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

Free Speech

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Google Caves On Russian Censorship

Free Speech

from the be-evil? dept

Late last year, we were among those disappointed by leaked news from Google that it was toying around with a censored search engine for China — a country that the company had mostly left nearly a decade ago. After loud complaints both from people outside the company and many within, reports in late December said that the company had quietly halted efforts to build a censored Chinese search engine.

But now… the company may be dipping its toe in the evil pool again, as it has apparently agreed to cooperate with Russia’s censors. This is a battle that’s been going on for some time. Over the last few years, Russia has passed a number of internet censorship laws, and there have been lots of questions about how Google and other tech giants would respond. A year ago, we noted that Facebook/Instagram had decided to cave in and that ratcheted up the pressure on Google.

It should be noted that Russia has been on Google’s case for a while, and the company had been resisting such pressure. Indeed, the company actually shut down its Russian office a few years back to try to protect itself (and its employees) from Russian legal threats.

But, apparently, something has changed:

The business news source Vedomosti is reporting that Google has struck a deal with Russian censors to continue operating in the country by deleting websites that are banned in Russia from its results. The government censorship agency Roskomnadzor maintains a registry of sites that may not be distributed on Russian territory, but Google is one of a few search engines that does not subscribe to that registry. However, the company regularly deletes links from its search results that Roskomnadzor has banned, sources within both Roskomnadzor and Google told Vedomosti.

The report notes that, previously, Roskomnadzor had just been fining Google for its failures, and the company had been simply paying the fines. Now, however, it will sign up to censor the official list of sites, which is large and constantly growing. Given what the company just went through with the whole China debacle, you would think the company would be more thoughtful about this kind of thing. This is an unfortunate decision.

Filed Under: censorship, roskomnadzor, russia, search results, site blocking
Companies: google

UK Cop Calls Up 74-Year-Old Woman To Ask Her To Stop Tweeting Mean Things

Free Speech

from the time-to-waste-and-money-to-burn dept

The policing of tweets continues in the UK. The literal policing of tweets.

Because there’s apparently not enough people being stabbed on a daily basis, local law enforcement agencies have decided making house calls over reports of “hateful” tweeting is a worthwhile use of resources. This fairly recent law enforcement tradition dates back to at least 2014, but in recent weeks police have ramped up efforts to… well, it’s unclear exactly what the endgame is.

Irish writer Graham Linehan was recently visited by a Scottish police officer over supposed harassment of a trans rights activist. There didn’t appear to be any actual harassment. Instead, it appeared the alleged harassee wasn’t satisfied with the Mute and Block options offered by Twitter, and decided to file a formal complaint about speech he didn’t like.

The end result was a stupefying mix of force and futility. The officer asked Linehan to stop engaging with Adrian Harrop (the offended party). Linehan refused to do so. The officer left and Linehan got back on Twitter to talk about this bizarre waste of everyone’s time.

More time is being wasted by UK law enforcement, this time in an attempt to persuade an elderly person she harbors some outdated ideas.

Margaret Nelson is a 74-year-old woman who lives in a village in Suffolk. On Monday morning she was woken by a telephone call. It was an officer from Suffolk police. The officer wanted to speak to Mrs Nelson about her Twitter account and her blog.

[…]

Among the statements she made on Twitter last month and which apparently concerned that police officer: ‘Gender is BS. Pass it on’.

Another:

‘Gender’s fashionable nonsense. Sex is real. I’ve no reason to feel ashamed of stating the truth. The bloody annoying ones are those who use words like ‘cis’ or ‘terf’ and other BS, and relegate biological women to a ‘subset’. Sorry you believe the mythology.’

The only way any public official should have felt “concerned” is if they know her personally and frequently attend social events where she’s both present and vocal. That’s a very low level of concern, one that could be mitigated by steering clear of these social functions. It shouldn’t be “concerning” enough for law enforcement to get involved. No one should be getting phone calls from cops because they said something stupid on the internet.

This phone call was especially pointless. The officer asked Nelson to stop writing things other people found offensive. Nelson asked the officer if free speech was still something the officer considered important. The officer said she thought free speech was important and Nelson said that’s exactly why she wouldn’t stop writing things that mildly upset other people.

The oddest aspect of this futile interaction was the department’s response on Twitter — one that makes it appear as though officers have voluntarily deputized themselves on behalf of Twitter.

Hi Margaret, we had a number of people contact us on social media about the comments made online. A follow-up call was made for no other reason than to raise awareness of the complaints. Kind regards, Web Team.

No law enforcement agency needs to be wasting its time acting as a complaint box for social media. If Nelson’s content violated the terms of use, Twitter (and her blog host) are free to do something about it. If readers don’t like what they’re reading, they can simply stop reading Nelson’s posts. Twitter also allows users to block or mute other users. Reading blogs you don’t like isn’t mandatory. All anyone has to do is not navigate to sites containing content they dislike.

