8chan Founder, Who Has Denounced The Site, Now Facing 'Criminal Cyberlibel' Charges From Current Owner

from the oh-come-on dept

Fredrick "Hotwheels" Brennan founded 8chan in 2013 after he and a group of other fairly naive souls felt that 4chan (yes, 4chan) had become too unfriendly to "free speech" because it had started to block some harassment and abuse on the site. It's always amazing to me the people who insist that internet platforms should allow all speech, without recognizing that what they are asking for is inevitably a cesspool of garbage. Brennan eventually realized as much, relinquished control over the site to Jim Watkins, and even called for the site to be shut down and criticized Watkins. Back in November, Watkins responded by filing a criminal "cyberlibel complaint" in the Philippines. The latest news, from the Filipino site Rappler, is that warrant has been issued for Brennan's arrest.

There are so many insane things about this, it's difficult to know where to start. First of all, I'm always perplexed by people who position themselves as free speech absolutists then suing people for libel. It seems to kind of prove that they don't actually believe what they claim to, and have no problem using the powers of the state to silence speech they dislike.

Second, the whole idea of criminal libel -- let alone the "cyber" variety -- seems positively insane, though we've seen it used before in the Philippines, including against Rappler founder, Maria Ressa. At the very least, it would seem to go against Section 4 of the Filipino Bill of Rights, which states:

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.

Even the comments that Brennan made, that Watkins has filed these claims over, seem pretty ridiculous. Brennan had tweeted "My theory that Jim Watkins himself is going senile and actually believes in Q is no longer a theory" after it was reported that Watkins was wearing a "Q" pin when testifying before Congress. Calling someone senile would not be libel in the US, and the idea that it would be criminal makes no sense at all.

Brennan happens to be in the US at this time and apparently has decided not to return to the Philippines (where both he and Watkins live) as long as the charges remain in place.

The surprise decision means that Brennan, who is confined to a wheelchair and suffers from a condition known as brittle bone disease, could face up to 12 years in prison.

“It’s basically a death sentence,” Brennan told VICE News from Los Angeles.

His lawyers have filed an appeal of the indictment, which is a fascinating read on its own. It opens with a Voltaire quote: "I may utterly detest what you write, but I shall fight to the death to make it possible for you to continue writing it." And then states:

VOLTAIRE'S PONTIFICAL VERSE bestirs once again the basic liberties to free speech and free press -- liberties that belong as well, if not more, to those who question, who do not conform, who differ. For the ultimate good which we all strive to achieve for ourselves and our posterity can better be reached by a free exchange of ideas, where the best test of truth is the power of the thought to get itself accepted in the competition of the free market -- not just the ideas we desire, but including those thoughts we despise.

RESPONDENT-APPELLANT FREDRICK ROBERT BRENNAN ("Respondent"), by counsel, most respectfully files this APPEAL/PETITION FOR REVIEW ("Appeal") to the Honorable Secretary of Justice to REVERSE AND SET ASIDE the highly arbitrary, completely baseless, grossly unjustified and manifestly erroneous RESOLUTION of the investigating prosecutor Juliene Raymond A. Cabanacan, acting as Assistant City Prosecutor of Pasig City ("ACP Cabanacan"), dated January 02, 2020 ("Resolution), copy was received by the undersigned counsel on February 19, 2020, finding probable cause for the offense of cyber libel against respondent.

For lack of attention to detail, ACP Cabanacan erroneously cited an incorrect provision of cyberlibel under RA 10175. He cited Section 4 paragraph 4 as an offense that has been violated by respondent. This is defective and is not the correct provision on Cyberlibel in RA 10175.

It goes on from there, but the presentation here is quite fascinating -- from the Voltaire quote to the "most respectfully" immediately followed by "highly arbitrary, completely baseless, grossly unjustified and manifestly erroneous" bit. One would hope that the DOJ would rethink this, but given what little we've seen of how this bizarre cyberlibel law is enforced in the Philippines, I wouldn't hold out much hope.

