You will recall that earlier this year we discussed the University of Illinois’ attempt to trademark bully an alumnus out of making orange and black shirts that read “Make Illinois Great Again.” The whole story surrounding the school’s actions is somewhat more complicated than it might appear. Part of the issue is that the shirts in question used the image of Chief Illiniwek, something of a mascot the school abandoned a decade ago, and one that was the source of controversy given its cartoonish mannerisms as related to Native American tribes. So, when the school first objected to Ted O’Malley’s trademark application, and then later filed suit against him, you should understand that it was done as the school remains under public pressure to disavow the previous use of this imagery. All of that being said, claims that the school’s trademark gives it the right to control the word “Illinois” on all apparel were obviously silly.
But trademark bullying works, as we’ve stated many times in the past. And it tends to work all the more when the bully has a large war chest to fund its legal team and the victim is a much smaller, much less well-funded entity. Such appears to be the case with O’Malley, who has settled with the school and essentially agreed to its demands in return for a measly $7,500 payout.
The University of Illinois is paying $7,500 to the Chicago-area alum who made T-shirts that said “Make Illinois Great Again” on the back and had a drawing of Chief Illiniwek on the front. In exchange, Ted O’Malley has to stop selling the shirt and agreed not to sell similar T-shirts in the future.
The UI reached a settlement with O’Malley after suing him in March for violating its trademarks for the word “Illinois” and a copyrighted photo commissioned by the UI of the Chief holding up his arms. The UI has also agreed not to challenge O’Malley’s “Make Illinois Great Again” trademark and to dismiss its lawsuit.
Ok, so you may read this and conclude that it’s not a full win for the university. And that’s true in that O’Malley no longer faces the lawsuit, no longer has to worry about the copyright component of the legal action, and gets to keep his “Make Illinois Great Again” trademark. What such a conclusion would ignore is that the real aim of the school in all of this was, again, to keep an alumnus from using any imagery of a mascot it itself used to embrace but has since abandoned. The school’s real issue here isn’t trademark or copyright violations, but rather making sure it appears to act to keep images of the Chief from being displayed at all.
Put another way: if O’Malley had done everything exactly the same but had never used an image of the Chief on his shirts, the school likely would never had taken any action against him whatsoever. Cast in that light, the school essentially misused intellectual property law in order to attain an unrelated goal. That’s trademark bullying. And, for $7,500, it got what it wanted. Keep in mind that part of the point of the shirts were commentary on the state of the University of Illinois and, specifically, its athletic programs.
With the settlement, O’Malley agreed to no longer sell “Make Illinois Great Again” clothing that is orange and blue or that uses any of the UI’s trademarks, logos, symbols or landmarks, such as Chief Illiniwek, the Alma Mater statue or Memorial Stadium.
If he makes “Make Illinois Great Again” clothing in the future, he agrees not to make athletic clothing or to use a font similar to the “Fighting Illini” font. He also agreed not to use the “Make Illinois Great Again” trademark to “disparage or impugn” the UI, something his lawyer, Doug Johnson, did before the lawsuit was filed.
So the school used taxpayer money to silence a critic using an embarrassing old mascot’s image by being an IP bully. That’s not a great look for a public institution.
Update: A quick correction/clarification here. The hacked texts in questions were from Manafort’s daughter, rather than Manafort himself, but included texts between Manafort and his daughter, as well as other texts about Paul that his daughter sent or received. Wikileaks, for its part, says it didn’t publish the texts because they weren’t verified. Except that multiple people confirmed the legitimacy of those texts including Paul Manafort himself. The point of the article still stands.
