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July 07 2011

19:53

Nick Davies on phone hacking, Murdoch and News of the World: it is a story about the power elite

Guardian :: The News of the World, or NOTW, is to close, James Murdoch has announced.  It follows a series of revelations that the paper illegally hacked into phones, and amid calls for Rebekah Brooks to resign. In this video from The Guardian the investigative journalist Nick Davies talks on how the phone-hacking scandal has escalated, leading to News of the World's announced closure.

[Nick Davies at 09:19, video below] To me it is not a story about a journalist behaving badly. It is a story about the power elite. It is about the most powerful news organization in the world. It is about the most powerful police force in the country. It is about the most powerful party in the country and for good measure it is about the press complaints commission. And about they all spontaneously colluded together, to make everybody's life easier. About the way the casually assumed that the law didn't apply to them ...

Nick Davies is a British investigative journalist, writer and documentary maker. He has written extensively as a freelancer, as well as for The Guardian and The Observer, and been named Journalist of the Year, Reporter of the Year and Feature Writer of the Year at the British Press Awards.[Source: Wikipedia]

Published on Thursday 7 July 2011

Original post - video here Cameron Robertson and Anne Backhaus, www.guardian.co.uk

January 20 2011

09:37

November 08 2010

08:05

On publishing – and deleting – allegations online

TechCrunch’s Paul Carr has a thoughtful piece on “cyber-vigilantism” where citizens witness or experience a crime and go online to chase it down, name the alleged perpetrators, or pressure the authorities out of complacency:

“[W]hen that naming happens, the case is over before it’s begun: no matter whether the accused is guilty or innocent, they are handed a life sentence. Until the day they die, whenever a potential employer or a new friend Googles their name – up will come the allegation. And, prison terms notwithstanding, that allegation carries the same punishment as guilt – a lifetime as an unemployable, unfriendable, outcast. There’s a reason why the Internet is a great way to ruin someone with false allegations – and it’s the same reason why falsely accused people are just as likely to harm themselves as guilty people.”

The post was written after TechCrunch decided to delete a story about an alleged sexual assault and is a useful read in provoking us as journalists in any medium to reflect on how we treat stories of this type.

There are no hard rules of course, and associated legal issues vary from country to country.

In the Judith Griggs case, for example, was I right to post on the story? My decision was based on a few factors: firstly, I was reporting on the actions of those on her magazine’s Facebook page, rather than the ‘crime’ itself (which was hardly the first time a publisher has lifted). Secondly, I waited to see if Griggs responded to the allegations before publishing. Thirdly, I evaluated the evidence myself to see the weight of the allegations. Still, I’d be interested in your thoughts.

November 05 2010

16:59

Podcast: "Communications Forum: Civic Media and the Law"

David Ardia, Daniel Schuman, and Micah Sifry

What do citizens need to know when they publicly address legally challenging or dangerous topics? Journalists have always had the privilege, protected by statute, of not having to reveal their sources. But as more investigative journalism is conducted by so-called amateurs and posted on blogs or websites such as Wikileaks, what are the legal dangers for publishing secrets in the crowdsourced era? We convene an engaging group law scholars to help outline the legal challenges ahead, suggest policies that might help to protect citizens, and describe what steps every civic media practitioner should take to protect themselves and their users.

David Ardia runs the Citizen Media Law Project at Harvard Law School's Berkman Center for Internet and Society.

Micah Sifry is a co-founder and editor of the Personal Democracy Forum.

Daniel Schuman is the policy counsel at the Sunlight Foundation, where he helps develop policies that further Sunlight's mission of catalyzing greater government openness and transparency.

Download!

September 29 2010

08:10

Time to talk about legal

As a lone blogger how much legal protection do you have? No more than anyone else, when it comes to libel, contempt of court law and so on, except that people are more likely to pay attention to large media organisations.

But there are many instances where bloggers have lost a lot of time and money over legal disputes. Last week, for example, journalist and blogger Dave Osler finally saw an end to a legal battle that consumed three years of his life, after he was sued for libel by the political activist Johanna Kaschke. Despite being refused the right to appeal the strike-out of the Osler case, she is still planning to appeal another High Court decision that ended her libel claim against Alex Hilton and John Gray.