Filed Under: criminal, cyberlibel, defamation, fredrick brennan, free speech, jim watkins, libel, phillippines
Companies: 8chan

'King Of Bullshit News' Sees His Bullshit Libel Lawsuit Tossed For A Second Time

from the just-because-you're-angry-doesn't-mean-you're-right dept

Michael Leidig, the owner of Central European News, wasn't thrilled BuzzFeed called him the "King of Bullshit News" in a 2015 article. The BuzzFeed investigation dug into CEN's publishing business and found the company did nothing more than generate a steady stream of salacious and rarely plausible "news" stories, which were then picked up by other "news" agencies (Mirror, Sun, etc.) less concerned with accurate reporting than with racking up page views.

The firm’s business model, like that of many other news agencies, is to sell a regular stream of stories and pictures to other media companies, which publish them under the bylines of their own reporters. In CEN’s case, these include a string of stories from relatively remote parts of China, India, Russia, and other non-Western countries. They tend to depict the inhabitants of those countries as barbaric, sex-crazed, or just plain weird. And often they are inaccurate or downright false.

Leidig, a UK citizen, sued. Libel laws in the United States aren't anything like the ridiculous ones Leidig enjoys at home. Unsurprisingly, his lawsuit was tossed by the New York federal court. The court said Leidig couldn't actually counter BuzzFeed's assertions of "bullshit" with any real facts, so there was no chance passing this along to a jury would result in anything but a dismissal.

Leidig appealed the April 2019 decision. But there's nothing better waiting for him at the appellate level. The Second Circuit Court of Appeals has rejected the bogus lawsuit with a five-page summary order [PDF].

The Appeals Court says the district court had it right the first time: if Leidig can't prove BuzzFeed's assertions were false, there's no libel case to be made.

The District Court’s decision on summary judgment focused on falsity. The District Court observed that, apart from the conclusory affidavits of Leidig and CEN employees, Plaintiffs “provide no evidence that BuzzFeed’s eight statements about the CEN stories are false.” Leidig, 371 F. Supp. at 144. It further determined that “BuzzFeed has shown that no reasonable juror could find the statement[s] or [their] reasonable implications false.” Id. at 150.

Furthermore, this is not your normal defamation lawsuit.

For example, the District Court found that “[o]ther than Leidig’s self-serving and discredited testimony,” Plaintiffs offered no evidence regarding the accuracy of the story about young people walking cabbages in China out of loneliness. Id. at 145. Similarly, the District Court noted that, in Leidig’s deposition, he admitted that “he does not know where the quotes in the Two-Headed Goat Story came from.” Id. at 148.

Leidig argued that his insistence that he's a good, honest man who employs good, honest reporters should be enough to allow the lawsuit to move forward. No deal, says the court. Not when free speech is on the line.

Plaintiffs primarily contend that the District Court incorrectly applied this Court’s decision in Celle v. Filipino Reporter Enterprises Inc., 209 F.3d 163, 188 (2d Cir. 2000), using it (erroneously, they argue) to eliminate from the court’s consideration “nearly all of [their] evidence, including declarations of Mr. Leidig and deposition testimony by him and by four of his journalists.” This contention is unavailing. As we held in Celle, “While a bland cryptic claim of falsity supported by the credibility of a witness might be sufficient to establish a proposition in other civil cases, the First Amendment demands more.” The District Court reasonably determined that Plaintiffs’ conclusory assertions alone are insufficient to establish a genuine issue of material fact with respect to the falsity of the contested statements made by Buzzfeed.

The lower court's decision stands and Leidig is almost out of options. His lawyer appears to believe the Second Circuit Appeals Court can't interpret its own decision.

Harry Wise, CEN and Leidig’s lawyer, told iMediaEthics, “A decision that credits one side’s evidence and devalues the other side’s violates the basic rules that should be applied on a motion for summary judgment. The idea that the First Amendment prevents a libel plaintiff from creating an issue of fact as to the libel’s truth or falsity by testifying that he does not do the bad thing that the libel accuses him of doing is simply wrong–not supported by the Celle case that the panel invokes or by any other authority.

Wise and Leidig are asking for an en banc hearing on the case. This seems unlikely to happen. This isn't a novel issue that would be better addressed with a few more sets of eyes on it. It's a bullshit lawsuit brought by someone who wasn't thrilled his "news" service didn't generate much factual news. "Bullshit" is a term of headline art and it has been properly applied here. Testifying that you "do not do the bad thing" just isn't enough -- not when the other side has plenty of evidence saying that yes, as a matter of fact, you do.

