Game Developer Tried Threatening Game Reviewer And Posting Fake Steam Reviews To Be Successful; It Didn't Work

from the bye-bye dept

You may recall the rather short saga of video game studio Digital Homicide. That studio attempted to find success with a strange formula: sue game reviewers over negative reviews, sue Steam accounts for likewise negative reviews, find its game suddenly delisted from Steam entirely, and then declare itself dead. Not exactly the end that Digital Homicide was hoping for, certainly. One would have hoped that its story would serve as a warning to other game studios. And perhaps to some extent it has, as another game developer, Matan Cohen, ever so slightly altered the formula in probably the worst way possible.

It still starts off with abusing the DMCA process to take down negative reviews and threatening the reviewer with legal action, of course. In this case, we once again find Jim Sterling, the same reviewer threatened by Digital Homicide, being the victim of a game developer's abuse. After having first filed a DMCA claim on Sterling's review of the game Art of Stealth, Cohen then allegedly went on a legal threat binge against Sterling.

These kinds of threats never work, but behaving as though you were specifically attempting to follow the playbook of a now-dead game studio, even mimicking its targets in the game review community, seems like a terrible business strategy. But, as I said, Cohen does indeed deviate from the Digital Homicide playbook at this point. Cohen has by all accounts not attempted to sue Steam users for what have likewise been fairly negative reviews on his game's Steam page.

Instead, he appears to have decided to simply make up a bunch of Steam accounts and have them post fake reviews for his game instead. It was apparently blatant enough that Steam investigated and decided to push the button on the nuclear option and remove the game from Steam entirely.

We (Valve) have identified unacceptable behavior involving multiple Steam accounts controlled by the developer of this game, Matan Cohen. The developer appears to have created multiple Steam accounts to post a positive review for their own game. This is a clear violation of our review policy and something we take very seriously.

For these reasons, we are ending our business relationship with Matan Cohen and removing this game from sale. If you have previously purchased this game, it will remain accessible in your Steam library.

When, oh when, will content makers realize that making war on negative reviews of their works is a losing proposition. The focus needs to be on making great content and connecting with people, not wielding legal threats as a cudgel. And, for the love of the universe, attempting to fake positive coverage can only serve to torpedo your career.

Filed Under: art of stealth, censorship, copyright, dmca, fake reviews, jim sterling, reviews, threats, video games
Companies: valve

Notice & Staydown In Action: HBO Didn't Even Need To Send Takedown Over Autistic Teen's Artwork

from the bursting-your-bubble dept

Things just got a little more weird in the case of the 13 year old British girl who had some art she created taken down from Redbubble's site because the artwork included the phrase "winter is coming." The girl's father responded to the takedown, questioning why HBO, owners of the trademark rights to the phrase in conjunction with the Game of Thrones franchise, would do this to an autistic teenager that wasn't even selling the art, only sharing it. As noted in our original post, the letter Redbubble sent the girl is a mess, lacking any firm reference to trademark or copyright and replacing it only with "IP/Publicity Rights." In addition, the whole letter is written like a forwarded DMCA notice, including offering the ability to counternotice through Redbubble's DMCA counternotice email address... but this would be a trademark issue, to which the DMCA doesn't apply. Lots of people, including the girl's father, assumed this takedown had been carried out at the request of HBO.

It looks like that wasn't the case. What the girl's father missed -- along with many of those reporting on the issue, including myself -- is that Redbubble's letter states that they did this because of HBO's history of issuing DMCA notices, not because it had actually done so in this case.

"We have removed the following content from Redbubble in response to past complaints from Home Box Office, Inc., the claimed owner or licensee of related intellectual property and in accordance with Redbubble's IP/Publicity Rights Policy," it said.

So this wasn't "notice and takedown", it was "notice and staydown", where Redbubble policed HBO intellectual property on its site based on previous complaints. That's not required by law, of course, but it certainly is what many in Hollywood want to see as the standard. And this is a perfect case for why it's a terrible, terrible idea. Legitimate, non-infringing uses get caught up in the blanket takedowns issued by service providers that don't really have a clue as to what they're doing.

And in light of what actually happened, Redbubble's letter, and the way it appears to be disguised as a DMCA notice, is at best horrifically sloppy and at worst an attempt to shift the blame for its voluntary and proactive takedown of a teenage girl's artwork. For it's part, HBO doesn't seem to be happy about this.

"We love when fans are creative in their support of our programmes," the network said in a statement (via Entertainment Weekly). "These works live online in many incarnations, and in the past we have celebrated them by drawing attention to them.

"Many for-profit websites that sell products, such as Redbubble, take steps to avoid infringements as part of their standard operating procedure. To suggest a particular individual was targeted, or that HBO threatened legal action against her, is simply untrue."

Now, HBO's history of how it treats fans of Game of Thrones isn't universally positive, and it's worth noting again that the stated reason Redbubble did all of this is because of the network's heavy-handed history when it comes to matters just like this...but I have to think HBO is also pissed off at the way Redbubble's communication with the girl's father allowed him -- and the media -- to conclude this was all HBO's fault for issuing a DMCA takedown.

Regardless, good to know that Redbubble wants to be in the business of proactively policing its site in such a way that it results in the non-infringing artwork of a teenager gets taken down. The site is a notice and staydown site, on the record.

