Libel Tourism Law Official... Including Important Nod To Section 230 Safe Harbors

from the this-is-good dept

We spend a lot of time discussing bad legislation around here, every so often it's nice to hear of some good legislation. Last month, we noted that an anti-libel tourism bill was making its way through Congress, which would protect US citizens from foreign libel judgments on laws that went against the First Amendment. Thankfully, that bill has now been signed into law -- and it may be even better than we initially expected. That's because, at the urging of folks such as Public Citizen, Congress inserted a bit into the law that also extends the important Section 230 safe harbors to this bill.

As you hopefully know, Section 230 safe harbors make sure that liability is properly applied. That is, it says you can't blame an online service provider for actions by its users. This is incredibly important if you believe that liability should be applied to the appropriate parties. However, very few other countries have such safe harbors, leading to regular lawsuits against service providers (often US service providers) for the actions of their users. Now, this law protects US service providers from such judgments.

Perhaps equally important as having this extension in the law is the discussion on the floor about including Section 230 safe harbors, because that's now a part of the Congressional record, where various elected officials make explicit the reasons why Section 230 protections make sense.

The purpose of this provision is to ensure that libel tourists do not attempt to chill speech by suing a third-party interactive computer service, rather than the actual author of the offending statement.

In such circumstances, the service provider would likely take down the allegedly offending material rather than face a lawsuit. Providing immunity removes this unhealthy incentive to take down material under improper pressure.

This is important, especially at a time when some have been attempting to seriously cripple Section 230 safe harbors by pretending they serve some other purpose outside of the proper application of liability.

Filed Under: defamation, first amendment, liability, libel, libel tourism, section 230

Vision Media's Bogus Lawsuit Dismissed; And Much More Attention Focused On Vision Media's Business Practices

from the well-that-worked-well dept

We've written a few times in the past about the attempt by Vision Media TV to use legal tricks to force down critiques of its business practice. The company, as has been covered in detail by the press, tends to focus on charities, suggesting that it will create a news report that may air on "public television" with "Hugh Downs." But the reality is that they're expecting the organization to pay, and there's no evidence that the content ever gets on TV anywhere. And Hugh Downs only participates in very, very limited cases. The company -- or one very much like it, based from the same basic place -- has gotten into legal troubles in the past. Even though the NY Times and NPR have covered Vision Media's method of doing business, Vision Media has not sued them, even though it has claimed such articles are defamatory.

Instead, it sued 800Notes.com, a website that highlights the details of various telemarketers, and claimed that it had tricks to get around the obvious Section 230 safe harbors the site faced. Thankfully, before the case could get that far, it's been tossed out. Paul Alan Levy who helped Julia Forte and 800Notes defend against the lawsuit, lets us know that the case has been dismissed on jurisdictional grounds even before the safe harbor questions came into play.

However, more important is how this is a case study of how badly such a lawsuit can backfire. The whole point of the lawsuit was to force one small site to hide criticism of Vision Media TV. But, in the process, all it did was draw a lot more attention to Vision Media's practices. As Levy notes:

As a result of the litigation, half the hits on the first page of a Google search for "Vision Media TV" now refer to the litigation and to the accusations against Vision Media.  The litigation taught many prospective customers about the anonymous charges made against Vision Media -- that Vision Media promotes its video production services by cold-calling non-profits and deceptively suggesting that it can get them free airtime on public television.  An experienced non-profit communications director, Jeff Cronin of the Center for Science in the Public Interest, detailed the various tricks Vision Media and associated enterprises had used to try to trick his group into buying its services.  

Vision Media's counsel made a ham-handed request for a gag order, complaining that public discussion of the lawsuit had become embarrassing and was threatening its relationship with Hugh Downs -- a name that Vision Media sales representatives used as entree to non-profit targets who recall Downs' former broadcast roles with respect.   And that attention led to a story on National Public Radio, embracing the anonymous accusations and reporting more detailed problems, as well as stories in the Chronicle of Philanthropy.  The Better Business Bureau withdrew its favorable rating; the rating has since been downgraded to C-, and a representative of Hugh Downs, who had been allowing Vision Media to play on his name and reputation, publicly announced plans to cut his ties with Vision Media.

