in the details, and from that work it became obvious to me that the compliance costs were high and the benefits low: Some people get better notification than others. That's neither fair for the consumers nor ideal for the company.

The reaction to the Commerce Department report, like the one to the FTC report, has been mixed. Privacy advocates have been critical of it, especially the sections that support self-regulation, but other groups and government officials have commended the Department for taking on a tough issue. For its part, the Department said it plans to incorporate the feedback into its final report, to be released later this year.

NEW COMMITTEE TO CARRY THE PRIVACY FLAG

It's also worth mentioning that in late October, the National Science and Technology Council launched a Subcommittee on Privacy and Internet Policy. Chaired by Cameron Kerry, general counsel of the Commerce Department, and Christopher Schroeder, assistant U.S. attorney general, the subcommittee's job is to monitor global privacy-policy challenges and to address how to meet those challenges.

The charter [PDF file] says the subcommittee will do three things: 1) it will produce a white paper on information privacy in the digital age, building on the work of the FTC and the Commerce Department; 2) it will develop a set of general principles that define a regulatory framework for Internet privacy, one that would apply in the U.S. and globally; and 3) it will coordinate White House statements on privacy and Internet policy, striking a balance between the expectations of consumers and the needs of industry and law enforcement.

LOOKING AHEAD

Online privacy is on the government's brain, no doubt, but it's hard to say what effect, if any, the reports will have. They strike a chord with privacy advocates concerned about the way companies use the information that consumers reveal about themselves. They show sensitivity to the needs of both consumers and businesses. And they don't contain, possibly with the exception of the "do not track" mechanism, any kind of poison pill that would make the reports in their entirety look undesirable to major stakeholders.

Still, many companies already do what the reports recommend, and many of the recommendations to a great degree reflect existing law. So it's fair to wonder how much would change even if lawmakers used the reports to draft legislation. Lots of macro-micro questions remain unanswered, too.

Would all types of businesses be subject to the new framework? What about one that collects only non-sensitive consumer data? How long would businesses be required to retain consumer data? Is there a principled way to come up with a time period? Should companies be allowed to charge a fee to consumers for them to access information that the company maintains about them? If so, how much?

That's just a small sample of the questions that the FTC and Commerce Department need to answer before moving ahead, and they've requested help from interested parties. Readers should feel free to weigh in by contacting the agencies directly; otherwise, drop a comment in the box below.

Jonathan Peters is a lawyer and the Frank Martin Fellow at the Missouri School of Journalism, where he's working on his Ph.D. and specializing in the First Amendment. An award-winning freelancer, he has written on legal issues for a variety of newspapers and magazines. He can be reached at jonathan.w.peters@gmail.com.

This is a summary. Visit our site for the full post ».

December 28 2010

16:40

Top 3 New Media Legal Battles of 2010

This year's been a big one. Spain won the World Cup. Lindsay Lohan went to jail. Don Draper married his secretary. And, of course, the federal courts waded into some of the thorniest legal issues affecting new media.

Three cases stand out from the rest of 2010's docket. Each one shook up the law in a significant way. Below are summaries of the major developments, condensed in the spirit of CliffsNotes, with some commentary about the implications for people and organizations using new media.

Viacom v. YouTube

In June, a federal district court judge ruled on Viacom Int'l Inc. v. YouTube, Inc., a case testing the limits of the Digital Millenium Copyright Act. The ruling came after three years of pre-trial litigation. Viacom claimed that thousands of its copyrighted works had been uploaded to YouTube (e.g., clips of "The Daily Show with Jon Stewart"), in violation of the DMCA, which governs online copyright infringement.

At the heart of the case was the DMCA's safe-harbor provision. It allows service providers in certain circumstances to host user-generated content without assuming copyright liability for that content. The key element is a notice-and-takedown scheme that immunizes the provider if it "responds expeditiously" when notified of specific infringements. That notification can come in two forms.

First, the provider could have actual knowledge of an infringement. This occurs when a valid takedown request has been received. Second, the provider could be "aware of facts or circumstances from which infringing activity is apparent." This operates like a red flag, and the idea is that the provider can't claim the safe harbor if it ignored one.

Viacom argued essentially that YouTube ignored a red flag, because it was well known in general that there was a great deal of "infringing activity" on the site. The judge, however, didn't agree. He sided with YouTube and held that the "facts and circumstances" raising the red flag must be "specific and identifiable infringements of particular items." In other words, it was not enough for YouTube to be aware in general that there was "infringing activity" on the site.

Although some have questioned the importance of the decision, it does spell out just how aggressively YouTube and others must police their user-generated content. Among other things, the decision affirms that the burden of identifying and documenting infringing content is on the copyright holder, rather than the service provider, and it makes clear that if the provider is aware only in general that there is infringing activity on the site, then the safe harbor still will be available.

