French Government Looking To Copy Germany's Disastrous Anti-Hate Speech Legislation

from the anything-you-can-do,-we-can-do-lousier dept

More well-intentioned lawmaking is resulting in terrible legislation proposals. France is looking to Germany for guidance for the first time in a long time, thanks to its Prime Minister's desire to regulate "hate speech" on the internet. Edourd Philippe has apparently overlooked the disastrous roll out of Germany's hate speech law, which has resulted in a steady stream of embarrassments since its inception.

During a visit to the National Museum of the History of Immigration, Philippe said he intends to fight racist and anti-Semitic content on social networks, to launch an Internet portal to inform and help victims of hate, racism and discrimination, and set up training sessions for teachers to manage and prevent offensive remarks in schools.

He also plans to set up a national response team to assist teachers and field workers confronted with conflict situations.

“French law should be amended to strengthen the obligations of detection, reporting and deletion of illegal content on the Internet,” he said in a speech.

[...]

In outlining his plans, Philippe said the government is considering following Germany’s lead with heavy fines for companies slow to react. He also mentioned the possibility of closing accounts with repetitive and massive dissemination of hate content.

This is a remarkable turnaround for Philippe, who just two months earlier was arguing in favor of anti-Semitic speech on behalf of an influential French author.

France’s prime minister said he backed the publication of anti-Semitic essays by the author Louis-Ferdinand Destouches, also known as Celine, despite concern from the country’s Jewish community.

Edouard Philippe said the essays, published under the pseudonym Louis-Ferdinand Celine between 1937 and 1941, could not be ignored, though the publication would have to be carefully watched.

The January version of Philippe said anti-Semitic works could be published, accompanied by more speech -- the companion publication of a "scientific style" explainer that would hopefully deter readers from assuming the French government or a majority of the French population supported the author's views.

It seems more speech is no longer the answer. Philippe wants to directly regulate the internet, holding service providers responsible for user-generated content. If successful, France will enjoy a new revenue stream: hefty fines collected from social media platforms for failing to nuke content fast enough. Once this cash IV is hooked up to French coffers, demands for removal will increase, turn-time for removals shortened, and mission creep will set in.

Philippe expressed his concern about the perceived proliferation of hate speech with a statement that inadvertently supports arguments made by service providers about the impossibility of these content removal mandates.

“What annoys me is that nowadays, it seems easier to remove a pirated video of a football [soccer] game than anti-Semitic remarks.”

Interesting. It seems not all that long ago, government reps and the lobbyists who keep them well-maintained were complaining about how difficult it was to remove pirated content. Government officials tend believe removing pirated content should be as easy as removing child porn, even though one's much easier to spot and has a database of known child porn to compare content to. With copyrighted content, it's not always clear the stuff targeted is infringing, and issues not present in child porn -- like fair use or public interest -- complicate matters.

The problems with identifying targeted content are only exacerbated when platforms are tasked with identifying and purging things like "terrorist content," "hate speech," and "fake news." None of these concepts are distinctly definable and a patchwork of contradictory laws makes compliance a logistical nightmare. What tends to happen is preemptive removal by platforms, which has resulted in the purging of satirical posts and content that is, at best, slightly offensive, rather than being the invective governments claim they're targeting.

PM Philippe is making this push despite hate crime numbers continuing to drop in France. The Prime Minister offers only ethereal suppositions in support of his legislative desires.

Philippe said that although the number of hate incidents may have dropped in 2017 for the second year in a row, the statistics do not account for the “surge of hatred that is expressed daily on the Internet.”

You can't quantify what you can't clearly define. And if you can't clearly define it, you probably shouldn't regulate it. If France has a problem with hate speech, the corrective measures should target hateful citizens, not service providers. But it really shouldn't target this speech with increased regulation. It should do as Philippe suggested only two months ago: greet hate speech with more speech, because this is the only route guaranteed to prevent the speech-targeting laws from becoming tools of government oppression.

Filed Under: france, free speech, germany, hate speech

UN Advisor Tells Italy To Drop Its Terrible 'Fake News' Law Before It Does Any Real Damage

from the assembly-line-for-vehicles-of-censorship dept

Italy is rolling out new laws to deal with "fake news." The Italian government can't define this term precisely, but apparently assumes it will know it when it sees it. And the rest of the country is encouraged to "see something, say something," thanks to the government's online portal which will allow brigaders and hecklers to cleanse the web of things they don't like. Even if some of it stays up, those reported will possibly still have to spend some time interacting with government employees, which will mostly be a waste of everyone's time.

And that's just the bureaucratic side of it. This portal will link to law enforcement so Italy's uniformed cyberwarriors can go harass citizens over alleged fakery the government can't even clearly define. There's nothing like settling discussions about factual misconceptions with shows of force from government reps.

Seeing as the problem will get a whole lot worse before it devolves into just another tool of government oppression, UN Special Rapporteur David Kaye has fired off a formal letter to the Italian government, asking it to nuke its plan to tackle fake news with armed officers and government mandates.

The letter [PDF] points out the Italian government is, in essence, criminalizing differences of opinion. That's not going to keep it in line with internationally-recognized human rights.

The Human Rights Committee has emphasized that “free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues and to inform public opinion without censorship or restraint. Moreover, international human rights law provides States’ responsibility to ensure an environment in which a diverse range of political opinions and ideas can be freely and openly expressed and debated. Freedom of expression also includes sharing one’s beliefs and opinions with others who may have different opinions. In the Joint Declaration on Freedom of Expression and “Fake News”, Disinformation and Propaganda, my mandate together with other regional freedom of expression experts stressed that the “human right to impart information and ideas is not limited to “correct” statements, and “protects information and ideas that may shock, offend, and disturb”.

[...]

In light of these standards, the Joint Declaration on Freedom of expression and “Fake News” has concluded that “general prohibitions on the dissemination of information based on vague and ambiguous ideas, including “false news” or “nonobjective information” are incompatible and should be abolished.

Further driving this point home, Kaye states the cold hard fact that laws like these, however well-intended, end up being vehicles of a particular brand of censorship.