If all individual bloggers worried about getting into trouble too much, we’d write much less than we do. Even big scary cases aren’t a deterrent: Dave Osler is still blogging. I was personally surprised by the results of my survey of 71 small online publishers this summer. Not that only 27 per cent had been involved in legal disputes (that was about what I expected) but that over half were satisfied with the number of legal resources available.

Personally, the grey areas of law trouble me and I don’t think there could be enough support: I’d like to see more organised structures for legal help, a sort of Citizens Advice Bureau for bloggers, if you like. Informal advice is already spreading via social networks, as lawyers increasingly use Twitter and blogs to join the conversation.

As I reported on my site Meeja Law, one hyperlocal blogger who was accused of breach of copyright asked for legal advice via Twitter: “Two separate media lawyers confirmed (for free) that I’d done nothing wrong. I also contacted [hyperlocal organisation] Talk About Local for advice, and they told me the same.”

Talk About Local has published several media law guides online (eg. this one on defamation) and the organisation’s founder William Perrin offers some frank legal advice ahead of a legal session at last weekend’s London Local Neighbourhoods Online Unconference:

…just about the best legal advice, which very few follow is to set up a 
limited company and keep the website inside that. Then you don’t lose 
your house to a nutter under defamation law….

Another concern of mine is the lack of transparency of courts data, something I’ve discussed at length here. I think bloggers should be able to access more information about cases; at the very least, the Ministry of Justice needs to consider its outmoded contempt of court law that is ill-equipped to deal with the online age.

In the coming months, I’d like to build up the conversation in this area and think about how we might approach some of these issues. If you’d like to be part of this informal online ‘working group’ please consider joining the Help Me Investigate challenge at this link (request membership here), or discussing via the OJB Facebook group.

Judith Townend (@jtownend on Twitter) is a PhD research student at City University London and freelance journalist.

September 21 2010

16:48

Media Law Conference for Journalists, Bloggers and Other Digital Media

Harvard's Berkman Center for Internet & Society and the Center for Sustainable Journalism at Kennesaw State University are co‐hosting a conference on September 25, 2010 in Atlanta entitled "Media Law in the Digital Age: The Rules Have Changed, Have You?" Designed for journalists, bloggers, and lawyers who work with media clients, the conference will be an opportunity to learn first‐hand the latest legal developments and to get your questions answered by experts in the field.

The program will bring together legal practitioners, journalists, and academics to discuss the latest legal issues facing online media ventures. Topics will include: libel law, copyright law, newsgathering law, and advertising law, as well as the legal issues arising from news aggregation, managing online communities, and business law considerations for start‐up online media organizations. Small‐group workshops will focus on strategies for accessing government information and understanding legal terms in content licenses, freelancer contracts, and website terms of service and privacy policies.

If you need personalized legal assistance before or after the conference, contact the Online Media Legal Network, a free legal referral network for independent online media administered by the Citizen Media Law Project at the Berkman Center.

Please visit the conference website for more information or to register.

September 17 2010

07:46

July 28 2010

11:31

Let us record what happens in our courts – comment call

Heather Brooke is calling for a campaign to allow recording in UK courts. I agree. In the comments below, let’s talk strategy.

Meanwhile, here’s some of the background from Brooke’s related blog post:

How:

“The simple answer is to allow tape recorders for all: no party is disadvantaged and an ‘official’ recording is there for checking. This is how it works in other countries. But this is to ignore the root objection of the courts: that they are losing control of how court proceedings are presented to the public.”

Why:

“You might like to know whether the builder you’re going to give your keys to has any convictions for theft or if the company you’re about to do business with has a report for fraud. Tough. This information is not a click of a button away. Instead you’ll have to know the details of the case before you can call up any records – even though it’s the existence of cases that you’re trying to find in the first place. It’s Catch-22. If you do know the details of the case you’re then forced to undergo a tortuous and tedious process which involves battling a raft of petty officials across a number of court offices all for the simple purpose of accessing information that is supposedly public.”

And what:

“There are three main things that would make the courts useful to the general public:

  1. knowing by name who is using them (the court list);
  2. why (the particulars of claim);
  3. the result (the verdict, sentence or settlement).

“Yet trying to get any, let alone all, of these is fraught with difficulty.”

So: strategy. To kick things off, I’ll give you 3 starters:

Come up with some better ideas than that, and we’re somewhere.

Meanwhile, to spread awareness of this, why not tweet about this with the hashtag #opencourts?

