Twitter Faces First Libel Lawsuit

Twitter gets a lot of attention these days. In recent weeks, we’ve seen jurors twittering from the jury box, lawmakers twittering during Obama’s first address to Congress, and celebrity ghost twitterers, to name just a few examples of the growing visibility of the micro-blogging platform. There’s been enough hoopla for John Stewart to report the outbreak of a “Twitter Frenzy.” While Stewart expresses mock luddite skepticism (“I have no idea how it works, or why it is”), the New York Times hails it as “an important marketing tool for celebrities, politicians and businesses, promising a level of intimacy never before approached online, as well as giving the public the ability to speak directly to people and institutions once comfortably on a pedestal.”

Now, at least as far as CMLP is concerned, Twitter has come of age. Why? Because Twitter has sparked its very first defamation lawsuit. (A colleague cleverer than me suggested we call it a “twibel” claim.) Making a good story better, the first defendant to be sued for tweeting is not some egg-headed techie type, but loose-canon-rock-star Courtney Love.

Fashion designer Dawn Simorangkir, who works under the label “Boudoir Queen,” sued Love last week in California state court over statements made on Twitter, on Love’s MySpace blog, and on Simorangkir’s feedback page on etsy.com, an online marketplace for independent designers. Simorangkir alleges that, after a business dispute arose between them over some very expensive clothing, Love used Twitter to publish “not only delusional accusations and lies, but threats of harm.” Cmplt. ¶ 20. The complaint, which includes claims for libel, false light invasion of privacy, breach of contract, and other claims, pulls no punches:

Whether caused by a drug induced psychosis, a warped understanding of reality, or the belief that her money and fame allow her to disregard the law, Love has embarked in what is nothing short of an obsessive and delusional crusade to terrorize or destroy Simorangkir, Simorangkir’s reputation and her livelihood.

Cmplt. ¶ 1. I’ve perused the detailed allegations in the complaint. Many of the allegedly defamatory statements look like statements of opinion or wild and largely incoherent rants, for example characterizing Simorangkir as a “nasty lying hosebag thief.” Cmplt. ¶ 24(c). The most aesthetically satisfying chestunut of this sort is the one Simorangkir cites as an alleged threat: “oi ve dont fuck with my wardrobe or you willend up in a circle of corched eaeth hunted til your dead.” Cmplt. ¶ 24(g) (typos not mine!). Not that terribly nice, but somehow I doubt that even Simorangkir could take this seriously.

But, unfortunately for Love, a good many of the statements are factual in nature, accusing Simorangkir of a variety of bad behavior, including dealing drugs, assault, burglary, prostitution, and losing custody of her child. See Cmplt. ¶ 24(b), (f), (h), 26(c), (j), (n), (bb). This could make it hard for Love to defend against the suit and could neutralize a promising legal argument based on the extreme informality of the Twitter platform. As I’ve explained before, courts must consider context, including the nature of the platform, when deciding whether a statement is fact or opinion. One could argue that reasonable readers of most Twitter feeds — which allow “people [to] ‘follow’ each other’s informal idea drops” — do not understand “tweets” to be conveying factual information. But this argument only goes so far, and it doesn’t sound convincing when many of the damaging statements look undeniably like facts.

In anticipation of Twitter fights to come, we’ve updated our legal threats database to add “micro-blog” to our “publication medium” category. You can monitor the progress of this case in our entry, Simorangkir v. Love. http://www.citmedialaw.org/blog/2009/first-twitter-libel-suit-starring-courtney-love

Truth No Longer Defense in Some Libel Cases

Truth is no longer a defense in some private-figure libel cases in Massachusetts where the “ill will” of the speaker is established — at least according to a federal appellate opinion issued last week. The court was interpreting Massachusetts state law, not federal law.

The decision in Noonan v. Staples took a unique approach to libel law by ruling that true statements can be libelous if published maliciously. The court also interpreted the term “actual malice” to mean an intentional ill will, finding that a state statute that predated U.S. Supreme Court precedent had a different meaning than the “actual malice” standard of New York Times v. Sullivan.

The Feb. 13 ruling issued by the U.S. Court of Appeals in Boston (1st Circuit) counters years of precedent holding that truth is an absolute defense to libel and that “actual malice” means reckless disregard for the truth.

“It is the most dangerous libel decision in decades. The decision puts a crack in the bedrock that threatens to undermine free speech,” Robert Ambrogi, executive director of the Massachusetts Newspaper Publishers Association, wrote on his blog.

The case involved a lawsuit brought by a former Staples employee against his employer. Alan Noonan sued Staples for libel after the company’s executive vice president sent an e-mail to 1,500 employees alerting them that Noonan had been fired for violating the company’s travel and expense policy.

Noonan acknowledged that everything written in the e-mail was true, but still claimed he had been libeled because it was sent with malicious intent.

