See Saltzman v. Goddard.
We are the Digital Media Law Project
March 1st, 2013
by Jeffrey P. Hermes
DMLP
Many of you who have followed the adventures of the Citizen Media Law Project know that we have been contemplating a change of our project's name for quite some time (the eagle-eyed will have seen our new name and logo appearing in stealth fashion here and there on our site and elsewhere). The change from "Citizen" to "Digital" is a profound one for us, reflecting an ongoing discussion within our project (now and hereafter the "DMLP") about the nature of the online journalism and publishing ecosystem and our role in supporting those involved in it.
When our project started in 2007, the disruptive effects of the Internet on the journalism industry were in full swing, while at the same time individuals were realizing the potential of blogs, social media, and other open online platforms to change how we share information of public importance. The ability of individuals to participate directly in meeting the information needs of their communities marked a critical shift in how we communicate on public issues. However, many of those exploring the possibilities of citizen journalism did so with little understanding of the legal risks that they might face, risks that traditional journalism organizations had long understood and for which they had developed extensive risk management strategies.
The "Citizen Media Law Project" was intended to close that information gap, by providing freely available legal information about key issues affecting online speech in a form that could be understood without a law degree. We were also deeply concerned about tracking situations in which citizen journalists were actually threatened with legal action, leading us to create our threats database to monitor the legal challenges being faced by online publishers. These resources have been well received, and we continue to support them now.
However, in the last six years, digital journalism has continued to evolve at an exciting and even dizzying pace. Citizen journalists continue to do excellent work, but professional journalists who believe in the potential of online speech have launched numerous independent ventures as well. Freed from the constraints of traditional media, news projects experiment with sharing news in a wide variety of forms, from a constant torrent of short bursts of information to extended, in-depth investigative pieces - or even a seven-year journal of a walk around the world. Data journalism is realizing the incredible potential of mining vast storehouses of digital information for a clearer view of the world. The channels by which we receive all of this information are in constant development as well, as technology provides new and easier ways of creating, sharing, receiving, and even understanding content.
Of course, the legal challenges of this environment are in flux as well, making it essential that a project such as ours be flexible enough to respond to these challenges. So, while we can predict many fundamental legal issues and provide primers and legal guides, we remain on constant alert for new issues that could affect online journalism as a whole and develop tailored responses to those issues as they arise. When a journalist faces a specific issue and needs direct assistance, we can provide pro bono and reduced fee referrals through the Online Media Legal Network, our network of hundreds of attorneys, law firms, and legal clinics. Our project is no longer limited to addressing the narrow challenges faced by new and inexperienced entrants into the journalism market, but innovating to provide a comprehensive and mutually supporting set of resources to assist digital journalism as a whole.
For these reasons, we are now the "Digital Media Law Project." We are looking forward to all of the challenges that this transition entails, and welcome your participation in this new phase of our existence.
Jeff Hermes is the Director of the Digital Media Law Project.
Showing posts with label CMLP. Show all posts
Showing posts with label CMLP. Show all posts
Friday, March 01, 2013
Tuesday, March 13, 2012
Free speech, illegal search: R.S. v. Minnewaska Area School District No. 2149
Here's what I don't understand about this case. If the mother who complained did not have access to the girl's Facebook page, then why should she be taken seriously? If she did have access, then why didn't she give the access information to the school?
R.S. v. Minnewaska Area School District No. 2149
Threat Type: Disciplinary Action
Date: 03/06/2012
Status: Pending
Location: Minnesota
On March 6, 2012, R.S., a minor, and R.S.'s mother S.S., filed suit in federal court in Minnesota against Minnewaska Area Middle School, the school district, the county, and a number of school and county employees (including the county Sheriff). All of the individuals were sued in both their individual and official capacities, except for the Chair of the County Board (who was sued only in his official capacity). The complaint alleges a series of incidents involving R.S.'s out-of-school Facebook use.