The lack of clarity concerning how the Protocol would operate, coupled with the threat of criminal sanctions, raises the danger that your Excellency’s Government will become arbiters of truth in the public and political domain. Accordingly, I am concerned that the Protocol would disproportionately suppress a wide range of expressive conduct essential to a democratic society, including criticism of the government, news reporting, political campaigning and the expression of unpopular, controversial or minority opinions.

Every law that curtails speech ends up being abused by the government that put it into effect. There are no exceptions. As is noted here, laws like these allow the government to decide what speech is acceptable using vague guidelines that effectively allow it to suppress dissent and criticism. There's no way to narrowly craft a law aimed at regulating a certain form of speech ("fake news") that has zero chance of ever being universally and concisely defined.

Filed Under: censorship, david kaye, fake news, italy, un

Bob Murray Sends Judge Whiny Letter Saying That Losing Case To John Oliver Is Making People Say Mean Things To Him

from the consume-defication,-bob dept

Thought the whole Bob Murray / John Oliver story was over with the judge making it clear Murray had no case and preparing to dismiss the whole thing? It appears that Murray cannot let it go. As first spotted by YouTubing lawyer Leonard French, Murray (not his lawyers) sent the judge a letter whining about the whole thing (check out French's video for a wonderful dramatic reading of the letter):

Or just go check out the letter yourself (kudos to French for getting the document and posting it and doing the dramatic read, shame on the West Virginia courts for not having web-accessible electronic records, and a plea to French to stop putting lame ugly watermarks on public documents). Of course, the reason the letter is public is that (1) parties are not supposed to talk to the judge about their case without telling the other side, and (2) parties are not supposed to communicate with the court directly, rather than via their attorneys. And, thus, the judge added Murray's letter to the docket in the case, along with a bit of a benchslap:

This date the Court received the attached unsolicited missive from the Plaintiff, Robert E. Murray. As it does not appear Mr. Murray forwarded copies of the same to Defense Counsel, pursuant to Rule 2.9(B) of the West Virginia Rules of Judicial Conduct, the Court has copied and enclosed the correspondence herein and filed the original in the Court's file.

Mr. Murray's letter is an improper ex parte communication with the Court, therefore the request to reconsider the Court's decision cannot and will not be entertained.

The Court respectfully requests Plaintiffs' Counsel to advise Mr. Murray against future ex parte correspondence which could result in sanctions against the Plaintiffs in this matter.

In other words: don't do this shit, Bob.

But, of course, the real joy is in Murray's letter itself, which is absolutely hilarious. It starts off talking about how disappointed he is in the ruling, which, sure, is understandable but it's totally improper to send a personal letter to the judge about it.

We are deeply disappointed to learn that you intend to dismiss our lawsuit against Home Box Office, Inc., Time Warner Inc., Mr. John Oliver, and others (collectively "Defendants"). We will appeal that decision in due course.

Right. If you (stupidly) decide to appeal this, your lawyers should appeal it in due course. Reaching out to the judge on your own is... not part of that "due course."

The jobs of our 6,000 coal miners depend on me and my reputation.

Right, then maybe you shouldn't have done a bunch of things that caused John Oliver and many others to mock you. And those mockable things include suing John Oliver for mocking you in the first place. Because the "harm" to your reputation was caused by you -- not John Oliver. There is no right in this country not to have people mock you, and considering how frequently Murray seems to be flag waving about how proud he is to be an American, he might want to take some time to read the First Amendment of the Constitution.

So, if 6,000 coal miner jobs really depend on your reputation (which, also: citation needed), then perhaps the first thing you should do is improve your reputation (pro tip: sending a hilariously dumb letter to the judge in your case does the opposite of improving your reputation).

My name is on the Company, and I am the one who our 140 lenders, our utility customers, the regulators, and the public look to in order to keep these jobs. You have enabled the Defendants to further destroy our miners' families. We write you today to inform you of the continued personal attack and harassment by the Defendants in this case.

If your lenders and customers bail because John Oliver made fun of you, perhaps there are larger issues at play. And, of course, Murray presents no evidence that any such lender, customer, regulator or anyone else has done anything to the company as a result of Oliver's story, or the ruling in this case.

As for "continued personal attacks," again I have to point you to the First Amendment. Personal attacks are protected. Making fun of you is protected. Telling you to "eat shit, Bob" is protected. This isn't even close. Telling the court that just told you such things are protected that such "personal attacks" have continued is not a compelling argument. It suggests someone is acting like a sore loser without even understanding why he lost.

Just because you feel bad, Bob, it doesn't make it illegal.

Indeed, just yesterday, the Defendants aired worldwide the enclose attack on the undersigned and our Compay, whereby John Oliver taunted us, once again, stating "Eat Sh-t Bob" and announcing that, once your order is issued, he will "gloat" and he will be "rubbing it in the face of the person that lost over and over again."

Oooooooooooooh. He taunted you again. I mean, that's positively Pythonesque, and we all know how King Arthur v. French Knight turned out, don't we?

This clearly demonstrates the vindictiveness and intentional destruction that the Defendants have caused.

No. It means that you were mocked, had such thin skin that you sued in a case that you quickly lost, and thus were called out on filing a bad case (pretty mildly too, frankly). It doesn't show "vindictiveness." You know what shows vindictiveness? Suing a television comedian for reporting on your antics because you don't like how you were portrayed. And, really, if anyone's trying to "destroy" anyone, I think that honor must go to the person who sued someone for making fun of them, demanding "general damages," "special damages," "punitive damages," "attorneys' fees" and "a permanent injunction" against the person who made fun of you.

It shows that these attacks will continue in perpetuity, as a result of your order.

No, not as a result of the order. As a result of you doing silly, mockable things up to and including filing a lawsuit over someone expressing their opinion that things you did were silly and mockable.

I am a dying old man, but our employees will pay for your decision.

Nice baseless appeal to emotion. But, of course, if you're dying, then how does your earlier statement about how all these employees relying on your reputation for their jobs make sense? Does that mean once you die they're all out of work? If so, isn't that a bigger threat to their jobs?