Instead, an unknown number of internet users chose to make this a police matter. We could blame this entirely on them if it wasn’t for the fact that multiple UK police agencies have made it clear they’ll investigate impolite speech if someone’s willing to waste their own time filing a complaint. In the end, they can’t do anything more than ask someone to stop making other people angry. But that’s all they can do, so it becomes a waste of taxpayers’ money on top of everything else, which should make people angrier than whatever happened to piss them off as it rolled through their timeline.

Filed Under: free speech, margaret nelson, police, tweeting, uk

NYPD Sends Letter To Google Demanding It Remove Cop Checkpoint Notifications From Google Maps

Free Speech

from the when-one-business-model-interferes-with-another-business-model dept

A few years after law enforcement officials claimed Google’s Waze navigation app allowed cop killers to stalk cops, the NYPD is demanding Google alter one of its apps (Google Maps, which incorporates certain Waze features) so it works more like the NYPD wants it to work, rather than how drivers want it to work. Gersh Kuntzman of Streetsblog NYC was the first to obtain a copy of a cease-and-desist sent to Google by the NYPD.

The NYPD is demanding that Google remove a just-added feature to its omnipresent Maps program that tips off drivers to the locations of speed cameras, Streetsblog has learned.

Google added the speed camera notification as part of its effort to incorporate some of the crowd-sourced features of Waze, which the tech giant bought in 2013. The Waze app shows the locations of police checkpoints as well as what some drivers call “speed traps,” but what police believe are life-saving enforcement efforts.

The NYPD sent its “cease-and-desist” letter to Google over the weekend — after Streetsblog asked officials’ about the Waze feature that allows drivers to inform each other of police roadblocks.

The NYPD is upset because the new notifications allow drivers to route around DWI roadblocks. The NYPD apparently feels allowing drivers to bypass checkpoints will make the streets less safe and prevent the police force from enjoying the side benefits of dozens of suspicionless stops.

There are a number of reasons drivers may not want to interact with the NYPD, most of which have nothing to do with driving drunk. A police checkpoint is a hassle for anyone wanting to go from Point A to Point B, especially when every driver in line is presumed guilty until cleared by officers. It’s win-win for the NYPD, which also assumes anyone avoiding a checkpoint is also guilty. These notifications might suck for cops, but it’s a stretch to assume the app is allowing a horde of drunk drivers to roam the city unmolested.

But that’s exactly what the NYPD assumes. Its cease-and-desist letter [PDF] demands Google not only remove this feature from Google Maps but somehow prevent users from finding others ways to notify fellow drivers about law enforcement checkpoints. It also accuses Maps users of committing criminal acts simply by posting the location of cop checkpoints.

Individuals who post the location of DWI checkpoints may be engaging in criminal conduct since such actions could be intentional attempts to prevent and/or impair the administration of DWI laws and other relevant criminal and traffic laws. The posting of such information for public consumption is irresponsible since it only serves to aid impaired and intoxicated drivers to evade checkpoints and encourage reckless driving.

This is nonsense. The posting of this information doesn’t “only serve” impaired drivers. It also aids unimpaired drivers who may not want to make a suspicionless stop part of their daily commute. Even the most historically-strident advocate of driving while intoxicated laws doesn’t agree with the NYPD’s claims.

Helen Witty, the national president of Mothers Against Drunk Driving, was reluctant to address the specifics of the letter without more information, but she noted that sobriety checkpoints were frequently publicized in advance and that even when drivers were warned about them, they served their purpose.

“If you are impaired, you are not going to pay attention to that information,” she said, adding that in her experience, drunken drivers coming through sobriety checkpoints were often very confused or unaware of what was happening.

Witty goes on to point out the goal of regular DWI checkpoints is to make all drivers aware officers are looking for and punishing drunk drivers. More public awareness means fewer drunk drivers on the road, which should be the ultimate goal of these checkpoints.

Google has responded to the letter with a statement that indicates it won’t be removing users’ ability to warn others of speed traps and DWI checkpoints.

“Safety is a top priority when developing navigation features at Google. We believe that informing drivers about upcoming speed traps allows them to be more careful and make safer decisions when they’re on the road,” a Google spokesperson told CBS2 in a statement.

If the purpose of speed limits is to reduce drivers’ speed to something the local government considers to be safe, a warning about speed traps ensures nothing more than drivers using Maps will be driving the speed limit when they approach that area. If the actual goal of speed traps and DWI checkpoints is to generate revenue, then of course law enforcement is going to be upset about Google picking its pocket.

The other odd thing to note is that the NYPD seems to want its letter to Google memory-holed. Streetsblog was the first to obtain the letter, but its copy has already been removed from Scribd. CBS News also posted a copy of the letter, but that link now returns a 404 error. No updates have been published at either site explaining the disappearance of the letter, and neither site has expressed any doubt as to the letter’s legitimacy. What’s posted below is built from screenshots of Streetsblog’s embed, which is (so far) still generating an image of the PDF Scribd no longer hosts. It seems odd the NYPD would want this letter scrubbed from the internet, but it seems completely unlikely StreetsBlog and CBS both decided to delete this document on their own.