The first set of events alleged in the complaint involve Facebook posts R.S. wrote about one of the school's adult hall monitors. R.S. allegedly complained on Facebook about the hall monitor, and the post was brought to the attention of the school. The post was, according to the complaint, "purely off-campus speech," having been written off hours, involving no use of school equipment. R.S. was given detention, and required to write an apology to the hall monitor. R.S. then posted again on Facebook, wanting to know "who the f%$# told on [her]." This second post earned R.S. one day of in-school suspension.
A subsequent Facebook-related incident began when another student's mother called the school, concerned that "her son was communicating via his computer with R.S. about sex." Eventually, R.S. was called into a room with two school employees and a Deputy Sheriff, who "demanded" R.S.'s email and Facebook login information. R.S. "eventually" gave the information "involuntarily," and the school employees proceeded to search R.S.'s Facebook account on the Deputy's computer. Again, the complaint alleges that all of R.S.'s communications were made off-campus, without using school equipment.
R.S.'s lawsuit alleges a number of federal and state law claims:
42 U.S.C. § 1983 claims, alleging violations of R.S.'s First and Fourth Amendment rights under the Federal Constitution;
42 U.S.C. §§ 1985 and 1986 claims, for conspiracy to violate R.S.'s constitutional rights, and failure to prevent the violation of her rights;
Violations of R.S.'s Minnesota state constitutional free-speech and freedom-from-unreasonable-search rights; and
State common-law claims of invasion of privacy and intentional infliction of emotional distress.
The complaint also seeks a declaratory judgment that R.S.'s constitutional rights were violated. For relief, the complaint seeks a mixture of injunctions, damages, changes to school policy and training, an apology, and costs/fees.
R.S. v. Minnewaska Area School District No. 2149
Threat Type: Disciplinary Action
Date: 03/06/2012
Status: Pending
Location: Minnesota
On March 6, 2012, R.S., a minor, and R.S.'s mother S.S., filed suit in federal court in Minnesota against Minnewaska Area Middle School, the school district, the county, and a number of school and county employees (including the county Sheriff). All of the individuals were sued in both their individual and official capacities, except for the Chair of the County Board (who was sued only in his official capacity). The complaint alleges a series of incidents involving R.S.'s out-of-school Facebook use.
The first set of events alleged in the complaint involve Facebook posts R.S. wrote about one of the school's adult hall monitors. R.S. allegedly complained on Facebook about the hall monitor, and the post was brought to the attention of the school. The post was, according to the complaint, "purely off-campus speech," having been written off hours, involving no use of school equipment. R.S. was given detention, and required to write an apology to the hall monitor. R.S. then posted again on Facebook, wanting to know "who the f%$# told on [her]." This second post earned R.S. one day of in-school suspension.
A subsequent Facebook-related incident began when another student's mother called the school, concerned that "her son was communicating via his computer with R.S. about sex." Eventually, R.S. was called into a room with two school employees and a Deputy Sheriff, who "demanded" R.S.'s email and Facebook login information. R.S. "eventually" gave the information "involuntarily," and the school employees proceeded to search R.S.'s Facebook account on the Deputy's computer. Again, the complaint alleges that all of R.S.'s communications were made off-campus, without using school equipment.
R.S.'s lawsuit alleges a number of federal and state law claims:
42 U.S.C. § 1983 claims, alleging violations of R.S.'s First and Fourth Amendment rights under the Federal Constitution;
42 U.S.C. §§ 1985 and 1986 claims, for conspiracy to violate R.S.'s constitutional rights, and failure to prevent the violation of her rights;
Violations of R.S.'s Minnesota state constitutional free-speech and freedom-from-unreasonable-search rights; and
State common-law claims of invasion of privacy and intentional infliction of emotional distress.
The complaint also seeks a declaratory judgment that R.S.'s constitutional rights were violated. For relief, the complaint seeks a mixture of injunctions, damages, changes to school policy and training, an apology, and costs/fees.
Friday, February 10, 2012
Do consumers have a right to post complaints on PissedConsumer.com? Court denies preliminary injunction to Ascentive, LLC
Ascentive v. Opinion Corp.