When a company has been attacked online, and believes that it has hard evidence that the attacks are false, it faces hard choices about how to respond to those attacks.  What those companies don't need is the blandishments of lawyers who hope to make an easy buck by telling them that they can easily suppress criticism by suing the web sites where that criticism is hosted.  

As for non-profits, Vision Media has already tried to perpetuate its business by adopting the new name Great America HD.   Non-profits should be on the lookout for this same operation adopting new sheep's clothing.  At one point, Vision Media added the names of several staff members to the litigation.  That listing can be found here.   Non-profits who consider doing business with a TV production company employing any of these individuals -- be on your guard!

We keep hearing that lawyers are finally realizing that filing frivolous lawsuits to try to silence critics can backfire badly -- but we keep seeing new examples to the contrary. Hopefully, with each such example people realize that silencing criticism through bogus lawsuits is not a reasonable path to take.

Filed Under: defamation, julia forte, jurisdiction, libel, section 230
Companies: 800notes, great america hd, vision media tv

Senate Passes Libel Tourism Bill: Won't Recognize Ridiculous Foreign Libel Judgments

from the nice-to-see dept

We've written many, many times about the problems of libel tourism. Basically, some countries have ridiculous overbearing libel laws, that not only put the burden on those accused, but also leave open the ability of being found guilty of libel for telling the truth. With the rise of the internet meaning that something published online is published "everywhere," there's been an increase of individuals and companies suing for libel in random countries, who have stricter libel laws, claiming that since the content was available in those countries, those libel laws apply. Of course, if that's true, it would effectively mean that the lowest common denominator of restrictive laws around the world apply everywhere.

Thankfully, the US has more reasonable defamation laws than many other parts of the world (though, they could still be improved). But more and more US citizens have been caught up in libel tourism cases elsewhere. The Senate has now passed an anti-libel tourism bill, which would prevent the US courts from enforcing foreign judgments in libel cases that seem to go against the US First Amendment. The bill is expected to pass in the House as well. This all seems good, though, I have to admit that I hadn't realized US courts would enforce foreign libel decision in the US even if they went against the First Amendment. You would have thought that the US courts were already prevented from allowing things like that... Rather than just a specific "libel tourism" law, why do we allow US courts to enforce foreign rulings that appear to go against US law at all?

Filed Under: defamation, first amendment, libel, libel tourism

First Rule Of The New British Computer Society Is You Don't Question The BCS... Or It Threatens You With Libel

from the a-healthy-exchange-of-opinions dept

Well, this is nice. Apparently, the British Computer Society (BCS) is undergoing a £5 million effort to rebrand the group and make it appear more like a professional society (such as various doctors' groups) rather than "a club for enthusiasts." However, many members aren't happy with this whole process and how the money is being spent, so they asked for an Extraordinary General Meeting to cast a vote of "no confidence" in the board of trustees for spending so much money on something they don't believe in. Fair enough. Except... as Glyn Moody alerts us, one BCS trustee is so upset with the calls for an EGM he has threatened to sue those who called for it with libel charges.

But now one of the trustees, Ken Olisa, has sought the immediate retraction of what he regards as libellous remarks made in calling for an EGM.

In an email to one of the critics, Olisa demanded "that you and the other 5 signatories withdraw the unwarranted slur on my good name, apologise forthwith (copying the recipients of your message) and undertake in the same correspondence not to repeat the libel".

The email added: "I take my reputation very seriously and will have no hesitation in pursuing you and your co-signatories in the Courts unless I receive an unequivocal apology."

Nice to see the folks in charge of the BCS are embracing open discussion, huh?

As for the general discussion, the members of BCS who are worried about this have every reason to be. The move to make BCS more like a professional society are almost certainly not in the best interests of the profession. Historically, such professional groups tend to move strongly towards protectionist policies that hinder such groups and keep them out of step with the times and the market.