Filed Under: dui checkpoints, free speech, google maps, nypd, police, speed cameras, speed traps, waze
Companies: google

Federal Judge Says Boycotts Aren't Protected Speech

Free Speech

from the WTAF dept

A federal judge in Arkansas has delivered a truly WTF First Amendment decision related to a state’s anti-Israel-boycott law. The law states that companies contracting with government entities cannot engage in boycotts of Israeli products or services. Those doing so are either forbidden from doing business with the state government or forced to sell their products/services at a substantial discount.

In this case, the Arkansas Times’ steady business relationship with an Arkansas college has been disrupted by the Arkansas law seeking to punish businesses that engage in boycotts of Israel. Every company doing business with Arkansas government entities must sign a certification stating they are not boycotting Israel. The law has been in effect since 2017, but this year the Times refused to sign the required certification. This refusal cost the paper its advertising contract with the school, since the only other option under the boycott law was to sell its services at a mandated 20% discount.

The Times sued with the assistance of the ACLU, seeking to have this law found unconstitutional. So far, the ACLU has managed to get similar laws blocked/rewritten in two other states. The judge in this case, Brian S. Miller, even points to the ACLU’s successful lawsuits, but still manages to come to the opposite — and insane — conclusion that participating in a boycott is not protected speech. From the order [PDF] denying the Arkansas Times’ request for an injunction:

The Times is unlikely to prevail on the merits of its First Amendment claims because it has not demonstrated that a boycott of Israel, as defined by Act 710, is protected by the First Amendment. This finding diverges from decisions recently reached by two other federal district courts. Jordahl, 336 F. Supp. 3d at 1016; Koontz v. Watson, 283 F. Supp. 3d 1007, 1021–22 (D. Kan. 2018).

In Jordahl, the court had this to say about Arizona’s boycott law:

A restriction of one’s ability to participate in collective calls to oppose Israel unquestionably burdens the protected expression of companies wishing to engage in such a boycott…

[…]

The type of collective action targeted by the [law] specifically implicates the rights of assembly and association that Americans and Arizonans use ‘to bring about political, social, and economic change.”

In Koontz, the federal court similarly found Kansas’ anti-boycott law unconstitutional:

[T]he Supreme Court has held that the First Amendment protects the right to participate in a boycott like the one punished by the Kansas law.

None of this matters in this court, where somehow it’s possible to separate the act of boycotting from the speech it represents in order to allow the government to punish companies for expressive acts.

First, a boycott is not purely speech because, after putting aside any accompanying explanatory speech, a refusal to deal, or particular commercial purchasing decisions, do not communicate ideas through words or other expressive media.

[…]

Second, such conduct is not “inherently expressive.”

[…]

It is highly unlikely that, absent any explanatory speech, an external observer would ever notice that a contractor is engaging in a primary or secondary boycott of Israel. Very few people readily know which types of goods are Israeli, and even fewer are able to keep track of which businesses sell to Israel. Still fewer, if any, would be able to point to the fact that the absence of certain goods from a contractor’s office mean that the contractor is engaged in a boycott of Israel. See id.; c.f. FAIR, 547 U.S. at 66. Instead, an observer would simply believe that the types of products located at the contractor’s office reflect its commercial, as opposed to its political, preferences. In most, if not all cases, a contractor would have to explain to an observer that it is engaging in a boycott for the observer to have any idea that a boycott is taking place.

That’s the legal standard for expressive activity in Arkansas according to Judge Miller: if observers can’t tell what’s happening without additional speech, the government is free to punish companies for choosing not to do business with Israel. In almost every case, though, speech will accompany this act, which means the state government can punish companies’ protected speech by punishing them for the act this court believes can be separated from it.

All a decision like this does is encourage Arkansas companies to lie on their certifications. If the government wants to punish companies for lying, it will have to compel some actually protected speech from them: statements about their boycott of Israel. If no observer (and that apparently includes government entities engaging in business with private contractors) can tell a boycott is or isn’t underway, then the boycott can continue with the government none the wiser — so long as no one makes any statements about it. The government has kind of painted itself into a corner, using paint supplied by an Arkansas judge who should have done much better parsing both the law and the First Amendment.

Filed Under: 1st amendment, arkansas, bds, boycotts, free speech, israel

Human Rights Groups Plead With The EU Not To Pass Its Awful 'Terrorist Content' Regulation

Free Speech

from the this-will-be-a-disaster dept

While so many people have been focused on the disastrous potential of the EU’s Copyright Directive, we’ve been mentioning lately that another EU regulation, coming up right behind it, may be much more dangerous for the internet as we know it. The EU’s Terrorist Content Regulation is shaping up to be a true horror story, as we discussed in a recent podcast on the topic. As covered in that podcast, the EU is barreling forward on that regulation with little concern for the damage it will do (indeed, with little concern for showing any evidence that it’s needed).