Filed Under: censorship, dmca, notice and staydown, notice and takedown, threats, trademark, winter is coming
Companies: hbo, redbubble

Researchers Find Vulnerability That Enables Accounting Fraud, PwC Decides The Best Response Is A Legal Threat

from the you're-not-helping dept

For years now, we've noted that some companies apparently think it's a good idea to punish security researchers that expose vulnerabilities in their products, even when the researchers use the proper channels to report their findings. This kind of absurdity runs hand-in-hand with international attempts to criminalize security research -- or the tools researchers use -- to do their jobs. Obviously, this kind of behavior has one tangible end result: it makes all of us less secure.

The latest chapter in this saga of myopic bumbling comes courtesy of PwC, which for whatever reason decided that the best response to a major security flaw found in one of the company's products was to to fire off a cease and desist letter aimed at the researchers. More specifically, Munich-based ESNC published a security advisory earlier this month documenting how a remotely exploitable bug in a PwC security tool could allow an attacker to gain unauthorized access to an impacted SAP system.

The advisory was quick to point out that the vulnerability could allow a hacker to manipulate accounting documents and financial results and commit fraud, if they were so inclined:

"Based on the business processes implemented on the SAP systems on which ACE is installed, this security vulnerability may allow an attacker to e.g. manipulate accounting documents and financial results, bypass change management controls, and bypass segregation of duties restrictions. This activity may result in fraud, theft or manipulation of sensitive data including PII such as customer master data and HR payroll information, unauthorized payment transactions and transfer of money.

The researchers say they received the cease and desist threat despite meeting with PwC in August to discuss the flaw. ESNC also gave PwC three months to fix the flaw before issuing their public advisory, in line with the firm's responsible disclosure policy. ESNC says this was the first time they'd ever sent their research and findings to PwC. It was also the first time they've ever been legally threatened for doing their job, despite the discovery of over 100 security vulnerabilities to date. Despite two cease and desist letters, ESNC released their findings anyway -- "because it is the right thing to do."

When pressed for comment, PwC read directly from the tone-deaf playbook, first pointing out that ESNC did not have a license to use this software (irrelevant), then trying to downplay the fact that the vulnerability could enable accounting and financial fraud:

"ESNC did not receive authorized access or a license to use this software. The software is not publicly available and was only properly accessed by those with licenses, such as PwC clients working with trained PwC staff," said the spokesperson.

"The bulletin describes a hypothetical and unlikely scenario -- we are not aware of any situation in which it has materialized," the spokespersons said.

This kind of behavior has always been, for lack of a more scientific term, blisteringly idiotic. But it's becoming more of a problem with the rise of the internet-of-poorly-secured things, which has amplified exponentially the number of attack vectors and product vulnerabilities in the wild. With security researchers now clearly warning us that the failure to secure these products will inevitably result in human fatalities at scale, this ongoing attempt to criminalize security research needs to be considered a criminal act in and of itself.

Filed Under: cybersecurity, legal threats, research, security, security research, threats
Companies: esnc, pwc

Fake News About Fake News Leads To (Fake?) Defamation Threat

from the fake-can-mean-anything-now dept

So, it seems like "fake news" is all the rage these days. As we've discussed, the sudden focus on fake news is a silly distraction. It's not likely to be changing many minds -- and the talk about fake news seems mostly to be leading to calls for censorship. And a big part of the problem is that "fake news" is such a broad and vague label. It's been applied to outright propaganda, to satire, to serious reporting, to serious reporting people don't like... and to serious, but mistaken, reporting. The problem is that when you lump all those things together, things get pretty damn messy.

Take, for example, this "fake news" story that got a lot of attention when it came out right around Thanksgiving: the Washington Post claimed that some "experts" had shown that Russian propagandists were behind the fake news explosion during the election. Which experts? The story doesn't say. What evidence? The story doesn't say. The article is focused on a brand new organization called "PropOrNot" that claimed to be run by experts, but won't identify who's involved, and the Washington Post didn't seem to care. But still it made incredibly broad claims about "fake news" and Russian propaganda.

Almost as soon as the story came out, it was being torn to shreds as being ridiculous. Mathew Ingram, at Fortune, was quick to poke holes in the story, pointing out (among other things) that various organizations that PropOrNot listed as "allies" had never heard of the organization and certainly were not working with it.

Glenn Greenwald did a thorough debunking of the Washington Post story, noting that "PropOrNot" listed all sorts of ideologically-attached websites as "fake news" just because many of the websites were not fans of Hillary Clinton. Greenwald noted how McCarthyite the whole thing was:

In casting the group behind this website as “experts,” the Post described PropOrNot simply as “a nonpartisan collection of researchers with foreign policy, military and technology backgrounds.” Not one individual at the organization is named. The executive director is quoted, but only on the condition of anonymity, which the Post said it was providing the group “to avoid being targeted by Russia’s legions of skilled hackers.”

In other words, the individuals behind this newly created group are publicly branding journalists and news outlets as tools of Russian propaganda — even calling on the FBI to investigate them for espionage — while cowardly hiding their own identities. The group promoted by the Post thus embodies the toxic essence of Joseph McCarthy, but without the courage to attach individual names to the blacklist. Echoing the Wisconsin senator, the group refers to its lengthy collection of sites spouting Russian propaganda as “The List.”