Earlier this month, Viacom appealed [PDF] the case to the U.S. Court of Appeals for the Second Circuit, bringing in Theodore Olson, a former U.S. Solicitor General, to handle the oral argument. This is a sign that Viacom is very serious about winning. YouTube has not yet filed its reply brief.

Barclays v. Theflyonthewall.com

barclays_logo.gifThis case required a federal district court judge to apply the "hot news" misappropriation doctrine, first recognized in 1918, to a news aggregation website. Barclays and two other financial firms produced regular research reports, to be distributed to clients for a fee, about stocks. They often released them before the New York Stock Exchange (NYSE) opened for the day, and although the firms took precautions to ensure the reports went only to paying clients, some did leak out.

Enter Theflyonthewall.com (Fly), an online subscription news service that picked up and published those reports on its own news feed, updated continuously every day between 5 a.m. and 7 p.m. It featured an average of 600 headlines per day, some of them about the research reports.

In 2006, Barclays and two other firms got fed up and filed suit against Fly, claiming that their reports were "hot news" and that the redistribution of them constituted misappropriation, a violation of New York state law. Misappropriation is a fancy way of saying that an organization used your property impermissibly for its own benefit. This is where the old collides with the new.

The "hot news" doctrine, as noted above, was developed in 1918, in the Supreme Court case International News Service v. Associated Press. INS and the AP were competing news services during World War I that transmitted articles by wire to member newspapers. Speed and accuracy got them their daily bread. For various reasons, INS began collecting AP stories that ran on the East Coast and rewriting them for INS subscribers on the West Coast. Finding that the AP had a "quasi-property right" in the news content it gathered, the Supreme Court held that INS's conduct constituted misappropriation. INS was, the Court said, "endeavoring to reap what it had not sewn."

The policy justification anchoring that decision was the same one running through the Barclays decision: The content producer invested substantial time, labor and money in its publication process, and those investments should be protected; because if they're not, the producer loses the economic incentive to continue producing, depriving the public of a valuable benefit.

The judge, accordingly, ruled for Barclays. She issued an injunction requiring Fly to delay its publication of stories about the research reports. Notably, the delay was just long enough to allow Barclays and the other firms to monetize the reports by distributing them to clients before they appeared on any news aggregation site.

Fly quickly countered that decision, however, by asking a federal appeals court to stay the injunction, i.e., to relieve Fly of its obligation to comply with it. The court granted the stay and agreed to expedite its full review of the appeal, which is pending as of this writing.

Comcast v. FCC

Last but not least comes the determination in April by a federal appeals court that the FCC has limited power to regulate the Internet. Comcast Corp. v. FCC [PDF] arose because of complaints in 2008 that Comcast, a service provider, was interfering with its customers' use of peer-to-peer networking applications.

mediashift_legal small.jpg

In response to those complaints, the FCC issued an order concluding that it had jurisdiction over the matter and that Comcast's method of bandwidth management "contravene[d] ... federal policy." Comcast complied with the order, but later asked the appeals court to review it, objecting on three grounds. The court began and ended its inquiry by finding that the FCC failed to establish jurisdiction.

For its part, the FCC conceded to the court that it did not have express authority to regulate network management practices, but argued that it had ancillary authority under the Communications Act of 1934 [PDF]. It empowered the FCC to "perform any and all acts, make such rules and regulations, and issue such orders ... as may be necessary in the execution of its functions."

The court didn't buy the argument and said the FCC, relying heavily on policy statements and unhelpful statutory provisions, failed to prove that its Comcast order was "reasonably ancillary to the ... effective performance of its statutorily mandated responsibilities."

The decision prompted many commentators to wonder about its implications for Net neutrality, the idea that all online content and applications should be treated equally by service providers. David Post in April summed up the thinking over at the Volokh Conspiracy: "So what does this portend for Net neutrality rules? Can the Commission proceed with its rulemaking efforts ... or does it need some additional statutory authorization from Congress before it can do so?"

Since then, the FCC has been trying to answer those questions. It promulgated last Tuesday a set of rules that functionally creates two classes of Internet access, one for fixed-line providers and one for wireless providers. The rules are tied to the FCC's Section 706 authority, which directs the commission to "encourage on a reasonable and timely basis the deployment of advanced telecommunications services to all Americans," purportedly including broadband services. This means the FCC would have to show that the Net neutrality rules are ancillary to 706's mandate, a difficult task because the FCC itself concluded in the 1990s that that section is not an independent grant of authority.

Despite all the uncertainty, two things are certain: The rules will be challenged in the courts, and they will be challenged by Republicans in Congress.

The Year Ahead

Next year promises to bring big developments in the law affecting new media. A federal appeals court will decide both the Viacom and Barclays appeals, and the Net neutrality rules surely will be challenged. WikiLeaks will continue to dominate the news and very likely will head to court to test the uneasy balance between free speech and national security. And at the Supreme Court, the justices will hand down Schwarzenegger v. Entertainment Merchants Association, which addresses whether the First Amendment permits any limits on offensive content in violent videogames sold to minors.

