Cop's Bogus Defamation Lawsuit Nearly Puts A Small Iowa Newspaper Out Of Business

from the all-the-anti-SLAPP-legislation-motivation-anyone-needs dept

Sometimes the goal of a libel lawsuit isn't to win. Sometimes the goal is to simply inflict as much financial pain as possible. Sometimes all the plaintiff really wants is to destroy the entity they're suing. It's more about being vindictive than being vindicated.

Baseless defamation lawsuits are easily headed off in states with good anti-SLAPP laws. Unfortunately, there are only a small number of states with a law worth invoking. And there's no federal anti-SLAPP law, so vexatious litigants (like, say… Devin Nunes) are free to inflict financial pain on their opponents without worrying about paying the other side's legal fees when their cases are tossed.

Even if you win in court, you can still lose in life. Without a solid fee-shifting provision that makes the losing party responsible for the winner's expenses, plaintiffs don't need to win their lawsuits to emerge victorious.

That's the case here. A small Iowa newspaper is facing the possibility of going out of business, thanks to a bogus defamation lawsuit. The suit was filed by a local police officer who didn't like having the public being informed about his multiple underage dalliances.

The Carroll Times Herald article (former) Officer Jacob Smith sued over was published in 2017. It detailed an investigation of Smith's off-duty hobbies, the ensuing investigation, and Smith's resignation. Here's the Times Herald's recounting of Smith's not-so-illustrious law enforcement career.

The Times Herald’s investigation found that Smith was fired from his first police job in eastern Iowa in 2015, in part, because he sent inappropriate private messages on Facebook to a 16-year-old girl while he was on duty. Following his hire in Carroll, a 17-year-old girl moved into his house while she still attended high school, and she was later accused of defacing the car of a 19-year-old woman with whom Smith had a brief relationship.

One day after this article was published, Officer Smith sued the paper. He alleged his reputation had been damaged by the alleged libel and swore that his career as a law enforcement officer was over. (Smith was either unfamiliar with the cop shop revolving door, or was conveniently ignoring this [awful] truism to increase potential damages.)

The court dismissed Officer Smith's case, finding the paper's article was based on plenty of facts. These included recordings of city council meetings where Smith's messages to the 16-year-old girl were discussed, as well as Smith's own deposition in which he admitted that dating a 17-year-old "wasn't right" and "looked like shit."

Here's what the judge had to say about that:

“The article at issue is accurate and true, and the underlying facts undisputed,” [Judge Thomas] Bice wrote in his 10-page ruling.

The officer also claimed the newspaper's publication of a quote from his ex-wife -- one in which she called the officer a "pedophile" -- was also defamatory. The judge said the ex-wife's opinion (which seems to be based on Smith's fondness for underage girls) was protected speech. Further, the court said the officer's resignation was of public interest and the paper's reporting served that interest without crossing the line into libel.

The paper won, but it's losing.

A small Iowa newspaper that exposed a police officer's sexual relationships with a teenage girl is raising money after successfully fighting a libel lawsuit filed by the police officer.

Douglas Burns, vice president of the Carroll Times Herald, said the western Iowa newspaper's investigation and resulting lawsuit cost it thousands of dollars in expenses and lost revenue.

More than $140,000 to be exact. That's what's still left to be paid after the paper's libel insurance picked up its part of the tab. The paper has been in the Burns family's hands since 1929. Without outside assistance, it could go out of business. Now, Burns is asking readers -- and those generally opposed to baseless legal bullying -- to help out. So far, it seems to be working. A GoFundMe page that has raised more than $45,000 in less than 24 hours.

Not every defendant will be so lucky. Surviving a baseless lawsuit takes money and time. If plaintiffs have a little of both, they can do more damage than defendants can ever hope to recoup. This is why strong anti-SLAPP laws matter. They deter baseless lawsuits by giving defendants a way to escape before the bleeding begins, and holds plaintiffs responsible for the damage they've caused by forcing them to pay their opponents' legal fees.

Sure, some people were fine with Gawker being run out of business by a vengeful venture capitalist. But would these same people be okay with a small paper closing shop because it made the mistake of printing facts?

Filed Under: anti-slapp, defamation, free speech, iowa, jacob smith, journalism, newspapers, police, slapp
Companies: the carroll times herald

Illinois Supreme Court Says State's Revenge Porn Law Is Constitutional While Barely Trying To Apply The Constitution To It

from the akshually-its-a-privacy-law-etc dept

The Illinois state Supreme Court has reached a questionable decision that has the potential to negatively affect First Amendment expression in the state. (h/t Orin Kerr)

It stems from a revenge porn prosecution. The defendant was charged with one count of "nonconsensual dissemination of private sexual images" after sharing sexual photos her ex-fiance had received from a neighbor. She sent screenshots of the photos received (via an iCloud account she and her ex shared) to her fiance's cousin while explaining her side of the breakup. Her ex called the police after he learned of the letter. The neighbor who sent the explicit photos testified these pictures were not meant to be shared. (The victim also testified she knew she was sending them to a shared iCloud account that would allow others to see the photos but thought that account had been deactivated before she sent the nudes.)

Not your average revenge porn case. The defendant challenged the law and her sentence, and the circuit court agreed with the defendant's First Amendment arguments, finding the law imposed unconstitutional restrictions on speech based on its content.