The credentials of this supposed group of experts are impossible to verify, as none is provided either by the Post or by the group itself. The Intercept contacted PropOrNot and asked numerous questions about its team, but received only this reply: “We’re getting a lot of requests for comment and can get back to you today =) [smiley face emoticon].” The group added: “We’re over 30 people, organized into teams, and we cannot confirm or deny anyone’s involvement.”

Over at Rolling Stone, Matt Taibbi called the whole thing shameful and disgusting.

Forget that the Post offered no information about the "PropOrNot" group beyond that they were "a collection of researchers with foreign policy, military and technology backgrounds."

Forget also that the group offered zero concrete evidence of coordination with Russian intelligence agencies, even offering this remarkable disclaimer about its analytic methods:

"Please note that our criteria are behavioral. ... For purposes of this definition it does not matter ... whether they even knew they were echoing Russian propaganda at any particular point: If they meet these criteria, they are at the very least acting as bona-fide 'useful idiots' of the Russian intelligence services, and are worthy of further scrutiny."

What this apparently means is that if you published material that meets their definition of being "useful" to the Russian state, you could be put on the "list," and "warrant further scrutiny."

Forget even that in its Twitter responses to criticism of its report, PropOrNot sounded not like a group of sophisticated military analysts, but like one teenager:

"Awww, wook at all the angwy Putinists, trying to change the subject - they're so vewwy angwy!!" it wrote on Saturday.

"Fascists. Straight up muthafuckin' fascists. That's what we're up against," it wrote last Tuesday, two days before Timberg's report.

Any halfway decent editor would have been scared to death by any of these factors. Moreover the vast majority of reporters would have needed to see something a lot more concrete than a half-assed theoretical paper from such a dicey source before denouncing 200 news organizations as traitors.

Even The Nation started mocking the Washington Post for publishing such trash. And then Adrian Chen, at the New Yorker, did a near total shredding of the WaPo story, noting that he and many others had received the pitch from PropOrNot, but passed on it as obviously ridiculous.

The most striking issue is the overly broad criteria used to identify which outlets spread propaganda. According to PropOrNot’s recounting of its methodology, the third step it uses is to check if a site has a history of “generally echoing the Russian propaganda ‘line’,” which includes praise for Putin, Trump, Bashar al-Assad, Syria, Iran, China, and “radical political parties in the US and Europe.” When not praising, Russian propaganda includes criticism of the United States, Barack Obama, Clinton, the European Union, Angela Merkel, NATO, Ukraine, “Jewish people,” U.S. allies, the mainstream media, Democrats, and “the center-right or center-left, and moderates of all stripes.”

These criteria, of course, could include not only Russian state-controlled media organizations, such as Russia Today, but nearly every news outlet in the world, including the Post itself. Yet PropOrNot claims to be uninterested in differentiating between organizations that are explicit tools of the Russian state and so-called “useful idiots,” which echo Russian propaganda out of sincerely held beliefs. “We focus on behavior, not motivation,” they write.

To PropOrNot, simply exhibiting a pattern of beliefs outside the political mainstream is enough to risk being labelled a Russian propagandist. Indeed, the list of “propaganda outlets” has included respected left-leaning publications like CounterPunch and Truthdig, as well as the right-wing behemoth Drudge Report. The list is so broad that it can reveal absolutely nothing about the structure or pervasiveness of Russian propaganda. “It’s so incredibly scattershot,” Higgins told me. “If you’ve ever posted a pro-Russian post on your site, ever, you’re Russian propaganda.”

The most incredible thing in all this mess is that the Washington Post and its Editor in Chief have refused to comment on the article or answer the criticism at all. They've just ignored it entirely.

With such broad criteria ensnaring all sorts of websites, some of them have decided to push back. The website NakedCapitalism has sent a letter demanding a retraction and threatening a defamation lawsuit. The site Truthdig claims that it, too, has The letter argues that calling a website "fake news" is defamation:

I write on behalf of my client, Aurora Advisors Incorporated (“Aurora”), which publishes the finance and economics website Naked Capitalism (www.nakedcapitalism .com) to request that the article by Craig Timberg, “Russian propaganda effort helped spread ‘fake news’ during election, experts say” (“Fake News”) [https://www.washingtonpost.com/business/economy/russianpropaganda-effort-helped-spread-fake-news-during-election-expertssay/2016/11/24/793903b6-8a40-4ca9-b712-716af66098fe_story.html] published by the Post on Thursday, November 25, be immediately removed from your website and all web-accessible archives. Fake News contains extremely damaging false allegations constituting defamation. Furthermore, Aurora asks for a prominent public apology for the false and defamatory accusations made in Fake News and for an equally prominent (i.e. not in a “Comments” section) opportunity to respond.

You began Fake News with the sensational claim: “The flood of ‘fake news’ this election season got support from a sophisticated Russian propaganda campaign that created and spread misleading articles online with the goal of punishing Democrat Hillary Clinton, helping Republican Donald Trump and undermining faith in American democracy,” and attributed this claim to “independent researchers who tracked the operation.” Naked Capitalism is one of the accused organizations in PropOrNot’s report, which, contrary to Fake News’ claim that the report had not been published, was available on the Internet well before Fake News ran. [http://www.propornot.com/p/the-list.html] This error should be corrected.