The basic idea behind the regulation is that, apparently, the internet is full of horrible “terrorist content” that is doing real damage (citation needed, but none given), and therefore, any online platform (including small ones) will be required to remove content based on the demands of basically anyone insisting they represent a government or law enforcement authority, within one hour of the report being sent, or the site will face crippling liability. On top of that, the regulation will create incentives for internet platforms to monitor all speech and proactively block lots of speech with little to no recourse. It’s a really, really bad idea, and everyone is so focused elsewhere that there hasn’t been that much public outcry about it.

The group WITNESS, which helps people — be they activists or just everyday citizens — document and record human rights violations and atrocities around the globe, has teamed up with a number of other human rights groups to warn the EU just how damaging such a regulation would be:

Our letter is based on real-world experience of exactly these problems.

In particular, as we note in the letter, Syrian Archive and WITNESS, as well as many of our partners, ?have seen firsthand that use of machine-learning algorithms to detect ?extremist content? has created hundreds of thousands of false positives and damaged [a huge] body of human rights content.?As Jillian York of the Electronic Frontier Foundation notes, ??By placing the burden on companies to make rapid decisions in order to avoid penalties, this regulation will undoubtedly result in censorship of legitimate speech. That includes content essential ?for prosecutions or other accountability processes across borders or in conflict situations.? The proposal ignores the incredible work of human rights defenders and journalists who ?risk their freedom, safety, and sometimes even their lives to upload videos for the purpose of exposing abuses to the world. Without this documentation, we would have little idea what is happening in Syria, Yemen, Myanmar, the favelas of Brazil, and elsewhere.? 

Indeed, as we’ve documented, attempts by digital platforms to block “terrorist content” in the past has resulted in the blockade of activists documenting war crimes. No one pushing for these laws has yet explained how one can distinguish “terrorist content” with “documenting war crimes,” — and that’s because those two are often the exact same thing, even if used for a different purpose. But any law that requires technology filters to “block” such content will simply not be able to comprehend the difference.

The letter also highlights how — as we saw with Russia copying Germany’s anti-“hate speech” law — authoritarian regimes will use these kinds of laws to justify “similar” laws that are actually used to suppress dissent:

In addition to devastating the processes being used to create and preserve human rights content, this regulation will harm some of the most vulnerable groups in the world by inspiring dangerous copycat regulation that will be used to silence essential voices of dissent. This is not hypothetical, as Germany?s NetzDG law is already inspiring replicas in authoritarian countries, including Russia. The impact of the European Union on global norms should be a net positive, especially in the face of a rising tide of political repression, violence and fascism. This regulation hinders efforts to fight that tide.

One hopes that EU regulators can understand this and back away from this disaster of a proposal, but the recent record of the EU and legislation regarding the internet does not suggest we have much to be hopeful about.

Filed Under: censorship, eu, free speech, human rights, intermediary liability, terorrist content, terrorist content regulation

Cameroon Military Arresting, Trying, And Jailing Journalists On 'Fake News' Charges

Free Speech

from the YOU-CAN-FIT-SO-MANY-ABUSES-IN-THIS-LAW dept

Here in the United States, the term “fake news” is used (most prominently by the President) to declaim news stories the reader doesn’t like. It has little to do with whether or not the content is untruthful and almost everything to do with swinging public opinion against the press outlet and its reporting.

The term has become a handy tool for autocrats and authoritarians seeking to punish journalists and others who publish content they don’t like. The stakes in the United States are still low. Elsewhere in the world, real jail time is involved. If government officials don’t like their dirty deeds exposed or their policies questioned, they just turn to a handy new set of laws predicated on a term no one can define.

Daniel Funke at Poynter catches up on the story of Cameroonian journalist Akumbom Elvis McCarthy. McCarthy sent messages detailing brutal acts by law enforcement and the military, warning that the government treats reports of abusive behavior as “fake news.” His call-out of the government’s dismissive behavior towards its own problems was greeted with charges — and six months in jail — for disseminating “fake news.”

A military tribunal charged McCarthy, a journalist for private broadcaster Abakwa FM Radio, with attempted secession, disseminating secessionist propaganda and false news, according to the Committee to Protect Journalists. For almost a month after his arrest March 20, he was kept in a small cell in Bamenda, the capital of the Northwest region of Cameroon.

He shared food, water and a toilet with about 30 other prisoners. He slept on the floor. He made a pillow out of plastic water bottles.

“My imprisonment experience was horrible. I spent almost a month on a floor,” he said. “I was persistently going though brutalization in police (custody). I still suffer from a toothache that was (beaten) by a security officer while I was in a police cell. No one was allowed to visit me.”

Trailing only Egypt in the number of journalists jailed for fake news charges, Cameroon’s government is no one’s idea of democratic and fair. But the addition of fake news to the oppression toolkit has just given abusive governments one more way to abuse their citizens. Cameroon’s government has turned its military into a weapon deployed against its own citizens, and anyone questioning that — or pointing out the military’s brutal acts — is being purged from local media.

The head of English news at a private TV station in Cameroon, Mimi Mefo Takambou, was jailed on “fake news” charges. She was taken from the station by the military, which wanted to question her about reports of Cameroon soldiers killing a missionary, destroying houses, and slaughtering farm animals. She refused to answer their questions. With the military running both the tribunal and making the accusations, Takambou had zero chance of prevailing.

