Lewinsky calls for online civility, will speak twice in South Coast Massachusetts this academic year

Goodman as Linda Tripp, Molly Shannon as Lewinsky, in
1998 (SNL). President Clinton's escapades were good business
for SNL, which released a Best Of collection in 1999.

Monica Lewinsky has become a public figure in a whole new light in recent years, leaving behind the scandal that took her name, rather than his, mostly to differentiate scandals.  As Time put it, "Monica Lewinsky" was once the butt of a joke, many jokes.  John Goodman playing Linda Tripp (see WaPo reemergence in 2018) made for instant-classic Saturday Night Live bits (see Tripp's later perspective and a brief recollection with Goodman).

The world has changed, #MeToo, and Lewinsky figures into it differently today.  She has described herself as an original victim of cyber-bullying, before it was a thing.  Aptly, she's become an outspoken advocate against it, and a mite more effective in that capacity than the present First Lady.  Lewinsky broke her relative silence in Vanity Fair in 2014 and subsequently became a VF contributor and Twitter personality.  John Oliver interviewed her on Last Week Tonight in his excellent program on "public shaming" (below) (cf. Jon Ronson's definitive 2016 treatment of the subject in his book, So You've Been Publicly Shamed, featured here on The Savory Tort in 2017).

Apparently Lewinsky's "second act" is only getting going.  Among her many projects, she is contributing to the fall 2020 season of American Crime Story, on FX, The Hill reported, in which Sarah Paulson will play Linda Tripp decidedly more darkly than John Goodman did.  Meanwhile on stage, Lewinsky has become an advocate for online civility.  Building on her 2015 TED talk, The Price of Shame, she's booked into an aggressive public speaking agenda.

I can't help but find Lewinsky to be a compelling figure.  Aside from her curious, mostly involuntary role in American history, she embodies the mass media's power to destroy reputations with the impunity the First Amendment affords.  Yet her story unfolded in the highest of political arenas, the American executive office, in which First Amendment values are most urgently implicated, and First Amendment absolutism is most persuasively justified.  Whatever the merits of the case that shaped her perspective, she shares today a meritorious message: If the internet can be tamed, to do more good than harm, it will be by people and their choices, not by law and regulation.

Lewinsky is slated to speak in South Coast Massachusetts in fall and spring.  On October 17, 2019, Lewinsky will give an endowed lecture at Bridgewater College (more from WHSV).  On May 15, 2020, Lewinsky will speak in the New Bedford (Massachusetts) Lyceum at the Zeiterion Performing Arts Center ("the Z"); tickets are on sale now.

Beijing internet court rules against ISP Baidu on posthumous defamation claim under PRC Tort Law

In a Chinese defamation case, the Beijing Internet Court has ruled in favor of the plaintiff and contrary to American tort norms regarding ISP immunity and posthumous defamation.

Sixth Tone reported on the suit "filed by the son of the late playwright, screenwriter, and composer Zhao Zhong" (赵忠).  The suit alleged that an anonymous user of Baidu's Baike, China's answer to Wikipedia, edited Zhao's biographical page to defamatory effect.  The edits by user "charming and beautiful woman" (Qiaonü Jiaren) criticized Zhao as a "thief" and cultural "traitor," and deleted the libretto of the opera Red Coral from his listed oeuvre.  The changes remained on the page for five years, from 2013 to 2018, until Zhao's family noticed and demanded correction.  Baidu reversed the edits.  The son nevertheless complained of negligence in Baidu's failure reasonably to moderate content and consequent reputational injury to the family.

The court ruled against Baidu.  Beijing tort lawyer Qu Zhenhong told Sixth Tone that Baidu's compliance with the defamation notice-and-takedown procedure of PRC Tort Law article 36 did not relieve the internet service provider of liability under article 6 for the defamation's five years in publication.  That approach deviates from the powerful ISP immunity of 47 U.S.C. § 230 in the United States—which has faced slowly mounting criticism both at home and in Europe.

A second deviation from American tort norms arises in the allowance of a defamation action by the family after the death of the person defamed.  Common law jurisdictions including the United States continue generally to observe the historic rule that defamation claims die with their claimants, though states are widely experimenting with the posthumous right of publicity by statute.  Cf. The Savory Tort on Defaming the Dead.

The court made clear that it approves of a family's ancillary defamation claim, not just a decedent's claim that persists after death.  "A negative social assessment of the deceased not only violates the reputation of the deceased, but also affects the overall reputation of the deceased's close relatives as well as personal reputation," People's Court News wrote in summary of the court's decision (Google translation). "Therefore, for any close relative of the deceased, they have the right to request the court to protect the right [of the] deceased, or to pursue the responsibility of infringing on their own reputation based on their close relatives."

By its publisher's description, Red Coral (Hong shan hu) "describes the story of the peoples who lived in the red coral island and fought against the troops of Chiang Kaishek. They cooperated with the Red Army and defeated the enemy with the guidance of the people's Liberation Army."  Red Coral was adapted to film in 1961 (DVD pictured).