July 12 2010

19:52

Guest post: Why I escaped The Times’ paywall

In a guest post, blogger Tim Kevan explains why he resigned from The Times over the paywall

Back in early 2007 I had been practising as a lawyer for some nine years. But I’d always dreamt of living by the sea and the surf and maybe even writing a novel. I just couldn’t quite see how it could be done.When I finally sat down to write a legal thriller what popped out instead was a legal comedy about a fictional young barrister doing pupillage.

I called him BabyBarista which was a play on words based on his first impression being that his coffee-making skills were probably as important to that year as any forensic legal abilities he may have. I wrote it as a blog and was hopeful it might raise a few smiles but in my wildest dreams I hadn’t imagined quite the extraordinary set of circumstances which then unfolded with The Times offering to host the blog and Bloomsbury Publishing of Harry Potter fame offering to make it into a book.

Since then the first book came out last August and was originally called BabyBarista and the Art of War. It is being re-issued in August under the new title Law and Disorder and the sequel is due out next May.

I was also continuing to publish my blog on The Times until May this year when it became clear that even blogs were going to go behind their new paywall.

Now don’t get me wrong. I have absolutely no problem with the decision to start charging. They can do what they like. But I didn’t start my blog for it to be the exclusive preserve of a limited few subscribers. I wrote it to entertain whosoever wishes to read it.

So I decided to resign from The Times, a decision I made with regret and despite continuing to be grateful for their having hosted my blog for three years.

The problem was that I simply didn’t think many people would have read my blog stuck not only behind a registration wall but also with a fee for entrance on top of that. I also think that it could have been avoided since there are so many innovative ways of making cash online and the decision to plump for an across-the-board blanket subscription over the whole of their content makes them look like a big lumbering giant, unable to cope with the diversification of the media brought about by online content, blogging, Facebook, Twitter – the list is endless. Canute-like in their determination to stop the tide of free content and using a top down strategy which for the moment at least appears to lack any flexibility.

A more sophisticated approach might have been to keep the existing platform and content free but to start charging for different types of premium versions such as iPhone or iPad apps or more in depth and specialist content. This would have maintained the all-important traffic whilst at the same time allowing tem to charge those who had no problem with paying.

But even beyond the unlikelihood of people paying for news that they can get elsewhere, the other more general problem is that in my view many writers are not simply driven by money. They are bright enough to earn more elsewhere. They write to get things off their chest, to entertain and to influence. To be a part of the debate. In the game and definitely not sitting on the sidelines failing to be heard. Maybe not quite the vain, power-hungry ego-maniacs that some would have us believe. But they want a voice. They write an article they want people emailing it to their friends, posting it on Facebook or Twitter or linking to it on their blog. Of course people can still put links now. But it seems unlikely they’ll do it so readily when they know that they’re likely to leave many people feeling frustrated at not being able to access the content in one click and for free.

As for me, I set up my own site for the blog and have also been taken on by The Guardian. With over thirty million users a month, not only do they have what I consider to be the most vibrant and innovative online presence of any of the national newspapers but also what in my view is now the very best law section in the country.

I’m also particularly impressed by the way they have introduced the idea of partnering with bloggers such as myself whereby I can retain my own website and identity as well working directly with them. It’s a paradigm-shift away from the old-school need for ownership and exclusivity and is definitely the way forward for traditional media to harness the power and energy of the web’s creative forces.

April 01 2010

10:31

March 01 2010

11:16

December 16 2009

07:24

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

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

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

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

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

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

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

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

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

Question 4. If a single publication rule were introduced,

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

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

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

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

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

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

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

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

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

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

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

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

December 11 2009

00:00

Is It Legal for an Editor to Unmask an Anonymous Commenter?

On November 13, the St. Louis Post-Dispatch's website, StLToday, asked readers to comment on a story titled, "What's the craziest thing you've ever eaten?"

Soon, a commenter posted a reply that included a "vulgar, two-syllable word for a part of a woman's anatomy," according to an online account by Kurt Greenbaum, the paper's director of social media. Editors at the website promptly deleted the comment, only to see the commenter repost the same word just a few minutes later.

What happened next has been the subject of discussion and debate within the world of online journalism.

For his part, Greenbaum summed it up in the title of his blog entry about the incident, "Post a vulgar comment at work, lose your job."

Sick of the commenter's shenanigans, he located the person's IP address, and tracked them to a local school. Greenbaum then called school officials and told them about the comment. The school's IT coordinator was able to pinpoint the post to a specific employee who was confronted by school officials and "resigned on the spot."