[Military prosecutors] deliberated for an hour, which became two hours, which turned into three hours. Finally, they told Mefo that she would be going to prison on pretrial detention — and they refused her bail.

All told, Takambou only spent four days in jail. But the military is getting the message across for the government, which has chosen to dismiss anything it doesn’t like with the term “fake news,” which is enforced by the military’s kangaroo courts. As she had pointed out in previous reports, the government claimed the military didn’t execute women and children despite there being video recordings of this happening.

Laws using ill-defined terms to govern speech are bad news for everyone but the governments enforcing them. The same holds true for similar legislation pushed in countries with more open minds towards free speech and not at the complete mercy of their militaries. Actual harm can still be done over fake news. Legislators need to steer away from the temptation to regulate something it can’t define.

Filed Under: akumbom elvis mccarthy, arrests, cameroon, fake news, free speech, journalism

Court Dismisses RICO SLAPP Suit Against Greenpeace By Logging Company

Free Speech

from the rico-slapps dept

Back in the fall of 2017, we wrote about a somewhat crazy situation in which one of President Trump’s favorite law firms, Kasowitz Benson Torres, seemed to be building up a new kind of SLAPP practice: helping various developers file not just bogus lawsuits against environmental groups, but specifically filing RICO SLAPP suits, in which they also claimed that any protests against these developments were violations of RICO (racketeering laws). As you probably already know — and as Ken “Popehat” White has made clear for years — when plaintiffs claim “RICO” in civil suits, it is almost always utterly ridiculous. He’s pointed out, multiple times, that many plaintiffs use “RICO” as a sort of exclamation along the lines of “and this is really bad!” rather than actually matching the (very difficult) standards of an actual RICO claim.

Historically SLAPP suits — or Strategic Lawsuits Against Public Participation — came about as developers went after protesters using bogus defamation lawsuits. So adding RICO claims on top of defamation appeared to be quite an escalation, as it potentially made the defense of these bogus suits that much more expensive and troubling. In October of 2017, a court threw out one of these lawsuits filed by Resolute Forest Products (RFP), which was represented by Kasowitz partner Michael Bowe. But that didn’t stop RFP from almost immediately refiling an amended lawsuit.

And now, the court has mostly dumped that new case, dismissing all of the RICO claims and most of the defamation claims. On the defamation claims, the court clearly recognizes that RFP just stacked up claims in an apparent attempt to overwhelm the defendants:

The Court has reviewed each of the 296 alleged defamatory statements…. In the preceding sections of this order, the Court analyzed in detail the statements that Resolute comes closest to alleging are defamatory. As to the remaining statements, the Court concludes that Resolute fails to allege defamation either because it fails to allege actual malice or because the statements are ones of opinion. Many of Resolute?s remaining allegations consist of critiques that Defendants failed to adequately highlight Resolute?s positive environmental contributions, or disagreements about whether Defendants should have relied on one report instead of another…. These statements are shielded by the First Amendment as not provably false, or statements that ?cannot reasonably be interpreted as stating actual facts.?… The Court again concludes that the use of the word ?destroy? is hyperbolic opinion describing a loss of forest trees, which did occur.

Regarding the civil conspiracy claims, the court is not impressed.

Here, Resolute fails to allege that Defendants and other non-parties agreed to an unlawful plan. Resolute?s allegations of a common unlawful plan depend on the ?operational memorandum,? which stated ?that unless Resolute agreed to unspecified terms dictated by the Enterprise, the Enterprise would aggressively disseminate the intentional misrepresentations that Resolute violated the CBFA and stood alone, as rogue environmental bad actor, among competitors and other CBFA members.?… However, the memorandum is undated, and the FAC does not indicate who wrote or joined it…. It is not clear from the FAC whether the memorandum?s stated goal of a group plan was the memorialization of an existing agreement or merely the aspiration of the memorandum?s author. Finally, Resolute alleges that in early September and December 2012, Stand and other environmental organizations carried out the memorandum?s plan by publishing reports and statements that Resolute violated the CBFA…. However, after the organizations learned that Resolute had not actually violated the CBFA in December 2012, and issued a correction in March 2013, the organizations? actions diverged from those laid out in the memorandum…. The organizations never again stated that Resolute violated the CBFA, and instead launched the ?Resolute: Forest Destroyer? campaign, which criticized Resolute?s environmental record in ways not described by the memorandum…. In short, as described by the FAC, the operational memorandum fails to allege a conspiracy because it does not allege that any of the Defendants agreed to conduct that they knew to be unlawful at the time, i.e., Resolute fails to allege the commission of an underlying tort. See Kidron, 40 Cal. App. 4th at 1582 (?The conspiring defendants must also have actual knowledge that a tort is planned and concur in the tortious scheme with knowledge of its unlawful purpose.? (emphasis added)). The Court dismisses Resolute?s civil conspiracy claim.