We just wrote about why it would be a dangerous move for press freedom for the DOJ to prosecute Julian Assange for publishing leaked documents. In that post, we noted that even if you think Julian Assange is a horrible human being and proactively trying to undermine US electoral sovereignty, the mere act of publishing leaked documents should not be criminal. But, that doesn’t mean that Assange can’t be hypocritical and one-sided. Obviously, during the 2016 election, when Wikileaks helped spread both John Podesta’s emails and the DNC’s emails, some wondered if Assange would have published similar messages from the Trump campaign. While publicly Assange insisted he disliked both campaigns equally, other reports and leaked (of course) chat messages certainly suggested otherwise, as did at least some of his apparent attempts to ingratiate himself with Trump insiders, including asking Don Jr. to leak his father’s tax returns to Assange to “dramatically improve the perception of our impartiality.”
Of course, when faced with an opportunity to post the equivalent of the Podesta emails on the Trump side, it appears that Assange decided not to do it. Public records-savant Emma Best recently chose to publish the entire collection of leaked Manafort family texts in a searchable database. These texts have long been out there and available if you knew where to look — and had received widespread reporting in early 2017. However, beyond the excerpts, they were not fully available in a way that was searchable for most users.
Best communicated with Wikileaks, who admitted that it had the entire collection as well, but chose not to publish it — which certainly can be read as hypocrisy on Assange’s part, considering the similarities with the Podesta emails. As Best notes in discussing the decision to publish these in a more accessible format:
The public haven?t had access to the messages, and the press (including high profile and high budget outlets) haven?t had access to an easily searchable version ? instead only to an unwieldy database.
This was nearly not the case, however ? WikiLeaks had a copy of the database, but ultimately didn?t publish it, despite its newsworthiness and their willingness to publish unredacted information on the Democrats. Their unexplained decision not to put the database into a searchable format and make it public struck me as questionable at the time, but in light of the disclosure of their preference for the GOP it has become not only questionable, but hypocritical. WikiLeaks? decision can no longer be trusted prima facie or viewed in terms of presumed good faith.
[….]
This noteworthy refusal, along with ongoing probes and charges filed against Manafort by the Special Counsel?s office, makes the text messages and their contents undoubtedly newsworthy. Their relevance to the general public may go beyond this, as the personal reality reflected in the messages presents the Manaforts as real people, rather than merely as abstract figures. This same reality is, of course, also relevant to news and current events, and to understanding the character and actions of those involved.
There may be reasons why Wikileaks chose not to publish these texts, but the fact that it eagerly published the Podesta emails, yet held back on publishing these texts should at least raise serious questions. Obviously, every publisher makes different decisions on what to publish and what not to publish. And there’s no rule saying that you absolutely must publish every “equivalent” set of data or stories. But given all of the background here, and the high profile nature of this, it is noteworthy to point out the different approaches Wikileaks chose to take with two similar sets of data on different sides of the 2016 election.
One thing we’ve talked about for a long time at Techdirt is the importance communities for media outlets, including our own. These days, it feels like a lot of media companies are giving up on this work altogether and outsourcing it to social media platforms — but that means foregoing some of the most powerful aspects of the internet. This week, we’re joined by Josh Millard, who recently took over MetaFilter, to talk about building online communities and not relying on Facebook.
Let’s be clear: I know that many people — perhaps entirely reasonably — really, really dislike Julian Assange and Wikileaks. For some people that feeling has been there for years. For others it’s related directly to the role that Wikileaks played in helping to release hacked emails designed to impact the 2016 election. There certainly appears to be plenty of evidence that, at the very least, Wikileaks was in contact with Russian operatives and made plans to try to get and release documents at times that would have the maximum impact on the election. As I’ve said over the years, I don’t have much respect for Assange who, among other things, often appears to be a total hypocrite. However, I have also made clear that prosecuting him and Wikileaks for doing nothing more than publishing leaked documents would set a horrible precedent. I feel similarly about the DNC’s silly lawsuit as well.
The DOJ has apparently has been trying to indict Assange for more than 8 years now with nothing to show for it yet. In large part, this is because what Wikileaks has done is really no different than what any news publication does when publishing leaked documents. There may be laws against leaking certain documents to the press, but the First Amendment completely bars lawsuits against the recipients of leaks then publishing them.