You identified and thus denigrated Naked Capitalism, one of the sites targeted in the “study” as one of the “right-wing sites across the Internet as they portrayed Clinton as a criminal hiding potentially fatal health problems and preparing to hand control of the nation to a shadowy cabal of global financiers. The effort also sought to heighten the appearance of international tensions and promote fear of looming hostilities with nuclear-armed Russia.” You called upon Facebook and Google to “crack down on ‘fake news,’” apparently by censoring Naked Capitalism, because it is supposedly “attack[ing] American democracy.”

Your identification of Naked Capitalism as a “fake news site” and as an agent for Russian propaganda designed to undermine American democracy is defamatory per se. You accuse Naked Capitalism of spreading “Russian-backed phony news to outcompete traditional news organizations for audience.” These serious allegations have caused and will continue to cause great harm to Naked Capitalism, including but not limited to damage to policy impact and reputation, diversion of scarce reporting and managerial resources to respond to concerned inquires and debunk this smear, loss of readers, and damage to the site’s profitability. Moreover, writers and editors associated with Naked Capitalism face ridicule, emotional distress, loss of reputation, and risk to future career advancement, including for example, difficulty passing background and security checks

The letter goes on (and on and on) from there, but I don't see how any of what the Washington Post did was actually defamatory. Stupid, wrong and misleading? Yup. Absolutely. But to reach the level of defamation would take a lot more. Also, the Washington Post didn't actually name the sites NakedCapitalism or Truthdig. Both of those were just on the separate (ridiculous) list that PropOrNot published. So writing about PropOrNot (even, stupidly repeating its bogus and silly claims) doesn't automatically make you liable for PropOrNot putting sites on a list. On top of that, it's unlikely that even PropOrNot directly is liable for defamation for putting sites on a "Fake News" list. While there have been some cases here and there about whether putting companies on a "spammer" list is defamatory, in the US, merely putting people on such a list is likely to be protected speech -- especially when the list is for something as vague as "propaganda."

So, no one comes out of this looking very good. The Washington Post looks completely ridiculous. PropOrNot and whoever is behind it look like a joke. But even NakedCapitalism comes off looking a little silly by pulling out the defamation threat. Calling for a retraction is fine and sensible. Mocking the Washington Post, its reporter, and PropOrNot is totally fair game. But what the Washington Post did was just really ridiculously bad reporting. Not defamation.

And, thus, we're back where we started. In some circles, what the Washington Post did was "fake news." And, no, the Washington Post shouldn't claim it's defamatory for us to say that either. In fact, this only serves to highlight what a useless term "fake news" is to describe some very, very different situations. Bad reporting is bad reporting and should be called out as such. Propaganda should be called out as such. Made up stories for clicks should be called out as such. "Fake news" is too broad and a useless categorization. But, really, the Washington Post should have known better -- and should have taken down that article by now and apologized for it.

Filed Under: bad reporting, defamation, fake news, propaganda, threats
Companies: nakedcapitalism, washington post

Trump's Constant Whining About The NY Times Isn't Just Bad For The First Amendment

from the business-threats dept

We've already made it clear that we're quite concerned about how freedom of expression will fare under President Trump. He has a long history of threatening and/or suing those who cover him factually, but in a manner he dislikes. And while he hasn't (as far as I can tell) threatened to sue anyone since the election, he appears to have become somewhat obsessed with the NY Times. Since winning the election he's tweeted at least six times about the NY Times, insisting (incorrectly) that it was losing subscribers and (incorrectly) that it had "apologized" to readers for its Trump coverage. He also claimed (incorrectly) that it had said he hadn't spoken to foreign leaders -- when the actual article just said that his conversations with foreign leaders happened without State Department briefings (which is fairly stunning). Here's what the NY Times said:

One week after Mr. Trump scored an upset victory that took him by surprise, his team was improvising the most basic traditions of assuming power. That included working without official State Department briefing materials in his first conversations with foreign leaders.

But Trump claimed something entirely different: And, yes, I know that there are some folks who just flat out hate the NY Times and think that it lies and such. And I've certainly complained my fair share about weak or misleading coverage by the NY Times over the years, but it's still problematic when a President or President-elect is directly attacking any publication. It creates serious chilling effects on reporters. And, it can be even worse than that. As Yashar Ali noted in a Twitter thread, attacking a company as "failing" has real consequences, especially one that is traded on the public markets, potentially harming all sorts of everyday investors. I'm guessing that many who just hate the NY Times won't care about this, but it is serious. There's a reason why Presidents don't go around attacking companies or saying that they're "failing" or that their business is in trouble. Because that has real consequences. I still don't think that journalists should be suing Trump for defamation, as some have suggested, but it would be nice if our President-elect recognized that going around and attacking the press -- even if he disagrees with its coverage -- is entirely inappropriate.

Filed Under: attacks, business, corruption, donald trump, first amendment, free speech, threats
Companies: ny times

Fighting For The First Amendment Is Going To Be A Priority: Help Us Do It

from the free-speech-under-attack dept

Throughout the campaign, we noted how Donald Trump's views on the First Amendment and free speech were horrific. While some of his supporters insist that he's wonderful for free speech because he's not "politically correct," in almost every way he's positioned himself as an enemy of free speech and the First Amendment (even the whole "political correctness" thing is misleading, because if you mention certain other words, Trump supporters seem to get just as worked up as the "PC police"). He (along with Clinton) promised to censor the internet and brushed off the free speech concerns about doing so, calling people who bring up free speech in that context to be "foolish people." And, then of course, there is the long list of threats to sue his opponents for their ads, news organizations for their articles and other critics as well. Those are all protected speech. It didn't help matters that his very first post-election tweet complained about protesters exercising their First Amendment right to assemble and protest, and the press for supposedly "inciting" them to protest.