And the related RICO claims fare similarly:

To state a successful claim under RICO, a plaintiff must allege ?(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity (known as ?predicate acts?) (5) causing injury to the plaintiff?s ?business or property.?? Grimmett v. Brown, 75 F.3d 506, 510 (9th Cir. 1996) (citations omitted); see also Odom v. Microsoft Corp., 486 F.3d 541, 547 (9th Cir. 2007). To have standing under RICO, a plaintiff must further allege that the RICO violation proximately caused injury to its business or property. Holmes v. Sec. Inv?r Prot. Corp., 503 U.S. 258, 268 (1992); see also Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 463-64 (2007). The RICO statute of limitations is four years. See Klehr v. A.O. Smith Corp., 521 U.S. 179, 183 (1997). Because Resolute fails to plead proximate cause, its RICO claims must be dismissed.

In short, in the words of Popehat, IT’S NOT RICO, DAMMIT.

Thankfully, the court dismisses most of the claims under California’s anti-SLAPP law, meaning that RFP will be on the hook for Greenpeace’s legal fees:

The Court concludes, as in its prior order, that the lawsuit ?arises from an act by the defendant made in connection with a public issue in furtherance of the defendant?s right to free speech.? In re NCAA, 724 F.3d at 1272-73. Resolute?s claims are based on Defendants? speech activities regarding the important public matter of environmental sustainability. ECF No. 210 at 94-95. As to the second step, Resolute has demonstrated that its complaint is legally sufficient and supported by a prima facie showing of facts to sustain a favorable judgment as to the claims concerning the Montagnes Blanches discussed earlier in this order, but not as to its remaining state law claims. Defendants? anti-SLAPP motions to strike are granted as to the claims dismissed under Rule 12(b)(6)…

While the court does dismiss nearly all of the defamation claims, it does allow one small part of them to survive, which still could be a pain:

Resolute alleges that a 2010 Greenpeace Canada report misleadingly stated that Resolute was logging in the Montagnes Blanches, when it was not, that in May 2013, Brindis sent the 2010 Greenpeace Canada report to Resolute?s customers, and that Greenpeace USA featured the report on its website…. On May 31, 2016, Laurent Lessard, Quebec?s Minister of Forests, Wildlife, and Parks issued a statement explaining that the map that Greenpeace featured in this report to show that Resolute logged in the Montagnes Blanches was misleading…. His statement included a link to an official map of the Montagnes Blanches….

Notwithstanding the Minister?s corrective disclosure, Greenpeace USA and Greenpeace International continue to feature the report on their websites…. Likewise, in a December 16, 2016 letter, Moas wrote to numerous Resolute customers that Resolute was operating in the Montagnes Blanches.

Here the court says that there’s enough in the pleadings for a real claim:

The Court concludes that Resolute adequately pleads actual malice as to the Clearcutting Free Speech report. First, the statement is materially false in alleging that Resolute was logging in the Montagnes Blanches when it was not…. Second, the statement is provably false and likely to be taken by readers as a statement of fact, especially given its categorization as a report by an expert body and its lack of cautionary terms… Finally, the FAC plausibly alleges that Moas was at least reckless given the Quebec Minister of Forests? public statement that Greenpeace?s maps were inaccurate and the filing of the complaint in this case stating the same…. The Court reaches this conclusion even though the Clearcutting Free Speech report identified the sources on which it relied, because those sources were incorrect as to the Montagnes Blanches map.

That last bit may eventually kill these remaining claims. Accurately disclosing the sources on which you relied in making claims is frequently seen as a defense against defamation claims. Still, the case will move forward on those few claims — but having the majority of the claims (and especially the RICO claims) thrown out (with California’s anti-SLAPP law) is clearly a victory for Greenpeace (and for free speech).

Filed Under: 1st amendment, california, defamation, environmental groups, free speech, rico, rico slapp, slapp
Companies: greenpeace, resolute forest products, rfp

Parody Washington Post Leads To Bogus Legal Threat, And A Reminder Of An Old Internet Lawsuit

Free Speech

from the oh-look-at-that dept

As you might have heard, the famed pranksters The Yes Men were recently involved in something of a parody news story. They printed up and handed out a ton of parody Washington Posts, dated May 1, 2019 (note: a date a few months in the future) with a cover story claiming to be about President Trump being removed from office. People who got their hands on the printed edition said that they looked pretty similar to an actual Washington Post. The pranksters didn’t just print out newspapers, they also set up a website at my-washingtonpost.com. The Washington Post itself was not amused and appears to have sent an incredibly stupid cease-and-desist letter from a publication that should know better.

Actually, let’s be clear: the Washington Post does know better. As Public Citizen lawyer Paul Levy notes in a post we’ll talk more about down below, the Washington Post’s double standard shines through based on its reporting on other parodies in comparison:

By an amazing coincidence, on the same morning that the Post parody was distributed, the Post ran this story about a Facebook page spoofing the Maryland state government.  The story made clear that the reporter found the whole thing very amusing.  The Post’s coverage of the parody aimed at itself showed no such sense of humor.  ?We will not tolerate others misrepresenting themselves as The Washington Post, and we are deeply concerned about the confusion it causes among readers,? Post spokeswoman Kris Coratti said. ?We are seeking to halt further improper use of our trademarks.?