Greenbaum, who declined to be interviewed for this story, soon published another blog post explaining his actions. He admitted that he may have overreacted by calling the school, but stated, "I am constantly frustrated by the difficulty of dealing with this kind of language" on the paper's website.

Greenbaum's blog entry was republished on the Post-Dispatch's website and has received over 450 comments. In an angry response, an anonymous person created a website mocking Greenbaum, repeatedly calling him the same "vulgar, two-syllable word for a part of a woman's anatomy" that started everything.

Aside from the ethical debate about this incident, there are two important legal questions to consider.

Can He Do That?

The first question: Is what Greenbaum did legal? Answer: yes, probably.

The paper's privacy policy states that the Post-Dispatch and its employees "will not share individual user information with third parties unless the user has specifically approved the release of that information."

However, the policy also states that a commenter's IP address "does not contain personally identifiable information, nor does it identify you personally." Thus, the Post-Dispatch would argue, Greenbaum's use of the anonymous commenter's IP address is not a violation of the website's privacy policy.

Tom Curley, an attorney with the media law firm Levine Sullivan Koch & Schulz, said that the legal rules surrounding comments and message boards "can vary widely from site to site." Curley said some websites may provide an absolute promise to not reveal any identifying information, while others may offer only conditional promises.

Additionally, websites are a form of private property, and can be managed as such.

"There are some websites that are open forums, which is perfectly fine," Curley said. "But there is nothing that stops a website, legally, from deciding that there are some things that shouldn't be published."

Ethical Implications

In his blog post, Greenbaum stated that the Post does not routinely "take the steps I took in this case. For particularly bad cases of abusing our guidelines with vulgarity and obscenity, we would not rule it out."

malcolm moran.jpg

Malcolm Moran, a professor of media ethics at Pennsylvania State University, questioned Greenbaum's approach. "The main ethical question I would raise in this case is: When does an editor decide the rules change?"

The Post-Dispatch's terms of service state that the website "encourage[s] a free and open exchange of ideas in a climate of mutual respect." However, Greenbaum's actions could chill that climate of open exchange and mutual respect.

"What happens if a person comments about a controversial issue and has legitimate reason for staying anonymous?" Moran said. "Next time, will an editor identify that person if he or she disagrees with the commenter's views?"

Attacking the Editor with Anonymous Speech

The second legal question is whether Greenbaum can sue the anonymous individual who created a website ridiculing him. The likely answer: no.

The anonymous website created in Greenbaum's name is vulgar, to say the least. But that does not make it defamatory. In order to sustain a lawsuit for defamation, a plaintiff must show that the words in question state or imply false facts. Simply calling an individual a degrading name does not imply a fact at all. Rather, it is a non-actionable figure of speech.

Thomas Dienes.jpg

Thomas Dienes, a professor at George Washington University Law School, said the mocking website may be in bad taste, but is not defamatory. "This case would be thrown out of court so fast that I can't imagine a lawyer would take it," Dienes said.

"Over the years, there have been a number of these types of websites devoted to a particular reporter. It's rare but not unheard of," Curley said. "Normally, the reporter just shrugs and it all blows over."

This incident is a case study in the struggle that news organizations face when it comes to allowing anonymous speech on their websites. On one hand, this speech can be vile, cowardly, vengeful and tasteless. On the other, anonymous speech can be valuable and is also constitutionally protected.

"The tradition of anonymous speech in this country is incredibly important," Curley said. In fact, media organizations themselves have noted the importance of confidential sources and anonymous speech.

Anonymous Speech Being Tested

Two Supreme Court cases, often referred to as Talley and McIntyre, have affirmed the idea that "an author's decision to remain anonymous...is an aspect of the freedom of speech protected by the First Amendment."

Although this constitutional right only exists in the context of government regulation, the importance of anonymous speech, even if it is in the form of an anonymous comment on a news outlet's website, still holds its importance.

That does not mean, however, that all anonymous speech on the Internet is free from liability.

Recently, plaintiffs in New Jersey, South Carolina, and California asked judges to subpoena the identifying information of anonymous bloggers and commenters in order to sue them. The frequency of these types of subpoenas has reached a dizzying pace.