This is in the news again as reports are brewing that Ecuador is expected to withdraw asylum for Assange, possibly handing him over to British officials, who may in turn hand him over to the US. When I discussed this on Twitter recently, a bunch of people responded angrily that Assange deserves to be in jail because of his role in the 2016 election. But when pressed to explain how what he did was any different than the NY Times or CNN in publishing leaked documents, people go quiet — or the say something silly like “but those other news orgs are based in fact.” But, that’s a silly argument. First of all, nothing that Wikileaks has published has been shown to be false or faked (the DNC made some claims to that effect but no one ever presented any evidence or pointed to any faked documents). Second, given the propensity of some — including the President of the United States — to argue that the NY Times, CNN, the Washington Post and others are “fake news,” do we really want to be setting the precedent that if you publish something false you can get prosecuted for it?
The case raises a number of important press freedom questions: Where should courts draw the line between source-building and “conspiring”? What activities could implicate a journalist in a source’s illegal behavior? Would putting a SecureDrop link soliciting leaks count as illegal conspiracy? And if a reporter asked for documents on an individual while indicating that they think the person deserves to be exposed, would that count as shared motive, or is the only truly protected activity passively receiving leaks, like radio host Vopper?
“There is a spectrum that run on one side from someone dropping a plain manila envelope, to the other extreme where you actually steal the documents yourself,” said David McCraw, deputy general counsel for The New York Times. “The line in the middle is still being determined by the courts.”
David Bralow, an attorney with The Intercept, added, “It’s hard to see many of WikiLeaks’ activities as being different than other news organizations’ actions when it receives important information, talks to sources and decides what to publish. The First Amendment protects all speakers, not simply a special class of speaker.”
Some will argue that Assange should be prosecuted for conspiring with the Russians, but again let’s see what actual evidence there is to support such a claim. And, as we see above, what counts as “conspiring” is pretty important here. Tons of news sites now use SecureDrop or similar means to recruit sources and documents. Is that “conspiring”? Because if it is, that’s a huge blow to press freedom.
Even if you hate Assange and Wikileaks, please take a moment to consider how a prosecution of him for publishing documents, even if they were taken by nefarious means by a hostile foreign government, would set an absolutely terrible precedent for press freedom in America.
It appears the state of Texas is offering a limited “right to be forgotten” in county courts. A few years back, the state appeals court had to get involved and remind the county no such right exists in the Texas, much less the rest of the states Texas seems to be embarrassed to be associated with. At the center of the case was an expungement order for an attorney accused of forging other attorneys’ signatures on court filings.
While his case may have been expunged, expungement only covers the official record. This would remove info from government databases. Texas law also provides for the removal of info from certain sites reliant on public records (mugshot sites, background check services), but the law does not go so far as to demand news sites and search engines purge themselves of articles related to now-expunged criminal acts.
A lower court decided to drag Google into this, demanding it de-index anything covering the expunged crime. Google did not comply and the state appeals court reversed the lower court’s order, finding it not so much a violation of the First Amendment (which it is), but that it skirted due process by not allowing Google and the sites being de-indexed to argue against the removal order in court.
Until a week ago, Houston’s ABC-13 TV station, KTRK, had the following story on its web site (I quote the July 13, 2017 version, which had been updated from its original 2016 story):
An Alief ISD teacher is no longer in the classroom after he was arrested on allegations of domestic violence.
Damon Barone is charged with assault-family violence. According to a statement from Alief ISD, Barone was a teacher at Mahanay Elementary School but has not been on campus since April 4. He’s currently on administrative leave and the district says “he will not return at any point.”
Alief ISD officials say the incident did not happen on school property or at a school event.
The charges have since been dropped, but Barone remains no longer employed with the school district.