Further, since your ruling, we have been subjected to multiple insulting and threatening email and telephone messages, including these: "BOB, KISS MY A--"' "Hey Bob, I guess John Oliver f---ed you in your a--. You are a real evil piece of s--t"; "Consume defecation, Bob."; "What an old and selfish c--t of a human being. You and your industry are no longer relevant and the entire world knows it."; "Congratulations on having HBO make you look like a big fat lardass loser in court. Idiot.;" And "Ha ha you fat pig, you lost your lawsuit... burn in hell dr. evil." This is a very small sampling of the flagrant and extremely damaging personal attacks that we continue to receive on a daily basis.

First off, Bob, thank you for sharing those. We never would have seen them otherwise. I'm assuming that Bob self-censored the dashes in the curse words, which is nice of him. But, really, the "consume defecation, Bob" statement is a really tremendous work of art.

Oh, and Bob, defamation is not "people made fun of me and I'm sad." It requires false statements of fact made with actual malice. That's not what's happening. And you don't even bother to allege that's what's happening, because it isn't.

Accordingly, we respectfully request that you reconsider your decision to dismiss this lawsuit and allow this case to proceed on the merits.

What merits? There are no merits, which is what the judge has already made clear.

Indeed, this lawsuit is extremely important to our employees, who rely on Murray Energy and me for their continued livelihoods, and to our lenders, customers, and suppliers who depend on our integrity and performance. We cannot sit idly and allow our jobs and livelihoods to be destroyed by the cruel and baseless attacks of these defendants.

Wait. This lawsuit -- in which a key part is about John Oliver quoting one of your employees writing "Eat Shit Bob" on a bonus check he was voiding over safety concerns -- is "important" to your employees? You sure about that, Bob?

And, again, it's not the people making fun of you that's "destroying livelihoods."

The ACLU of West Virginia's Legal Director, Jamie Lynn Crofts, put out a nice statement in response to all of this:

“Other than the fact that Bob Murray’s case against John Oliver is a ridiculous attempt to quell speech by abusing our legal system, it really is the gift that keeps on giving. With the disdain Mr. Murray has shown for our constitution and our legal system, I’m not surprised that he would also improperly try to influence a judge in this way (or with such a hilarious letter). Unfortunately for Bob, everything John Oliver has said on his show was and continues to be protected speech. It is, in fact, legal for anyone to say, ‘Consume defecation, Bob.'”

Yes, all together now: Consume Defecation, Bob.

Filed Under: anti-slapp, bob murray, defamation, ex parte, john oliver, reputation, slapp
Companies: bob murray energy, hbo

Tenth Circuit Issues A Troubling Ruling Limiting New Mexico's Anti-SLAPP Statute In Federal Court

from the It's-Erie-how-problematic-this-decision-is dept

Last week the Tenth Circuit refused to let New Mexico's anti-SLAPP statute be used in federal court in diversity cases. The relatively good news about the decision is that it is premised heavily on the specific language of New Mexico's statute and may not be easily extensible to other states' anti-SLAPP laws. This focus on the specific language is also why, as the decision acknowledges, it is inconsistent with holdings in other circuits, such as the Ninth. But the bad news is that the decision still takes the teeth out of New Mexico's statute and will invite those who would abuse judicial process in order to chill speech to bring actions that can get into the New Mexico federal courts.

In this case, there had been litigation pending in New Mexico state court. That litigation was then removed to federal court on the basis of "diversity jurisdiction." Diversity jurisdiction arises when the parties in the litigation are from separate states and the amount in controversy is more than $75,000 and the issue in dispute is solely a question of state law. Federal courts ordinarily can't hear cases that only involve state law, but because of the concern that it could be unfair for an out-of-state litigant to have to be heard in a foreign state court, diversity jurisdiction can allow a case that would have been heard in state court to be heard by the federal one for the area instead.

At the same time, we don't want it to be unfair for the other party to now have to litigate in federal court if being there means it would lose some of the protection of local state law. We also don't want litigants to be too eager to get into federal court if being there could confer an advantage they would not have had if the case were instead being heard in state court. These two policy goals underpin what is commonly known as the "Erie doctrine," named after a 1938 US Supreme Court case that is still followed today.

The Erie doctrine is why a case removed to federal court will still use state law to decide the matter. But sometimes it's hard to figure out how much state law needs to be used. Federal courts have their own procedural rules, for instance, and so they are not likely to use procedural state rules to govern their proceedings. They only will use substantive state law. But it turns out that figuring out which a law is, procedural or substantive, is anything but straightforward, and that is the question at the heart of this Tenth Circuit case: was New Mexico's anti-SLAPP law procedural, in which case the federal court did not have to follow it, or substantive, in which case it did? And unfortunately in this case, Los Lobos Renewable Power LLP v. Americulture, Inc., the Tenth Circuit decided it was "hardly a challenging endeavor" to decide that it was only procedural.

It based a significant portion of its decision on language unique to the New Mexico statute that differed from other states' and emphasized its procedural operation:

Unlike many other states’ anti-SLAPP statutes that shift substantive burdens of proof or alter substantive standards, or both, under no circumstance will the New Mexico anti-SLAPP statute have any bearing on the suit’s merits determination. See, e.g., Makaeff v. Trump Univ., LLC, 715 F.3d 254 (9th Cir. 2013) (addressing a California anti-SLAPP statute that shifted substantive burdens and altered substantive standards).

It also looked to a New Mexico state supreme court decision that had used substantive/procedural language as part of its consideration of a different anti-SLAPP case:

The New Mexico Supreme Court’s recent decision in Cordova v. Cline, 396 P.3d 159 (N.M. 2017), supports our reading of the anti-SLAPP statute to a tee. ... The court could not have made itself any clearer: “While the Anti-SLAPP statute provides the procedural protections [the members] require, the Noerr-Pennington doctrine is the mechanism that offers [the members] the substantive First Amendment protections they seek.”