Filed Under: 1st amendment, defamation, free speech, king of bullshit news, libel, michael leidig, slapp
Companies: cen

Hotel Owner Files Libel Suit Against Reviewer For Calling Nazis Nazis, Gets Support From Austrian Court

from the weird-flex dept

Turns out the truth is no defense to accusations of libel… at least not in Austria. And not when someone's reputation needs to be protected from [rereads article] substantially true statements. The standard for defamation in Austria comes nowhere close to what we're used to in the United States. The bar is low for the plaintiff and a bunch of insanity for the defendant who said true things and still got dinged for it. (h/t Techdirt reader Rose Crowell)

Here's the background, as detailed by Philip Oltermann for The Guardian:

A German man is being sued by the owners of a four-star hotel in Austria after posting online reviews in which he criticised them for decorating their lobby with a portrait of a “Nazi grandpa” in a uniform adorned with a swastika.

The man, named in court documents as Thomas K, and his wife visited the hotel in the village of Gerlos in the Tyrolean Alps last August. After check-in, they noticed two framed pictures on a wall near the hotel’s entrance, hung above a flower arrangement. One showed a young man wearing a uniform with an eagle and swastika badge, the other an older man.

Using a pseudonym, K posted reviews on Booking.com and TripAdvisor about a week after his visit, one in German and one in English, under the subject header: “At the entrance they display a picture of a Nazi grandpa.”

The review went on to question the wisdom of posting photos of people in Nazi uniforms at a hotel entrance, suggesting it might be the owners' way of sending some sort of message about their biases or sympathies.

The hotel owners were not pleased to be subtly equated to the photos they had placed at the hotel entrance, so they tracked down the reviewer using the phone number provided to Booking.com and sued him for defamation.

First, the owners claimed that the pictures of the men in "Nazi" uniforms were actually just pictures of relatives who were members of the Wehrmacht, not the Nazi party. So, they were just in the army controlled by Nazis, not actually card-carrying Nazis, which seems to be splitting hairs just a bit much when the photos showed a person in a Nazi uniform. They also claimed these were the only photos they had of these relatives, so I guess the guest should have been more understanding.

That was one of the libel claims -- one made in a country where it's apparently possible to defame the dead. Except it wasn't actually libel. It was a fact.

After researching the identity of the two men in the photographs at the German National Archives in Berlin, K was able to prove that both of the men had in fact joined the Nazi party, in 1941 and 1943 respectively. The hotel’s owners said they had not been aware of their relatives’ membership.

Right, so that's settled then. They were Nazis. The reviewer called them Nazis. It's no longer a question of libel. Except that somehow it still is.

The court presiding over the case issued an injunction. Not because of the Nazis being called Nazis but because of something the court decided the reviewer said, even though there's really nothing in the review but a statement of (apparently unprotected) opinion.

The Innsbruck court nonetheless took the unusual step in July of granting the hotel a preliminary injunction against K, arguing that his review had also implied that the hotel owner shared or sympathised with National Socialist ideas.

But this is what the reviewer actually said:

This made us wonder what the hotel owners are trying to tell us with this image. This incident speaks volumes about the current state of affairs in this region of Austria.

That's speculation. It's not flattering speculation but it isn't -- or at least it shouldn't be -- libel. But that's the initial conclusion the court has reached. Why? Because in Austria, the owners' interest in "protecting their reputation" is more important than hotel guests expressing their opinions.

I'm not sure what the Austrian expression for "fucked up" is, but that's what this is: libel that never happened based on factual assertions that somehow have managed to keep a disgruntled reviewer tied up in court.

Filed Under: austria, defamation, hotels, libel, nazis, reviews, truth

Court Tosses $11-Million Libel Lawsuit Brought By The 'King Of Bullshit News'

from the viral-crap-farm-wastes-everyone's-time dept

An $11-million defamation lawsuit brought against Buzzfeed by the head of a "news" agency has been dismissed by a New York federal court judge. Michael Leidig, who runs CEN (Central European News), didn't like being hailed as the "King of Bullshit News" by Buzzfeed in 2015. He sued Buzzfeed nine months after the article was published. Leidig, a UK citizen, may have hoped for a more British take on defamation law, but libel law works differently here in the United States.

