US Freedom of Expression and Media Law Roundup 25 June 2010

24 06 2010

The debate on the “death of libel” continues with a post by Matthew Belloni on “The Hollywood Report” on the question as to whether  the internet is killing libel lawsuits.  He suggests that this has indeed happened and that this is because the internet has provided an outlet for the defamed to fight back and that, with the ability to correct stories online, so that libel disputes are getting resolved before litigation.

The Whytewolf Technology blog has another suggestion:

“our old favorite, The Streisand Effect. That is, over the past decade, perhaps more and more lawyers (and those considering libel lawsuits) are realizing that in bringing such a lawsuit, they often are calling a lot more attention to the content they wish would disappear. It’s often easier to just let it go than to file a lawsuit”.

Despite the lack of libel claims against the mainstream media, there are still a steady flow of claims against private individuals and blogs.  In Internet Solutions Corp. v. Marshall the State Supreme Court in Florida held that non-residents can be sued for defamation under Florida law over their Internet postings if that information is accessible and accessed in Florida.  The constitutional issues in the case will now be determined in a Federal Court.

In Kauffman Racing Equip., L.L.C. v. Roberts the Supreme Court of Ohio held that an Ohio trial court could properly exercise personal jurisdiction over a nonresident defendant in a defamation case in which an Ohio-based plaintiff alleged that the defendant posted disparaging statements on the public forum areas of several Internet sites with the intention of damaging the plaintiff’s business and personal reputation.   The case is discussed on the Courthouse News Service.  There is a webcast of the oral argument in the case which may be of interest to readers in other jurisdictions.

Other reported libel actions include an action by a San Francisco landlord, Rita O’Flynn, is suing a housing activist blog.  Meanwhile, in Florida it is reported that a judge has, in a two page ruling, overturned a US$10 million jury libel verdict against the St Petersburg Times, stating that the evidence in the case was “insufficient to cross the threshold required by the First Amendment.”  It seems surprising that if that was his view the matter was allowed to go to trial at all.

Anonymity and Disclosure

The question of whether, and on what terms, the courts will order the disclosure of the identity of anonymous posters or commentators continues to be a controversial one.   In Maxon v. Ottawa, the Illinois Court of Appeals set standards to be achieved before such an order could be made, but these did not include prior notification of the anonymous poster or the need to show a prima facie case for defamation.  The case is discussed on the Internet Cases blog.  The case has attracted wide media attention and a number of amicus briefs were filed

Privacy

On Thursday 17 June 2010 in City of Ontario v. Quon, the US Supreme Court unanimously held that an employer’s search of private text messages on a work-issued device does not violate the Fourth Amendment if the search is motivated by a legitimate work-related purpose and is not excessive in scope. The court’s ruling applies even when the employee possess a reasonable expectation of privacy in the device. The US Court of Appeals for the Ninth Circuit had ruled that Quon, a special weapons and tactics (SWAT) team member, had a reasonable expectation of privacy in text messages sent to and from his SWAT pager under an informal policy of allowing personal use of the pagers, and therefore his Fourth Amendment rights had been violated.  There is an interesting article on the case headed “Hints on texting privacy” on the Scotus Blog. All the relevant court papers along with media and blog links can be found on the Scotus Wiki.

The ACLU blog of rights reports that a number of  privacy organizations, including the sent a joint letter to Facebook calling for the social networking giant to fix remaining issues concerning user privacy and control.  The letter calls on Facebook to demonstrate its commitment to its own principles by addressing a number of outstanding areas of concern.

The Onpoint website has a story under the headline “New Suits Could Chill Writers’ Use of Own Experiences” concerning three recent cases in which privacy claims have been brought by individuals who claim that they are the real life models for characters in films and works of fiction.  The film “Finding Amanda”, concerns a writer who tries to redeem himself by rescuing his niece, from a life of prostitution and drug use.  The real nice of the writer filed a complaint on 27 May 2010.  Other claims relate to a novel called “The Unseen” and a memoir “Where Did You Sleep Last Night?” The writer points out that last year a Georgia jury last year awarded $100,000 to a woman who claimed she was falsely portrayed as an “alcoholic slut” in the novel “The Red Hat Club.”

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26 06 2010

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