Filed Under: british computer society, libel, uk

Is Libel Dead... Or Is It Just Changing?

from the not-dead-yet dept

A few folks have sent over a recent article from The New York Observer declaring that "the end of libel" is upon us, noting that Time Inc. has no active libel suits against it and the NY Times has no domestic libel suits against it. In both cases, it's the first time in three decades that they don't have any active libel suits going on. The article then goes on to speculate why this is happening, and comes up with a few compelling reasons, including the fact that those who feel they've been wronged now have their own platform to speak out in response. This is a point we've mentioned in the past as well. Defamation law was designed for a time when there were gatekeepers to information, and those who were wronged had no way to make that known other than the very expensive and messy process of litigation. But now that anyone can broadcast their own views, there's a much cheaper and efficient retort when someone feels they've been wronged.

The Observer also wonders if another reason may be the general decline of the financial well-being of various big name media publications -- such that those who might have filed libel lawsuits in the past just don't think it's worth it. I don't buy that. Most people file libel lawsuits out of anger, not necessarily for the monetary rewards.

I have another thought why such libel suits may have declined, and am somewhat surprised that the article didn't mention it: 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.

Of course, there is another view on all of this as well. Media lawyer Robert Ambrogi noted, in response to the Observer article, that the article only seems to look at libel lawsuits against the mainstream media. The truth, he questions, might just be that libel lawsuits have moved elsewhere, such as us riffraff who publish online blogs or other online forums. I can definitely say that the number one legal threat we get here is libel (and those come often enough, though, no one's yet actually filed a lawsuit). Usually, the threat of such a defamation lawsuit is an empty legal threat to get us to delete a comment, but it is made frequently enough. So, while there may be fewer libel suits against big name publishers, it's still a favorite tool used (or at least threatened) against plenty of online sites.

Filed Under: defamation, libel

Does Section 230 Need Fixing?

from the that-would-be-no dept

David Thompson, a lawyer who works for a company that tries to either hide or force unflattering content offline, has written up a series of blog posts for the Volokh Conspiracy site, arguing that section 230 of the CDA is flawed in large part because of Google and then goes on to propose a way to "fix" Section 230 while still preserving online anonymity. He leaves out, of course, that this would help his employer. Funny, that.

Unfortunately, I don't find his arguments convincing, and believe they make a few logical leaps and some questionable assumptions. First of all, he seems to suggest that there are a whole bunch of sites that now use section 230 to "hide" and to encourage defamatory or libelous content. While there have been a few such sites here and there, they're mostly pretty rare. And.. more importantly, in most cases, social mores can handle such sites. As people learn about the nature of such sites, they take the content found on them a lot less seriously. Second, he suggests that Section 230 provides extra protections online compared to the offline world. This is an argument that anti-Section 230 people have made time and time again, but it's been debunked. The purpose of Section 230 was never to allow the internet to flourish under some sort of special "libel subsidy" as Thompson implies, but to make sure that liability is properly assigned to the party who actually did the action, rather than a third party. Thompson's examples of it being treated "differently" in the real world mostly involve situations where the third parties had a much more active role in the activity. In the cases where that's not true, such as swap meets being liable for infringing goods sold at their sites, I'd argue that the problem is with the offline world laws -- and that they should be fixed to properly apply liability.

As for the gratuitous "blame Google" aspect, I think that Thompson and other Section 230-haters are overplaying the actual impact of finding content people don't like on Google. So many people seem to assume that if there's "bad" content found on Google about them, that it automatically destroys their reputation. There may be a few extreme cases of that being true, but in most cases, people are actually adapting and do realize that not all content they find online is trustworthy. Thompson and others seem to assume most internet surfers are stupid. I'm not sure that's an assumption that we should make.

Finally, in his "solution" post he claims that the idea that we need Section 230 to help the internet is disproved by the fact that almost no other country has Section 230-like protections, and the internet still functions there. He lists out a bunch of other countries, but doesn't seem to realize that the situation on the ground in those countries disproves his point:

But in fifteen years of experience, we've seen that CDA 230 is not required for a thriving Internet.  Europe does not have a statute equivalent to CDA 230, the U.K. has stricter libel laws than the United States, and Directive 2000/31/EC requires EU member nations to enforce libel laws online.  But some estimates suggest that Internet use is actually higher in the U.K. than the U.S.  The same goes for Japan (hosts may be liable if they have knowledge of libel, higher Internet use than the U.S.) and Canada (hosts immune only if "innocent dissemination" higher Internet use than U.S.).  Fast-growing nations like Brazil have experienced ten-fold increases in Internet use in the last decade, even without a local version of CDA 230.