While the Washington Post’s cease-and-desist claims that it “recognizes there are important First Amendment protections for parody and satire,” the rest of the letter appears to forget that. Thankfully, the Yes Men have EFF representing them, leading to quite a response letter written by EFF legal director, Corynne McSherry.

We are frankly disappointed that the Washington Post has chosen to take this approach. Given the content of the site and the physical paper, and the ample publicity the spoof has generated, it is difficult to imagine that any member of the public would be confused. Moreover, given the Washington Post’s long history of defending free speech and fair use, we had hoped that your paper would recognize the spoof site is entirely legal critical speech.

But there’s something else here that goes unmentioned by either the Washington Post or EFF in its response. And it’s that (1) the very same URL that the Post is complaining about was once subject to a different trademark lawsuit (2) the Washington Post told a court that it was absolutely critical that said domain be handed over to it (3) which happened… and most importantly (4) the Washington Post did literally nothing with the domain and allowed it to expire, after which it sat unused for years.

This brings us back to the post that eagle-eyed internet lawyer Paul Levy wrote, highlighting that this domain was actually at the heart of a key trademark/domain name dispute from the early 2000s.

In the case of Coca-Cola Company, et al. v. William S. Purdy Sr., et al. in the 8th Circuit, there was a dispute between a few different companies — including the Washington Post and Coca Cola among others — who were angry at anti-abortion activist William Purdy, who had registered a bunch of domains that included the trademarked names of these companies, which he then used to push his activist message. One of the domains on the list? Yup: my-washingtonpost.com. As the 8th Circuit explains, at one point Purdy even set up a… parody Washington Post site at that domain:

For several days in early July 2002 Purdy linked the domain names my-washingtonpost.com and drinkcoke.org to a website displaying what appeared to be a front page originating from washingtonpost.com. The page with this format featured the headline ?The Washington Post proclaims ?Abortion is Murder??? and contained graphic images of aborted fetuses next to Coca-Cola’s trademark and the words ?Things Don’t Always Go Better With Coke. Abortion is Murder-?The Real Thing.??? ?(?It’s the Real Thing? is a registered trademark of the Coca-Cola Company.) ? Sometime after this litigation began, Purdy also linked many of the domain names to his own websites which contained references to a claim that plaintiffs supported abortion, graphic photos of aborted fetuses, and links to abortionismurder.com.

Counsel for the Washington Post entities sent a cease and desist letter to Purdy on July 8, 2002, and it persuaded his Internet service provider (ISP) to stop hosting the website at my-washingtonpost.com. Counsel for McDonald’s and Pepsi contacted Purdy and his domain name registrars with similar requests around this time. ? During a telephone conversation with counsel for the Post entities on July 8, Purdy acknowledged that he had published a counterfeit front page at my-washingtonpost.com and claimed that his actions were protected by the First Amendment. ? The record indicates that Purdy offered to comply with the request of the Post entities if they would publish something written by him on the Washington Post editorial page, but they declined.4 ?A few days later Purdy reactivated my-washingtonpost.com with a new ISP and published another counterfeit washingtonpost.com front page with antiabortion headlines and graphic content. ? He also registered washingtonpost.cc and washingtonpost.ws, linked them to abortionismurder.com, and began using the email address dontkillyourbaby@ washingtonpost.cc.

The lower court had ruled against Purdy, saying that he was violating the law with his cybersquatting, and Purdy (somewhat gleefully, apparently) decided to thumb his nose at the court and kept on registering similar domains for similar purposes — leading the court to issue an injunction barring him from even registering such domains. Levy and Public Citizen — back in 2003 — had sought to file an amicus brief in the case, saying that while the court was right to reject Purdy’s use of these sites in these cases, the injunction barring him from registering similar domains went too far (since it was conceivable that he might set up sites that were legitimately about those companies, rather than designed to fool people). The court refused to accept that brief.

However, as Levy noted, during the course of the case, the Washington Post had argued that it was quite important that it gain control over Purdy’s my-washingtonpost.com:

The Post (and the other companies), claiming that ownership of my-washingtonpost.com was vital to its business, obtained preliminary and later permanent injunctive relief, persuading the federal court in Minnesota, and then the Eighth Circuit, that Purdy?s having offered to trade the removal of his web site for free op-ed space in the Post to express his anti-choice messages made his a sort of commercial use that was, therefore, subject to Lanham Act and ACPA proscription.