The state Supreme Court has reversed this decision in a longish decision [PDF] that spends a lot of time discussing how it's possible to engage in content-based censorship without troubling the First Amendment too much. The decision opens with several quotes from Danielle Citron and Mary Anne Franks -- two law professors who have helped craft a number of revenge porn laws.

Here's the state's statute, which certainly appears to target only a very specific form of content:

(b) A person commits non-consensual dissemination of private sexual images when he or she:

(1) intentionally disseminates an image of another person:

(A) who is at least 18 years of age; and

(B) who is identifiable from the image itself or information displayed in connection with the image; and

(C) who is engaged in a sexual act or whose intimate parts are exposed, in whole or in part; and

(2) obtains the image under circumstances in which a reasonable person would know or understand that the image was to remain private; and

(3) knows or should have known that the person in the image has not consented to the dissemination.

That's not how the court sees it, though. It says this law doesn't have much to do with content, even though the law targets very specific content. To lower the Constitutional scrutiny bar, the court takes a plain reading of a law targeting the unauthorized dissemination of sexual content and twists it into something else completely. Even though the statute enumerates the precise type of content it seeks to regulate, the court decides the law is actually about privacy, rather than content.

In the case at bar, section 11-23.5(b) is justified on the grounds of protecting privacy. Section 11-23.5(b) distinguishes the dissemination of a sexual image not based on the content of the image itself but, rather, based on whether the disseminator obtained the image under circumstances in which a reasonable person would know that the image was to remain private and knows or should have known that the person in the image has not consented to the dissemination. 720 ILCS 5/11- 23.5(b)(2), (b)(3) (West 2016). There is no criminal liability for the dissemination of the very same image obtained and distributed with consent. The manner of the image’s acquisition and publication, and not its content, is thus crucial to the illegality of its dissemination.

Having done this (and compared the nonconsensual sharing of private images with the unauthorized sharing of Social Security numbers or medical records), the court declares the content-based restrictions to be content-neutral and moves on with its reversal of the lower court.

Content-neutral laws are subject to an intermediate level of scrutiny because they generally present a less substantial risk of excising certain ideas or viewpoints from the public dialogue. Minnis, 2016 IL 119563, ¶ 33 (citing Turner Broadcasting System, 512 U.S. at 642). Section 11-23.5(b) meets this standard.

Obviously, this is wrong. The law does not forbid the nonconsensual sharing of any content the sender believes to be "private." It only criminalizes the sharing of certain content: sexual acts and/or intimate parts. Nonetheless, the state Supreme Court firmly believes this is a privacy law, not a speech law, and as such, it has no problem ignoring the speech concerns. If the state is seeking to protect people's privacy with this law (as the court imagines it is), then the law is narrow enough to survive the Constitutional scrutiny the court isn't actually willing to apply.

Unlike strict scrutiny, which requires the least restrictive means to accomplish a compelling government interest, the “narrowly tailored” requirement of intermediate scrutiny does not require that the regulation be the least speech-restrictive means of advancing the government interest. Rather, the “narrowly tailored” requirement of intermediate scrutiny is satisfied so long as the law promotes a substantial government interest that would be achieved less effectively absent the law.

The last thing is what matters most, according to the court. There may be a better, more Constitutional way to handle revenge porn, but the court says the state shouldn't have to bother because this law seems to be working pretty well so far.

We conclude that the substantial government interest of protecting Illinois residents from nonconsensual dissemination of private sexual images would be achieved less effectively absent section 11-23.5.

The dissent points out the obvious: the statute regulates speech based on content and needs to be held to a higher standard:

The majority... contends section 11-23.5 “does not prohibit but, rather, regulates the dissemination of a certain type of private information.” Supra ¶ 50. But the statute does not lay out a “privacy regulation,” it sets forth a criminal offense. As the statute criminalizes the dissemination of images based on their content, it should be viewed as a content-based restriction on speech that must survive strict scrutiny to be valid.

The law also does not examine the accused's intent. That matters, too. Other states with similar laws have at least attempted to ensure "revenge porn" has something to do with revenge. In Illinois, sharing these images without intending to harm the person depicted (as in this case where someone tried to explain why they ended a long engagement with their partner by sharing the nude pictures being sent to her fiance) is still a crime.

So is this:

A hypothetical posed to the State during oral argument illustrates this point. Two people go out on a date, and one later sends the other a text message containing an unsolicited and unappreciated nude photo. The recipient then goes to a friend, shows the friend the photo, and says, “look what this person sent me.” Has the recipient committed a felony? The State conceded that the recipient had, assuming the recipient knew or should have known that the photo was intended to remain a private communication.

Narrow crafting involves taking many things into consideration, including the intent of the person sharing the images. This law targets speech based on content but escapes strict scrutiny because the court has decided it's about the sharing, rather than the content, even if only certain content being shared has been criminalized. It's an internally inconsistent opinion and it allows a bad law to stay on the books unedited -- one that's sure to result in more collateral damage the state's Supreme Court will be unwilling to sort out.