In the past few days things haven't gotten much better. His campaign manager, Kellyanne Conway threatened Harry Reid with legal action for criticizing the President-elect. Sure, Reid's statement was hyperbolic and a bit ridiculous, but no more ridiculous than stuff that Trump himself said on the campaign trail. You don't go and threaten people for expressing their opinions -- especially when its people from opposing parties. That's what dictatorial strongmen do, not those in a country that has the First Amendment. And, of course, Trump continued to use Twitter to get into a weird spat with the NY Times insisting (incorrectly) that people were unsubscribing because of its coverage of him. And then he insisted that the NY Times was lying in reporting on things he said about having more countries get nuclear weapons. Except he did say those things, and even the friendliest publication to Trump, Breitbart, reported on him saying it. No, he's not threatening legal action there, but selectively attacking and calling out certain publications -- especially for their accurate reporting -- is pretty ridiculous and again shows that Trump seems to have a serious inability to recognize that adversarial reporting on the government is kind of an important part of the freedom of the press.

And we haven't even gotten to Trump's promise to "open up libel law" to make sure that publications that reported negatively on him have "problems." As we noted when he said this, while he can't just "open up libel laws," he can still create lots of problems for free speech and the First Amendment.

And that's why people like Margaret Sullivan are arguing that this is our big First Amendment test. Some people have argued -- including in our comments -- that we should wait and see what Trump actually does. I think we should take him at his word. If he didn't mean, then let's see it by his actions. But in the meantime, it's going to be important to guard our free speech rights carefully, because Trump and his campaign have so far showed almost no respect for them at all. As journalism professor Dan Gillmor said in a recent speech, journalists need to become activists for free speech.

At Techdirt, we've always considered ourselves exactly that: strong advocates for free speech and an open internet, and so much of what we talk about stems from that. And we plan to continue to do so, even though we're quite small. I know I've seen lots of people suggest people subscribe to newspapers and some wonderful organizations like the ACLU and EFF -- and we're all for that too. But if you want Techdirt's voice to keep speaking out on this as well, perhaps, think about supporting us as well.

Filed Under: chilling effects, defamation, donald trump, first amendment, free speech, kellyanne conway, slapp, threats

As Donald Trump Ramps Up Threats To Sue Newspapers, A Reminder Of Why We Need Free Speech Protections

from the federal-anti-slapp-please dept

Just last week, we discussed Donald Trump's ridiculous and almost instinctual reaction to threaten to sue the media any time they write something about him that he dislikes. That's not how defamation law works, and Trump should know since he's sued for defamation a few times in the past, and lost. Of course, Trump has also flat out admitted that he sometimes sues for defamation just to cost opponents money, which is the classic definition of a SLAPP (Strategic Lawsuit Against Public Participation) lawsuit.

This is all quite relevant today, seeing as a whole bunch of stories broke in the past 24 hours or so about Trump, mainly focusing on claims by women of (frankly) horrific things he's accused of doing to them (and, again, we're not a political site, and I'd really, really appreciate it if the comments on this post don't go down a political path, even if I know such a request is unlikely to be respected). Trump and his lawyers immediately started threatening to sue. The main target so far is the NY Times, which published the first major story, focusing on the allegations of two women. But within that story, the article notes that the reporters got Trump on the phone and he immediately threatened a lawsuit:

In a phone interview on Tuesday night, a highly agitated Mr. Trump denied every one of the women’s claims.

“None of this ever took place,” said Mr. Trump, who began shouting at the Times reporter who was questioning him. He said that The Times was making up the allegations to hurt him and that he would sue the news organization if it reported them.

“You are a disgusting human being,” he told the reporter as she questioned him about the women’s claims.

A few hours later, there were reports that Trump's lawyers were preparing a lawsuit against the NY Times and the Palm Beach Post, which had another story of another woman. Instead, however, Trump's lawyers sent a laughably thin cease and desist letter. As we and others have pointed out repeatedly, a defamation threat letter that fails to point out what statements are actually defamation is an empty threat letter designed to scare off the naive and clueless. The NY Times, of course, is neither weak, nor clueless, especially when it comes to defamation law. The NYT's assistant General Counsel David McCraw's reply is well worth reading. After first (of course) saying that they won't take down the article, McCraw makes the argument that Trump is effectively "defamation proof" as his reputation is so bad on these matters, that any article couldn't make it much worse.

The essence of a libel claim, of course, is the protection of one's reputation. Mr. Trump has bragged about his non-consensual sexual touching of women. He has bragged about intruding on beauty pageant contestants in their dressing rooms. He acquiesced to a radio host's request to discuss Mr. Trump's own daughter as a "piece of ass." Multiple women not mentioned in our article have publicly come forward to report on Mr. Trump's unwanted advances. Nothing in our article has had the slightest effect on the reputation that Mr. Trump, through his own words and actions, has already created for himself.