Indeed, the district court ordered that Purdy turn over the domain name my-washingtonpost.com to the Washington Post — though it looks like Purdy tried to ignore this. Looking over historical whois records, it appears that the domain, after originally being registered in 2002, changed hands on January 2, 2003. Based on the timeline laid out by the Appeals Court (and the fact that there was a contempt hearing a few weeks after this), it may be that the Washington Post used the initial court order to get the domain registrar to transfer it (rather than have Purdy willingly hand it over). From the appeals court ruling:

The plaintiffs also moved on October 1 for an order to show cause why Purdy should not be held in contempt for violating the earlier preliminary injunction. ? The district court appointed a public defender to represent Purdy for purposes of the contempt motion, and a hearing was held on it in January 2003. ? The court found that Purdy still had not brought himself into compliance with its injunction and issued an order on January 28, 2003 finding him in contempt. ? The court listed more than 60 domain names that it found he had registered and/or used in violation of its original injunction.5 ?It again ordered Purdy immediately to cease using the listed domain names and to transfer the names to the rightful owners within three days. ? Purdy was also ordered to pay plaintiffs $500 per day from the date of the order until he complied and to pay their fees, costs, and expenses.

The next week a status conference was held to assess Purdy’s compliance with the January 28 contempt order. ? At that time Purdy was still using many domain names that had been specifically found to violate the court’s injunctions. ? Although the plaintiffs had succeeded in forcing the transfer of many domain names registered in the United States, some registered in France had apparently not been transferred and were still linked to content of his choice.

So that suggests that the January 3, 2002 transfer of the domain was from Purdy to the Washington Post (though, not done willingly by Purdy, despite the court order). Looking at the Internet Archive, it is clear that the Washington Post did literally nothing with this domain once it had it in its possession. And, again, looking at the historical record, the Washington Post appears to have let the registration on this domain lapse on August 1, 2006, at which point its DNS pointed to “expireddomainservices.com” which is likely a service to scoop up expired domain names to see if someone wants to pay up to get them back. On January 1, 2007, all domain name servers were removed from the domain… until January 13 of this year, when the domain was registered once again and put to use for this particular parody.

So, perhaps the Washington Post’s claims back in the day about how important it was that this domain be handed over to it for its own use were not entirely truthful at the time. Shocking.

It certainly would be interesting from the standpoint of an observer, if there were a second legal fight over a parody Washington Post news story using the exact same domain. Of course, this time around, the Washington Post would likely need to explain why (among other problems with its claims), after apparently owning that particular domain for nearly four years, it let it go.

Filed Under: copyright, cybersquatting, fake news, parody, satire, threats, trademark, yes men
Companies: washington post, yes men

US Media Companies Engaging In Proactive Censorship Of Content Ahead Of India's New Hate Speech Laws

Free Speech

from the proxy-censorship-really-isn't-an-improvement-over-direct-censorship dept

India’s government is still seeking more direct control of the internet, using ill-defined buzzwords (“hate speech,” “fake news”) as justification for broken encryption and holding tech companies directly responsible for content created by users. The Indian government may have passed and killed a “fake news” law in the space of 24 hours, but the term lives on as a useful enabler for censorship.

New rules proposed by the Indian government to rein in tech giants and combat fake news could have a profoundly chilling effect on free speech and privacy online. The proposed changes involve Section 79 of the IT Act, a safe harbor protection for internet “intermediaries” that’s akin to Section 230 of the Communications Decency Act in the US. Current law protects intermediaries such as internet service providers and social media platforms from liability for the actions of their users until they are made aware of a particular post; intermediaries also must only censor content when directed by a court.

The proposed amendments attempt to curb the spread of misinformation on platforms like Facebook and Twitter by effectively forcing internet companies to censor a broad swath of user content. They also require secure messaging services like WhatsApp to decrypt encrypted data for government use, which could affect the security of users around the globe. The rules also would require internet companies to notify users of their privacy policies monthly.

Just the threat of government intervention has been enough to turn a number of US companies into proactive censors. As Paris Martineau notes in this Wired article, Netflix and a number of other streaming services have already voluntarily agreed to engage in self-censorship, purging their Indian offerings of content that “disrespects the country’s flag,” “hurts religious sentiments,” or promotes terrorism.

Netflix’s justification for self-censorship is apparently that this is somehow better than direct government censorship. But this justification makes no sense, especially when proactive measures tend to remove more content than is actually illegal. Add in some automation and legal content is going to get flagged and removed faster than the Indian government can issue self-serving removal requests.

The government’s timetable on content removal only adds to the problem. The Indian government wants content it finds illegal removed within 24 hours of notification. Short turn times — seen elsewhere in the world — have increased proactive takedowns by internet companies, resulting in far more content removals than are strictly necessary.

Not that these governments are complaining. Bogus takedowns aren’t their problem, beyond the occasional courtroom dispute over mistakenly-removed content. At this point, governments need only threaten to put direct censorship in place to start seeing content these governments don’t like removed.

India’s plan introduces compromised encryption to the mix, which would set a dangerous precedent if companies like WhatsApp comply. If it can be done in India, it can be done anywhere, and a long list of government entities frustrated that they don’t have access to every domestic online conversation will see this as an invitation to make similar demands. And once the floodgates are opened halfway around the world, it’s going to be tough to argue you can’t do the same thing in your home country.

Filed Under: censorship, encryption, free speech, hate speech, india, intermediary liability, it act, misinformation, section 79