Filed Under: 1st amendment, content neutral, free speech, illinois, privacy, revenge porn, strict scrutiny

Bringing Free Speech Back: Trump Promises To Sue CNN Over Its Biased Coverage Based On Dumbest Legal Theory Ever

from the ken,-is-charles-harder-a-good-lawyer? dept

By way of disclosure, I will mention that (as you may be aware), Charles Harder was the lawyer who represented Shiva Ayyadurai in his lawsuit against us, and who has a decently long history of both threatening and filing lawsuits against media properties -- some of which have been more successful than others. Harder appears to have used his reputation for killing off Gawker to get ever more prominent clients, on whose behalf he has sent plenty of laughable threat letters trying to silence obviously protected speech, from Roger Ailes to Harvey Weinstein to Donald Trump. I will leave it as an exercise to the reader to determine if you see a pattern in some of Harder's clients and the representation he has provided for them.

Apparently the President still employs Harder. Late last week he sent what has to be one of the most ridiculous threat letters I've seen (and that's saying something) to CNN promising to sue the company for its "biased" coverage of the possible Trump impeachment process. Everything about the letter is pretty crazy, especially from a President whose fans like to pretend he he supports free speech. He does not. And Harder's ridiculous letter makes this clear. The letter doesn't claim defamation (which would be laughable on its own) but a rather... let's say "unique"... interpretation of the Lanham Act's "truth in advertising" aspects to argue that its coverage of the President doesn't match up with its promises to be "fair and balanced."

Your website expressly represents to the public, in writing, that you are “journalists,” “truth seekers,” “united by a mission to inform, engage and empower the world,” and you “stand for excellence in journalism and [your] products.” See https://www.CNN.com/About (emphasis added). Your slogan is “The Most Trusted Name in News”. Your Facebook account claims you are “widely known to be – the most trusted source for news and information.” Your anchor, Don Lemon, stated on June 6, 2019, as a keynote speaker at Financial Times Live Future of News: “We don’t profess to be a liberal network, we’re a news network … we have a commitment to the truth and to facts, which has really been paramount, especially always at CNN.” Mr. Zucker said in an interview with Variety, published on August 2, 2016: “[O]ur air, as opposed to others’, is truly fair and balanced.” (Emphasis added.)

The letter then goes on to cite the Society of Professional Journalists' Code of Ethics, claiming that CNN is violating them. This is silly on multiple levels. First of all, Harder seems to ignore a key part of that code of ethics that explicitly states:

The SPJ Code of Ethics is a statement of abiding principles supported by additional explanations and position papers (at spj.org) that address changing journalistic practices. It is not a set of rules, rather a guide that encourages all who engage in journalism to take responsibility for the information they provide, regardless of medium. The code should be read as a whole; individual principles should not be taken out of context. It is not, nor can it be under the First Amendment, legally enforceable.

Yet, Harder acts as if it's some sort of legally enforceable document that somehow overrides the 1st Amendment. Which is weird.

From there, Harder cites a new video from notorious misrepresenters Project Veritas as proof that CNN is violating these ethical rules that are not law, and which it's not at all clear they're actually violating in the first place. Much of the complaint is whether or not CNN staff is "biased" against the President, and whether or not it lets opinion journalism appear in its "news" coverage.

Of course, this is all particularly hilarious because, as bad as CNN might be on that front, the same would apply doubly so to the President's favorite TV news station, Fox News, whose own motto is famously (if hilariously) "Fair and Balanced" when it is anything but, and took a famously adversarial position to the previous administration. Keep that in mind when you read this next line in Harder's letter:

Never in the history of this country has a President been the subject of such a sustained barrage of unfair, unfounded, unethical and unlawful attacks by so-called “mainstream” news, as the current situation.

It can easily be argued that that isn't even true when compared to the previous administration and Fox News. And, of course, there's a long, long history of journalistic outlets targeting opposing Presidents (including being accused (perhaps exaggeratedly) of being responsible for the assassination of President McKinley). The idea that CNN's coverage of the President is somehow unique in history is hilarious and unsupported by reality.

As for the actual legal claims they're vague, but utter nonsense:

Your actions are in violation of the Lanham Act (15 U.S.C. § 1051 et seq.), among other applicable laws, by constituting misrepresentations to the public, to your advertisers, and others. Accordingly, my clients intend to file legal action against you, to seek compensatory damages, treble damages, punitive damages, injunctive relief, reimbursement of legal costs, and all other available legal and equitable remedies, to the maximum extent permitted by law.

As well known, well respected lawyer Ted Boutrous stated on Twitter, this entire letter is silly:

CNN's response to the letter was pretty short and succinct:

“This is nothing more than a desperate PR stunt and doesn’t merit a response, CNN said in a statement.

Exactly. While Harder's letter promises a lawsuit on this, it would not be surprising if no such lawsuit materializes, as it's an almost guaranteed loser. As law professor Alexandra Roberts points out, while Harder's Lanham Act claims are not at all clearly stated, he's likely (especially given the context of the rest of the letter) suggesting a "false advertising" claim, but for that to be legit, he would have to show commercial harm to President Trump, which would be... quite something to attempt.

Separately, Roberts makes another important point: since the letter isn't even a standard "cease and desist" threat letter, but rather includes a statement about a planned legal action, CNN (if it so chose) could actually go to court and ask for a declaratory judgment on this matter, effectively forcing Trump/Harder to explain to the court whatever ludicrous legal theory they have, only to almost certainly have it laughed out of court. It looks like CNN won't bother doing so, but that sure would be fascinating to watch.