About a week ago, that story disappeared from the site. And that disappearance seems to be linked to a Houston court’s June 26 expunction order (signed by Judge Michael Landrum), which purports to cover KTRK.
The order [PDF] is hosted at the Lumen database. This lives on, but KTRK’s story does not. KTRK was under no legal obligation to remove the story. State law does not require the deletion of news stories following an expungement order. To put things generously, the judge in this case appears to have misinterpreted the law. KTRK has complied with an order it didn’t need to and now has played its small part in erecting a Texas-based “right to be forgotten.” Google most likely did not de-index the site in response to this request, but with KTRK deleting its coverage, the de-indexing will occur anyway.
As Volokh points out, this isn’t the way the law reads and it certainly isn’t the way the law is supposed to work. It could be the judge didn’t read the list of potential targets closely and allowed Barone to nuke KTRK’s story along with the sealing/removal of criminal records. Whatever the case is, those seeking to abuse a system to erase their criminal history will be encouraged by Texas courts and their inability to restrain expungement requests to government agencies and databases.
What I do know, assuming the order is authentic, is that a Houston court order purports to institute a “right to be forgotten” as to this particular news story. And this is at least the second such case in the last two years: The first case that I know of is the even more troubling Derek Collier Thorworth matter, where an expungement order seemed to require the media to remove a story about a county constable who had pleaded guilty to abusing a prisoner, and where the constable demanded that a TV station indeed do so, based on the order. […] Some might think that’s a sound approach, but it’s not authorized by Texas law and not consistent with the First Amendment.
This won’t be abused nearly as much as the fake libel lawsuit scam being perpetrated in courts around the country. And it won’t scale like regular old DMCA abuse that tends to backfire on those attempting to use Google takedown requests to clean up their vanity searches. But it will let people with expungement orders believe they can eliminate content from the internet at large. And if judges aren’t careful, they’ll sign off on orders letting them do exactly that.
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The video makes a number of blatantly false claims from various members of the House Judiciary, but let’s focus mainly on the claims of Ann Wagner, whose original bill kicked off the process that became FOSTA/SESTA. She’s been spreading moral panic nonsense about sex trafficking and the internet for ages, so it’s no surprise that she continues to do so. But, at one point in the video she states:
“We have shut down nearly 90% of the online sex trafficking business and ads.”
She kind of swallows that last “and ads” bit so you could miss it, but either way it’s utter and complete nonsense. I looked all over for any evidence of the claim that 90% of online sex trafficking has been stopped and there doesn’t appear to be an iota of support for that. The only stat I could find that is possibly being twisted to make this argument is that when Backpage was seized earlier this year — notably before FOSTA/SESTA was signed into law — a Reuters report claimed that 90% of Backpage’s ads were for “adult ads.”
But, that in no way translates to Wagner’s nutty claim for a whole long list of reasons:
Backpage was not the entire online market for sex trafficking ads (amusingly, Wagner admits this earlier in the same video, in which she falsely claims that there were “hundreds and hundreds of websites selling our children with impunity” < -- narrator: "there were not, in fact, hundreds and hundreds of websites doing so, and they were not doing it with impunity."
Many of the adult ads on Backpage were not for sex trafficking at all
Backpage stopped hosting adult ads a year and a half ago in January of 2017, over a year before SESTA/FOSTA became law and over a year before the site was seized by the feds.
And, again, Backpage was seized before SESTA/FOSTA was even signed into law.
So, where, exactly is Wagner getting this stat of having shut down 90% of online sex trafficking and ads because of FOSTA/SESTA?
There’s other nonsense in the video as well. Wagner’s other whopper was:
“If it’s a crime offline, by golly, it’s a crime online!”
Uh, yes. But that’s always been the case. FOSTA/SESTA didn’t change that. All it did was create a series of new crimes for third party tools and services used by not just sex traffickers, but sex workers. Sex trafficking was already illegal and this bill did absolutely nothing to change that. It is simply wrong to imply that FOSTA/SESTA suddenly made something illegal online that had been legal online before but illegal offline. It’s not true.