In finding that a reasonable jury might find that the Staples e-mail was sent maliciously, the court pointed to a century-old Massachusetts statute that allows true statements to be considered libelous “if the plaintiff can show that the defendant acted with ‘actual malice’ in publishing the statement.” According to Ambrogi’s blog, the Massachusetts statute was held unconstitutional by a 1998 state court decision.

The court held that the statute’s use of the term ”actual malice” did not have the same meaning as the U.S. Supreme Court’s definition of the term in the landmark First Amendment case New York Times v. Sullivan. Instead of interpreting actual malice to mean that the plaintiff acted with reckless disregard for the truth, as New York Times held, the Court of Appeals ruled that it means ill will or malevolent intent, a much lower standard for the plaintiff to prove.http://www.rcfp.org/newsitems/index.php?i=9958

Houses passes federal shield bill

A federal shield bill that would give reporters a qualified privilege from revealing confidential sources was passed by the U.S. House of Representatives on Tuesday night.

H.R. 985, known as the Free Flow of Information Act of 2009, was passed by a voice vote under a suspension of the rules, a typical procedure used to pass non-controversial bills. The bill is identical to the bill that was passed in 2007 by a vote of 398 to 21.

Rep. Rick Boucher (D-Va) sponsored the bill with Rep. Mike Pence (R-Ind), Rep. Bob Goodlatte (R-Va), and Rep. John Conyers (D-Mi). The sponsors and Rep. Ted Poe (R-Tex) all spoke out in favor of the bill.

“This is protecting the public’s right to know,” Pence said during the debate.

Despite the law’s swift passage, there was some criticism of the law during the debate. Rep. Lamar Smith (R-Tex) voiced stern opposition to the bill, saying that there is “no evidence of a need” for a shield law and that the law would improperly “allow reporters to avoid a civic duty.”

In a letter circulated to House members today, Smith urged a rejection of the law.

Rep. Steve King (R-Iowa) also voiced opposition during the debate, arguing that privileges should only protect “skilled” and licensed professions such as priests, doctors and attorneys.

The law will provide a qualified privilege for journalists with exceptions for national security, the prevention of death or bodily harm, or information that is deemed essential in a criminal case or critical in a civil suit.

The bill defines a journalist as someone who regularly reports and writes for a substantial portion of the person’s livelihood or for substantial financial gain.http://www.rcfp.org/newsitems/index.php?i=10682

Amazon Error Removes Gay, Health Books From Search

The Wall Street Journal – Amazon.com Inc. said an internal cataloging glitch inadvertently removed more than 57,000 books from its sales rankings and main search page.

The Seattle company was hit by criticism in recent days from the authors of affected books, mainly those focusing on gay themes. But Amazon said the problem was global, and affected other categories such as health, mind and body, reproductive and sexual medicine and erotica.

“This is an embarrassing and ham-fisted cataloging error for a company that prides itself on offering complete selection,” wrote Drew Herdener, Amazon’s director of communications, in an email.

Amazon declined to explain its cataloging process or what had gone wrong with it.

“Many books have now been fixed and we’re in the process of fixing the remainder as quickly as possible, and we intend to implement new measures to make this kind of accident less likely to occur in the future,” added Mr. Herdener.

Books by E.M. Forster and Gore Vidal were among those with gay themes whose rankings had been missing but were later restored. Books whose rankings were still missing included a lesbian love story by Sylvia Brownrigg and a biography of Ellen DeGeneres by Lisa Iannucci.http://online.wsj.com/article/SB123964842562214381.html

Digital photography complicates issue of "fair use."

The Wall Street Journal – Technology makes it easy to lift parts of someone else’s music, video or other digital creations, tweak it, and call the result one’s own. This usually causes no harm, but the case of a photo-turned-poster of Barack Obama is a reminder that just because technology makes something possible doesn’t make it right.

Until the digital age, the common view of copyright law was that it served overreaching corporations against creative little guys. Groucho Marx once generated publicity for the Marx Brothers film “A Night in Casablanca” by playing on this cynicism. Warner Bros. asked for the plot of the film, fearing it would spoof its Humphrey Bogart classic, “Casablanca.” Groucho Marx responded with a letter threatening a counterclaim against Warner for using the word “Brothers.

Now disputes are as likely to be little guy versus little guy, with artists and photographers split over the Obama case. One side defends poster artist Shepard Fairey, while the other cries foul on behalf of freelance photographer Mannie Garcia, who took a striking photo in 2006 while on assignment for the Associated Press of then Sen. Barack Obama gazing off to one side. Mr. Fairey discovered the photo on Google and used it, without crediting the photographer, to create the “Hope” poster. With Mr. Fairey’s permission, the Obama campaign widely used this image to support the candidate.