Indeed. But if you look at the UK, this has created massive problems with libel tourism and ridiculous libel cases filed on a regular basis, causing serious harm. In fact, there's an effort underway in the UK to not just reform libel laws, but to get Section 230-like protections put in place, because they realize it's important to protect liability from being falsely applied. The same is true in Canada, where a bunch of recent libel cases have driven home the massive problems of not having such protections -- allowing people to use Canadian defamation law to silence critics, rather than to actually protect against libel. In Japan, the effort of making hosts liable has had some chilling effects on certain services, that have cracked down on the ability to have free and open conversations in some forums. These aren't examples to aspire to. They're examples of why those countries need Section 230-like protections. The mistaken assumption Thompson makes is that the entire purpose of Section 230 is to "help the internet survive." It's not. It's to properly apply liability.

Finally, what is his suggestion to "fix" Section 230? It's to only grant Section 230 protections to sites that do data retention on users, so that they can be tracked down if there's a libel claim. He acts as if this is a simple requirement. He's wrong. This has all sorts of problems. First, it puts a real cost on sites that want this kind of protection. Second, it takes away some freedom to comment truly anonymously by some users, which could put a serious chilling effect on certain types of important speech. Third, it opens up a serious opportunity for data breaches and data abuse. We should be encouraging the world to go in the other direction.

Thankfully, many of the comments in response to Thompson's posts make these points -- and more. The overall problem is that Thompson has set up a rationale for Section 230 that is not accurate, and a world that does not exist to justify his plan.

Filed Under: defamation, liability, libel, section 230

New Libel Law Proposed In The UK; Gives ISPs Two Weeks To Respond

from the a-fortnight? dept

It's no secret that the UK's defamation laws are extremely problematic. They've longed been used for "libel tourism" as well as to silence critics. There's been a lot of talk in the UK about fixing those issues, but little action. Now it appears that a new libel bill has been introduced that, among other things, will give ISPs a 14-day window to respond to claims of libel. This seems sort of half-way between the typical "notice-and-takedown" and "notice-and-notice" proposals we've seen elsewhere. A two week window could actually give an ISP the chance to get a response or a challenge from the creator of the content before taking it down. However, not surprisingly, some are claiming this window is way too long, and ISPs should be forced to take down any content that is called libelous.

The bill does have many good aspects, including a defense for "responsible publication on matters of public interest," but appears to leave out a lot of important things as well, including shifting the burden of proof from the accused to the accuser. It's hard to believe that anyone, in this day and age, could possibly still have a libel law that puts the burden on the accused to prove they didn't libel someone. It's too bad that the UK doesn't appear ready to fix that glaring problem just yet.

Filed Under: burden, defamation, libel, libel tourism, safe harbors, uk

Towing Company Feels The Streisand Effect After Suing A College Kid For $750k

from the tow-trucking dept

Many readers have submitted the the story about a Kalamazoo towing company who is suing a college student for $750,000 for defamation of character and libel. Justin Kurtz started the "Kalamazoo residents against T&J Towing" group on Facebook earlier this year after his car was allegedly towed under shady circumstances. The Facebook group quickly grew to a few thousand Kalamazoo residents in about a week. In an attempt to quash the negative comments on the group's page, T&J filed the suit, which then garnered the group even more attention thanks to posts on Consumerist and Jalopnik. Now, at over 10,000 members, the group is over 1/7th the total population of Kalamazoo itself. Once again, another company is starting to learn that using lawyers in an attempt to silence criticism can have the exact opposite effect. The Streisand Effect Hall of Fame continues to rack up inductees.