Then there’s Mimi Walters’ who brought the amendment that combined FOSTA and SESTA, making both bills worse. Her credibility on this whole thing is already suspect, given that after the feds took down Backpage, she took credit for it falsely saying it was because of FOSTA/SESTA even though that bill was not law yet. But, here she is in the video spewing more nonsense:
“This legislation will now make it illegal to sell people online and give those survivors the opportunity to seek justice.”
Except it was always illegal to sell people online (and offline!) and nothing in FOSTA/SESTA changed that. All it did was create a new crime in which tools and services used by traffickers could also be found to be criminal in addition to the people who were doing the actual selling of people (while also making it harder for law enforcement to find those people — but we’ll get there). She continues:
“Websites that knowingly facilitate sex trafficking are no longer immune from legal action.”
Except they were never immune from legal action. Facilitating sex trafficking is a federal crime and nothing in CDA 230 contained immunity for federal crimes. It really makes you wonder why the primary “authors” of the bill seem to feel so hard pressed to flat out lie about what their own bill does. Why would they do that?
The video also has Judiciary Committee Chair Bob Goodlatte with more of his nonsense as well.
“The provisions of this law are already making the internet safer.”
[Citation needed] Amusingly, right after Goodlatte says that, the video in an effort to support this claim flips to a news report about the shutdown of Backpage… which (and I know I’m repeating myself here) was taken down without the helps of FOSTA/SESTA since it wasn’t even signed into law.
Also, the evidence to date leans heavily against the claim that it has made the internet safer. Indeed, already we’ve seen reports about sex workers being killed and pimps being empowered now that sex workers can’t use sites like Backpage to screen clients. And a big study has highlighted how a lack of such services likely leads to a massive uptick in murder of women (not just sex workers, but women in general). And, lest we forget, police departments themselves are now complaining that they can no longer find sex traffickers thanks to the law.
Notice that the video addresses none of those effects (all of which were widely predicted). It just insists that the internet is safer. This is legislative fantasyland.
Of course, there’s another oddity here. Why the hell is the House Judiciary Committee Republicans suddenly putting out such a video? The bill has already passed and it’s already doing lots of damage. So why is Congress spending taxpayer money on a professionally edited video talking up a bunch of nonsense? Perhaps, as many have suggested, a key part of FOSTA/SESTA was always about grandstanding about how these politicians are “tough on sex trafficking” even if that’s not accurate at all. And now that we’re heading towards election season, I guess they have to milk that grandstanding bullshit for all its worth. Go spend your constituents hard-earned tax money by lying to them! What a job!
Of course, another reason for all of this may be the recent lawsuit claiming that FOSTA/SESTA is unconstitutional. While we’ve written about it already, the stories of some of the plaintiffs in that lawsuit tell the real story of how FOSTA/SESTA is harming people. Among those suing are a national alliance of Asian massage stores, who note that, thanks to FOSTA/SESTA their completely legitimate businesses are now being blocked from advertising, because some falsely assume that any Asian massage stores must be engaged in the sex trade.
…many Internet sites and review platforms flatly refuse content from or about Asian massage providers, DiBenedetto indicated. ?Since it?s assumed we?re in the sex trade because we have Asian women offering Asian massage, platforms that used to run our ads and carry our reviews all the time now want nothing to do with us.?
The loss of those online outlets is devastating to providers of Asian massage services, said DiBenedetto. ?They are unfairly cutting our stores off from the consumers we need to attract in order to stay viable. The business model of the typical Asian massage store requires a continual inflow of new customers. That inflow is heavily disrupted by us being profiled.?
DiBenedetto said Asian massage studio owners and masseuses now, ?go to work every morning wondering if today will be the day their livelihoods vanish because all the doors have been slammed in their faces. This is so demoralizing, not to mention dehumanizing.?