Earlier this year, New York gallery organizer James Danziger was planning a show featuring Obama campaign art, including the Fairey poster. He wondered whose photo had been used, but Mr. Fairey refused to say. Online searching found it to be Mr. Garcia’s photo. When the AP learned the poster was based on its photo, it sought standard licensing terms from Mr. Fairey, who refused. Instead, Mr. Fairey sued the AP, which has counterclaimed.

It’s not clear who wins as a matter of law. The concept of “fair use” is broad, but photographers argue that the lighting, angle and much of the art of the poster, which seems to have been digitally created, was in the photo. Mr. Garcia, a veteran war photographer, worked hard for the image. “I’m on my knees, I’m down low, and I’m just trying to make a nice, clean head shot,” he told National Public Radio. “I’m looking and waiting. I’m waiting for him to turn his head a little bit. . . . Boom. I was there. I was ready.”http://online.wsj.com/article/SB123716866712036921.html

Many See Privacy on Web as Big Issue, Survey Says

The New York Times – As arguments swirl over online privacy, a new survey indicates the issue is a dominant concern for Americans.

More than 90 percent of respondents called online privacy a “really” or “somewhat” important issue, according to the survey of more than 1,000 Americans conducted by TRUSTe, an organization that monitors the privacy practices of Web sites of companies like I.B.M., Yahoo and WebMD for a fee.

When asked if they were comfortable with behavioral targeting — when advertisers use a person’s browsing history or search history to decide which ad to show them — only 28 percent said they were. More than half said they were not. And more than 75 percent of respondents agreed with the statement, “The Internet is not well regulated, and naïve users can easily be taken advantage of.”

The survey arrives at a fractious time. Debate over behavioral advertising has intensified, with industry groups trying to avoid government intervention by creating their own regulatory standards. Still, some Congressional representatives and the Federal Trade Commission are questioning whether there are enough safeguards around the practice.

Last month, the F.T.C. revised its suggestions for behavioral advertising rules for the industry, proposing, among other measures, that sites disclose when they are participating in behavioral advertising and obtain consumers’ permission to do so.

One F.T.C. commissioner, Jon Leibowitz, warned that if the industry did not respond, intervention would be next.

“Put simply, this could be the last clear chance to show that self-regulation can — and will — effectively protect consumers’ privacy,” Mr. Leibowitz said, or else “it will certainly invite legislation by Congress and a more regulatory approach by our commission.”http://www.nytimes.com/2009/03/16/technology/internet/16privacy.html

A Dirty Pun Tweaks China’s Online Censors

Songs about a mythical alpaca-like creature have taken hold online in China.

The New York Times – BEIJING — Since its first unheralded appearance in January on a Chinese Web page, the grass-mud horse has become nothing less than a phenomenon.

A YouTube children’s song about the beast has drawn nearly 1.4 million viewers. A grass-mud horse cartoon has logged a quarter million more views. A nature documentary on its habits attracted 180,000 more. Stores are selling grass-mud horse dolls. Chinese intellectuals are writing treatises on the grass-mud horse’s social importance. The story of the grass-mud horse’s struggle against the evil river crab has spread far and wide across the Chinese online community.

Not bad for a mythical creature whose name, in Chinese, sounds very much like an especially vile obscenity. Which is precisely the point.

The grass-mud horse is an example of something that, in China’s authoritarian system, passes as subversive behavior. Conceived as an impish protest against censorship, the foul-named little horse has not merely made government censors look ridiculous, although it has surely done that.

It has also raised real questions about China’s ability to stanch the flow of information over the Internet — a project on which the Chinese government already has expended untold riches, and written countless software algorithms to weed deviant thought from the world’s largest cyber-community.

Government computers scan Chinese cyberspace constantly, hunting for words and phrases that censors have dubbed inflammatory or seditious. When they find one, the offending blog or chat can be blocked within minutes.

Xiao Qiang, an adjunct professor of journalism at the University of California, Berkeley, who oversees a project that monitors Chinese Web sites, said in an e-mail message that the grass-mud horse “has become an icon of resistance to censorship.”

“The expression and cartoon videos may seem like a juvenile response to an unreasonable rule,” he wrote. “But the fact that the vast online population has joined the chorus, from serious scholars to usually politically apathetic urban white-collar workers, shows how strongly this expression resonates.”

Wang Xiaofeng, a journalist and blogger based in Beijing, said in an interview that the little animal neatly illustrates the futility of censorship. “When people have emotions or feelings they want to express, they need a space or channel,” he said. “It is like a water flow — if you block one direction, it flows to other directions, or overflows. There’s got to be an outlet.”

China’s online population has always endured censorship, but the oversight increased markedly in December, after a pro-democracy movement led by highly regarded intellectuals, Charter 08, released an online petition calling for an end to the Communist Party’s monopoly on power.