Jonathan Peters is a lawyer and the Frank Martin Fellow at the Missouri School of Journalism, where he's working on his Ph.D. and specializing in the First Amendment. An award-winning freelancer, he has written on legal issues for a variety of newspapers and magazines. He can be reached at jonathan.w.peters@gmail.com.

This is a summary. Visit our site for the full post ».

October 22 2010

17:57

Michigan Official's Hate Speech Protected by First Amendment

For the last few months, Andrew Shirvell, an assistant attorney general of Michigan, has crusaded against the "radical homosexual agenda" of 21-year-old Chris Armstrong, the openly gay student-body president of the University of Michigan.

Shirvell has verbally attacked Armstrong at campus events, demonstrated outside the student's home, and has bashed the kid on his personal blog, Chris Armstrong Watch.

On that blog, which is now accessible only by invitation, Shirvell has called Armstrong a "privileged pervert" and "Satan's representative on the student assembly." He's accused Armstrong of "anti-Christian behavior" and "mocking God." One post included a photo of Armstrong with the word "resign" written across his face and a swastika superimposed on a gay pride flag; an arrow pointed from the flag to Armstrong. You can see it here.

Job on the Line

Shirvell appeared last month on CNN, on "Anderson Cooper 360," to defend his views and behavior, telling Cooper, "Chris Armstrong is a radical homosexual activist who got elected partly funded by the Gay and Lesbian Victory Fund to promote a very deeply radical agenda at the University of Michigan." Shirvell later added that he is a "Christian citizen exercising [his] First Amendment rights" and that "this is nothing personal against Chris." (Armstrong has also appeared on the show.)

Screen shot 2010-10-22 at 11.16.51 AM.png

Since then, the sun has set on Shirvell's cause. He's on a personal leave of absence from the attorney general's office, the University of Michigan just banned him from campus, and a state judge will rule next week on a request, from Armstrong, for a personal protection order against him. What's more, Shirvell is the subject of unanimous condemnations from the Michigan Civil Rights Commission, the Ann Arbor Human Rights Commission, and the Ann Arbor City Council.

His job is on the line, too. Michigan Governor Jennifer Granholm tweeted a few weeks ago that, "If I was still Attorney General and Andrew Shirvell worked for me, he would have already been fired." David Leyton, the Democratic nominee for state attorney general, echoed Granholm, and a Facebook page, liked by over 16,000 people, maintains that Shirvell's "long history of bigotry makes him unfit to represent the state of Michigan."

Meanwhile, Mike Cox, the state attorney general, has refused to fire Shirvell. He released a statement a few weeks ago saying that Shirvell's "immaturity and lack of judgment outside the office are clear," but later told CNN that the First Amendment protects him -- that public employees do have the right to "express what they think and engage in political and social speech."

Cox is right.

The Legal Issues

Shirvell may be on thin ice, legally, for a variety of reasons (for example, his conduct towards Armstrong could cause him to be charged with harassment or stalking), but the First Amendment does protect his blogging. To make sense of this, it's helpful to keep a few things in mind.

First, the free speech clause protects the right of a person to speak without government interference. Speech includes blogging and others forms of online expression. That means, for example, a private employer can fire an employee because of his blogging, but a public employer, doing the same thing, might run afoul of the First Amendment. As an assistant attorney general, Shirvell is a public employee entitled to protection.

Second, the Supreme Court has ruled that a public employer may impose some restraints on the expression of its employees, on the theory that the government, like private employers, needs a significant degree of control over the management of its personnel and internal affairs. Still, significant does not mean unlimited.

In a series of cases, beginning with Pickering v. Board of Education, in 1968, the Court has created a balancing test to weigh the employee's speech interests against the government's interests in providing an efficient service to the public. Out of that series came a few general principles, applied here to online expression.

Public employees have a right to blog on their own time on topics unrelated to their employment. They also have a right to blog on their own time on topics related to their employment, if the topics are matters of public concern. Finally, the First Amendment does not protect them at all if they are blogging in the course of their regular duties, rather than on their own time.

Blogging During Work?

Against that backdrop, if the attorney general tried to fire Shirvell, the courts would call upon the First Amendment and likely would focus on whether he was blogging on his own time on topics unrelated to his employment. Shirvell has said a number of times that he blogged only at home, after hours, and Cox himself told CNN that Shirvell's job performance has been satisfactory. It's safe to say, too, that the content of the blog posts, on religion and homosexuality, were unrelated to his employment. In other words, they did not comment on the functioning of his workplace.

In turn, though, the attorney general's office might argue that Shirvell's blogging, regardless of the content, is related to his employment because it caused a substantial disruption in the workplace. After all, Cox had to investigate the issue and respond personally, the media blitz brought into question the impartiality and professionalism of the office, etc.