Judge Victor Marrero said that under New York law Leidig had to prove “fault” on behalf of Buzzfeed and “either negligence or actual malice depending on the status of the libelled party”.

And unlike UK law, the onus in the US was on Leidig to prove the statements were false (rather than on Buzzfeed to prove they were right).

While the judge held that Buzzfeed’s reporting was backed up by evidence he said Leidig and CEN could offer no evidence to support the stories it reported which Buzzfeed said were fake.

At the center of the case were a handful of "news" articles created by CEN. Many of these made their way into a number of tabloids across the world, going viral in the way that fact-checked stories rarely do. The stories included a Chinese man becoming riddled with tapeworms after eating sashimi, a Russian man surviving a bear attack when his Justin Bieber ringtone scared the bear away, and Chinese citizens treating cabbages like pets.

Buzzfeed's long expose of Leidig's handcrafted crap could find nothing to back up the claims made in a number of CEN's biggest internet hits. As the court points out in its decision [PDF], CEN/Leidig claimed Buzzfeed made false statements in its article, but could not provide any evidence that actually countered Buzzfeed's reporting.

BuzzFeed argues that Plaintiffs cannot show the falsity of the allegedly defamatory statements, and thus Plaintiffs' claims must fail. The Court agrees. In the face of repeated instances where BuzzFeed points to specific evidence supporting the truth of the Article, Plaintiffs' sole rejoinder is that neither Leidig nor any CEN employee admitted to knowingly publishing "a fake news story" or to "add[ing] phony quotations to a story."

[...]

Apart from these statements, Plaintiffs provide no evidence that BuzzFeed's eight statements about the CEN stories are false. As such, no jury could find BuzzFeed's statements to be false.

Leidig and his lawyers piled vagueness on top of vagueness after Buzzfeed filed its response to Leidig's complaint, refusing to engage with Buzzfeed's counterarguments.

Plaintiffs' inability to identify a genuine dispute of material fact is best exemplified by their decision to contest only one of the over two hundred numbered paragraphs in Buzz Feed' s Rule 56. 1 Statement. For the remainder of the statements, Plaintiffs rely the blanket denial that "[i]n not challenging [BuzzFeed's] other 215 assertions of fact, [P]laintiffs do not mean to concede that any particular ones are relevant and material to the issues raised on this motion [.]"

At the top of this pile of vagueness is Leidig's cherry: an attempt to expand the claims of his lawsuit while failing to answer Buzzfeed's response. The court says this combination "dooms" the lawsuit and it won't help force Buzzfeed to "defend a moving target."

[W]ith discovery concluded, it is clear that Plaintiffs cannot meet their burden. Because the Court finds that Plaintiffs cannot satisfy the falsity element for any of the eight statements, the Court does not address BuzzFeed's alternative argument that Plaintiffs are public figures and would need to show that BuzzFeed made the statements with actual malice as to their falsity.

From there, the court addresses each of the eight viral CEN stories Buzzfeed claimed were false. In each case, Leidig was unable to refute Buzzfeed's reporting. The court's rejection of Leidig's bullshit defenses makes for a pretty entertaining read, thanks to a rarely-seen combination of legal terminology and tabloid subject matter.

Other than Leidig' s self-serving and discredited testimony, which is plainly insufficient to support a motion for summary judgment, see Celle, 209 F.3d at 188, Plaintiffs offer no evidence regarding the Cabbage Story's veracity.

[...]

Plaintiffs cannot even demonstrate that they investigated the kitten's status before writing the Pink Kitten Story. That is, Plaintiffs (once again) could not depend on their own reporting database to determine who wrote the story and who could verify its contents.

[...]

During his deposition, Leidig could not provide any details regarding the Nude Women Story, including the source of the quotes that were used in CEN' s reporting of the story.

[...]

Unsurprisingly, Leidig stated in his depositions that he does not know where the quotes in the Two-Headed Goat Story came from.