Generally speaking, courts have taken two different approaches in determining when to reveal the identity of an anonymous blogger or commenter. First, some courts require that a plaintiff make a "good faith" showing that the he or she has a viable lawsuit before a judge will subpoena any identifying information. These courts offer anonymous speech a particularly low level of protection, believing that everyone should have their day in court.

A second group of courts require that higher standards be met before an anonymous poster is revealed. These courts employ either the Dendrite test or the Cahill tests, as they are commonly known. The Dendrite and Cahill procedures require plaintiffs to show a litany of factors before receiving any identifying information.

The law concerning what you can and cannot anonymously publish on the Internet is undergoing change on almost a daily basis. This back-and-forth has left the legal state of anonymous speech on the Internet as uncertain at best.

Rob Arcamona is a second-year law student at the George Washington University Law School. Prior to attending law school, Rob worked at the Student Press Law Center and also helped establish ComRadio, the Pennsylvania State University's student-run Internet-based radio station. He writes the Protecting the Source blog.

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December 03 2009

22:51

Will Google Sidewiki Shift Control of Online Comments?

Journalists and news outlets are accustomed to offering comments and criticisms about others, but they're not as used to being the subject of public comment themselves. In the online world, where technology can and does upend established relationships, journalists and online news outlets are joining the ranks of the commented-upon.

The shift has taken place due to the increased presence of commenting and feedback features on news websites, and partly thanks to the use of comment-friendly platforms such as WordPress. In these contexts, the news outlets have chosen to accept user comments, and they retain a certain amount of control over which ones appear on their site. Now, a new technology, Google's Sidewiki annotation tool, is poised to present a challenge to website owners, including news outlets, that attempt to control the interface between their site and end users. Suddenly, they won't have as much control over comments related to their content.

And that change in control might lead to some legal tussles down the road.

Google Sidewiki

Google debuted Sidewiki in September. The tool permits users of the Google toolbar to write comments about any website they visit. These comments are then visible to other Sidewiki users when they navigate to the same page. But the comments are hosted by Google, rather than the website itself.

The Google Sidewiki site provides a graphic depiction of what a Sidewiki entry looks like. When the Sidewiki button on the Google toolbar is clicked, a sidebar opens to the left of the webpage and displays the comments entered by Sidewiki users.

Usually, a website's publisher decides whether or not to provide comment functionality, and if such functionality is provided, the site's owner retains the ability to delete unwanted comments. But a website operator has virtually no control over the Sidewiki functionality. This is something of a major shift.

Attack of the Commenters

Some websites have already been the subject of negative Sidewiki comments. In a September 24 blog post on Econsultancy, "Google Sidewiki: Brands under Attack," the author included examples of Sidewiki comments on the Microsoft and Apple websites. Microsoft products were described as "useless" and "crap," and Apple was slammed for "lying" and shipping products with "severe bugs."

Another example comes from a September 24 comment on the website of the Daily Mail. A commenter named "supaswag" wrote, "Why?? ... would you read this sad toss? Don't you have more important things to do? Seriously ... you'll find better/proper news here..." The link included in the comment led to the website of a Daily Mail competitor, the Guardian.

Responding to Sidewiki

A website owner is given few options to respond to comments like those listed above. Website owners can claim their sites through the Google Webmaster functionality, and thereby gain access to the top comment spot on Sidewiki. This means they can add whatever content they wish to the thread about their site(s). Other user comments are sorted according to a secret Google algorithm that takes into account the responses of Sidewiki users to the question of whether or not a particular comment is "useful," among other factors.

Google has a Sidewiki content policy that prohibits spam and malware, threatening, harassing and sexually explicit comments and the like. But commercial content in general is not prohibited, only "unwanted promotional or commercial content" (which is included in the definition of spam). It is not clear by whom the promotional or commercial content must be "unwanted" in order for it to constitute spam.

There is a link for reporting abuse, but the link leads to a form that is available to any Sidewiki user; it does not appear that website owners themselves are given any priority when it comes to communicating concerns to Google.