That would be a hard sell, and I doubt the courts would buy it, no matter any disruption, because Shirvell was using his blog to engage in social and political speech, which occupies what the Supreme Court once called the "highest rung of the hierarchy of First Amendment values." Thus, it's entitled to special protection.

All of which means Andrew Shirvell, the state attorney who picked on a college student, the Christian who superimposed a swastika on a gay-pride flag, the guy who said it wasn't personal while making his attacks, is protected by the First Amendment.

Freedom for the thought that we hate, indeed.

Jonathan Peters is a doctoral student and the Frank Martin Fellow at the Missouri School of Journalism, where he's specializing in the First Amendment. He has a law degree from Ohio State University and has written on legal issues for a variety of newspapers and magazines, including the Plain Dealer, Columbus Dispatch and the National Jurist. Beyond journalism, Peters has worked at every level of the federal judiciary, with externships at the U.S. Supreme Court, the U.S. Court of Appeals for the Sixth Circuit, and the U.S. District Court for the Southern District of Ohio. He can be reached at jonathan.w.peters@gmail.com.

This is a summary. Visit our site for the full post ».

September 07 2010

19:16

Spending the Summer in 'Journalist Law School'

news21 small.jpg

Education content on MediaShift is sponsored by Carnegie-Knight News21, an alliance of 12 journalism schools in which top students tell complex stories in inventive ways. See tips for spurring innovation and digital learning at Learn.News21.com.

What do you get when you cross a lawyer and a journalist? Most of the time, of course, you get a lawyer. You know: The kids who worked so hard on the college paper but jetted off to Boalt when the prospect of years of unpaid internships scared them off. Most journalists remember a few people like that. (I know a dozen or so.)

mediashift_edu stencil small.jpg

Sometimes, of course, you end up with a journalist: Take Adam Liptak, the New York Times lawyer who started writing book reviews and ended up covering the Supreme Court for the Grey Lady. The Fox News crowd has their own Liptak in Brooklyn Law School grad Geraldo Rivera. Michael Kinsley started working at the New Republic during his third year at George Washington Law School. But not every journalist who covers legal issues has the time (or the money) to get a law degree. That's where John Nockleby comes in.

Journalist Law School

For the past five years, Nockleby has been trying to construct a third breed of reporter/attorney hybrid: the journalist with a crash course in the law. To bring this new beast into the world, this avuncular, bespectacled, aggressively friendly law professor is prepared to push the limits of what you can teach someone about the American legal system in three and a half days.

nockeby.jpg

Every summer, Nockleby's Journalist Law School (JLS) brings several dozen reporters to Loyola Law School in Los Angeles for 84 hours of lectures, seminars, and discussion panels on the law. This June, my colleague at Mother Jones, Stephanie Mencimer, who attended JLS in 2009, suggested I apply. That Stephanie found the program useful was a shock: She literally wrote the book on tort reform -- it's called "Blocking the Courthouse Door" -- and I never imagined that she had much more to learn about the legal system. On the other hand, it would be very useful to me to have a bit more of a background in the law. Covering civil liberties issues for Mother Jones, I run into a lot of legal documents -- habeas petitions, Office of Legal Counsel memos, and so on. So I applied and got accepted. Next thing I knew, I was in L.A.

Learning and Schmoozing

The JLS program is centered around what are essentially miniature versions of standard first-year law classes: Constitutional law, criminal law, civil procedure, criminal procedure, torts, and so on. I had heard a lot of the basic concepts because my girlfriend (not a former journalist) is a law student. You might think a basic familiarity with the concepts would make the classes boring. But Nockleby, knowing that journalists are an "especially critical" audience, did an excellent job of assembling an engaging group of professors to teach the core classes. Even the most jaded of my fellow students seemed engaged.

The core JLS classes are supplemented by a series of small-group sessions focusing on more specific topics. I attended two on terrorism-related issues, and got a number of story ideas (and contacts) that made the entire program worthwhile in and of themselves. In addition, JLS offers a series of talks and schmoozing sessions featuring practicing judges and attorneys. The schmoozing includes one's fellow journalists, too, of course.


The "fellows" (that's what they called us) were a diverse crowd -- television, radio, Internet, and print journalists, with everything from a few years to a few decades of experience in the media. Our beats ran the gamut from local crime reporter to the NY Times' Mexico City bureau chief.

Why does Nockleby even bother to do this? At first, he just got tired of the complaining. Nockleby kept hearing complaints that people didn't understand the legal system -- and that the media did a bad job of explaining it.

"You guys keep going on about how the media doesn't get it," he told potential funders. "Put your money where your mouth is."

They did. The American Board of Trial Advocates (ABOTA), which represents top plaintiffs' and civil defense attorneys, wrote a big check. It has kept on writing them.

