Indian Court Orders Global Takedown Of 'Defamatory' Video From YouTube, Twitter, Facebook

Defamation

from the jurisdiction-fight dept

I’ve mentioned in the past that, from Techdirt’s earliest posts, one key topic is how you handle “jurisdiction” on the internet, since the internet is global, and laws don’t always work that way. Indeed, allowing for global jurisdiction for any particular government’s laws would inevitably mean that the most draconian and the most limiting laws rule around the globe — and that should worry everyone. This is why we’ve been so concerned about rulings concerning “global” blocking of content in places like Canada and the EU. Thankfully, just recently, the Court of Justice in the EU stopped one global application of the EU’s right to be forgotten, and Canada’s attempt got effectively stopped by a US court.

And now we get to see how all this plays out in India, as a court has issued a global blocking order directed at Facebook, YouTube and Twitter. The content in question appears to be a video about a book, Godman to Tycoon that the courts have deemed to be defamatory towards Swami Ramdev, a somewhat controversial “yoga superstar.”

The companies pushed back arguing a variety of points including that the whole case made no sense since the person who uploaded the videos themselves wasn’t even targeted with any lawsuit — and if that person removed the videos, they would be gone worldwide. But, mostly they focused on just how wrong it is to think that an Indian court should be able to control content well outside its jurisdiction (and they point to the rulings in the Canadian and EU cases above, among others, to suggest that it will only lead to embarrassment for the Indian court to try to reach its power too far).

He further submits that a global ban on content ought to be the last resort of the Court. Such an order results in muzzling dissent. Reliance is placed on the Equustek litigation, wherein an order to remove content was passed by the Courts in Canada and when Google brought an action before a US District Court to prevent enforcement of the Canadian Court?s order, the U.S. Court restricted the application of the Canadian court?s order only to Canadian territory. Such judgments could severely undermine the dignity of Indian courts if global injunction orders are passed.

The companies also pointed out other problems with the case — including that since no one has determined if the videos themselves are defamatory (just the book the videos may be based on), they shouldn’t be responsible for the content of the videos — and that all of the supposedly defamatory content is public domain as it’s part of the records in the (separate) court case over the book. Another good point raised: the book in question is available globally, and no Indian court could ban the sale of the book outside of India so why is it able to do so regarding a video.

The court… doesn’t seem to care much about any of that. It says it doesn’t matter that the videos haven’t been carefully reviewed for defamation since they’re about the book that has already been deemed defamatory:

The said video clearly claims to be a summary of the book ? ‘Godman to Tycoon ? The Untold Story of Baba Ramdev’. The publishers of the book are mentioned. The video is also conscious of the fact that the book has been banned w.e.f. 11th August, 2017, which appears to be the date of one of the orders passed in the litigation between Plaintiff No.1 and the publisher. Interestingly, the video claims that the views in the video are of those of the author of the book and that the video channel itself has no relationship with the views expressed therein. Thereafter, the video proceeds to give a summary of the book

As for the issue of geoblocking… the court’s reasoning is… odd. It relies heavily on the fact that the content was uploaded from India. There’s a very legalistic attempt to interpret the current intermediary liability laws in India (around pages 66 to 68) in which it more or less concludes that because the law says that platforms are required to “expeditiously remove or disable access” to the content in question, that applies globally — because the issue is “the material” and not the location of the viewer of the material.

Thus, if any information or data has been uploaded or is residing in a computer resource i.e. a computer network, the information or data which has to be removed or disabled from that very computer resource or network. The computer resource in the initial part of the Section is the same computer resource as used in the later part of the Section. The latter resource cannot be a sub-set or a species of the former. It has to be the entire computer resource which was initially connected when the uploading of the information or data took place. Thus, if an information or data has been uploaded on a computer network, the platforms would be bound to remove it and disable it from that computer network completely. Any other interpretation of Section 79(3)(b) would not give proper meaning to the use of the words ?that material? and ?that resource?.

From there, it highlights the fact that the content was uploaded from India as giving the court jurisdiction beyond India.

The act of uploading vests jurisdiction in the Courts where the uploading takes place. If any information or data has been uploaded from India on to a computer resource which has resulted in residing of the data on the network and global dissemination of the said information or data, then the platforms are liable to remove or disable access to the said information and data from that very computer resource. The removal or disabling cannot be restricted to a part of that resource, serving a geographical location.