Filed Under: defamation, kalamazoo, libel, streisand effect

Court Says Simon Singh Can Claim 'Fair Comment' In Calling BCA Claims Bogus

from the that's-not-bogus dept

We've written a few times about the UK libel lawsuit brought by the British Chriropractor's Association (BCA) against writer/scientist Simon Singh, because he called some of the BCA's claims (concerning what chiropractic work can do) "bogus." The courts had originally determined that the word "bogus" meant being deliberately dishonest and found him guilty of libel in a determination of how that word usage would be viewed at trial. In response, a large group of people have been ripping apart claims by the BCA with detailed analyses (stuff many in the press won't touch for fear of being sued as well). The case had become so involved that Singh stopped writing his column to focus on the lawsuit.

Thankfully, there's some good news, as the court has now decided that the original ruling was a mistake and Singh can use a defense of "fair comment" as the basis for his column. As such the trial will continue, but Singh is in a better position. Amazingly, despite all of this the BCA still wants to fight. At some point you wonder why they don't just back down. The more they fight, the more people expose them for making, yes, bogus claims. Singh and others aren't claiming that chiropractors don't do any good -- they're just questioning some of the more extreme, and scientifically unsupported, claims made by the BCA. If the BCA were smart, they'd focus on improving their messaging, not fighting back.

Filed Under: libel, simon singh, united kingdom
Companies: bca

Bogus DMCA Takedown Is Not Copyright Infringement And Not Libel

from the keep-sending dept

We've had a few discussions concerning the available damages awards for bogus DMCA takedown notices. Unfortunately, if you've had your content taken down incorrectly, the damages you can get from those who sent the takedown, are greatly limited. This is a big problem, because bogus takedowns are regularly sent for a variety of reasons, including attempts to silence speech and because a copyright holder is taking a machine gun approach to dealing with infringing content. The case that's received the most attention on this has been the Lenz vs. Universal Music case, involving Universal Music's failure to take fair use into account in taking down a short video of a baby dancing to music.

However, Michael Scott points us to Marty Schwimmer's blog post detailing a content creator's attempt to claim a bogus DMCA takedown was both copyright infringement itself as well as libel, two rather interesting legal claims... both of which got dismissed pretty quickly. The case involved Actors' Equity Association (AEA) which apparently has some sort of setup where it has the right to alert YouTube to any videos that violate the copyright of its members. How it knows whether those videos are authorized or not is not at all clear -- and, in this case, AEA screwed up. It issued a takedown on a video that was posted by the copyright holder who was pretty pissed off. AEA apologized, but the guy sued, and beyond just using the DMCA's 512(f) clause on dealing with bogus takedowns, tried some other claims as well -- including the copyright infringement and libel claims mentioned above.

The claim of copyright infringement claim is quite creative. It was based on the fact that copyright gives you the exclusive right to distribute and display your works, and the bogus takedown interfered with those exclusive rights. Of course, there's a pretty big problem with this theory, which the court was quick to point out: just because copyright law gives you that exclusive right, it doesn't mean that everyone has to automatically let you distribute or display your works, which is effectively what the guy was claiming. If this theory won out, then no one could stop someone else from displaying their works or it would be considered copyright infringement. So it's good that the court rejected this. Related to this, the court also rejected the 512(f) claim, by noting that only applies to situations where the takedown issuer had actual knowledge of the fact that the takedown was bogus, which greatly limits its applicability.

The libel claim stems from the idea that he was falsely labeled for infringing copyrights when he had not done so -- and the court ties that to the same 512(f) claim, pointing out that this would only apply if there were actual knowledge that the takedown notice was bogus.

The ruling here certainly makes sense, but still highlights a massive problem with the DMCA -- which is that those issuing takedowns have absolutely no incentive to determine if those takedown notices are valid. This would seem to seriously violate what's supposed to be a fine balance between copyright law and the First Amendment, in that it allows individuals or companies to stifle the speech of others, using the law, even if they're doing so incorrectly. This seems like a massive problem in how the DMCA is constructed.

Filed Under: bogus takedowns, copyright, copyright infringement, dmca, libel, takedowns
Companies: aea