New Federal Legislation Could Take a Nip Out of ‘Revenge Porn’

27 11 2013

Internet activists worry that forthcoming proposal could ruin free speech, along with bitter exs

By

US News

November 21, 2013

Activists seeking to criminalize “revenge porn” say they are working with a member of Congress to prepare federal legislation that would force Internet companies to take down the sometimes X-rated content.

The proposed law has not be finalized and its sponsor does not wish to be identified yet, according to University of Miami law professor Mary Anne Franks, who is helping draft the bill.

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Griping Blogger Protected by Fair Use But Not Section 230–Ascend Health v. Wells

26 11 2013

By Eric Goldman

Ascend Health Corp. v. Wells, 2013 WL 1010589 (E.D.N.C. March 14, 2013)

Brenda Wells gripes about University Behavioral Health of Denton (“UBH”) at two blogs, which she promotes via Twitter, Facebook and YouTube. UBH and related parties sued Wells for, among other things, copyright infringement and defamation.

Copyright

Wells allegedly posted the followed copyrighted materials:

images of UBH’s facility; an image apparently of Ascend’s officers, including Kresch; an image of UBH’s logo; and, a still image of a man outdoors with other people in the background from a UBH promotional video

The court grants Wells’ motion to dismiss on fair use grounds. The court says she used the images for criticism of UBH, and that makes her use transformative even though she didn’t modify the images (cite to Sedgwick v. Delsman). Further, the images had no independent commercial value, so the reuse of the images for criticism didn’t harm the market value of the images. It’s great to see a blogger win a fair use defense on a motion to dismiss; the caselaw is split on this topic. Compare Righthaven v. Realty One with Katz v. Chevaldina.

Defamation

Among other defenses, Wells claimed that she was protected by 47 USC 230. Wells argued that she:

“simply . . . re-post[ed] content provided by a third party.” Specifically, she points to two statements on her blog which plaintiffs allege are defamatory. As to one statement, plaintiffs allege that Wells removed the name of the commentator, and with the other, plaintiffs allege it was purportedly authored by the mother of a former UBH patient. Therefore, Wells argues, because the statements were authored by others and published on her website, albeit with some edits, she cannot be held liable for those statements. (cites omitted)

While the court says that quoting third parties could potentially qualify for Section 230 (see, e.g., the uncited D’Alanzo case), the plaintiffs’ allegations knock her out of the immunity:

Plaintiffs allege that Wells herself created some of the defamatory statements on her blog. Furthermore, as to the defamatory statements based on information provided by others, it is not evident the extent to which Wells may have made more than mere editorial changes to that information, and the court agrees with plaintiffs that discovery should bear this out. Section 230 immunity does not cover content which Wells created herself or other content, although originating with a third party, which Wells significantly altered.

Unfortunately, the court’s discussion isn’t adequately nuanced. It’s true that significantly altered third party content can lose Section 230 immunity, but only if the editing actually changed the meaning of the edited content. My hope is that those facts will become clearer in discovery, and if the facts are favorable, perhaps the judge will reconsider the Section 230 analysis on summary judgment.

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Google Immunized for Its Search Results–Mmubango v. Google (Catch-up Post)

26 11 2013

By Eric Goldman

Mmubango v. Google, Inc., 2013 WL 664231 (E.D. Pa. February 22, 2013). The initial complaint.

This is one of the many bogus pro se lawsuits over Google search results. Like the others, it goes nowhere (though the judge patiently let the plaintiff file a third amended complaint). The plaintiff claims he was being defamed on a third party website and he asked Google to de-index the website but it refused. So he sued Google for defamation.

This is an easy 47 USC 230 case:

1) Google provides an interactive computer service (cites to Parker, Langdon, Jurin).

2) The plaintiff seeks to hold Google responsible for content from the third party website (cite to Carafano). The court says the plaintiff “alleges that Google “stored” and “broadcasted” the information.”

3) The plaintiff seeks to hold Google as a publisher of the third party content (cites to Green v. AOL, Parker, Zeran v. AOL and Ben Ezra v. Weinstein)

The court summarizes:

Google cannot be held liable for state law defamation on the facts that it “decided” to publish a third party’s statements, which has been identified by the Third Circuit as a traditional editorial function. In the same vein, Google cannot be held liable for failing to withdraw this statement once it has been published.

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WhitePages Gets Its Inevitable Section 230 Win–Nasser v. WhitePages

26 11 2013

WhitePages.com publishes white pages information (get it?). It obtained and published information from third parties that incorrectly listed Nasser’s phone number as a Comcast phone number. As a result, Nasser got a voluminous number of angry phone calls intended for Comcast.