Citizen Media Law Project
Feb. 9, 202
Ascentive, LLC, a software company, filed suit against Opinion Corp. d/b/a PissedConsumer.com on September 24, 2010, claiming that Opinion Corp., through its PissedConsumer website, infringed on Ascentive trademarks. The complaint alleges seven claims for relief against Opinion Corp.:
The first and second claims allege that Opinion Corp. violated the Civil Racketeer Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C. 1961-1968, by conspiring to extort and solicit money from organizations that are the victims of complaints on the PissedConsumer website.
The third and fourth claims allege that Opinion Corp. violated the Lanham Act and Ascentive's common law trademark rights, respectively, by using Ascentive trademarks in web addresses such as Ascentive.PissedConsumer.com and FinallyFast.PissedConsumer.com.
The fifth through seventh claims allege that Opinion Corp. participated in unfair trade practices through its PissedConsumer website, resulting in interference with contractual relations and unjust enrichment.
In its answer, Opinion Corp. asserted that Ascentive's claims were barred by 47 U.S.C. § 230 (CDA 230). CDA 230 provides that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." It also provides that "No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." For more information on CDA 230, see the corresponding CMLP Legal Guide entry.
Ascentive filed a Motion for Preliminary Injunction on November 23, 2010, attempting to enjoin PissedConsumer from using Ascentive's trademarks in the site's metadata and as subdomains. In its Memorandum in Support of the Motion for Preliminary Injunction, Ascentive maintained that PissedConsumer holds itself out to be objective, but manipulates postings on its site and uses those to attempt to extort money from the victims of these complaints, in violation of RICO. Regarding the alleged trademark infringement, Ascentive argued that PissedConsumer has used Ascentive's trademarks in the site's metadata, causing PissedConsumer sites to appear prominently in Internet search results. According to Ascentive, this creates "initial interest" confusion in violation of the Lanham Act. Ascentive additionally claimed that its trademarks were used in subdomain names and as prominent text on the PissedConsumer sites, which further leads to consumer confusion resulting in trademark infringement.
In its Opposition Memorandum, Opinion Corp. claimed that Ascentive's request for a preliminary injunction was essentially a request for prior restraint on speech that is protected by the First Amendment and therefore invalid. Opinion Corp. argued that its use of Ascentive trademarks constituted expression protected by the First Amendment. Finally, Opinion Corp. argued that the content posted on its sites should be protected under CDA 230. It contended that "sites such as PissedConsumer.com fall squarely within the protection of the statute, which applies to all state law claims, however styled, so long as the act complained of is the publication of third party content."
After a hearing on Ascentive's Motion, and at the request of the presiding judge, Opinion Corp. submitted a bench brief discussing the application of fair use doctrine under the Lanham Act claim in this case. Opinion Corp. asserted that use of a trademark is protected when it is "fair[] and in good faith only to describe the goods and services of [the complaining] party." In this case, Opinion Corp. argued, PissedConsumer used the Ascentive marks in good faith as a means of cataloging sites, which constituted fair use.
Ascentive filed a reply letter arguing that a free speech defense is unavailable to sites creating confusion through a domain name. It also asserted that PissedConsumer is not protected by CDA 230, which provides no immunity for intellectual property claim or for content created by PissedConsumer, which include the self-created subdomains.
On December 13, 2011, in a rather lengthy opinion, the court rejected Ascentive's motion for preliminary injunction. The court ruled that there was no likelihood of confusion in PissedConsumer's use of Ascentive's trademarks, finding that "no reasonable visitor" to the various PissedConsumer sites would assume they are affiliated with Ascentive (or any other company), because the use of "pissed" in the domain name connotes criticism and negativity. Regarding use of the marks in metadata, the court found this did not create a likelihood of confusion, because PissedConsumer and Ascentive do not compete with each other, and because search engines generally do not use metadata to determine results. Finally, the court held that PissedConsumer is likely to fall within the protections of CDA 230 regarding the plaintiff's state law claims (unfair trade practices and consumer protection).
The court stated that this decision was without prejudice to Ascentive's opportunity to seek a permanent injunction after discovery has been completed.