Filed Under: 1st amendment, bias, charles harder, coverage, donald trump, false advertising, free speech, journalism, lanham act, news
Companies: cnn

Canadian Supreme Court To Cops: You Can't Arrest Someone Just Because You Think Something Illegal Might Happen In The Future

from the not-how-'keeping-the-peace'-works dept

Free speech protections have been given a bit of a boost in Canada. Simultaneously, the leash on the country's law enforcement has been tightened a little. That's how these things go. Personal rights and government power are often zero-sum. This case -- dealing with the arrest of a counter-protester -- ensures Canadian law enforcement can't just go around arresting people for the "crime" of not committing any crimes. (via a site that wrote about it but somehow found it impossible to include a link to the freely-available ruling, so here's a link to the Supreme Court's site)

This is important. And the ruling [PDF] rolls back consecutive lower court decisions that said Canadian cops can arrest people if they think some lawlessness might be imminent. In this case, Randy Fleming was arrested by law enforcement as he approached an indigenous occupation of land owned by the Canadian government. Fleming was carrying a Canadian flag, presumably to make the point the land belonged to the Canadian government, rather than the representational occupiers opposed to that view.

Carrying the flag was legal. Approaching the protest was legal. Provoking a reaction where several protesters starting heading toward Fleming was legal. And yet, five law enforcement officers grabbed Fleming, pushed him to the ground, and handcuffed him. After 12 court appearances in 19 months, the charge of resisting arrest was dropped.

The Appeals Court said police did indeed have the power to arrest people if they felt doing so would "keep the peace," even if the person they arrested committed no crimes and, at least in this case, was possibly on his way to becoming the victim of a crime. Arresting people for their own safety was, briefly, legal in Canada. Not anymore.

The country's Supreme Court is shocked that any court in the land would arrive at this conclusion. It also appears to be appalled the government would even argue that it has this power. While Canadian law enforcement does have a "duty to preserve the peace," it should never opt immediately to separate people who've committed no crimes from their freedom.

Here, the respondents are proposing a power that would enable the police to interfere with the liberty of someone who they accept is acting lawfully and who they do not suspect or believe is about to commit any offence. It would be difficult to overemphasize the extraordinary nature of this power. Such a power would constitute a major restriction on the lawful actions of individuals in this country.

Not only would this deprive citizens of their freedom, it would also seriously harm their ability to seek recourse for being arrested for not committing crimes.

[T]he exercise of the respondents’ purported police power would be evasive of review. Since this power of arrest would generally not result in the laying of charges, the affected individuals would often have no forum to challenge the legality of the arrest outside of a costly civil suit... Judicial oversight of the exercise of such a police power would therefore be rare.

Finally, the court harshly dismisses the government's "ends justifies the means" argument that arresting non-criminals does a pretty good job at preventing breaches of the peace.

[T]he mere fact that a police action was effective cannot be relied upon to justify its being taken if it interfered with an individual’s liberty. For an intrusion on liberty to be justified, the common law rule is that it must be “reasonably necessary”. If the police can reasonably attain the same result by taking an action that intrudes less on liberty, a more intrusive measure will not be reasonably necessary no matter how effective it may be. An intrusion upon liberty should be a measure of last resort, not a first option. To conclude otherwise would be generally to sanction actions that infringe the freedom of individuals significantly as long as they are effective. That is a recipe for a police state, not a free and democratic society.

Sure, warrantless searches and randomly tossing people in jail is sure to result in the prevention of criminal activity, but that's not how rights and protections work. The government's attempt to get the court to sympathize with its result-oriented work in this case fails spectacularly.

And since the arrest wasn't justifiable in any way, Fleming's excessive force claims are upheld because… well, any force used to effect an illegal arrest is going to be excessive. That means Canadian taxpayers will be covering all of the plaintiff's court fees, including the $199,000 racked up at the appellate and Supreme Court level.

Filed Under: arrests, canada, free speech, pre-crime, predictions

Blizzard Digs Its Heels In And Issues 6 Month Ban To College 'Hearthstone' Team Over Hong Kong Message

from the double-down dept

Blizzard has found itself trying to navigate its self-made storm over the past several weeks. It started when a professional Hearthstone player relayed a message of support for the ongoing protests in Hong Kong, leading Blizzard to issue a 1 year ban and pull back prize money for that player. With many eSport and IRLsport leagues either being directly confronted by the regime in Beijing, or simply self-censoring in fear of such a confrontation, the whole ecosystem of eGaming has felt the effects of Blizzard's actions. And, while Blizzard eventually did lighten the punishment it had initially doled out, the company also thumbed its nose at the principle complaint in the protests: that Blizzard was kneeling at an altar constructed of the Chinese government's thin skin.

And now the company is simply doubling down. Earlier this month, American students at American University held up a sign during a competition stream that read, "Free Hong Kong, Boycott Blizz." True to its earlier lack of spine, Blizzard has responded by issuing the team a 6 month ban from competitions.

American University Hearthstone players who recently held up a sign calling for Hong Kong’s freedom during a livestream have been officially disciplined by Activision-Blizzard. In a Twitter post today, team member Casey Chambers stated that the team has been banned from competitive play for six months.

When a punishment from Blizzard to similar to Blitzchung’s was not forthcoming, the team voluntarily dropped out of future tournaments. Now, they’ve been officially banned for half a year.