Program Goals

Ideally, the goal of the program is to provide an overview so that the particular legal issues journalists cover "can be placed in broader perspective," Nockleby said.

You'd be hard-pressed to find a New York Superior Court beat reporter who doesn't understand how that court works. But she might not know how that court's procedures differ from others, or how to find out.

"It's not that we can provide a legal education in three and a half days," Nockleby said. "We can't show journalists how to go about investigating a particular problem. But we can give a systemic overview so that problems get placed in a context where they make a lot more sense."

Is Nockleby's experiment succeeding? The reviews of the program are certainly positive. Then again, most journalists I know appreciate any opportunity to meet new sources and gobble up some background information -- especially if there are open bars involved. My fellow "fellows" appreciated the experience. If our reporting gets even a little bit better or more informed, that's what counts, right?

Nockleby's ambitions aren't limited to half-week fellowships, however. Longtime New York Times Supreme Court reporter "Linda Greenhouse had a year of legal education and that helped her tremendously," he said. "If everybody reporting on law had a law degree, that would be great."

But not every journalist can be Adam Liptak, or Geraldo. And while the Pentagon may sometimes wish that more military embeds had prior military experience, and scientists may wish more reporters had lab experience, that won't always be the case, either. Even Nockleby acknowledges that there's more to journalism that subject-matter expertise.

"All that is great, but more important is the ability to explain things in simple terms," he said. "A lot of lawyers don't have that."

Nick Baumann is an assistant editor at Mother Jones. He covers national politics out of the Washington, D.C. bureau. Nick's writing has also appeared in the Economist, the Washington Monthly, and Commonweal. Email tips and insights to nbaumann [at] motherjones [dot] com. You can also follow him on Twitter.

news21 small.jpg

Education content on MediaShift is sponsored by Carnegie-Knight News21, an alliance of 12 journalism schools in which top students tell complex stories in inventive ways. See tips for spurring innovation and digital learning at Learn.News21.com.

This is a summary. Visit our site for the full post ».

August 13 2010

15:52

July 02 2010

16:47

June 25 2010

23:03

June 16 2010

12:43

Can Financial Firms Use 'Hot News Doctrine' to Stifle Aggregators?

Traditional print newspapers and magazines are experiencing upheaval thanks to the rise of the Internet, but they are not the only information providers facing serious challenges. Even before the tumult created by the recent recession, major financial firms were struggling with the effects of competition from online financial news aggregation services aimed at investors. In some cases, these online services have obtained and disseminated the firms' most closely held, time-sensitive and valuable information product: The daily stock recommendations generated by their financial analysts.

The battles fought by several of those firms (Barclays Capital, Mogan Stanley and Merrill Lynch) are detailed in the recent federal district court ruling in Barclays Capital, Inc., v. Theflyonthewall.com (S.D.N.Y. Mar. 18, 2010). The firms won a big victory when federal judge Denise Cote, relying on the "hot news" misappropriation doctrine recognized under New York state law, issued an order limiting the republication of the firms' stock recommendations by the defendant, financial news aggregator theflyonthewall.com ("Fly").

Fly countered with a plea [PDF] to the the U.S. Court of Appeals for the Second Circuit that the enforcement of the injunction would force it out of business. In a dramatic turn, on May 19 the appeals court granted a stay [PDF] of the injunction and a rare expedited appeal, calling for briefs to be filed by July 26.

This case about the hot news doctrine has now itself become "hot news."

The Hot News Doctrine

As previously written on MediaShift, the "hot news" misappropriation doctrine is a legal principle first recognized in the early twentieth century when the Associated Press news service sued a rival service for paying off AP employees to pass on early versions of stories that were intended for West Coast newspapers. The rival service rewrote the stories to avoid claims of copyright infringement, and then sold them to West Coast news outlets.

The U.S. Supreme Court ruled in 1918 in International News Service v. Associated Press, that the AP had a right in the news content that it gathered that was distinct from its rights under copyright law: "the peculiar value of news is in the spreading of it while it is fresh," the Court famously commented.

With a bow to the First Amendment, the Court distinguished an individual's right to disseminate information contained in a newspaper once published from a business competitor's act of appropriation of material that had been acquired through expenditure of labor, skill and money. The Court concluded that the AP could sue on the theory that the rival's conduct constituted "unfair competition in business." Although the ruling was later criticized and challenged, the U.S. Court of Appeals for the Second Circuit reaffirmed its viability in 1997 in National Basketball Association v. Motorola, Inc., a case involving transmission of basketball scores.

The Barclays case is the first time that the Second Circuit has had an opportunity to consider the hot news doctrine in the context of the Internet age, which began picking up steam just after the ruling in NBA v. Motorola.