Sidewiki and the Law

One of the legal issues raised by Sidewiki is whether it intrudes upon the rights of website owners to control their interface and interactions with users. A similar type of technology that comes to mind is pop-up advertisements. Web users have become accustomed to seeing pop-ups -- and equally accustomed to blocking them. But several years ago, the ubiquitous and intrusive nature of pop-ups led a group of media companies to join in a litigation effort against Gator. Gator distributed technology that enabled the delivery of pop-up advertisements on websites without the permission or participation of the sites' owners.

gator.jpg The media company plaintiffs, as well as other plaintiffs in similar lawsuits, took the position that the pop-up advertisements violated trademark law. The media companies were successful in obtaining a preliminary injunction, and the litigation was eventually settled favorably. The company that distributed the pop-up technology is now out of business. As a result, there was never a definitive resolution of the issues raised in that case.

The lawsuits related to trademark law were based upon the fact that the pop-up functionality was being used to deliver commercial advertising, which presents a different set of legal considerations. But what if the comments that appear next to a site via Sidewiki are non-commercial comments by users, rather than commercial messages? Legal challenges by site owners to Sidewiki may be complicated by the fact that Sidewiki facilitates all kinds of messages, both commercial and non-commercial.

Has Sidewiki Got Legs?

Sidewiki is not the first or only service of its kind. Services such as Draw Here, Fleck, Trailfire and MyStickies have offered website annotation capability for a few years, but none of these services have garnered widespread adoption. (One annotation startup, ReframeIt, claimed recently that Google appropriated its patented technology in creating Sidewiki.)

Right now, Sidewiki users appear to be relatively few, and the technology presents some barriers to widespread use. In order to see Sidewiki comments, a user must install the Google Toolbar and its enhanced features. And a user must also be logged in to a Google account in order to use the Sidewiki functionality.

But being the media giant that it is, Google may have the capacity to bring Sidewiki, and website annotation, into mainstream use. If that happens, online news outlets, along with other websites, may find that the dialog on and about their sites is increasingly controlled by Google. And that could result in some interesting legal issues for all parties.

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.

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November 20 2009

12:23

November 19 2009

14:00

Need a lawyer? New network gives web publishers a line of defense

If you’ve gone the entrepreneurial route you know that first flush of enthusiasm often dampens when nitty-gritty decisions need to be made. There’s accounting, taxes, incorporation, insurance — and that’s the clear stuff. Toss in murky issues around trademark and branding and it’s easy to see how dreams of independence get squelched.

The Citizen Media Law Project at Harvard’s Berkman Center doesn’t want those entrepreneurial instincts to wither on the vine. It’s just launched an ambitious collection of free legal resources called the Online Media Legal Network (OMLN), the centerpiece of which is a matchmaking service that connects online publishers with attorneys who can address their specific needs. It’s a full-service effort, covering everything from basic business structure to contracts to representation in court.

OMLN is open to any online publisher that meets the network’s requirements. Organizations must be independent, journalism-minded, and have an eye toward sustainability either as for-profit businesses or nonprofits. If that describes your outfit, you can start the application process here.

The really good news is that pro bono assistance is available and the thresholds are generous. For-profit organizations that make less than $100,000 gross annual revenue qualify, as do nonprofits with operating budgets under $250,000. The high ceiling should cover the growing legion of bootstrapped web publishers.

“As long as their work is in the public interest, as long as it involves adherence to journalistic standards, then they’re going to be able to get help through the network until they’ve grown to the point where they are no longer entitled to free services,” said our friend David Ardia, the Project’s director.

Deeper-pocketed clients who don’t fall within the pro bono requirements are encouraged to apply, for free, as well. They’ll just have to arrange payment terms with a matched attorney.

More than a directory

Machine intelligence and algorithms can’t encompass all the variations in client needs and attorney specialties. That’s why four OMLN lawyers drive the process through extensive client screenings. These screenings need to capture a lot of nuance because applicants aren’t judged against any quantitative criteria, like page views or posting frequency.

Here’s how the matching process works: A lawyer in the network logs in to the site and is presented with client requests matching the lawyer’s pre-defined criteria (”nonprofits in California” or “clients who want to incorporate,” that sort of thing). Client names are not revealed at this point. The lawyer selects a specific request, and an OMLN staffer determines if the pairing is a good fit. If it is, the lawyer receives detailed information so he/she can check for conflicts with existing clients. The lawyer and the new OMLN client then get in touch directly and OMLN fades into the background. Either side can opt out if the match doesn’t feel right. Once the client’s legal issue is resolved, OMLN gathers feedback through private surveys with both parties.