Citizen Media Law Project
Feb. 9, 202
Ascentive, LLC, a software company, filed suit against Opinion Corp. d/b/a PissedConsumer.com on September 24, 2010, claiming that Opinion Corp., through its PissedConsumer website, infringed on Ascentive trademarks. The complaint alleges seven claims for relief against Opinion Corp.:
The first and second claims allege that Opinion Corp. violated the Civil Racketeer Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C. 1961-1968, by conspiring to extort and solicit money from organizations that are the victims of complaints on the PissedConsumer website.
The third and fourth claims allege that Opinion Corp. violated the Lanham Act and Ascentive's common law trademark rights, respectively, by using Ascentive trademarks in web addresses such as Ascentive.PissedConsumer.com and FinallyFast.PissedConsumer.com.
The fifth through seventh claims allege that Opinion Corp. participated in unfair trade practices through its PissedConsumer website, resulting in interference with contractual relations and unjust enrichment.
In its answer, Opinion Corp. asserted that Ascentive's claims were barred by 47 U.S.C. § 230 (CDA 230). CDA 230 provides that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." It also provides that "No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." For more information on CDA 230, see the corresponding CMLP Legal Guide entry.
Ascentive filed a Motion for Preliminary Injunction on November 23, 2010, attempting to enjoin PissedConsumer from using Ascentive's trademarks in the site's metadata and as subdomains. In its Memorandum in Support of the Motion for Preliminary Injunction, Ascentive maintained that PissedConsumer holds itself out to be objective, but manipulates postings on its site and uses those to attempt to extort money from the victims of these complaints, in violation of RICO. Regarding the alleged trademark infringement, Ascentive argued that PissedConsumer has used Ascentive's trademarks in the site's metadata, causing PissedConsumer sites to appear prominently in Internet search results. According to Ascentive, this creates "initial interest" confusion in violation of the Lanham Act. Ascentive additionally claimed that its trademarks were used in subdomain names and as prominent text on the PissedConsumer sites, which further leads to consumer confusion resulting in trademark infringement.
In its Opposition Memorandum, Opinion Corp. claimed that Ascentive's request for a preliminary injunction was essentially a request for prior restraint on speech that is protected by the First Amendment and therefore invalid. Opinion Corp. argued that its use of Ascentive trademarks constituted expression protected by the First Amendment. Finally, Opinion Corp. argued that the content posted on its sites should be protected under CDA 230. It contended that "sites such as PissedConsumer.com fall squarely within the protection of the statute, which applies to all state law claims, however styled, so long as the act complained of is the publication of third party content."
After a hearing on Ascentive's Motion, and at the request of the presiding judge, Opinion Corp. submitted a bench brief discussing the application of fair use doctrine under the Lanham Act claim in this case. Opinion Corp. asserted that use of a trademark is protected when it is "fair[] and in good faith only to describe the goods and services of [the complaining] party." In this case, Opinion Corp. argued, PissedConsumer used the Ascentive marks in good faith as a means of cataloging sites, which constituted fair use.
Ascentive filed a reply letter arguing that a free speech defense is unavailable to sites creating confusion through a domain name. It also asserted that PissedConsumer is not protected by CDA 230, which provides no immunity for intellectual property claim or for content created by PissedConsumer, which include the self-created subdomains.
On December 13, 2011, in a rather lengthy opinion, the court rejected Ascentive's motion for preliminary injunction. The court ruled that there was no likelihood of confusion in PissedConsumer's use of Ascentive's trademarks, finding that "no reasonable visitor" to the various PissedConsumer sites would assume they are affiliated with Ascentive (or any other company), because the use of "pissed" in the domain name connotes criticism and negativity. Regarding use of the marks in metadata, the court found this did not create a likelihood of confusion, because PissedConsumer and Ascentive do not compete with each other, and because search engines generally do not use metadata to determine results. Finally, the court held that PissedConsumer is likely to fall within the protections of CDA 230 regarding the plaintiff's state law claims (unfair trade practices and consumer protection).
The court stated that this decision was without prejudice to Ascentive's opportunity to seek a permanent injunction after discovery has been completed.