But picking out this language of the Cordova case to base its holding on suggests that the Tenth Circuit seriously misread what the New Mexico Supreme Court case was saying and all the effort it had made in its ruling to ensure that the state anti-SLAPP law would, in fact, have substantive effect in that case:

To curtail SLAPP suits, New Mexico enacted an Anti-SLAPP statute. Section 38-2-9.1. The Legislature enacted the Anti-SLAPP statute with the policy goal of protecting its citizens from lawsuits in retaliation for exercising their right to petition and to participate in quasi-judicial proceedings. Section 38-2-9.2. In order to accomplish this goal, the Legislature created expedited procedures for dismissing actions "seeking money damages against a person for conduct or speech undertaken or made in connection with a public hearing or public meeting in a quasi-judicial proceeding before a tribunal or decision-making body of any political subdivision of the state," Section 38-2-9.1(A), and allowing for the recovery of costs and attorney fees incurred in pursuing the dismissal, Section 38-2-9.1(B). … We conclude that the Legislature intended to protect all public participation, whether it be in quasi-judicial proceedings or public hearings. The specific protection in the Anti-SLAPP statute for participation in public hearings before tribunals also comports with a national political ethos, that "encourage[s], promote[s], and purport[s] to protect citizens' testifying, debating, complaining, campaigning, lobbying, litigating, appealing, demonstrating, and otherwise `invoking the law' on public issues." George W. Pring & Penelope Canan, "Strategic Lawsuits Against Public Participation" ("SLAPPS"): An Introduction for Bench, Bar and Bystanders, 12 Bridgeport L. Rev. 937, 945-46 (1992); see also Rowe & Romero, supra, at 221-23 (summarizing a lawsuit filed in state district court against protestors who appealed city approval of Wal-Mart's development plan to the district court and then the Court of Appeals and describing the lawsuit as a SLAPP because it was intended to discourage the protestors' public participation in opposing the development).

It's this language from the New Mexico Supreme Court opinion upholding the anti-SLAPP statute that should have informed the Tenth Circuit's analysis, not the substantive/procedural language that it used in an entirely different context than in the case before the Tenth Circuit. The bottom line is that with an operative anti-SLAPP law public participation in New Mexico is protected from costly litigation. Without it public participation in New Mexico has no such protection. But the Tenth Circuit's ruling means that New Mexico speakers only get the benefit of that protection if the people who try to sue them are local to New Mexico. If they instead have the misfortune of being sued by an out-of-state plaintiff able to assert diversity jurisdiction to get the case into federal court, they will suddenly be stripped of it.

The degree to which this deprivation obviously frustrates New Mexico legislative intent to protect speech, and leaves speech vulnerable to chilling abuse of process, shows just how substantive anti-SLAPP law really is, and thus just how out-of-step with the Erie doctrine the Tenth Circuit deeming it merely procedural really is. It's also inconsistent with another part of the decision where the Tenth Circuit itself seemed to recognize the anti-SLAPP law's substantive import.

As part of the same decision, the court also had to rule on whether it could even consider this interlocutory appeal of the district court's denial to enforce the New Mexico anti-SLAPP statute. Due to a missed deadline by the defendant, the court had to engage in a meaningful analysis that included assessing just how pivotal it was for the court to rule on the anti-SLAPP applicability question now, and not after the full case examining the merits of the lawsuit had concluded. And the court found that it was indeed very important:

"[W]ere we to wait for this case to conclude in the court below by ordinary process, the statute’s sole aim would already be lost. Defendants would have already incurred the ordinary time and expense of litigation that the statute potentially grants them a right to avoid. Indeed, we can reverse the rulings of a hi court, but we cannot order away proceedings and legal fees that have already passed into history. Nor can we remand the case with instructions to “do it again, but faster this time.”

This very same finding regarding the law's effect, a finding that underpinned the Tenth Circuit's ability to even consider the appeal at all, should also have led it to conclude that the anti-SLAPP law was in fact substantive, and thus applicable in federal court. Instead, however, when it came to considering the question of its applicability the court suddenly forgot about this significance. It based its decision on semantics, rather than substance, and in contravention of what the Erie doctrine at its root requires.

Filed Under: 10th circuit, anti-slapp, defamation, diversity, erie doctrine, federal court, free speech, new mexico, slapp, state court

Spanish Hate/Anti-Terrorism Speech Laws Doing Little But Locking Up Comedians, Artists, And Dissidents

from the it-will-get-a-whole-lot-worse-before-it-gets-even-worse dept

As Spain continues to expand its (anti-)speech laws, the rights of its citizens continue to contract. Not content with making it illegal to insult a cop or government officials, the Spanish government has decided to tackle hate speech and terrorism with the same ineptitude.

There's no punchline here. People are being arrested and charged with speech having nothing to with promoting hate or terrorism. And this is in addition to people who've found themselves targeted by vindictive public servants for daring to publicly criticize their words or actions.

It's gotten so bad Amnesty International -- an entity that usually spends its time decrying the acts of dictators and brutal authoritarians -- has felt compelled to speak up about Spain's terrible speech laws. Mathew Ingram has more details at Columbia Journalism Review.

In a new report on the phenomenon, entitled “Tweet… If You Dare,” Amnesty International looks at the rise in prosecutions under Article 578 of the country’s criminal code, which prohibits “glorifying terrorism” and “humiliating the victims of terrorism.” The law has been around since 2000, but was amended in 2015 and since then prosecutions and convictions have risen sharply.

So, who's been doing all this glorifying and humiliating? Well, it's not supporters of terrorism. Instead, it's musicians, artists, people telling jokes -- pretty much everybody but actual terrorists or proponents of hate.

Among those who have been hit by the law are a musician who tweeted a joke about sending the king a cake-bomb for his birthday and was sentenced to a year in prison, and a rapper who was sentenced to three-and-a-half years in jail for writing songs that the government said glorified terrorism and insulted the crown. A filmmaker and a journalist have also been charged under the anti-terrorism law, and a student who tweeted jokes about the assassination of the Spanish prime minister in 1973 was also sentenced to a year in prison, although her sentence was suspended after a public outcry.

Don't read too much into the into the post-outcry suspended sentence. Spain's government is still busy ensuring satire, commentary, and anything else that might wander into the territory of offensive remains a criminal offense. Anything that has been walked back has been the result of public outcry. Amnesty National's report "Tweet… if you dare" [PDF] notes hate speech and anti-terrorism speech law violations have resulted in 70 convictions over the past two years.