Current views on the viability of the hot news doctrine are mixed. The doctrine exists in tension with First Amendment values that protect the right to freely disseminate facts, and with the limits of copyright law, which do not extend to mere facts but only to the expression of facts. Nevertheless, the federalization of the hot news doctrine (which currently has been recognized only in a handful of states) has been proposed as a tool to support the efforts of traditional media to protect their content from online competition. That and other proposals to support traditional journalism made it into a recently released FTC Staff Discussion Draft [PDF] that summarized the discussions at the FTC workshops on the future of journalism.

The Value of Timely Financial Information

The Barclays opinion demonstrates the value of hot financial news, and the effects that unauthorized dissemination of that news can have on the financial firms that prepare and market it.

barclays_logo.gifAt issue in Barclays is the information contained in reports prepared by the financial firms for their largest and most lucrative customers and disseminated as "actionable recommendations" -- recommendations to buy, sell or hold a stock. As the district court explained, the firms' recommendations are not casually made; they are the product of the efforts of a large staff of analysts and related functionaries who acquire, sift and compile information on an ongoing basis, at great cost and expense.

The recommendations yield value for the financial firms primarily in the form of fees on the trades made by customers who frequently use the trading arm of the financial firm to make a trade on that recommendation. The value of the recommendations to the customers is the timeliness of the information: It is typically disseminated to them between midnight and 7 a.m., before the opening of the New York Stock Exchange. And it is significant as well that the reputation of the big firm analysts is such that their recommendations are themselves news and may move the market price of a stock significantly and in a very short period of time once widely known. Having those recommendations before market opening can provide the firms' clients with "an early informational advantage," as the court commented. The value of the recommendations derive not just from the quality of the information, but the "exclusivity and timeliness" of it.

To protect the value of this "informational advantage," the firms have implemented elaborate systems aimed at limiting access to the recommendations, including the use of password-protected proprietary Internet platforms, and licensing provisions that narrowly limit the right to disseminate the reports and forbid their redistribution to unauthorized parties. The district court described other technologies that are used to control access and dissemination, including blocking access to the firms' proprietary systems from certain websites and social networking platforms, and the use of personalized, encrypted URLs to deliver information to clients. (This makes it easier to track down the source of leaked reports.)

Despite these efforts, online financial news aggregators have been able to gain access to recommendations in advance of their public release. Fly, the district court found, was one of the first online financial news subscription services to engage in the practice of systematically obtaining and disseminating the actionable recommendations of traditional financial firms. Until the institution of the Barclays lawsuit in 2005, Fly's source of these recommendations was employees of the financial firms, who provided them despite the fact that they were not authorized to do so. After the litigation commenced, Fly changed its tactics; but it was still able frequently to obtain those recommendations, often from licensees of the information, and disseminate the recommendations to its subscribers before the financial markets' opening bell.

The Impact on Financial Firms

According to the district court opinion, the aggregators' activities have had an impact on the financial firms' business model and revenue generation, a finding critical to the analysis of one of the key elements of the hot news doctrine: Whether the "free riding" by Fly and the other online services on the financial firm's efforts in generating their actionable recommendations "would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened." This element of the hot news doctrine, the court found, implicates the public interest in protecting "socially valuable products or services in danger of being under-produced."

The court ruled resoundingly in the financial firms' favor on this point, crediting the firms' evidence that they had cut their analyst staff and budgets significantly because, in addition to other factors, the analysts' reports were no longer the driving force behind the generation of commission revenue to the extent that they had been previously.

"With clients able to review the Firms' recommendations and even research reports through other sources, the research department have been handicapped in their ability to argue for their historical share of the Firms' overall budgets," the court found, resulting in cuts of from 20 percent to half or more over the past decade.

The conduct of Fly and the other online news aggregators, the court concluded, threatens the ability of the firms' to monetize their research and continue to produce it. In evaluating the appropriateness of an injunction, the court further commented that this activity "is a valuable social good," and "plays a vital role in modern capital markets by helping to disclose information material to the market, to price stocks more fairly and, as a result, to produce a more efficient allocation of capital."

The Injunction

The injunction crafted by Judge Cote was carefully aimed at the time period that the financial firms identified as most critical to maintaining the value of its recommendations. Fly was enjoined from disseminating the firms' pre-opening recommendations in most cases before one-half hour after the opening of the New York Stock Exchange. The court also provided for a re-evaluation of the injunction after a one-year period, to determine whether the financial firms have taken action against other news aggregators. It would be inequitable, the court found, to enjoin Fly from publication of the firms' recommendations if the firms fail to take action against others engaged in the same conduct.

Conclusion

The result in Barclays v. Theflyonthewall.com is likely to be important not only for financial firms seeking to protect analysts' recommendations, but for general news outlets as well. A reaffirmation of the viability of the "hot news" doctrine by the Second Circuit could spur additional lawsuits and would probably bolster the position of advocates for enacting the doctrine on a nationwide basis. If the ruling is overturned, the legal avenues available to content owners seeking to protect their content from aggregation services will have been further narrowed.