OMLN needs to maintain balance if it’s going to be useful, Ardia said. Too many clients and online publishers won’t receive timely help. Too many lawyers and frustration mounts over lack of opportunities. Equilibrium is struck through a “slow as you go” approach that was honed while the site was being built. OMLN’s initial batch of clients was limited to past winners of the Knight News Challenge, and lawyers were invited to join based on their skill sets. Some amount of calibration will continue now that site is officially open, with the aim of matching clients and lawyers within three to four weeks of a request for assistance. That’s pretty quick considering the effort and issues at play.

OMLN itself is a 2007 News Challenge winner. It used an initial $250,000 grant to get the ball rolling, and it’s now running on two subsequent years of Knight funding. The goal is to make OMLN sustainable by the time funding runs out next October. Ardia hopes that since OLMN doesn’t bring in any money through the service, law firms and others will donate to support its continued operation.

November 09 2009

20:51

Do something now: help change the daft defamation law on online publishing

Forget about turning your Twitter avatar green or adding a Twibbon, here’s something you can do today which can make a genuine difference to both professional journalists and bloggers: write to the Ministry of Justice as part of their consultation on defamation which has just a few weeks left:

“This consultation seeks views on the ‘multiple publication rule’ under which [people can be sued for every time a web article has been  accessed], and its effects in relation to online archives. The paper considers the arguments for and against the rule and the alternatives of a single publication rule.”

This consultation couldn’t have been published in a more user-unfriendly way. The consultation page consists mainly of a link to a PDF and a Word document (which was clearly written for an online form that was never created, even down to HTML coding).

There is no clear address to send your responses to. You’ll find it on the 4th line of the Word document. It’s defamationandtheinternet@justice.gsi.gov.uk. Don’t worry, I’ll repeat that again at the end of the post.

Here’s what they’re asking (also hereherehereherehere and here), reproduced in a rather easier-to-navigate format and rephrased for slightly easier reading:

  • Question 1. Taking into account the arguments set out in the PDF, should the multiple publication rule be retained? If not, should a single publication rule be introduced? Please give reasons for your answers.
  • Question 2. If the multiple publication rule were to be retained should publishers have to place a notice on an archive once the person responsible has been notified that the material is subject to defamation proceedings?
  • Question 3. If a single publication rule were to be introduced, should it apply to all defamation proceedings, not just those relating to online publications?
  • Question 4. If a single publication rule were introduced,
    1. If the publisher is successfully sued against the original publication of the material, should publishers have to remove or amend material held in other formats under their control?
    2. should there be a provision that, where defamatory material is re-transmitted in a new format, the single publication rule would only protect the previous publisher and not the publisher of the new article?
    3. if neither of these are considered appropriate, how could claimants’ interests be protected?
    4. should the existing ‘voluntary’ obligations to correct inaccurate and misleading material be strengthened? If so, how should this be done?
      Please give reasons for your answers.
  • Question 5.
    • a) If a single publication rule were introduced, do you consider that the approach taken in the United States in respect of what constitutes a new publication of hard copy material would be workable? If not, what changes should be made?
    • b) Should online content that has been modified be regarded as a new publication?
    • c) Are there any other issues that would need to be resolved in establishing a single publication rule? Please give reasons for your answers.
  • Question 6. As an alternative to introducing a single publication rule, should the Defamation Act 1996 be amended to extend the defence of qualified privilege to publications on online archives outside the one year limitation period for the initial publication, unless the publisher refuses or neglects to update the electronic version, on request, with a reasonable letter or statement by the claimant by way of explanation or contradiction? Please give reasons for your answer.
  • Question 7. If the multiple publication rule is retained, should the limitation period remain at one year from the date of publication (with discretion to extend)? If not, what limitation period would be appropriate and why?
  • Question 8.
    • a) If a single publication rule were introduced, should the limitation period of one year run from the date of publication (with discretion to extend) or the date of knowledge (without discretion to extend)? If the latter, should there also be a ten year long-stop from the date of publication?
    • b) If you consider that an alternative approach would be appropriate, what should this be and why?

In case you need further nudging, I’ve started a pledge at PledgeBank – if 10 people sign up to that pledge to write to the MOJ, then I will write too. But not until then. If you need any help let me know.

Once again, the email to send your responses to is defamationandtheinternet@justice.gsi.gov.uk. Please don’t be put off by the exam-style phrasing and intimidating raft of questions. Just answer the questions you feel able to respond to. If you’ve ever complained about the law not catching up to the internet age, this is your chance to do something about it. So do it.

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