The student, (Cassandra Vera) who was arrested and sentenced for joking about a 45-year-old assassination, notes the government is still involved in acts of censorship that would be ridiculous if they weren't backed by threats of jail time.

Vera expressed similar views after her sentence was overturned. She pointed to the recent censorship of a work at a Madrid art fair and the seizure, on a judge’s orders, of Fariña, a book about drug-trafficking in Galicia, as proof that something was seriously wrong with free speech in Spain.

“People shouldn’t have to be afraid of expressing their opinions,” she told the Guardian. “What happened with Valtonyc and Fariña and the art exhibition showed that freedom of expression is under serious attack. I think freedom of expression has been dealt an almost fatal blow in Spain.”

Amnesty International is demanding the law be repealed. It has done little to deter acts of terrorism or successfully counter hate speech. Instead, it has been used to target dissidents, activists, and others who criticize the government. Whatever terrorism happens to be addressed under the law apparently only considers certain acts by domestic terrorists to be worthy of enforcement. Content and communications glorifying foreign terrorist groups is usually ignored by the government. As its report points out, the speech laws enacted by the Spanish government violate the rights of its citizens.

By using these laws to criminalize lawful expression, the Spanish authorities are disregarding international human rights law and standards. The impact of Article 578 is devastating to individuals – ranging from hefty fines, to lengthy periods of exclusion from the public sector, to prison sentences.

But even beyond these sanctions, such misuse of counter-terrorism provisions leads people to engage in self-censorship for fear that they may be targeted. The criminalization of such a wide range of expression has a general chilling effect and can create an environment where individuals are afraid of expressing unpopular views, or even making controversial jokes.

The report also notes several other European countries are also beginning to curtail the rights of their citizens in their quest to target hate speech and international terrorism. Germany's hate speech law roll out has been an unmitigated disaster and other countries like France and Italy seem all too willing to join Spain and Germany in killing satire, parody, and content they just don't agree with. All of this is being done under the heading of "public safety," but in reality, the public is no safer and will develop an unhealthy fear of their own governments.

Filed Under: art, censorship, comedy, free speech, hate speech, satire, spain

Censorship Creep Is Setting In As Social Media Companies Try To Stay Ahead Of European Lawmakers

from the all-the-speech-you-want,-except-maybe-far-less-than-that,-actually dept

Law professor Danielle Citron -- best known at Techdirt for her attacks on Section 230 immunity -- has written a paper attacking Google, Facebook, etc., but not for the reasons you might think. Her paper [PDF] points out policy changes that have been made by several tech companies not in response to users or US government activity, but to get out ahead of increasing regulatory pressure in Europe. In the recent past, these platforms routinely defended the rights of everyone around the world to engage in free speech, even if that meant offending local governments. Now, with the internet headed towards enforced Balkanization backed by hefty fines, US companies are now routinely engaging in preemptive censorship of content perfectly legal in the US (and arguably legal elsewhere).

More recently, social media companies have revised their speech policies concerning extremist and hateful expression. Unlike previous changes, however, these revisions were not the result of market forces. They were not made to accommodate the wishes of advertisers and advocates. Instead, they were adopted to stave off threatened European regulation. After terrorist attacks in Paris and Brussels in late 2015, European regulators excoriated tech companies for failing to combat terrorist recruitment on their platforms. Their message was clear: online platforms would face onerous civil and criminal penalties unless their policies and processes resulted in the rapid removal of extremist speech.

As Citron points out, much of the content being taken down by Google and others isn't even illegal under more extreme speech laws passed in European nations. The laws written in response to tragedies have managed to turn social media platforms into tools of government oppression.

All of this might enjoy some justification if EU regulators focused their efforts on speech proscribed in their countries. But this has not been the case. Calls to remove hate speech have quickly ballooned to cover expression that does not violate existing European law, including “online radicalization” and “fake news.” EU officials have pressed a view of hate speech that can be extended to political dissent and newsworthy developments. At risk is censorship creep on a global scale.

Companies headquartered in the nation with the most free speech protections are turning their back on protecting free speech. Overblown fears of radicalization have resulted in the removal of content with inherent journalistic value (not to mention possible investigative value) and efforts to clamp down on something no one can seem to define ("fake news") is turning American companies against American values. While there is something to be said about taking steps to prevent the spread of terrorism, the attack on "fake news" presents a real threat to free speech, when all that's at stake there is the careers of politicians and their spin doctors.

The paper notes that it isn't just current laws forcing this change. It's the threat of even more direct regulation of internet service providers. To head off more draconian measures, platforms are trying to guess what lawmakers might find offensive, often aided by moderation-via-heckler's-veto: policing content reported by users. The results have already been disastrous, turning European regulation of speech into darkly-comic embarrassments.

What's being targeted by these haphazard efforts are topics of conversation where more speech, rather than less, would be extraordinarily useful. Terrorism is worldwide problem but a bunch of memory-holing isn't going to make it go away. Convincing those inclined to radicalization to step away from the precipice takes social interaction, as much of it public as possible. If nothing else, a social media paper trail can help track down those who've decided to do harm to others.

The same goes for "fake news." It needs fact-checking, debunking, and rebuttals. Simply making it vanish only further convinces those already swayed by fake news that the content of removed articles must be so full of truth, the government/Big Tech/George Soros paid to have it deleted from the public consciousness. Efforts like these breed conspiracy theorists, rather than deter them.

And it's not just about what's already happening, no matter how disturbing that is. It's what will happen if tech companies don't reverse course and stop acquiescing to every request to engage in further content moderation. Mission creep will set in, pushed along by legislators who'd like to see all sorts of speech they don't like removed from the internet.

Without clear guidelines and specific examples, vague terms are vulnerable to revision and expansion. Consider the Code’s definition of “illegal hate speech”: speech inciting violence or hatred against a group or a member of such a group based on race, religion, national, or ethnic origin. Inciting hatred against a group is an ambiguous concept. It could be interpreted to cover speech widely understood as hateful, such as describing members of a religious group as vermin responsible for crime and disease. But it could also be understood as covering speech that many would characterize as newsworthy. Given the term’s ambiguity, incitement of hatred could extend to criticism of Catholics for covering up priests’ sexual exploitation of children. It could be interpreted as applying to speech challenging Islamic fundamentalism for its homophobia or suppression of women. It could be extended to speech exposing hatred faced by racial minorities.