Interestingly, the American University team appeared to be trying to make a very specific point by getting banned. The team clearly saw inequity in the punishment for Blitzchung being both swift and severe, while their actions went unpunished at first. To that end, the team voluntarily dropped out of competition, it appears as part of its call to protest Blizzard generally. When the punishment eventually did come down, team member Casey Chambers tweeted that he was pleased it did.

He later responded to someone claiming that Blizzard was violating its own call for "every voice to matter" with the ban by stating, "Nah bro. We knew what we were doing."

All of which is entirely besides the point. When Hearthstone competitors have reached the point of trying to get themselves banned to make a point, never mind actively calling for a boycott of Blizzard, it signals that the company is losing the PR war in America. What Blizzard now has to decide is what the math is on the value of pissing off the American public versus keeping Beijing happy.

Based on this most recent 6 month ban, it looks like the company thinks it can thread a needle that I'm not sure actually exists.

Filed Under: censorship, china, free speech, hearthstone, hong kong, protests
Companies: blizzard

After Four Years Of Failing To Bring Its Plan To Completion, UK Government Pulls Out Of Porn Blockade Effort

from the [consults-physician] dept

At long last, it appears the UK government's porn blockade has been sunk. The government missed another deployment window in April of this year. Karl Bode reported the government was considering saying the hell with it it all a couple of months later.

But even that report suggested the UK might still try to make its stupid porn blocking plan work. It claimed it just needed an indefinite amount of time to bring its porn filter into compliance with EU law -- something it had years to do but apparently only took into consideration at the last minute.

The porn filtering system was to be deployed by ISPs and porn sites. Age verification would be needed to access porn from paid sites. This information would be stored for government perusal by third parties, generating a tempting honeypot of personal information tied to sexual peccadilloes that could be exploited by anyone who had to access it. You know, in addition to anyone in the government who had access to it… like criminals.

In its partially-instituted form, the filtering system was alarmingly easy to circumvent. When it did work (by which I mean, when it was turned on), it didn't, resulting in over-blocking when it wasn't being beaten by a single Chrome extension. Almost completely useless. And all in a package that required UK citizens to queue up at the online porn box office and state affirmatively their desire to access pornographic content.

After a half-decade of not happening, the UK government has officially ditched its porn filtering program, as Rory Cellan-Jones reports for the BBC.

The government has dropped a plan to use strict age verification checks to stop under-18s viewing porn online.

It said the policy, which was initially set to launch in April 2018, would "not be commencing" after repeated delays, and fears it would not work.

This was the plan to force porn providers to deploy government-approved age verification processes. Those that did not would be blocked by ISPs, which apparently would be providing this vetting service to the government free of charge. Ignored in all of this were sites that did not sell access to porn, like Twitter, Reddit, and other sites where adult content is accessed freely. So, the children the government was so worried about would still have plenty of options even if this plan had worked.

The Porn Blockade is dead! Long live the Porn Blockade?

Digital Secretary Nicky Morgan said other measures would be deployed to achieve the same objectives.

Hope springs eternal in the halls of the UK government, where impossibility can be legislated into possibility, kicked around for 48-60 months, and abandoned when it finally becomes clear to the people whose careers depend on misunderstanding the problems finally being forced to confront reality.

Having mishandled everything about its end of the deal, the UK government is now leaving it up to porn sites to keep kids out. It appears to be voluntary, but the kind of "voluntary" where the person asking expects you to do it and will find some way to punish you if you don't.

In a written statement issued on Wednesday, Ms Morgan said the government would not be "commencing Part 3 of the Digital Economy Act 2017 concerning age verification for online pornography".

Instead, she said, porn providers would be expected to meet a new "duty of care" to improve online safety. This will be policed by a new online regulator "with strong enforcement powers to deal with non-compliance".

The only entities truly upset by this turn of events are those that expected to tap into a new government-created revenue stream. OCL, one of the firms hoping to be the vendor of choice for age verification tools, expressed its "shock" that the UK government would abandon its plan to protect children from porn and, presumably, enrich OCL in the process. But nearly everyone else saw this scrapping as inevitable, considering the oh so many unworkable aspects of the filtering program.

I'm sure UK citizens are thrilled the government spent nearly five years allowing its Porn Blockade to drift into the rocky shoals of reality. Since other people's money funded the losing battle, the government spared no expense and will presumably continue this spending until it has abandoned another two or three attempts over the next decade or so.

Filed Under: filters, porn, porn ban, uk

Report On Global Social Media Censorship Shows Russia, India, And Turkey Are Still Leading The Censor Pack

from the and-all-these-US-companies-are-giving-them-a-boost dept

Millions of people around the globe are using blogging services and social media platforms created by US companies to communicate with each other. Unfortunately, these US companies have been helping censorial governments shut their citizens up by complying with a large variety of content removal requests.

While it is generally a best practice to follow local laws when offering services in foreign countries, it's always disappointing when US companies respect laws that have been created solely for the purpose of stifling dissent, silencing critics, and putting marginalized people at the risk of even greater harm.

Paul Bischoff of Comparitech has compiled information from a number of companies' transparency reports to produce an easily-readable snapshot of worldwide censorship as enabled by US tech companies. And the countries you'd expect to be demanding the censorship of the most content are the ones you'll see taking top spots at various platforms. Russia, Turkey, and India all top the charts, both in the number of demands made and the actual amount of memory-holed content.