Because the erroneous information came from third parties, WhitePages isn’t liable for it per 47 USC 230. The magistrate judge recognized this and recommended dismissal. In a surprise twist, the judge didn’t agree, saying that it would decide the Section 230 question only after closer factual review. Six months later, the judge came back to the magistrate’s result from almost a year ago: case dismissed per Section 230.

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“Revenge porn” suit targets generic porn sites, Web hosts

24 11 2013
A Florida woman who says her ex-boyfriend uploaded compromising pictures of her to various websites has filed a lawsuit against numerous parties connected to her plight. It’s the second well-publicized lawsuit fighting back against “revenge porn” sites.

The content in this post was found at http://arstechnica.com/tech-policy/2013/05/revenge-porn-suit-targets-generic-porn-sites-web-hosts/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



UK’s New Defamation Law May Accelerate the Death of Anonymous User-Generated Content Internationally (Forbes Cross-Post)

24 11 2013

[ed: although there are defamation and safe harbor tags on this post, this is International IP action]

By Eric Goldman

Historically, United Kingdom defamation law has been victim-favorable.  In an effort to modernize its defamation law, the UK Parliament recently enacted the Defamation Act 2013 (royal assent was given on April 25).  The act generally makes it harder for plaintiffs to win defamation lawsuits, but I’ll focus on the effects of Section 5 of the act, entitled “Operators of websites.”

Section 5 sets up a “notice-and-takedown” system for defamation from user-generated content (UGC).

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Dentist’s Defamation Lawsuit Against Yelp Preempted by Section 230–Braverman v. Yelp

24 11 2013

By Eric Goldman

Braverman v. Yelp, Inc., 2013 NY Slip Op 31407 (NY Sup. Ct June 28, 2013)

Mal Braverman is a Manhattan dentist. He sued Yelp for defamation based on two allegedly defamatory user posts. I’m not sure which posts are in question, but when I searched for “Mal Braverman” at Google today, his Yelp page was the first search result and the 3 unfiltered reviews were not flattering (though there are 27 filtered reviews–90% of the total number of reviews!–including some positive ones).

His lawsuit against Yelp is a ridiculously easy Section 230 case. If the case were brought in a state with strong anti-SLAPP protections, Braverman would be writing a check to Yelp. To get around Section 230, Braverman argued that Yelp “authored” the user reviews by

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“Hockey stick graph” climate researcher’s defamation suit to go forward

24 11 2013
A year ago, Penn State was reeling in the wake of revelations that its athletic program had covered up serial abuse by one of its football coaches. A blogger at the pro-free-market Competitive Enterprise Institute used that situation as an opportunity to suggest that the university was covering up malfeasance by one of its faculty members, climate scientist Michael Mann. The accusations of research fraud were then reiterated by a blogger at the conservative publication National Review. After a bit of back-and-forth between Mann and the two organizations, Mann filed a defamation suit.Both National Review and the CEI attempted to have the case thrown out. They argued that it met the SLAPP definition of an attempt to silence critics and that Mann’s case fell far short of the standards of defamation of a public figure. Now, a judge has denied both of these attempts, allowing the defamation trial to move forward.

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The content in this post was found at http://arstechnica.com/science/2013/07/hockey-stick-graph-climate-researchers-defamation-suit-to-go-forward/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



Want To Avoid Defaming Someone Online? Link To Your Sources (Forbes Cross-Post)

24 11 2013

Adelson v. Harris, 2013 WL 5420973 (S.D.N.Y. Sept. 30, 2013)

When you are tweeting or Facebooking, you probably don’t think much about your risk of being sued for defamation. Fortunately, such lawsuits are rare. Unfortunately, even quickly written and seemingly innocuous posts attract scary accusations of defamation more frequently than you’d expect. A few simple steps can reduce the likelihood you’ll be challenged. First, as your mother taught you, always tell the truth. Second, when providing negative feedback, discuss your subjective opinions. Third, if you’re going to assert negative facts, provide hyperlinks to your sources as a form of citation, as a recent court opinion illustrated.

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Section 230 Protects Another Newspaper From Liability For User Comments–Hupp v. Freedom Communications

24 11 2013

Hupp v. Freedom Communications, Inc., 2013 WL 5947033 (Cal. App. Ct. Nov. 7, 2013)

 

This is a minor case involving a pro se plaintiff and a straightforward application of the law, so normally I wouldn’t blog it. However, over the years I’ve tracked the cases where newspapers have gotten a Section 230 win for readers’ comments to their stories, and this case adds to the canon, so I figured it was worth sharing.

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The content in this post was found at http://blog.ericgoldman.org/archives/2013/11/section-230-protects-another-newspaper-from-liability-for-user-comments-hupp-v-freedom-communications.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.