So, to summarize, the House Judiciary Committee appears to be spending taxpayer money on a video celebrating a law that doesn’t do what they claim it does, taking credit for a site takedown that wasn’t because of the law, making up stats that have no basis in reality, ignoring the fact that their law has put many lives in real danger while making it more difficult for law enforcement to do their job, not to mention harming small business owners at the same time.
And people wonder why Congress’ approval rating is so low.
* Our standard practice is not to name the party of politicians unless that’s central to the story. In this case, the video is literally coming from a YouTube account that is apparently run by the Republicans on the House Judiciary. And this is not a “Republican v. Democrat” thing, because the Democrats on the Committee also supported FOSTA/SESTA. It was bipartisan nonsense, so if you happen to support the blue team or the red team, stupid generalizing comments about one party or the other will just make you look silly and tribal, rather than insightful or intelligent.
Last week, the FCC shocked many by sending the Sinclair Tribune merger to merger review purgatory. It was shocking, in part, because the FCC had spent the better part of the last year comically neutering decades-old media consolidation rules specifically at Sinclair’s behest, only to suddenly turn around and find fault with Sinclair’s logic, relegating the merger review to an administrative law judge (historically the death knell for similar deals). Many of these rules have traditionally had bipartisan support, since they prevent any one company from dominating local media and distorting public discourse.
In a statement, FCC boss Ajit Pai indicated that the company appears to have misled regulators in its bid to pretend the deal would fall under the national media ownership cap, which bans any one broadcaster from serving more than 39% of the population. Again, a stark and sudden reversal for an agency that, until last week, had been taking an ax to decades-old media consolidation rules specifically to help grease the skids for the controversial deal, which would have given Sinclair ownership of more than 230 stations reaching 72% of the public.
Sinclair’s merger is controversial thanks to the company’s comically-slanted and highly misleading local news coverage, which recently made headlines thanks to a viral Deadspin video showing the facts-optional claptrap the broadcaster forces local stations to air in somewhat creepy synchronicity. But Pai kept going out of his way not only gutting media ownership rules, but re-instating obscure bits of regulation specifically to help Sinclair tiptoe around such limits (odd for a guy that complains endlessly about “burdensome, unnecessary regulation”).
Pai’s efforts to aid Sinclair were so blatant, he’s now facing an investigation by the FCC’s nonpartisan Inspector General into whether he coordinated the assault on the rules with Sinclair.
In short, for Pai to retreat from his Sinclair cronyism, the company must have done something notably idiotic. That something was subsequently laid out in the full FCC order (pdf) shoveling merger review off to an administrative law judge, something traditionally seen as fatal for such deals. The order notes that Sinclair, as some consumer groups had noted, had been trying to tap dance around remaining ownership rules by offloading some broadcasters to shell companies, subsidiaries and Sinclair partners at highly-discounted rates, hoping to then reacquire those companies after the deal was approved.
The FCC’s order is decidedly polite about it, but repeatedly notes how Sinclair tried to bullshit its way around the fact it had business ties to many of these potential partners and would, in many instances, still be running these broadcast stations post merger. Many of these partners had absolutely zero experience running local broadcasters, and were usually tied to Sinclair in some capacity. Like Steven Fader, CEO of a car dealership, who the FCC notes would have received a decidedly “below market value” deal as part of Sinclair’s plan:
“By way of example, one application proposed to transfer WGN-TV in Chicago to an individual (Steven Fader) with no prior experience in broadcasting who currently serves as CEO of a company in which Sinclair?s executive chairman has a controlling interest. Moreover, Sinclair would have owned most of WGN-TV?s assets, and pursuant to a number of agreements, would have been responsible for many aspects of the station?s operation. Finally, Fader would have purchased WGN-TV at a price that appeared to be significantly below market value, and Sinclair would have had an option to buy back the station in the future. Such facts raise questions about whether Sinclair was the real party in interest under Commission rules and precedents and attempted to skirt the Commission?s broadcast ownership rules.”