That's... pretty incredible. It sure would be interesting in court (though it's unlikely to ever get there, as we'll explain). From there, the NYT notes a second point, which is that they were reporting on a matter of national importance:

But there is a larger and much more important point here. The women quoted in our story spoke out on an issue of national importance indeed, an issue that Mr. Trump himself discussed with the whole nation watching during Sunday night's presidential debate. Our reporters diligently worked to confirm the women's accounts. They provided readers with Mr. Trump's response, including his forceful denial of the women's reports. It would have been a disservice not just to our readers but to democracy itself to silence their voices. We did what the law allows: We published newsworthy information about a subject of deep public concern. If Mr. Trump disagrees, if he believes that American citizens had no right to hear what these women had to say and that the law of this country forces us and those who would dare to criticize him to stand silent or be punished, we welcome the opportunity to have a court set him straight.

Notably missing from this letter is the usual response to blowhard defamation threats: that truth is an absolute defense to defamation, and in suing, you are opening yourself up to pretty widespread discovery -- and also that Trump has a very, very high bar to cross to win a defamation lawsuit. That is, as we've discussed many times, in the US, for there to be defamation of a public individual, the material printed must not just be false, but must be published with malicious intent. That's going to be virtually impossible for Trump to show if it even gets that far.

Of course, as many have pointed out, it's quite unlikely that any lawsuit (if one is actually filed -- and so far this campaign, Trump has threatened to sue publications many times and never followed through) would be dropped by Trump soon after the election. The only reason to threaten or to file a lawsuit is really just to scare off other women from coming forward and/or to scare off other publications for publishing such a story. And that's the real issue here: the chilling effect of abusing defamation law in this manner.

While Tim O'Brien, a writer that Trump actually did sue for defamation (and where he lost badly -- actually, he's the author that Trump gleefully explained that he sued just to cost him money), is saying that publications shouldn't fear Trump lawsuits because he'll always lose and it's not that easy. A publication like the NY Times has the resources to handle any such lawsuit. But many (perhaps most) other publications do not. And it is both timely and cost-intensive to defend against even a bogus lawsuit. And every publication knows that.

And that's the real problem here. It creates massive chilling effects on reporting on a topic of national importance concerning the Presidential election.

This is why we've been blathering on for years about the need for a federal anti-SLAPP law that would prevent these kinds of lawsuits, allowing for them to be tossed out of court quickly and where those who file such suits will have to pay the expenses of those they sued (of course, it should be noted that a key sponsor of the federal anti-SLAPP law that was introduced last year is also a top Trump supporter).

Right now, unfortunately, anti-SLAPP laws are state-specific, with some states having no such laws, and many having very weak laws. You can bet that if Trump's lawyers do sue, they'll do so in a state that has very weak or non-existent anti-SLAPP laws. But as Eriq Gardner at the Hollywood Reporter points out, these constant bogus threats should be a wake up call for Congress to finally pass a strong federal anti-SLAPP law.

As many have recognized, if Donald Trump does bring a lawsuit against media outlets over their coverage of sexual assault allegations, it will hardly be resolved by Election Day. Many speculate that Trump will quickly drop such claims post-election to avoid a discovery process that would investigate the real truth. No one should fail to recognize, however, that the lawsuit itself is a form of bullying intended to give members of the media and other women pause before reporting about this public figure's fitness for office.

The only way to ensure that members of the media throughout the nation continue to be strong participants in civic affairs is to erect downsides to the filing of lawsuits. The U.S. Congress has such an opportunity and can discourage attacks on the First Amendment with a federal anti-SLAPP act that imposes penalties on frivolous lawsuits that cost money to defend and suck up judicial resources. It's time for lawmakers to act.

Indeed. Of course, expecting Congress to do anything right now is kind of ridiculous. It's not going to happen, even though it should.

Filed Under: anti-slapp, chilling effects, defamation, donald trump, first amendment, slapp, threats
Companies: ny times

Peter Thiel's Lawyer Says He's Stopped 'Monitoring' Gawker, But Still Sending It Bogus Takedown Demands

from the anti-free-speech-nuttery dept

Remember how the billionaire funder of Facebook and Palantir, Peter Thiel, insisted that he was bankrupting Gawker to protect your privacy? Well, the lawyer, Charles Harder, that Thiel set up with a monthly retainer, specifically to focus on lawsuits that could kill Gawker dead, has become something of a "celebrity" in the "let's stomp out free speech" circle of celebrities. Last month, the Hollywood Reporter did a big profile on Harder and his newfound fame (and rapidly growing client list of famous people upset about press coverage). In some "bonus cuts," reporter Eriq Gardner noted on Twitter that Harder told him he no longer "monitors" what's left of Gawker (now called Gizmodo Media, and owned by Univision). Except... Gizmodo is now pointing out that since Univision took over, Harder has sent them five separate demands to take down information because some of Harder's clients were upset about what Gizmodo Media properties had written about them.

In late August, Harder issued several new legal threats against Gizmodo Media Group over stories that were, in some cases, published years ago. One targeted a 2014 Deadspin story about a former ESPN employee named Heather Paskewich, who claimed in a federal lawsuit that her supervisor, Heli Soto, digitally manipulated photos of her to be more “sexually provocative” and posted them online. Harder, who is now representing Soto, listed nine allegedly “false and defamatory” passages from Deadspin’s coverage of the lawsuit.