Fun stuff. I mean, not so much for Leidig, but for those of us following along. He can appeal this decision but it's not going to result in a win. However, it will result in more financial pain for Buzzfeed since it will be forced to defend itself against Leidig's baseless claims one more time. New York's weak anti-SLAPP law is no help here, so Leidig isn't going to be paying Buzzfeed's legal fees. Maybe this is all Leidig wants from the lawsuit: to annoy the entity that called him the King of Bullshit. It's definitely a bullshit lawsuit and it has hung around the court system for three years longer than it should have.

Filed Under: defamation, free speech, libel, michael leidig
Companies: buzzfeed

Justice Thomas Is Apparently Serious About Completely Upturning Over 50 Years Of 1st Amendment Law

from the opening-up-our-libel-laws dept

It appears that Supreme Court Justice Clarence Thomas has decided to drop quite a First Amendment bombshell this morning -- suggesting that over half of a century of "settled" First Amendment law might not be so settled.

But, first, back during the 2016 campaign, then candidate Donald Trump uttered his famous "big idea" to "open up" libel laws in response to his displeasure that some of the media was criticizing much of his usual nonsense. This was, quite clearly, an attack on the 1st Amendment -- and it was those strong 1st amendment protections for free speech that have actually helped protect Trump himself from multiple lawsuits.

However, when discussing Trump's original promise to "open up" libel laws, many people pointed out that there really wasn't very much he could do. The 1st Amendment is the 1st Amendment -- not something that Trump can easily change. And specific defamation laws are from each state, not the federal government (and must be bounded by what the 1st Amendment allows). We did note that there were some ways that Trump could create free speech problems, but it was generally agreed upon that it was unlikely to happen in the courts. In 2016, Ken "Popehat" White had a detailed post on how it was exceedingly unlikely that the courts would change the key aspects of 1st Amendment law, with a particular focus on New York Times v. Sullivan, which is the seminal 1964 Supreme Court ruling credited with creating a "re-birth of the 1st Amendment."

As Ken wrote in his piece, NYT v. Sullivan is so settled that there's basically no movement at all to change it.

Unlike, say, Roe v. Wade, nobody's been trying to chip away at Sullivan for 52 years. It's not a matter of controversy or pushback or questioning in judicial decisions. Though it's been the subject of academic debate, even judges with philosophical and structural quarrels with Sullivan apply it without suggesting it is vulnerable. Take the late Justice Scalia, for example. Scalia thought Sullivan was wrongly decided, but routinely applied it and its progeny in cases like the ones above.¹ You can go shopping for judicial candidates whose writings or decisions suggest they will overturn Roe v. Wade, but it would be extremely difficult to find on... chemtrail-level, but several firm strides in that direction. Nor is the distinction between fact and opinion controversial — at least not from conservatives. There's been some back and forth over whether opinion is absolutely protected (no) or whether it might be defamatory if it implies provably false facts (yes) but there's no conservative movement to make insults and hyperbole subject to defamation analysis. The closest anyone gets to that are liberal academics who want to reinterpret the First Amendment to allow prohibitions of "hate speech" and other "hurtful" words. It seems unlikely that Trump would appoint any of these.

In short, there's no big eager group of "overturn Sullivan" judges waiting in the wings to be sent to the Supreme Court. The few academics who argue that way are likely more extreme on other issues than Trump would want.

The key bit of NYT v. Sullivan was to establish that there's a very high bar in defamation cases involving a "public figure." Specifically, the standard the Supreme Court established is that in such cases, a plaintiff need to show "actual malice" -- which doesn't just mean that the defendant really dislikes the plaintiff. The actual malice standard isn't actually about "actual malice," but rather that the speaker made the statements knowing they were false, or exercising "reckless disregard" for whether or not they were true. The Supreme Court established that this high bar was necessary to satisfy the First Amendment, and guarantee that no laws were made that infringed up on the right of free expression.

So, the bombshell this week was a concurrence by Justice Thomas in denying a petition to rehear a defamation case concerning Bill Cosby and one of his accusers. The specifics of the case revolved around whether or not the accuser qualified as a "public figure" and thus had to clear the higher bar as established by the NYT's case. The 1st Circuit had ruled in 2017 that McKee was a public figure. The cert petition tried to challenge that decision. The Supreme Court decided not to hear it, which isn't all that surprising. What was surprising is that Thomas decided to use this decision not to hear the case (with which he agreed) to assert something much more controversial: that NYT v. Sullivan was bad law and shouldn't bind the court:

New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law. Instead of simply applying the First Amendment as it was understood by the people who ratified it, the Court fashioned its own “‘federal rule[s]’” by balancing the “competing values at stake in defamation suits.” Gertz, supra, at 334, 348 (quoting New York Times, supra, at 279).