The lawmakers who've set this system in motion can't be trusted to rein it in before it causes real damage. As Citron notes, they haven't been honest and open about their intentions to this point. There's no reason to believe honesty and transparency are just over the horizon.

Despite the protestations of EU regulators, they are neither voluntary nor the product of meaningful public-private partnerships. Instead, they are the result of government coercion occurring outside the rule of law. What is different about the pressure from states now is that it has brought about changes that risk worldwide censorship creep. Because governments are using terms of service to achieve their ends, the resulting suppression of speech will be global.

The internet is the world's greatest communications tool. It's no wonder so many governments seek to control it. That part isn't surprising. What is both surprising and horrifying is how accommodating major platforms have become. While it's understandable they're uninterested in losing large numbers of users in other countries, they've made decisions to block or delete content that isn't illegal in many of the countries affected by these moderation efforts. What is blocked as "clear" violations of some country's law isn't so clear when given a second look. Even the most heinous terrorism-related posting has value outside of its recruitment drive purpose. The public deserves to know what's being done to humans around the world in the name of major religions.

Hate speech -- something nearly as poorly defined as "fake news" -- has its own value, although little of it is in the words said. It helps those targeted identify possibly dangerous bigots. It lets everyone else know how little value this person adds to a discussion. If it's deleted and its purveyors' accounts suspended, it only serves to harden their hatred and inflate their perception of themselves. Instead of being ignorant and useless, they'll feel they threaten the status quo with the powerful truths, hence the censorship and "persecution" by powerful corporations and governments.

More speech is always better than less speech. But the snowballs rolling downhill from Google, Facebook, and Twitter are gathering speed. And those who feel the only speech worth protecting is speech they like are winning, in some cases without even having to lift a legislative finger.

Filed Under: censorship, censorship creep, danielle citron, eu, free speech, hate speech, intermediary liability, social media

Lucha Underground Wrestling Sends Legal Threat To Journalists For Publishing 'Spoilers'

from the it's-fake dept

Spoilers suck, sure, but this is the internet and some things cannot be avoided. Still, for those that produce content, there are better and worse ways to handle the issue of spoilers. Some large entertainment groups try to sue over spoilers, but it rarely works. Others settle for mere DMCA takedowns. Most entertainment groups, meanwhile, don't do a damn thing about spoilers, because that's the correct course of action.

Still, even with that wide spectrum of past responses, sending legal threats to journalists over spoilers, such as the Lucha Underground wrestling show has done, is a new one for me. The legal threats rest on the NDAs the audience has to sign before attending a show.

Since the series started filming in late 2014, it has always required audience members to sign non-disclosure agreements. But with hundreds of fans there, spoilers always get out.

This week, Lucha Libre FMV, a joint venture of Factory Made Ventures and Mexico’s AAA promotion, went a bit further than it had before, sending legal threats to wrestling reporters who published spoilers from the first tapings of Lucha Underground season four. Letters from attorney Paul D. Supnik were emailed on Wednesday to former TMZ producer Ryan Satin, now of Pro Wrestling Sheet, and to Steve Bryant of SoCal Uncensored. Satin published his on Thursday morning and Deadspin obtained Bryant’s around the same time. Reading the effectively identical letters, it seems as if the fact that both Satin and Bryant live in the Los Angeles area, where Lucha Underground is shot, may have played some role in them being targeted. It may just be that all the spoilers from the February tapings are attributed to their reports, but the letters do pointedly ask if their recipients attended the shows. Both Satin and Bryant maintain that they did not, and since FMV would have the NDAs, the implication is that they think both may have attended using aliases.

Interestingly, the letters assert that the reporting done by these journalists violates the NDA even if the journalist hasn't signed an NDA. This novel legal theory is predicated on Lucha Underground asserting that the spoilers, or event results, are trade secrets. The letter goes on to say that the journalists are or should have been aware of the status of event results as trade secrets, which opens them up to liability.

Spoiler alert: none of that is true.

The first amendment is quite clear on the matter of a journalist's right to report factual information, even factual information that an individual or company would rather keep hidden. If the Pentagon Papers can be published, surely so can the results of an underground wrestling event. And, even if that fact were more in question than it is, journalists, who rely enough on these protections to know their ins and outs, are the exact wrong people to try to threaten into silence. As one would expect, the end result of these threats is that both these journalists and their work has gotten far more attention that it would have otherwise.

Nacho Libre, meet Senorita Streisand.

Filed Under: contracts, free speech, journalism, ndas, spoilers, underground wrestling
Companies: lucha underground

Trump's Lawyers Apparently Unfamiliar With Streisand Effect Or 1st Amendment's Limits On Prior Restraint

from the someone-send-them-the-big-lebowski dept

Over this past weekend, it was revealed that (1) the adult film actress Stormy Daniels (real name: Stephanie Clifford), who has claimed she had an affair with Donald Trump and then was given $130,000 to stay silent about it, is scheduled to appear on 60 Minutes next weekend and (2) President Trump's lawyers are considering going to court to block CBS from airing it. This is silly, dumb and not actually allowed by the law.

Lawyers associated with President Donald Trump are considering legal action to stop 60 Minutes from airing an interview with Stephanie Clifford, the adult film performer and director who goes by Stormy Daniels, BuzzFeed News has learned.

“We understand from well-placed sources they are preparing to file for a legal injunction to prevent it from airing,” a person informed of the preparations told BuzzFeed News on Saturday evening.

Someone should send his lawyers the Supreme Court's ruling in New York Times v. United States, in which the Nixon White House tried (and failed) to block newspapers from publishing the Pentagon Papers, noting that it would be obvious prior restraint to block such a publication. As Justice Black noted in a concurring opinion:

Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.

In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.