Jeffrey D. Neuburger is a partner in the New York office of Proskauer Rose LLP, and co-chair of the Technology, Media and Communications Practice Group. His practice focuses on technology and media-related business transactions and counseling of clients in the utilization of new media. He is an adjunct professor at Fordham University School of Law teaching E-Commerce Law and the co-author of two books, "Doing Business on the Internet" and "Emerging Technologies and the Law." He also co-writes the New Media & Technology Law Blog.

This is a summary. Visit our site for the full post ».

May 12 2010

19:17

CDA Protects Newspapers from Liability for Libelous Comments

A desperate, weeks-long search in 2007 for missing Purdue University student Wade Steffey yielded a number of stories in the local Lafayette, Indiana, newspaper, the Journal & Courier. The newspaper also covered a mugging incident that was reported by another student, Timothy Collins, on the same night of Steffey's disappearance.

Local police, apparently suspicious of the coincidence between the two events, questioned Collins and administered a polygraph test. He was later charged with false informing, and the University disciplined Collins as a result of that charge. These developments were reported in subsequent news stories in the Journal & Courier. The online versions of the articles prompted many vitriolic statements by readers, including a number that accused Collins of being responsible for Steffey's disappearance.

Steffey's body was eventually discovered; his death apparently was the result of an accident. Even before that discovery, the false-informing charge against Collins was dismissed for lack of evidence. Collins subsequently brought suit against numerous parties, including the police, the University, one online commenter who used his real name, as well as various anonymous commenters, and the newspaper. Collins claimed that the newspaper was liable for defaming him, not only in its news coverage, but also as a result of the accusatory statements made by the online commenters with respect to those news stories.

In Collins v. Purdue University, 2010 WL 1250916 (N.D. Ind. March 24, 2010), a federal court held that under Section 230 of the federal Communications Decency Act (CDA) of 1996, the newspaper could not be held liable for the online comments posted by third parties.

Had the same accusatory third-party comments been published in the newspaper's print edition -- say in a letter to the editor or an op-ed piece -- the newspaper might have had a much harder time avoiding liability. That's because the legal rule in Section 230 of the CDA that is applicable to liability for online statements made by another party is much more favorable to a publisher than the legal rules applicable to liability for third-party statements in a print publication.

Why is Liability Different on the Internet?

The U.S. Congress took a bold step in 1996 with the enactment of Section 230 of the CDA. (See this previous MediaShift report, which also discussed Section 230.) While most of the provisions of the Act were aimed at censoring objectionable content on the Internet, Section 230 was aimed at protecting "interactive service providers" from liability for objectionable content provided by third party users of their services. Section 230 also protects users themselves from liability for content provided by other users.

gavel1.jpgThe purpose of Section 230 was, among other things, "to maintain the robust nature of Internet communication," and to maintain the Internet and interactive computer services as "a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity," according to a ruling in Zeran v. America Online [PDF] (4th Cir. 1997).

Under Section 230, an "interactive service provider" (e.g., an Internet Service Provider or a website operator, among others) may not be treated as the "publisher or distributor" of "information" provided by a third party user of its service. As the district court explained in Collins v. Purdue University, this language has been consistently interpreted to provide online publishers with broad immunity from liability for defamation and other wrongful acts on the part of users of their services.

The Expansive Interpretation of Section 230

The ruling in Collins v. Purdue University is a routine application of Section 230. Since the enactment of Section 230 in 1996, there have been hundreds of opinions interpreting the provision, and expanding its coverage beyond the kinds of defamation claims more usually associated with parties defined as "publishers" or "distributors."

For example, the protection afforded interactive service providers such as the newspaper in Collins v. Purdue is not limited to defamation claims. Courts have interpreted the language prohibiting the treatment of a provider "as a publisher or distributor" to limit the liability of providers for a wide range of other wrongful acts by users. (But note that claims of intellectual property infringement are expressly excluded from the protective scope of Section 230). Thus, in Green v. America Online [PDF] (3d Cir. 2003), an online provider was protected from liability for damage to a user's computer that was allegedly caused by another user's malicious transmission of a "punter" signal in an online chat room.

craigslist-hq-logo.jpgOnline providers have also been held immune from liability for the acts of sexual predators who contacted underage victims via their services (Doe v. MySpace [PDF] (5th Cir. 2008)) and from liability under civil rights statutes for religious harassment by users (Noah v. America Online (E.D. Va. 2003)). The online bulletin board Craigslist has been held immune under Section 230 from a local sheriff's claims that the service is liable under public nuisance laws for causing or inducing prostitution as a result of its "erotic services" listings. Dart v. CraigsList [PDF] (N.D. Ill. 2009)

The interpretation of Section 230 has been expansive not only in the range of claims against which it protects providers, but in situations in which it operates to protect service providers and users from liability for content provided by other parties. For example, the owner of a mailing list has been held immune from liability for defamatory statements contained in an e-mail message that the owner forwarded to mailing list subscribers. Batzel v. Smith [PDF] (9th Cir. 2003).