Russia must be home to one of the last large Blogger userbases, considering how often the country targets this platform. Russia alone accounted for 53% of the 115,000 removal requests received by Google, which also covers search engine listings and YouTube. Russia's takedown demands have been steadily escalating over the past half-decade, jumping from 2,761 in 2015 to 19,192 in the first half of 2018 alone. Most of Russia's requests are supposedly "national security" related, but that still leaves plenty to spread around to cover other things the government disapproves of, like nudity, drug abuse, and defamation.

Turkey comes in at a very distant second. It too likes to claim stuff is either defamation or a threat to national security, but it prefers to perform its vicarious censorship on a different social media platform: Twitter.

Turkey jumps into the top spot here, accounting for 55.23 percent of the overall number of requests (54,652). Russia is a distant second with 21.17 percent of the overall number.

But Russia is gaining ground…

[T]he largest number of content removal requests came last year with 23,464 (an 84% increase on the previous year). [...]Russia and Turkey... made up 21.25 and 59.67 percent of the requests in 2018, respectively.

Yes, Twitter is Turkey's playground. The easily-offended head of state (and all of his easily-offended officials) love to use content removal requests to silence critics and bury unflattering coverage. Unfortunately, Twitter has been all too helpful when it comes to Turkey oppressing its citizens via third parties. Sure, much of the blocking only affects Turkey, but that's where dissenting views are needed the most.

Bischoff's report is worth reading in full. It breaks down the raw data of transparency reports into easily-digestible chunks that show which platforms which countries censor most, as well as the type of complaints these countries are sending most often.

You'll also see why one of the biggest censors in the world barely shows up in these reports. China doesn't need third parties' help to control what its citizens see online. It begins this censorship at home by blocking content across multiple platforms (and, often, the platforms themselves), some of which are homegrown services far more popular with Chinese users than their American equivalents. A lack of data doesn't mean China is taking a hands-off approach to content moderation. It simply means the Chinese government rarely has to put its hands on anything outside the country to achieve its aims.

One of the more minor players in the global takedown playground is Wikimedia. Outside of the occasional DMCA takedown request, Wikimedia rarely gets hassled by anyone, much less world governments. But the requests it does get are far weirder than the run-of-the-mill censor-by-proxy requests delivered to social media platforms. Wikimedia is one of the few American entities that has told the Turkish government to beat it when Turkey asked for negative (but apparently factual) content to be removed. It also had to explain to members of an unnamed political party how Wikipedia -- and the First Amendment -- actually work.

A lawyer reached out to us on behalf of a lesser-known North American political party that was unhappy with edits to English Wikipedia articles about the party and one of its leaders. Her clients apparently wanted previous, more promotional versions of the articles restored in place of the later versions. To better engage in discussions with the community, we encouraged them to familiarize themselves with Wikipedia’s recommendations on style and tone and the policy restricting use of promotional language. We also advised that one of the best ways to resolve their concerns is to engage with the community directly.

And it has only removed one piece of content ever that wasn't the result of a valid DMCA takedown request:

According to Wikimedia, a blogger visiting Burma/Myanmar posted a redacted photo of his visa on his website. Somehow, a version of his visa picture without his personal information removed ended up on an English Wikipedia article concerning the country’s visa policy.

“He wrote to us, asking to remove the photo,” wrote Wikimedia. “Given the nature of the information and the circumstances of how it was exposed, we took the image down.”

Tech advances have accelerated the pace of global censorship. When you're dealing with the world's greatest communication tool -- the internet -- you kind of have to take the good with the bad. Geoblocking content to stay in the good graces of foreign governments may seem like the "lesser of several evils" approach, but even if it's the approach that will result in the least amount of collateral damage, it's still something that encourages authoritarians to continue being authoritarian.

Filed Under: censorship, free speech, india, russia, studies, turkey

Blizzard's Face Plant Creates Marketing Opportunity For Companies With A Spine

from the one-man's-bumble-is-another-man's-boon dept

Blizzard's decision to pander to the Chinese government is a PR headache that simply isn't going away. Last week, games giant Blizzard stepped in a minefield when it severely punished a Hearthstone player for supporting the protests in Hong Kong during a championship live stream. The reaction was swift, justified, and severe, with everyone from gamers to Blizzard employees accusing the company of prioritizing profits over principles.

After days of silence, Blizzard ultimately issued a statement on the decision and, while public backlash forced it to retreat from some of the player's more severe punishments, the company doubled down on its decision to censor players for political opinions, ignoring most of the criticisms leveled by human rights organizations like Access Now. It also tried to claim with a straight face that its financial interests in China played no role in the decision:

The specific views expressed by blitzchung were NOT a factor in the decision we made. I want to be clear: our relationships in China had no influence on our decision. We have these rules to keep the focus on the game and on the tournament to the benefit of a global audience, and that was the only consideration in the actions we took.

Sure, Jan. While the gamer violated tournament rules by injecting political opinion, Blizzard's over-reaction (the gamer lost all awards and prizes and faced a one year ban from competition) showcased a company absolutely terrified of losing out on Chinese cash. It could have adhered to its rules by applying a more modest punishment. Instead it behaved in a way that made it clear to everybody that Blizzard's principles like Every Voice Matters--etched at the base of a statue at the company's headquarters--couldn't hold a candle to the potential money to be made in China.