Each of the passages that Harder describes as defamatory were sourced from Paskewich’s complaint. American courts have widely recognized the right of media outlets to publish and quote from official court records. (According to the case’s April 30, 2015 docket entry, Paskewich and ESPN reached an out-of-court settlement; the terms were not disclosed.)

Harder has also added I’m Shmacked’s Arya Toufanian to his client roster. (I’m Shmacked hosts and films college parties, which New York Magazine has called “an obvious descendent of Girls Gone Wild.”) In his August 22 letter to Gizmodo Media Group, Harder demanded the removal of a pair of Jezebel stories from 2014 about a tweet from the I’m Shmacked Twitter account. It was directed at Business Insider reporter Caroline Moss after she noticed that the account had copy-and-pasted a joke that had gone viral on Twitter. That tweet, which has since been deleted, read:

“They said make fun of I’m Shmacked.”
“What’s the worst that can happen, they said.”

July 23rd. 9:22AM.
Caroline is prepping her anus.

Harder’s letter acknowledges that the original Jezebel post was “based on Mr. Toufanian’s tweets,” but he nonetheless claims that the stories are “false and defamatory” and amount to “libel, false light invasion of privacy and intentional infliction of emotional distress.”

The article has a few more examples of Harder threat letters to Univision/Gizmodo, but the most ridiculous of all is the most recent letter, sent last month. It's not even about a Gizmodo/Gawker article at all. Rather it's about an article in Forbes (which is not owned by Univision) about Univision's dumb decision to pull a bunch of old Gawker stories over misplaced (and legally clueless) liability worries. In that article, Forbes reporter Ryan Mac got a few comments from John Cook, Gawker/Gizmodo Media's executive editor, who protested the Univision decision vehemently. In the article, Mac quotes Cook saying some things about Harder himself:

“The end goal for Charles Harder is to harm people,” he said. “Whether that’s A.J. Daulerio or Sam Biddle or Nick Denton or me. I do not believe he has his client’s interests at heart.”

That apparently caused Harder's firm (in the form of lawyer Ryan Stonerock, who works for Harder) to send a letter on behalf of Harder himself, arguing that the statement above is defamatory. It's not. But here's what the letter had to say:

The bolded sentence in the Defamatory Statement is false, malicious and highly defamatory. Moreover, both the first and last sentences in the Defamatory Statement constitute tortious interference with contractual relations, namely Mr. Harder’s existing client relationships. The Defamatory Statement also constitutes tortious interference with prospective economic advantage in regard to Mr. Harder’s future clients, among other claims.

Mr. Harder hereby demands an immediate public retraction of the Defamatory Statement and an apology, as well as the payment of damages or an alternative agreeable resolution. If Univision and Mr. Cook fail to comply and respond to these demands immediately, Mr. Harder will not hesitate to exercise his rights in pursuing legal action against Univision, the executives at Univision who are responsible for the hiring of Mr. Cook based upon negligent hiring practices (Mr. Cook has a long line of defamatory activity, and has been sued for it in multiple public lawsuits of which Univision executives have been well aware for months), and against Mr. Cook himself.

This is, to put it mildly, a load of complete bullshit. Harder, who in that profile claims "I believe very strongly in a free press" doesn't seem to understand how the First Amendment works. Cook's statement is clearly one of opinion, and it's clearly protected speech. And despite Harder also saying in that profile that he'd like to change the standard for defamation of public figures, the law as it stands requires not just that the statements be false statements of fact, but also that they be said maliciously. And, yes, Harder is a public figure (remember, there was just a whole Hollywood Reporter feature about him).

What Harder appears to be doing here is little more than threatening a SLAPP suit to try to shut up the press from saying negative things about him. Even the references to Cook being sued in the past are ridiculous, since most of those lawsuits are from Harder himself, and most of them are completely bogus.

So far, it does not appear that Univision is complying with any of these demands (which is good to see). So, let's see what Harder does next. Is he now going to go after Univision too? Will Thiel continue to fund that as well? Because most of the threats seem entirely bogus, and would be laughed out of court.

And, of course, this is yet another reminder of why we really need a federal anti-SLAPP law to stop such bogus threats in their tracks.

Filed Under: censorship, charles harder, defamation, first amendment, free speech, john cook, peter thiel, threats
Companies: gawker, gizmodo media, univision

NBC Delayed Story About Trump's Access Hollywood Recording Over Fear That He Might Sue

from the chilling-effects dept

So just this past Thursday, we wrote about Trump's habit of threatening to sue the press over any coverage he considers negative. In the past, we've also covered his stated plans to open up libel laws. The comments on that post got pretty ridiculous after people who can't possibly be regular Techdirt readers complained that I was clearly just stirring up shit because I'm a Hillary Clinton supporter. This despite the fact that pretty much everything we've ever written about her has been critical too -- including her own ridiculous comments mocking free speech and praising censorship. It also ignores that just a few days earlier I had also sided with the Trump campaign when it received a bogus, censorious, cease & desist letter from the city of Phoenix. We're staying pretty consistent here: we don't support censorship, no matter whose team you're on. But, sure, I know. It's crunch time and people are really concerned about supporting their team, rather than actually discussing issues.

But this is an important issue. Threatening a free press with bogus defamation lawsuits and SLAPP (strategic lawsuits against public participation) claims are a really big problem. Case in point: on Friday, as I'm sure you're already aware, the Washington Post published a video of Donald Trump happily discussing sexually assaulting women, and how it's okay because he's a celebrity. As you also know, this became the story of Friday and the weekend, as it appeared to push a bunch of people who had previously supported Trump over the edge to pull their support (why this story rather than earlier ones, I don't fully understand, but...).