If you watched the FCC railroad consumer interest and trample all objective science during the net neutrality repeal, it’s understandable why Sinclair executives thought they’d be able to peddle this sort of bullshit at the agency. But the FCC investigation into Pai, who has pretty obvious post FCC political ambitions, likely gave the agency boss pause. Others think that opposition to the deal by Trump pal Rupert Murdoch (who was also advocating for the blocking of the AT&T Time Warner deal) may have also played a role in the FCC’s decision to walk back from this decidedly-unstable branch.
Regardless, Pai’s blockade ensures that the Sinclair merger (at least as written) is likely dead, and it shows that Pai’s agency does occasionally do the right thing, even if it’s probably for the wrong reasons.
Time for another reminder that the UK is not some sort of America analogue — one that favors pomp and circumstance to opinionated bumper stickers and stabbings to shootings. The UK government may say nice things about free speech, but when it all comes down to it, its citizens might as well be colony residents still seeking to break free from the Kingdom’s confines.
“The veracity of the published information in this case is not in issue. What the BBC published was accurate. What is more questionable is the method of obtaining the information.”
That quote comes from a lengthy new decision from the High Court in England, which reviewed a privacy case brought by Sir Cliff Richard, one of the U.K.’s most successful singers ever.
So, where does this leave British journalism? That’s anyone’s guess. Accurate reporting is great. But you’d better obtain your info in a way that please whatever court you might be facing years down the road. And you sure as hell better not “sensationalize” your accurate reporting.
The fact that it was the lead story on the 1 p.m. news; that the story was accompanied by a ticker at the bottom of the screen; how Johnson was broadcasting from outside the property; shots of cars entering the property; helicopter shots; moving pictures of the property; people walking back and forth…
“It may have made for more entertaining and attention-grabbing journalism,” says the dour British judge. “It may be justifiable or explicable on the footing that TV is a visual medium and pictures are part of what it does. It did not, however, add any particularly useful information…I still consider that the main purpose of utilizing the helicopter was to add sensationalism and emphasis to the scoop of which the BBC was so proud. The BBC viewed this as a big story, and presented it in a big way. This was also manifested in other aspects of the coverage — the coverage from Portugal, pointless though it turned out to be, lent an urgency to the presentation of the story.”
The BBC was tipped off by someone within the police department that Cliff Richards was under investigation and that his house would likely be searched. The BBC did what it could to verify this info and flew its helicopter over Richard’s house on the off chance it was being raided. Everything reported was a fact, but the judge in this case simply did not like how it was handled. Suddenly, normal journalism is an “invasion of privacy,” worthy of damages being awarded to the person being accurately reported on.
The BBC isn’t happy with this decision, rightly noting that it upends the practice of journalism, especially in cases of public interest, like law enforcement investigations for instance. The lengthy decision recounts all the facts — including emails between the BBC and their police source. What can’t be found in the dozens of pages is anything justifying this ruling. This appears to be a personal decision by a judge who didn’t like how Sir Cliff Richard was handled by the BBC and decided to punish the press outlet for offending his sensibilities.
In the United States, this would immediately be appealed on First Amendment grounds. In the UK, it’s not so clear how one undoes a harmful decision that penalizes accurate reporting judges don’t like. I’m sure it will be appealed, but there’s no First Amendment protection for journalism, so the basis for an attack isn’t clear. The judicial system still has plenty of other reasons to reject the BBC’s appeal, even though the basis — accurate reporting should be legal — would seemingly be an inarguable point.
Until this is overturned, any number of people who don’t like unflattering press coverage will be able to leverage it to pursue journalists for accurate reporting. If the UK government really wants a press that only covers people who want to be covered, it can keep creating exceptions to its very limited speech protections and turn the “right to be forgotten” into a right to never be written about in the first place.