But one company's disastrous face plant is another company's marketing opportunity. Fortnite developer Epic Games utilized the PR fracas to proclaim that it would not censor gamers simply for having political opinions, insisting companies can walk (embrace fundamental human rights) and chew gum (make a living selling games and game stream ads) at the same time:

Fortnite developer Epic Games said in a statement that it will not ban players or content creators for political speech. The message comes after Blizzard caught fire this week for banning a professional Hearthstone player for shouting a statement associated with Hong Kong protesters.

“Epic supports everyone’s right to express their views on politics and human rights. We wouldn’t ban or punish a Fortnite player or content creator for speaking on these topics,” an Epic Games spokesperson told The Verge.

That statement came despite the fact that Chinese tech giant Tencent has held had a 40 percent stake in Epic since 2011. In contrast, Riot Games, developer of League of Legends, is now 100 percent owned by Tencent. On Friday it effectively sided with Blizzard, proclaiming that broadcasters should "refrain" from discussing "sensitive topics" during game streams. Because, you know, god forbid some kid playing a game express something akin to empathy, while an authoritarian government threatens to "crush the bodies and shatter the bones of Hong Kong residents":

"As a general rule, we want to keep our broadcasts focused on the game, the sport, and the players,” John Needham, the global head of League of Legends e-sports said in a statement. “We serve fans from many different countries and cultures, and we believe this opportunity comes with a responsibility to keep personal views on sensitives issues (political, religious, or otherwise) separate."

Upsetting China's authoritarian government means potentially losing billions for companies dreaming of international expansion, so, more often than not, cutesy purported principles like "every voice matters" are going to hold up like tissue paper in a thunderstorm. Still, there's a marketing opportunity here for companies interested in showing how having a spine and respecting basic human rights isn't inherently "bad for business." Either way, with protests planned for Blizzard's BlizzCon convention early next month, this was an unforced error that's not going away anytime soon.

Filed Under: china, free speech, hong kong, video games
Companies: blizzard, epic games, riot games

How A Right To Be Forgotten Stifles A Free Press And Free Expression

from the it's-not-like-we-didn't-warn-you dept

Thankfully, recently, the EU's Court of Justice, has limited the scope of the "right to be forgotten," so that sites can't be forced to censor content outside of the EU. However, it still does apply within the EU, and that has real and significant consequences.

Just last week we received yet another notification from Google that one of our articles had been removed from certain (unrevealed) search results in Europe, due to a successful "right to be forgotten" petition. This is hardly the first time this has happened, though at least this time it's not about the one guy who has sent a new RTBF demand every time we write about him. We're still trying to figure out what to do with the latest one, which appears (like so many) to be someone who was convicted of a crime (in this particular case, counterfeiting) who is apparently upset that his name and past crimes come up in a search.

We had warned about this years ago, highlighting how a short-sighted attempt to deal with "privacy" would collide head on with free speech and a free press -- and for the most part we were ignored. However, the NY Times has a fairly astounding story about how a RTBF demand from a guy who stabbed his own brother and wanted to hide the resulting press stories more or less bankrupted the publication that had the story:

One of those demands was from Vittorio Pecoraro, now in his 80s, who was stabbed by his brother, Umberto, in the 2008 seaside restaurant brawl. The brothers were arrested after the fight. Assault-related charges against Vittorio Pecoraro were effectively dropped when the authorities did not pursue them.

Vittorio Pecoraro sued Mr. Biancardi, citing the right to be forgotten. Mr. Biancardi refused to remove the article. The story had been based on information from the police, he said. Nothing was factually wrong.

But Vittorio Pecoraro argued that his privacy had been violated. The article was easily available and searchable online, and he had not been convicted of a crime. Yet because of PrimaDaNoi, what he considered a humiliating family argument had become the first thing that many people knew about him and his pizza and seafood restaurant, he said.

“I have a reputation, I have been here for 50 years, I am known all over,” Mr. Pecoraro said in an interview at the restaurant, Positano, where the 2008 fight had occurred.

As the article notes, a court ruled that the site, PrimaDaNoi, had to delete the stabbing story (this is pre-GDPR, under the older concept of the Right to be Forgotten in the EU). The author/publisher was also told to pay €10,000 for "harming the reputation" of Mr. Pecoraro. Biancardi appealed, but lost.

The article notes that this and some of Biancardi's other attempts to fight off RTBF requests only seemed to attract more demands and more lawsuits. And it basically destroyed him and his news site:

By last year, Mr. Biancardi stopped fighting the takedown requests. The cost wasn’t worth it, he decided, and he deleted almost every article that people demanded. He lost weight and wasn’t sleeping.

Last September, exactly 13 years after starting PrimaDaNoi, he shut down the site.

Having faced tons of legal threats (and one very long and exhausting legal dispute ourselves) I can empathize with Biancardi. At times, the stress, annoyance and costs just don't seem worth it. But, of course, in such situations, it means that those who want to censor negative press about themselves will succeed in their ultimate goal: to suppress information. And that's a very troubling scenario as well.