Thus, if uploading of data which the Court considers defamatory or offensive has taken place from IP addresses located in India, then Indian Courts would have jurisdiction to direct the platforms to remove and disable access to the said information or material, from the computer network of these platforms on to which the said information and data has been replicated. The material/information having originated from India, courts in India would have jurisdiction to direct removal of the same. After uploading of the data or information if the same has been replicated or disseminated or stored in different servers/computers in different geographical locations, the same would not mean that Courts would lose jurisdiction on the same, as the data/material/information was uploaded from India, in the first place. So long as the uploading from India led to the data or information ‘residing in’ the network or being ‘connected to’ the network, the same ought to be disabled or blocked globally. Any other interpretation of Section 79 would result in reducing the efficacy of the provision which equates the computer resource which initially created the information and the resource from where it is to be disabled or removed.

If you squint, you can kinda maybe see the logic there if you ignore basically all of the problems it would then create. But, alas, the court says if the videos are uploaded from India and made available globally, they can be taken down globally from India as well:

Removal or disabling of access under Section 79(3)(b) of information or data uploaded from India is not restricted as meaning removal or disabling or access only to users located in India. The removal or disabling is linked with ?that resource? and not with the location of the user or viewer. Thus, geo-blocking as is being suggested by the platforms would not be in consonance with Section 79 or with the purport and intent of the Supreme Court….

There’s also a weird bit in which the court says that because all of these platforms have terms of service that let them takedown content, there’s no real problem with requiring them to take it down globally. How would that play out if platforms didn’t put that in their terms of service? Or if someone uploaded the same content from outside of India? It’s not at all clear.

Thus, the policies of these platforms permit them to block and disable access in terms thereof. It is not disputed that blocking and disabling access when the platforms do it voluntarily is on a global basis.

As Stanford intermediary liability expert Daphne Keller notes on Twitter, don’t be surprised when more countries start demanding global blockages of content. She also points a finger at everyone (*cough* Hollywood lobbyists *cough*) who insisted that the EU and Canada should be able to block globally because those places “have the rule of law,” so such processes wouldn’t be abused (don’t laugh — this was argued). But, of course, China, Iran, Russia, Turkey and lots of other countries who sure would like to censor critics would insist that they, too, “have the rule of law.”

As Keller notes, this is almost certainly just the beginning of US companies having to deal with these kinds of blockade demands around the world. And, don’t be at all surprised when China, Iran, Russia, Turkey and the like all point to the courts in Canada, the EU and now India as evidence for why the US companies need to obey.

Filed Under: blocking order, defamation, global blocking, global takedown, india, jurisdiction, swami ramdev, uploads
Companies: facebook, google, twitter

Aussie Censorship In Action: National Enquirer Editor Threats Get Bookstores To Block Sale Of Ronan Farrow Book

Free Speech

from the intermediary-liability dept

We’ve covered a few times in the past some of the oddities of both Australia’s defamation laws and its views on intermediary liability. Our big complaint regarding both of those things is how they end up enabling censorship by the powerful of critical reporting and commentary. Perhaps a perfect example of this is former National Enquirer editor Dylan Howard having some pricey lawyers threaten Australian booksellers if they decided to offer Ronan Farrow’s new book Catch and Kill: Lies, Spies and a Conspiracy to Protect Predators. If you haven’t guessed, a part of Farrow’s book covers efforts by the Enquirer to “get dirt” on certain people in what appears to be an attempt to suppress their credibility or ability to go public, and also to engage in the practice of “catch and kill” (from whence the book gets its title) a story by “buying” the exclusive rights to it, only to kill it.

It appears that some of those threats have worked, as a number of booksellers have chosen not to sell the book (though some others, admittedly, are still offering it for sale). Of course, the threat letter to the various book retailers has some weasel wording, allowing Howard and his lawyers to pretend that they’re not trying to seek the blocking of the book:

?We have been consulted by Dylan Howard in relation to false and defamatory allegations, which he has been advised and has reason to believe will be included in the above-named book,? the Tweed firm wrote in a Sept. 27 letter to Hive Store Limited, one of the targeted booksellers (which sources say also include Britain?s W.H. Smith and Wordery chains).

?We have put the publisher, Little, Brown Book Group Limited on notice that, if the offending content is included in the book, we are instructed to take such legal action as may be appropriate,? the letter continued.

The letter concluded: ?You are now on notice under UK and Irish defamation laws of the potential defamatory content within the said book. We would therefore urge you to satisfy yourselves that the offending references to our client have been removed prior to distribution by your company.?

See if you can spot the weasel words. There are a lot of conditional statements, basically saying that “if” there’s defamatory content in the book, then the booksellers will be “on notice,” and (so the letter claims) potentially liable. As the Daily Beast article linked above notes, Howard has previously sued other media properties to stop them from covering news about himself:

Howard and American Media sought court orders restraining the broadcaster from airing footage obtained in the lobby of the publisher’s New York headquarters on March 7 this year and requiring Channel Nine to hand over the allegedly “improperly obtained material” for destruction.