Either way, the story led to a few different varieties of followup stories about how the Washington Post got the story. And all of them note that Access Hollywood found the tape itself last Monday, and realized it was newsworthy. They then took it to their corporate parent, NBC, and some work was done on getting the story out -- but it kept getting pushed back. This led many to ask why it could possibly take so long for NBC to report on this. They knew the tape was authentic, so they didn't need to confirm that.

On Saturday, though, we finally got an answer: NBC held up the story because it was afraid of getting sued.

Although NBC and “Access” both recognized the newsworthiness of the tape and intended to air it, it first had to undergo a review by the company’s lawyers, the executive said. The executive was unaware of any specific legal issue raised by airing an 11-year-old recording of a presidential candidate who was apparently aware at the time that he was being recorded by a TV program.

However, the network was concerned that Trump could take legal action; the Republican nominee threatened to sue NBC last year after the network’s entertainment division dropped plans to air the Miss USA beauty pageant in the wake of Trump’s inflammatory remarks about Mexican immigrants. Trump backed off those threats when NBC sold its share of the pageant’s rights to him in September 2015.

That, right there, is a perfect example of chilling effects in action. Trump has threatened many, many in the press with bogus defamation claims, and sometimes has followed through. He's also happily admitted that he's filed bogus defamation lawsuits just to be a nuisance and cost reporters and publications he doesn't like money. Here's Trump on an earlier lawsuit that was clearly bogus from the start and thrown out as such:

"I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I'm happy about."

This is why it's so important to call out threats against a free press and free expression. Bogus lawsuits that scare even giant corporate conglomerates away from reporting on something that is clearly news, is a serious problem. I don't care which candidate you support or which candidate you hate. You should stand up against abusive litigation designed to stifle a free press. And you should support the effort in Congress to pass a federal anti-SLAPP law that would make it much more difficult for abusive defamation lawsuits to make reporters' lives miserable.

Filed Under: donald trump, first amendment, free speech, journalism, reporting, threats
Companies: nbc

Trump Adds To His Anti-First Amendment Legacy In Threatening To Sue Clinton For Campaign Ads

from the have-you-read-the-bill-of-rights dept

Donald Trump keeps insisting that he's a strong supporter of the 2nd Amendment of the Bill of Rights, but he appears to have skipped right past the 1st Amendment. We've discussed his stated plans to "open up" libel laws and his regular threats to sue newspapers for reporting on him in ways he dislikes. Trevor Timm, of the Freedom of the Press Foundation, recently tried to count how many times Trump had threatened to sue the media since his campaign began (ignoring all the threats from before the campaign). Turns out it's difficult to count them all:

I had intended to quantify how many journalists or news commentators Trump has threatened to sue over his lifetime, but that quickly turned into a fool’s errand. A simple Google search of “Trump threatens to sue” will return an overwhelming number of stories. In the past decade alone, he’s sued a former Times journalist who wrote a book about him that he later admitted he didn’t even read; he’s threatened to sue former View host Rosie O’Donnell for allegations that have been shown over and over again during this campaign to be correct; he’s sued HBO’s Bill Maher over a joke bet that involved proving he was not, in fact, born an orangutan.

He threatened to sue a journalist at the Village Voice as far back as 1979, and he actually sued a newspaper as early as 1984: the Chicago Tribune, for calling building plans of his “aesthetically lousy.” My personal favorite was his threat to sue The Onion, the popular satirical news site.

He also left out the non-journalists that Trump has similarly threatened with lawsuits -- including some of the competitors for the Republican Presidential nomination:

I did not count the nine news organizations Melania Trump, the Republican candidate’s wife, also threatened to sue, nor the Daily Mail along with a small blogger, both of whom she actually sued in September for publishing stories containing rumors about her past.

Nor did I count when Trump threatened to sue an artist for creating a hilariously unflattering portrait of him, a conservative group called Club For Growth for running campaign ads that Trump did not like, former Republican presidential candidate Ted Cruz for running negative ads against him, or former Republican presidential candidate John Kasich and a Super PAC supporting Kasich for the same—all of which would have serious First Amendment implications. Another time, he seemed to threaten Amazon founder Jeff Bezos with tax audits for owning The Washington Post, which has been critical of Trump. I’m not including this in my count either.

You can then read the still quite long list of examples that Timm did eventually count.

But apparently Trump isn't done threatening to sue his election opponents over protected speech either. He's now moved on and is threatening to sue the Clinton campaign over the "nasty" ads they're running against him:

“And then I saw today ... a commercial where — it was really a nasty commercial, totally made up, about me with vets,” Trump said.

“There is nobody that loves the vets more or respects the vets more. They’re spending hundreds of millions of dollars on false commercials, and it’s a disgrace. So what we’ll do, I guess we’ll sue them. Let’s sue them.”

"I guess we'll sue them. Let's sue them." Remember, again, that Trump has happily admitted in the past to filing bogus defamation lawsuits because he knows it will cost a lot to defend against them. It's one thing to be thin-skinned. It's another to continue to trample on the First Amendment while running to be the person in charge of upholding it.

Filed Under: defamation, donald trump, first amendment, free speech, threats