We should not continue to reflexively apply this policydriven approach to the Constitution. Instead, we should carefully examine the original meaning of the First and Fourteenth Amendments. If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.

As Ken White had written in his piece, this is somewhat surprising -- bordering, but not quite, on chemtrails level nuttiness. Thomas goes on for pages explaining why he disagrees with the ruling in Sullivan, first arguing that because the standard itself is not in the Constitution, there's no Constitutional support for it:

But the Court also addressed “the extent to which the constitutional protections for speech and press limit a State’s power to award damages in a libel action brought by a public official against critics of his official conduct.” Id., at 256. The Court took it upon itself “to define the proper accommodation between” two competing interests—“the law of defamation and the freedoms of speech and press protected by the First Amendment.” Gertz, 418 U. S., at 325 (majority opinion). It consulted a variety of materials to assist it in its analysis: “general proposition[s]” about the value of free speech and the inevitability of false statements, New York Times, 376 U. S., at 269– 272, and n. 13; judicial decisions involving criminal contempt and official immunity, id., at 272–273, 282–283; public responses to the Sedition Act of 1798, id., at 273– 277; comparisons of civil libel damages to criminal fines, id., at 277–278; policy arguments against “selfcensorship,” id., at 278–279; the “consensus of scholarly opinion,” id., at 280, n. 20; and state defamation laws, id., at 280–282. These materials led the Court to promulgate a “federal rule” that “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id., at 279–280. Although the Court held that its newly minted actual-malice rule was “required by the First and Fourteenth Amendments,” id., at 283, it made no attempt to base that rule on the original understanding of those provisions.

That's a... somewhat bizarre version of Constitutional originalism, and would suggest that basically none of the standards the Supreme Court has established in its history have any merit. Yikes.

New York Times was “the first major step in what proved to be a seemingly irreversible process of constitutionalizing the entire law of libel and slander.”

Well, yeah. Because, by definition, libel and slander impact speech, and the 1st Amendment says that you can't pass laws that prohibit free expression. So, unless Thomas is actually arguing that all defamation law is unconstitutional (which would be an even more extreme position), then this argument makes no sense. But he's not arguing that at all. It goes on for pages, talking about how early in the US's history libel laws were super important -- especially in protecting the reputations of famous people:

Far from increasing a public figure’s burden in a defamation action, the common law deemed libels against public figures to be, if anything, more serious and injurious than ordinary libels. See 3 Blackstone *124 (“Words also tending to scandalize a magistrate, or person in a public trust, are reputed more highly injurious than when spoken of a private man”); 4 id., at *150 (defining libels as “malicious defamations of any person, and especially a magistrate, made public by either printing, writing, signs, or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, and ridicule” (emphasis added)). Libel of a public official was deemed an offense “‘most dangerous to the people, and deserv[ing of] punishment, because the people may be deceived and reject the best citizens to their great injury, and it may be to the loss of their liberties.’”

After talking about a bunch of highly questionable cases from a century or so before the NY Times decision, Thomas concludes with the claim that states are more than capable of "balancing" the rights of free expression with "reputational harms":

We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified. The States are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm. We should reconsider our jurisprudence in this area.

This is an ahistorical take on reality. Defamation laws were routinely used by the powerful to silence criticism. Indeed, that is still the case in many other countries that don't have a standard akin to the actual malice standard in the US. We routinely write about speech squelching cases in places like the UK and Australia. As the Atlantic's coverage of the 50th anniversary of the NYT v. Sullivan decision states:

If there were no Sullivan, there likely would not have been a release of the Pentagon Papers or a rigorous investigation into Watergate or much of any withering criticism of government that appears today in any medium.

The NYT v. Sullivan is a supremely important case in establishing the 1st Amendment as truly protecting free speech -- and specifically protecting the rights of anyone to criticize public officials. It is disappointing and somewhat shocking that any Supreme Court Justice is willing to even consider going back on that standard. Hopefully, the other 8 Justices retain their recognition of its importance.