The article quotes Daphne Keller, who we've quoted many times here at Techdirt, and whose been on our podcast frequently as well, calling this "mission creep":

“There has been real mission creep with the right to be forgotten,” said Daphne Keller, a lawyer at Stanford University’s Center for Internet and Society. “First it was supposed to be about information found using search engines, but now we see it affecting news reporting.”

Of course, some will argue that there's no mission creep at all here. Many insisted that this was really about privacy and search engines and "data protection." But plenty of people had to know how this would turn out in the end, with news stories being disappeared. Indeed, folks like Daphne were among the leading voices warning EU policy makers of this kind of result. But it didn't work. And now we have this terrible situation that doesn't actually protect "privacy" at all -- but does mean that a free press is regularly stifled.

Filed Under: eu, free speech, privacy, right to be forgotten, rtbf
Companies: primadanoi

Ridiculous: Judge Says Devin Nunes' SLAPP Suit Against An Internet Cow And Others Can Continue

from the well-that's-disappointing dept

In some surprising, and ridiculous, news the local court judge, Judge John Marshall (no, not that Judge John Marshall), has decided not to dismiss the lawsuit that Nunes filed against Twitter, two satirical Twitter accounts, and political strategist Liz Mair. As you'll recall, Mair and Twitter had both argued that the case had no reason to be in a local Virginia court, and that, if anything, the proper venue was in California. The judge had demanded that Twitter reveal to him the details of who was behind the Twitter accounts (something that was already questionable under the 1st Amendment, which protects anonymity). Twitter refused, though did say that neither account holder was based in Virginia.

Of course, now it looks like none of that even mattered anyway, as the judge has said that the venue is fine because Mair once lived in Virginia (she doesn't any more) even though it was a different county from where the lawsuit was filed. The reasoning from the judge is... weird.

The court rejects this argument and finds in this case that the posts to social media were made in Virginia and therefore publication occurred in Virginia and the cause of action for defamation arose in Virginia.

The judge also rejects Twitter's argument that Nunes signed Twitter's terms of service which require any disputes to be handled in California by saying (perhaps slightly more reasonably) that since the lawsuit isn't about things that Nunes did on Twitter, but about third parties, what Nunes agreed to has nothing to do with the venue question. The logic there makes some sense, actually, even though there are many other reasons why the court should say that California is the proper venue (including both Nunes and Twitter and the servers all being based in California).

The negligence claim of the Plaintiff against Twitter here arises from the Defendants use of twitter not the Plaintiff's use of twitter. The use of twitter by the Defendants to post allegedly defamatory statements cannot subject the Plaintiff to the terms of use agreements and the forum selection clause as it would not subject a plaintiff who did not have a twitter account to the terms of use agreement. The court finds the terms of use agreement does not apply to the Plaintiff here.

And, no, I have no idea why the judge chooses not to capitalize Twitter in that paragraph (he does elsewhere in the document). But the logic there is pretty sound if you're looking at this strictly about whether or not the terms of service are binding on Nunes for venue choice. However, the court notes that since Twitter has business activity in Virginia, the case is fine to remain there. It also notes that much can be done by video in the case, so it shouldn't "inconvenience" anyone too much if the case is in Virginia (ignoring that the whole damn lawsuit is an inconvenience...). Either way, in the end, the court has said Virginia is just fine and the case can move forward.

The court refuses to do so as litigation over the defamation claim will necessarily involve Twitter as the claim relates to the use of Twitter's social media platform and the fact that the negligence claim against Twitter is totally dependent upon the success or failure of the defamation claim. The court has ruled that the Defendants' cases are properly raised in Virginia. The Plaintiff came to from California to Virginia to pursue claims that arose in Virginia against Defendants in Virginia. The causes of action in this case are interdependent and for the other reasons in this opinion the court will not dismiss the action against Twitter based on forum non conveniens.

That's disappointing (and a bit surprising), but hardly the end of things as the case can still be tossed on other grounds. The defendants can (and likely will) ask for the case to be dismissed for failure to state a claim (i.e. even if everything in the complaint is accurate, it's still not defamation or any other violation of the law).

Meanwhile, not surprisingly, Nunes, who has historically positioned himself as a "small government" type whose own website focuses on all the ways he's cut "wasteful" government spending, is now crowing about using "every lever that we have in this government" to tell Twitter how to run its business.

His message is actually... contradictory:

"As conservatives and Republicans, we have to use every lever that we have in this government and we really have to have the courts step in and right these wrongs," Nunes said. "It's not OK for tech oligarchs to allow for their platforms to be used to slander conservatives — silence conservatives while at the same time, treating the Democrats differently."

Nunes said these are "monopolies that have full power over spaces of the internet" and "this can't be allowed to happen."

Of course, we don't need to go over (yet again) how there is no evidence to support that Twitter is actually treating Republicans differently than Democrats, but he seems to be saying that Twitter must do the reverse. It can't be allowed to silence conservatives... but it has to silence... people criticizing Devin Nunes? That's about the only interpretation of his statements that make sense. No censorship... except for my critics. Censor them. Also, Rep. Nunes, "slander" is spoken. Twitter is written. The word you want is "libel." And, criticizing you is not libel anyway. You're in Congress, man. Get a grip.

Filed Under: anti-slapp, defamation, devin nunes, devin nunes cow, free speech, jurisdiction, liz mair, slapp, virginia
Companies: twitter