If that's too complicated, someone could just send them renowned legal scholar Walter Sobchak's analysis of the issue of prior restraint. That might be more their speed:

Of course, even without it being blatantly unconstitutional, there's the general Streisand Effect nature of trying to stifle the interview -- which seems guaranteed to just make that many more people interested in what Clifford has to say about the President. One could argue that this was already going to get a ton of attention so perhaps it wouldn't make that big a difference on that front, but don't underestimate just how much free advertising this gets the interview... and how it makes more people wonder why the President is so focused on silencing Clifford.

Filed Under: 60 minutes, donald trump, first amendment, free speech, prior restraint, stephanie clifford, stormy daniels

Keeper Security Reminds Everyone Why You Shouldn't Use It; Doubles Down On Suing Journalist

from the which-is-harming-its-reputation-more? dept

Back in December, we wrote about a blatant SLAPP suit filed by Keeper Security against Ars Technica and its reporter Dan Goodin. Keeper makes a password manager product, and Goodin wrote an article, based on a flaw discovered by Google's Tavis Ormandy. The flaw impacted the browser extension that works with Keeper's application. Keeper took offense to certain elements of the article, and in particular to the idea that Microsoft had forced people to install the flawed software (since the flaw was actually in the browser extension, which is optional). Keeper Security also felt that the article implied that users of its software were vulnerable to a broad attack that put their passwords at risk, when the details suggested it was a more narrow (but still pretty bad) flaw that would require a specific set of circumstances to expose passwords, and there was no evidence that such a set of circumstances existed.

As we noted, however, the lawsuit was clearly bullshit. It was clearly an attempt to stifle negative press about a pretty bad flaw. In February, Ars Technica and Goodin filed both a Motion to Dismiss as well as a Motion to Strike under California's anti-SLAPP law. Both are well argued and worth reading. The Motion to Dismiss hits on all the expected points on why there's no legitimate defamation claim. The summary covers the highlights:

Defendants truthfully reported the findings of a noted Google researcher that there was a security vulnerability in Plaintiff’s password manager product, which had been bundled with Microsoft’s Windows 10 operating system. Plaintiff does not dispute that the flaw existed. Nevertheless, in response to Defendants’ truthful report, Plaintiff tried to bully Mr. Goodin into editing his news article to use language more to Plaintiff’s liking; Mr. Goodin agreed to make certain edits, and declined others, standing by the accuracy of the reporting.

The would-be “inaccuracies” Plaintiff identifies in the article are – at best – of secondary importance, and do not affect the article’s true “gist or sting”; for that reason alone, the Complaint fails as a matter of law. Furthermore, most of the statements that the Complaint alleges are “false and misleading” don’t have anything to do with Plaintiff, but rather, Microsoft. Such statements are not “of and concerning” Plaintiff and cannot be the basis for a defamation claim. Still other statements are subject to an innocent construction and are pure opinion, and not actionable under Illinois law for those additional reasons. Simply put, Defendants’ article uttered no falsehood that could have defamed Plaintiff. Nor does Plaintiff remotely plead publication with actual malice as required by the First Amendment.

Plaintiff’s assertion that “[t]he goal, and result, of the Article was to injure Keeper and its employees, and disparage Keeper’s products” ... is baseless hyperbole. The fact is, Plaintiff brought this lawsuit seeking to punish, and ultimately enjoin, publication of essential journalism on an matter of vital public concern – cybersecurity – involving a conceded vulnerability in Plaintiff’s product. The technology community is open and transparent in policing such vulnerabilities, and rightly so. Plaintiff, above all, should be interested in ensuring consumers are protected from potential threats – not in using litigation to chill public discussion of such threats. Permitting this case to go forward would not only be contrary to law, it would have a profoundly negative impact on important cybersecurity research and reporting generally.

More specifically, the motion highlights that all of the statements at issue in the case fail to meet the standards of defamation in that they are substantially true, subject to "innocent construction" (that is, they can easily be read in a non-defamatory manner), not even about Keeper Security (but about Microsoft) or non-actionable opinions. Furthermore, the motion notes that Keeper Security fails to plead actual malice, which is necessary as Keeper is a public figure ("actual malice" being the Supreme Court's required standard for defamation cases involving a public figure, and which has a specific definition of defamatory content that the authors knew was false, or which was posted with "reckless disregard" for whether or not it was false).

It's a pretty typical and well plead motion to dismiss. As for the anti-SLAPP motion, Ars/Goodin's lawyers decided to argue that choice of law principles require California's anti-SLAPP law to apply. Illinois, where Keeper is based and where the lawsuit is filed, does have its own anti-SLAPP law, but it's weaker than California's. I'm of the belief that it's proper to apply the anti-SLAPP law of the state of the speaker (even when applying the defamation law and venue of the plaintiff), since that state has the greater interest in protecting the First Amendment rights of its residents, and many courts have agreed. But not all.

Keeper has now (not surprisingly) opposed both motions (here's the opposition to the MTD and here's the opposition to the anti-SLAPP claim, both initially spotted by Zack Whittaker). Both of those filings are highly unconvincing.

Its opposition to the motion to dismiss is basically to just repeat certain phrases that it insists are defamatory -- taking them completely out of context. This is pretty weak, because once the statements are inevitably put back into context, it's difficult to see how Keeper has much of a case. It admits that Goodin corrected certain points upon learning of errors, and what's left are statements that are either mostly true or are clearly opinion. For example, this statement is one that Keeper insists is defamatory:

The flaw was almost identical to one the same researcher disclosed in the same manager plugin 16 months ago that allowed websites to steal passwords.

But that's clearly an opinion based on disclosed facts about the two flaws. It's not defamatory at all. Also, the following statement is listed by Keeper as being defamatory, but again, is clearly a statement of non-actionable opinion:

If an outsider can find a bug similar to the 16-month-old vulnerability so quickly and easily, it stands to reason people inside the software company should have found it first.

That Keeper is continuing to push these claims reflects really, really poorly on them. The company insists it had to file this lawsuit to protect its reputation, but it seems quite clear that this lawsuit is what's harming Keeper's reputation. As a fan of password managers, I will never recommend Keeper to anyone. And not because of the flaws. Every one of these products discovers flaws eventually. But because it's suing a journalist for covering it. So the following statement by Keeper in its opposition is pretty ridiculous:

The users of Keeper’s product rely on the integrity of the Keeper product and the reputation of Keeper in deciding to use the Keeper software.