Shortly afterward, government censors began a campaign, ostensibly against Internet pornography and other forms of deviance. By mid-February, the government effort had shut down more than 1,900 Web sites and 250 blogs — not only overtly pornographic sites, but also online discussion forums, instant-message groups and even cellphone text messages in which political and other sensitive issues were broached.http://www.nytimes.com/2009/03/12/world/asia/12beast.html

Goggle Spends Millions Looking For Copyright Holders

The New York Times – Last month an e-mail message washed up at the offices of The Cook Islands News in the South Pacific. It was a request to place a half-page advertisement in the newspaper, which has a circulation of 2,500. The cost was $370.

“We were amazed — it came from out of nowhere,” the newspaper’s editor, John Woods, said in a telephone interview. “We are very skeptical of ads like that.”

Even more surprising was who was paying for it: Google.

Google, the online giant, had been sued in federal court by a large group of authors and publishers who claimed that its plan to scan all the books in the world violated their copyrights.

As part of the class-action settlement, Google will pay $125 million to create a system under which customers will be charged for reading a copyrighted book, with the copyright holder and Google both taking percentages; copyright holders will also receive a flat fee for the initial scanning, and can opt out of the whole system if they wish.

But first they must be found.

Since the copyright holders can be anywhere and not necessarily online — given how many books are old or out of print — it became obvious that what was needed was a huge push in that relic of the pre-Internet age: print.

Under the proposed settlement, reached on Oct. 28 and still subject to court approval, there must be an effort the court finds “reasonable and practicable” to find authors and publishers — especially copyright holders of so-called orphan books, which are still in copyright but long out of print. So the task means placing at least one ajavascript:void(0)dvertisement in every country in the world.

One reason courts have required such heroic efforts to reach the people covered by a settlement is that unless parties opt out of the settlement, they are automatically opting in. The least that must be done, the argument goes, is let those affected know about it.http://www.nytimes.com/2009/03/04/books/04google.html

Supreme Court to Revisit a Case on Breach of Copyright

WASHINGTON — The Supreme Court agreed on Monday to revisit a case it decided eight years ago in favor of freelance writers who said that newspapers and magazines had committed copyright infringement by making their contributions available on electronic databases.

In that 2001 decision, New York Times Company v. Tasini, the Supreme Court seemed to contemplate and even encourage a settlement of the case, saying that the parties “may enter into an agreement allowing continued electronic reproduction of the authors’ works.”

After the Tasini decision, many freelance works were removed from online databases. Most publishers these days require freelance writers to sign contracts granting both print and online rights.

In an effort to settle the original copyright infringement claims, authors, publishers and database companies undertook four years of what they said were intensive, complex and costly negotiations. In the end, the defendants agreed to pay $18 million for a global settlement of all claims in four class actions to two groups of authors — those who had registered copyrights in their works and those who had not.

The second group was by far the more numerous. But the federal copyright law allows suits claiming copyright infringement only after works are registered.

In November 2007, a divided three-judge panel of the United States Court of Appeals for the Second Circuit, in New York, declined to approve the settlement, saying it did not have jurisdiction over the claims of the second group of authors.

The question for the Supreme Court this time is whether courts may approve global class action settlements that include claims they would not have had jurisdiction to decide.

Many authors supported the settlement, but some objected. The objectors said that authors who had not registered their works were treated unfairly because their share would be reduced if there was not enough money to go around.

But all concerned urged the court to hear the case, Reed Elsevier v. Muchnick, No. 08-103.http://www.nytimes.com/2009/03/03/business/03bizcourt.html

Defense Chief Lifts Ban on Pictures of Coffins

In a reversal of military policy, the news media will now be allowed to photograph the coffins of the war dead.

The New York Times – WASHINGTON — In a reversal of an 18-year-old military policy that critics said was hiding the ultimate cost of the wars in Iraq and Afghanistan, the news media will now be allowed to photograph the coffins of America’s war dead as their bodies are returned to the United States, but only if the families of the dead agree.

The decision, which Defense Secretary Robert M. Gates announced Thursday, lifts a 1991 blanket ban on such photographs put in place under President George Bush. It chiefly affects coffins arriving from Iraq and Afghanistan that go through Dover Air Force Base in Delaware.

“I think that foremost in our thinking about issues like this should be the families and giving them choices,” Mr. Gates said in a news conference at the Pentagon.

Renewed as recently as a year ago by the administration of President George W. Bush, the ban has long been a source of intense debate.http://www.nytimes.com/2009/02/27/washington/27coffins.html

The military said the ban protected the privacy and dignity of families of the dead. But others, including some of the families as well as opponents of the Iraq war, said it sanitized the wars in Iraq and Afghanistan and was intended to control public anger over the conflicts.