Tuesday, July 19, 2011
When you sue someone for $900,000 in a public court, you can't expect to keep it a secret
S.C. v. TheDirty
Citizen Media Law Project
On April 14, 2011, plaintiff "S.C." sued TheDirty, a gossip web site that advertises itself as the "first ever reality blogger," and Nik Richie, owner of the web site, for posting allegedly defamatory comments submitted by a third party. According to the complaint, the comments accused the plaintiff, who works at a church, of having an illicit relationship with the poster's boyfriend, and requests $900,000 in damages for defamation, public disclosure of private facts, false light invasion of privacy, and intentional infliction of emotional distress.The plaintiff claims she has suffered reputational harm in her community and her job as a result of the posting. The plaintiff also filed a motion to seal the case, but the motion was denied.
The defendants answered the complaint on May 17, 2011.
On May 20, 2011, the plaintiff's attorney sent an e-mail to the defendants' attorney stating an intent to add him as a defendant after the defendants' attorney apparently posted the plaintiff's original demand letter online with attachments, thus, in the words of plaintiff's counsel, "perpetuating this defamation." The e-mail also indicated a belief that the defense attorney had become a witness with a conflict of interest in representing TheDirty and Nik Richie.
On July 8, 2011, the plaintiff filed a motion to amend her complaint to include additional counts of intentional infliction of emotional distress and public disclosure of private facts after defendant Nik Richie posted a copy of the court's order denying the plaintiff's motion to seal on his website. The post included a comment, "now it's game on," and gave readers an opportunity to comment on the matter.
The proposed amended complaint does not include a claim against the defendants' attorney. The defendants have not yet responded to the motion to amend and no ruling on the motion has been issued.
Citizen Media Law Project
On April 14, 2011, plaintiff "S.C." sued TheDirty, a gossip web site that advertises itself as the "first ever reality blogger," and Nik Richie, owner of the web site, for posting allegedly defamatory comments submitted by a third party. According to the complaint, the comments accused the plaintiff, who works at a church, of having an illicit relationship with the poster's boyfriend, and requests $900,000 in damages for defamation, public disclosure of private facts, false light invasion of privacy, and intentional infliction of emotional distress.The plaintiff claims she has suffered reputational harm in her community and her job as a result of the posting. The plaintiff also filed a motion to seal the case, but the motion was denied.
The defendants answered the complaint on May 17, 2011.
On May 20, 2011, the plaintiff's attorney sent an e-mail to the defendants' attorney stating an intent to add him as a defendant after the defendants' attorney apparently posted the plaintiff's original demand letter online with attachments, thus, in the words of plaintiff's counsel, "perpetuating this defamation." The e-mail also indicated a belief that the defense attorney had become a witness with a conflict of interest in representing TheDirty and Nik Richie.
On July 8, 2011, the plaintiff filed a motion to amend her complaint to include additional counts of intentional infliction of emotional distress and public disclosure of private facts after defendant Nik Richie posted a copy of the court's order denying the plaintiff's motion to seal on his website. The post included a comment, "now it's game on," and gave readers an opportunity to comment on the matter.
The proposed amended complaint does not include a claim against the defendants' attorney. The defendants have not yet responded to the motion to amend and no ruling on the motion has been issued.
Sunday, May 09, 2010
Website Covered By State Reporter's Privilege
New Hampshire Supreme Court Rules Website Covered By State Reporter's Privilege
Posted May 6th, 2010
This morning, the Supreme Court of New Hampshire handed down an important decision holding that a mortgage industry website, The Mortgage Lender Implode-O-Meter, is entitled to protection under the state's reporter's privilege.
The case is Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., which was argued before the New Hampshire Supreme Court last fall. The dispute centers on an article that Impode-O-Meter published in August 2008, which detailed administrative actions taken by the New Hampshire Banking Department against The Mortgage Specialists, a mortgage lender. The article included a link to a financial document that The Mortgage Specialists allegedly submitted to the state banking authorities, which Implode-O-Meter had obtained from an anonymous source. After the mortgage company discovered the disclosure, it sued the website, demanding that the document be removed from the Internet and that the anonymous source be identified. A Rockingham County Superior Court judge granted these requests.