It’s quite incredible for a journalist (especially one working for a publication with as dubious a history as the National Enquirer) to be attacking freedom of speech when it regards reporting about himself.

Filed Under: australia, books, catch and kill, censorship, defamation, dylan howard, intermediary liability, ronan farrow

Society Of Professional Journalists Makes Itself Look Foolish In Strange Attempt To Trademark 'Fake News'

Trademark

from the not-how-any-of-this-works dept

You may be aware of an organization called The Society of Professional Journalists. The group has found itself in the news most recently as Trump’s lawyer and all around great guy Charles Harder has attempted to suggest that this professional group’s ethical guidelines for journalism somehow constitute something that legally binds newsmakers. Harder has done this so as to suggest to CNN that Trump can sue the media company for… look, I don’t know, not being on the President’s side enough or something? The point is that Harder’s legal theory is almost certainly nonsense, will likely be laughed out of court, and ought to be embarrassing to Harder himself, should he in fact be capable of the normal human emotion of shame.

But the SPJ should embarrassed as hell as well, given that at least one chapter of the the organization has apparently hatched a ludicrous plan to trademark the phrase “fake news” as a stunt, all so it can send threat letters to the President for using the phrase as though it were trademark infringement.

Citing polling that indicates 40 percent of Republicans think the term applies to accurate reporting that casts politicians they support in a negative light, Emily Bloch of Teen Vogue writes that the application is unlikely to be approved and the move is intended to compel people to “think about what fake news is, and what it means to them.”

“So yes, this is satire. It’s a joke. But it’s a joke with a point, and as any student of public discourse will tell you, a joke sometimes hits harder than the truth,” Bloch wrote. “And if anyone accuses us of trolling the president, well, nothing else seems to work with him, so what do we have to lose?”

While the SPJ chapter waits on the U.S. Patent and Trademark Office, Bloch writes, it intends to send letters to President Trump warning him he is infringing on a pending trademark.

What do you have to lose? Well, we can start with respect and reputation. All this does is demonstrate the SPJ’s apparent total ignorance of how trademark law works. First, there is no chance this trademark gets approved. It’s not being used in actual commerce. It’s not a real thing. It’s just a whipping post for a petulant President.

And even were the USPTO to bungle this and approve this non-trademark-able trademark, the letters threatening the President for using the phrase are without merit as well. There is this misconception with some of the public that trademarking a phrase somehow means others cannot use it in common conversation. That’s obviously not how trademark law works (nor, while we’re at it, the First Amendment).

Honestly, why anyone at the SPJ thought this was a good idea is beyond me. I assume they do know better and are just trying to make a point with publicity as a vehicle. But there are enough of us out here that know how dumb this all is that I’m not certain the SPJ is more making a point about Trump, or the organization itself. Indeed, considering that a key part of SPJ’s history is protecting the First Amendment rights of journalists, it’s a really bad look to then try to abuse trademark law (even as a “joke”) to try to silence anyone, let alone the President of the United States.

Filed Under: 1st amendment, censorship, donald trump, fake news, free speech, trademark
Companies: society of professional journalists

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

Defamation

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

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

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

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

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

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

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

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

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

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

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

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

The paper won, but it’s losing.

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

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

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

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

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

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

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

Free Speech

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

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

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

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

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

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

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

(1) intentionally disseminates an image of another person:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So is this:

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

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

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

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

Free Speech

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

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

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

Your website expressly represents to the public, in writing, that you are ?journalists,? ?truth seekers,? ?united by a mission to inform, engage and empower the world,? and you ?stand for excellence in journalism and [your] products.? See https://www.CNN.com/About (emphasis added). Your slogan is ?The Most Trusted Name in News?. Your Facebook account claims you are ?widely known to be ? the most trusted source for news and information.? Your anchor, Don Lemon, stated on June 6, 2019, as a keynote speaker at Financial Times Live Future of News: ?We don?t profess to be a liberal network, we?re a news network ? we have a commitment to the truth and to facts, which has really been paramount, especially always at CNN.? Mr. Zucker said in an interview with Variety, published on August 2, 2016: ?[O]ur air, as opposed to others?, is truly fair and balanced.? (Emphasis added.)

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

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

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

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

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

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

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

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

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

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

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

?This is nothing more than a desperate PR stunt and doesn?t merit a response, CNN said in a statement.

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

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

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

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

Legal Issues

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Failures

from the double-down dept

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

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

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

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

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

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

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

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

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

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

Failures

from the [consults-physician] dept

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Filed Under: filters, porn, porn ban, uk

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

Free Speech

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

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

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

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

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

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

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

But Russia is gaining ground…

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

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

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

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

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

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

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

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

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

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

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