As controversial as some of Section 230 rulings have been, one of its more troubling applications may be in a case involving an attempt by the original author of defamatory content to have it removed from a provider's site.

In Global Royalties v. Xcentric Ventures (D. Ariz. 2007), the "Ripoff Report" online consumer complaint site was sued for refusing to remove allegedly defamatory postings at the request of the original user. The court held that refusing to remove a posting, even at the request of the original author, was an editorial function reserved to the site owner, and protected under Section 230.

The Role of Anonymity for Online Comments

If a newspaper can't be sued for defamatory online comments by readers, what about suing the individual who posted the comments?

Section 230 does not affect the liability of individuals for their own online statements, and such lawsuits can be and have been brought. But, unlike at least one of the posters in the Collins v. Purdue University case, the individuals responsible for defamatory posts frequently do not post under their real names.

In order to successfully sue an anonymous individual who posted an online comment on a newspaper (or any other) website, the plaintiff usually must serve a subpoena on the newspaper to obtain account registration information or an IP address that will lead to the poster's true identity. Many newspapers resist such subpoenas, however, and, as I have previously written, a plaintiff often must make a special showing to the court before an order will be issued requiring the newspaper or other provider to turn over of identifying information.

While it is possible to obtain such an order and ultimately sue the actual author of a defamatory online statement, it is a challenging endeavor for a plaintiff, who may spend a great deal in attorney fees to prosecute a lawsuit against a defendant who may ultimately turn out to be penniless or otherwise judgment-proof. By immunizing online providers such as newspapers from such lawsuits, Section 230 removes the obvious deep-pocket defendant from the line of fire.

Newspapers Reconsidering Online Comments?

It's easy to see the effect of Section 230 on almost any website that allows comments (such as newspapers): User comments often range from thoughtful, intelligent and carefully reasoned to venomous, vitriolic, and obviously defamatory, and everything in between.

The protection of Section 230 of the CDA enables newspapers to ignore the the user comments made on their sites, at least from the perspective of legal liability for defamatory or harmful content. Despite the legal protection Section 230 provides, however, some news sites utilize measures aimed at improving the nature of the discourse in their comments areas.

As The New York Times recently noted in an article on this phenomenon, the Wall Street Journal allows its subscribers to choose whether they will view only comments posted by other subscribers, and many news sites that police comments for content facilitate the reporting of offensive comments by other readers.

The article also reported that both the Gray Lady herself and the Washington Post are revising their comments policies to at least lessen the importance of anonymous comments. The Washington Post reportedly is considering a rating system that would boost the prominence of commenters using their real names.

This is not the first time that newspapers have reconsidered their online commenting policies. In 2005, the Los Angeles Times abandoned an early experiment in user participation when it closed a website that allowed readers to rewrite editorials, due to an overabundance of obscene content added to the site. In 2006, the Washington Post temporarily suspended online commenting when it determined that reader responses to a particular article violated its prohibitions against personal attacks, profanity and hate speech.

In a recent controversy over anonymous online comments, the Virginia Polytechnic Institute and State University (Virginia Tech) reportedly has threatened the student newspaper, the Collegiate Times, with financial consequences in an effort to abolish anonymous comments on the newspaper website. The University's Commission on Student Affairs cited "discontent" in the college community over "irresponsible and inappropriate" anonymous comments. But the editors have so far refused to modify the policy to allow only authored comments.

Conclusion

It was the stated goal of the U.S. Congress in enacting Section 230 of the CDA to "offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity." That goal has certainly been achieved, but the diversity of discourse, cultural development and intellectual activity that is supported by Section 230 is accompanied by a significant amount of objectionable content in the form of defamation, vitriol and hate speech.

Section 230 provides newspapers and other online providers with legal protection from liability for such content provided by third parties, leaving providers to determine as a matter of individual policy and editorial judgment what measures, if any, they will take to address the appearance of such content on their sites.

Image of Craigslist headquarters via cyberaxis

Jeffrey D. Neuburger is a partner in the New York office of Proskauer Rose LLP, and co-chair of the Technology, Media and Communications Practice Group. His practice focuses on technology and media-related business transactions and counseling of clients in the utilization of new media. He is an adjunct professor at Fordham University School of Law teaching E-Commerce Law and the co-author of two books, "Doing Business on the Internet" and "Emerging Technologies and the Law." He also co-writes the New Media & Technology Law Blog.

This is a summary. Visit our site for the full post ».

Older posts are this way If this message doesn't go away, click anywhere on the page to continue loading posts.
Could not load more posts
Maybe Soup is currently being updated? I'll try again automatically in a few seconds...
Just a second, loading more posts...
You've reached the end.

Don't be the product, buy the product!

Schweinderl