In the part of the decision dealing with the reporter's privilege, the state high court ruled that New Hampshire's qualified reporter's privilege applied to Implode-O-Meter and could protect the identity of the source who provided the loan document. The court flatly rejected The Mortgage Specialists' argument that "the newsgathering privilege is inapplicable here because Implode is neither an established media entity nor engaged in investigative reporting." ...
Posted May 6th, 2010
This morning, the Supreme Court of New Hampshire handed down an important decision holding that a mortgage industry website, The Mortgage Lender Implode-O-Meter, is entitled to protection under the state's reporter's privilege.
The case is Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., which was argued before the New Hampshire Supreme Court last fall. The dispute centers on an article that Impode-O-Meter published in August 2008, which detailed administrative actions taken by the New Hampshire Banking Department against The Mortgage Specialists, a mortgage lender. The article included a link to a financial document that The Mortgage Specialists allegedly submitted to the state banking authorities, which Implode-O-Meter had obtained from an anonymous source. After the mortgage company discovered the disclosure, it sued the website, demanding that the document be removed from the Internet and that the anonymous source be identified. A Rockingham County Superior Court judge granted these requests.
In the part of the decision dealing with the reporter's privilege, the state high court ruled that New Hampshire's qualified reporter's privilege applied to Implode-O-Meter and could protect the identity of the source who provided the loan document. The court flatly rejected The Mortgage Specialists' argument that "the newsgathering privilege is inapplicable here because Implode is neither an established media entity nor engaged in investigative reporting." ...
Tuesday, December 16, 2008
Truth is an absolute defense to charge of defamation, says Christopher Juillet
Citizen Media Law Project has posted the EDF Ventures v. Ressi case, a defamation lawsuit regarding The Funded blog.
It appears that the lawsuit is in vain, since The Funded keeps no information about people who post on the site.
"The best rule for writers to follow is to avoid making posts if they can't back up their claims...Be right and be able to prove it because truth is an absolute defense."
Company files defamation lawsuit against anonymous Web poster
Posted by Tina Reed
The Ann Arbor News
August 21, 2008
After executives at an Ann Arbor venture capital firm discovered an anonymous, negative Internet posting about the company, they weren't just mad: They decided to sue.
In a court filing, EDF Ventures accused "John Doe" of defamation for implying in a comment posted on the Web that the people running the firm were dishonest. The comment was made on a California-based Web site called The Funded, which was created to allow entrepreneurs to rate investors anonymously...
Adeo Ressi, the Web site founder, said last week that he planned to cooperate with the subpoena and provide the records he has. But he said the information will likely be unhelpful because of the measures the site takes to make posters anonymous.
The Web site's policy tells visitors, who must be approved to sign up and comment, that all personal information is discarded after approval.
"It's the best thing that ever happened to The Funded," Ressi said. "This case will prove it is truly anonymous."...
It appears that the lawsuit is in vain, since The Funded keeps no information about people who post on the site.
"The best rule for writers to follow is to avoid making posts if they can't back up their claims...Be right and be able to prove it because truth is an absolute defense."
Company files defamation lawsuit against anonymous Web poster
Posted by Tina Reed
The Ann Arbor News
August 21, 2008
After executives at an Ann Arbor venture capital firm discovered an anonymous, negative Internet posting about the company, they weren't just mad: They decided to sue.
In a court filing, EDF Ventures accused "John Doe" of defamation for implying in a comment posted on the Web that the people running the firm were dishonest. The comment was made on a California-based Web site called The Funded, which was created to allow entrepreneurs to rate investors anonymously...
Adeo Ressi, the Web site founder, said last week that he planned to cooperate with the subpoena and provide the records he has. But he said the information will likely be unhelpful because of the measures the site takes to make posters anonymous.
The Web site's policy tells visitors, who must be approved to sign up and comment, that all personal information is discarded after approval.
"It's the best thing that ever happened to The Funded," Ressi said. "This case will prove it is truly anonymous."...
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