Right. And suing journalists for writing about your flaws is a pretty damn good way to kill that reputation. As we pointed out in our original post on the lawsuit, lots and lots of security experts publicly suggested people stay away from Keeper because of the lawsuit not because of the flaw.

Keeper also claims its not a public figure, and thus doesn't need to show actual malice (though claims it can). First of all, it absolutely is as public figure under defamation law. As Ars/Goodin's motion points out, the company itself touts how it's an "innovator and leader" and "one of the world's most downloaded." Second, as for the claims that it can show actual malice, that's basically laughable. Goodin directly responded to multiple requests for updates with Keeper, changed a few things when he found their argument compelling, but didn't change parts he didn't believe needed to be changed. That's not what someone does when they're just looking to publish false information. Those are the actions of someone looking to get the story right. That's not actual malice. Just because Keeper disagrees with Goodin's editorial choices does not make them actionable.

In response to the anti-SLAPP argument, Keeper basically mocks the idea that California law could possibly apply in Illinois. But, again, it's not such a crazy idea. Plenty of courts have ruled that the speaker's location is the proper one to use for anti-SLAPP laws (even when the plaintiff's state's defamation laws are used).

Still, the larger issue stands. A softwarer company has filed a clear SLAPP suit against a reporter for reporting on some bad news about their software. That's horrific, and should tell you all you need to know about Keeper Security and whether or not to use their software.

Filed Under: anti-slapp, california, dan goodin, defamation, illinois, intimidation, password managers, slapp, vulnerabilities
Companies: ars technica, keeper security

Five Senators Agree: Search Engines Should Censor Drug Information

from the foot-in-the-door-for-greater-government-control-of-web-content dept

The US government would like to be involved in the web censorship business. The anti-sex trafficking bill recently passed by the House would do just that, forcing service providers to pre-censor possibly harmless content out of fear of being sued for the criminal acts of private citizens. Much has been made recently of "fake news" and its distribution via Russian bots, with some suggesting legislation is the answer to a problem no one seems to be able to define. This too would be a form of censorship, forcing social media platforms to make snap decisions about new users and terminate accounts that seem too automated or too willing to distribute content Congressional reps feel is "fake."

For the most part, legislation isn't in the making. Instead, reps are hoping to shame, nudge, and coerce tech companies into self-censorship. This keeps the government's hands clean, but there's always the threat of a legal mandate backing legislators' suggestions.

Key critic of Russian bots and social media companies in general -- Senator Dianne Feinstein -- has signed a handful of letters asking four major tech companies to start censoring drug-related material. Her co-signers on these ridiculous letters are Chuck Grassley, Amy Klobuchar, John Kennedy, and Sheldon Whitehouse. As members of the Senate Caucus on International Narcotic Control, they apparently believe Microsoft, Yahoo (lol), Pinterest, and Google should start preventing users for searching for drug information. (h/t Tom Angell)

The letters [PDFs here: Google, Yahoo, Microsoft, Pinterest] all discuss the search results returned when people search for information on buying drugs. (For instance, "buy percocet online.") But the letter doesn't limit itself to asking these companies to ensure only legitimate sites show up in the search results. It actually asks the companies to censor all results for drug information.

The senators specifically urge Google, Microsoft, Yahoo and Pinterest to take the following steps in helping us fight the opioid crisis:

• Directing users to legal and legitimate pharmacies that require a valid prescription as a condition of sale when users search for medicines on each platforms;
• Disabling the ability to search for illicit drugs through each platform;
• Requiring each platform to report to law enforcement when that platform receives information indicating that a company wants to advertise the use of or sale of illicit narcotics;
• Establishing a 24/7 telephone point of contact with whom law enforcement can communicate directly; and
• Incorporating training for each platform’s security reviewers to enable them to better recognize these threats when they first arise.

It's the second bullet point that's key. It simply says "disable the ability to search for illicit drugs." There's no way to comply with that directive that won't result in the disappearance of useful information needed by thousands of search engine users. As Angell points out in this tweet, this would possibly cause information about drug interactions to be delisted. On top of that, students often need to research illegal drugs for class assignments and term papers. Authors and journalists also need access to a variety of drug info, including various ways they can be purchased online. Law enforcement Googles stuff just like the rest of us and its ability to track down purveyors of illegal drugs would be harmed if it was all pushed off the open web.

Those seeking to buy illegal drugs would find other ways of accomplishing this even if the info disappears. The so-called dark web is an off-the-radar option that many are using already. A whole host of useful info is in danger of being removed simply because questionable purveyors of prescription drugs have found a way to game search engine algorithms.

All of the companies receiving letters already have policies in place to restrict the illicit sale of drugs. They also have policies in place to forward pertinent info to law enforcement agencies. So, companies are already doing much of what is asked, but these senators feel the mere existence of questionable sites in search results makes these companies "facilitators" of illegal drug sales.

If SESTA is signed into law, it will make it that much easier for the government to demand similar legislation targeting opioid distribution. It will allow the government to claw back more of the immunity granted to service providers with the passage of the Communications Decency Act. The more holes drilled into Section 230 by legislation, the easier it is to remove it entirely, and paint targets on the back of search engines and social media platforms.

It's also dangerous to suggest companies need to set up dedicated 24/7 service for law enforcement agencies. This will only encourage law enforcement to bypass legal protections set up by previous legislation and lean on companies already feeling the heat from the government's increasingly-insane reaction to opioid overdoses. Warrants will seem unnecessary when legislators in DC are saying tech companies must be more responsive to law enforcement than they already are.

A suggestion from the government to start censoring search results is exactly that: censorship. The government may not be mandating it, but this is nothing like a concerned citizens group asking for more policing of search results. There's the threat of legislation and other government action propelling it. Even if these senators aren't mandating policy changes, they're still using the weight of their position to compel alteration of search results.

Filed Under: amy klobuchar, censorship, chuck grassley, dianne feinstein, drugs, first amendment, free speech, john kennedy, search, search engines, sheldon whitehouse
Companies: google, microsoft, pinterest, yahoo