Filed Under: 1st amendment, actual malice, bill cosby, clarence thomas, defamation, free speech, libel, mckee, nyt v sullivan

Utter Bullshit: Reporter Maria Ressa Arrested Over Bogus Charges For Her Critical Reporting

from the free-speech-has-to-matter dept

We've written about reporter Maria Ressa, who started the successful news site The Rappler in the Philippines. Ressa, herself, is a force of nature, who has upset a lot of people with her incredibly detailed and thorough reporting. Last year, we wrote about how the Duterte government was trying to intimidate and silence her with bogus charges, claiming that because she had accepted grant money from US foundations, she was engaged in tax evasion.

Today things ramped up quite a bit with the National Bureau of Investigation (NBI) (the Filipino equivalent of the FBI) coming to arrest Ressa at her offices, claiming that she violated a "cyberlibel" law. Incredibly, the article that the government claims is libelous... was written four months before the law they claim it violated actually became law.

The Department of Justice (DOJ) recommended the filing in court of cyber libel charges against Ressa and former Rappler researcher Reynaldo Santos Jr over a story published in May 2012 – or 4 months before the law that they allegedly violated was enacted.

The case, filed by the DOJ, stemmed from a complaint by businessman Wilfredo Keng, who was identified in a Rappler article as the owner of the SUV that then-chief justice Renato Corona had used during the impeachment trial.

Keng complained not about his alleged ownership of the vehicle, but about the backgrounder on him as having alleged links to illegal drugs and human trafficking, based on intelligence reports.

When the officers came to arrest Ressa at her office, some of her colleagues tried to film the situation on their mobile phones, and the NBI agents tried to get them to stop:

In response to this Rappler has said it will not give in to the intimidation:

“We are not intimidated. No amount of legal cases, black propaganda, and lies can silence Filipino journalists who continue to hold the line. These legal acrobatics show how far the government will go to silence journalists, including the pettiness of forcing me to spend the night in jail.”

The statement further lays out why the charges are clearly bogus and trumped up:

A complaint was filed by businessman Wilfredo Keng 5 years after a story was published on May 29, 2012, or months before the cybercrime law was enacted. Our story said former chief justice Renato Corona used a vehicle registered under the name of Mr Keng, who, based on intelligence reports and previously published stories, had alleged links to illegal drugs and human trafficking. We called Mr Keng and got his side before the story was published.

The filing of the case is preposterous and baseless. No less than NBI Cybercrime Division chief Manuel Eduarte closed an investigation in February 2018 after finding no basis to proceed, given that the one-year prescriptive period had lapsed. Eight days later, however, the NBI revived the case, and filed it with the Department of Justice on the basis of a theory they call "continuous publication."

This is a dangerous precedent that puts anyone – not just the media – who publishes anything online perennially in danger of being charged with libel. It can be an effective tool of harassment and intimidation to silence critical reporting on the part of the media. No one is safe.

This is why in the US (and other countries) we have what's known as the single publication rule, in that the date of original publication is the date at which any statute of limitations clock starts ticking (mostly). Yet, it appears the Philippines is arguing for no single publication rule and that "continuous publication" means liability can last forever. Furthermore, even if this was libelous (which sounds questionable), shouldn't libel be a civil matter between two private parties, rather than involving the criminal justice system?

And, of course, remember, that the Philippines' Constitution has a close analogue of the 1st Amendment in the US (there it's their Section 4):

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.

That would certainly suggest that the law being used to arrest Ressa is unconstitutional. Various journalism organizations are already condemning this arrest as a clear attempt at silencing Ressa and Rappler in their critical reporting of the Duterte government:

"The Philippine government's legal harassment of Rappler and Ressa has now reached a critical and alarming juncture," said Shawn Crispin, CPJ's senior Southeast Asia representative. "We call on Filipino authorities to immediately release Ressa, drop this spurious cyber libel charge, and cease and desist this campaign of intimidation aimed at silencing Rappler."

Filed Under: cyberlibel, defamation, free speech, libel, maria ressa, nbi, philippines, renato corona, rodrigo duterte, wilfredo keng
Companies: rappler