LatAm NGOs propose model of internet platform self‑regulation consistent with human rights

NGOs working on the project, from the report.

Now published online and open for comment are "Contributions for the Democratic Regulation of Big Platforms to Ensure Freedom of Expression Online," a potentially powerful document developed by a coalition of Latin American non-governmental organizations.  Here is the abstract:

This document offers recommendations on specific principles, standards and measures designed to establish forms of public co-regulation and public regulation that limit the power of major Internet platforms (such as social networks and search engines).

The purpose of this effort is to protect users' freedom of expression and guarantee a free and open Internet. Such intermediaries increasingly intervene in online content, through the adoption of terms of service and the application of business moderation policies. Such forms of private regulation affect public spaces which are vital for democratic deliberation and the exercise of fundamental rights.

The proposal seeks to align with international human rights standards and takes into account existing asymmetries related to large internet platforms without limiting innovation, competition or start-up development by small businesses or community, educational or nonprofit initiatives.

The proposal seeks to create a self-regulatory framework that will avert public regulation of the internet.  Needless to say, that will involve the voluntary collaboration of the major players, Facebook, Google, Twitter, et al.  From what I saw of their recent participation in RightsCon in Tunisia, they are game.

I'm all for seeing where the self-regulatory approach takes us, but I worry about two problems.  First, I'm not sure how long the big players will be willing to spend money on social responsibility while unscrupulous competitors bypass self-regulation and continue to reach audience across the technologically egalitarian internet.  Second, as Facebook talks about setting up its own judicial system, I worry about whether we're creating corporate nation-states that will censor anti-majoritarian expression, e.g., perceived "hate speech," with the blessing of NGOs that purport to uphold human rights.  But one step at a time....

Here via Observacom are links to the report in español, português, and English.

Polish court enjoins Facebook 'private censorship': just one sign of new norms in digital rights

Much worry about censorship today focuses on the private sector, specifically and especially the large tech companies--Google, Facebook, Twitter--who have so much power over what we read, hear, and see.  When I was in journalism school, in ethics class in the early 1990s, a student once mentioned the possibility of a news organization withholding a sensitive story and worried that that would be "censorship."  Professor Lou Hodges--a great teacher, great person, since deceased--vigorously corrected the student, saying that censorship by definition must be governmental action. 

Louis Hodges, W&L

Well denotational niceties aside, and with the great respect due to Professor Hodges, I'm not sure the distinction remains salient.  I've been worried about the private sector in the free speech realm for a long while.  I've already posited in print that the greatest looming threat to the freedom of information around the world today is not government, but private corporations, and I've started writing about what can be done (what already is being done in Africa, relative to: the United States, India, and Europe, forthcoming).  Indeed, even the classical distinction between freedom of expression and the freedom of information has lost much salience in the information age.

In the United States, for good historical reasons, our constitutional law draws a sharp line between the freedom of speech and the freedom of information, and also between state action, "censorship," and private action, so-called "private censorship."  Both of those lines have eroded in the real world, while our law stubbornly insists on them.

Foreign constitutional systems, such as the European and African human rights regimes, do not come with the historical baggage that carved these lines in U.S. constitutional law.  These younger systems are proving more adept at navigating the problem of private action that would suppress speech and information.  That flexibility has meant full employment for lawyers in the counsel offices of Big Tech.

It also means that the law of the internet and the law of digital rights is no longer being authored in the United States.

In Poland, a digital rights organization called the Panoptykon Foundation--I assume named for the legendary imaginings of English philosopher Jeremy Bentham--is litigating without shame against Big Tech, Google and Facebook included.  In a suit against Facebook, Panoptykon has taken up for "SIN," an (acronymed appropriately if coincidentally?) anti-drug NGO in Poland.  SIN apparently suffered content-based take-downs and blocks on Facebook.  It's not clear why Facebook (algorithms? censors?) targeted SIN, though TechCrunch speculated that it might have to do with SIN's strategy on drug counseling: more of a "use responsibly" approach than an abstention-only approach.

The action is based on Polish statute, which guarantees freedom of speech and does not get hung up on any American-style state-action limitation.  In June, a Warsaw court ex parte ordered (in Polish, via Panoptykon) Facebook to stop blocking or removing any online SIN content, pending litigation.  Technically the respondent in the case is Facebook Ireland.  But one can imagine that American Facebook execs are on alert, as foreign courts fuss ever less over the public-private distinction.

Professor Hodges might roll over in his grave to hear me say it, but I am confident that "private censorship" will be the free speech story of the 21st century.  America will be dragged into a new world of legal norms in digital rights, willingly or not.  I would rather see us embrace this new world order and confront the problem of a runaway private sector than see our civil rights law relegated to legal anachronism.

Read about SIN v. Facebook at Panoptykon.  Hat tip @ Observacom.

NZ prosecutions for sharing Christchurch vid would suppress news, free speech, but worse is empowerment of private censors

This summary is not available. Please click here to view the post.

Pai FCC net neutrality policy steers US wrong way

Today a political cartoon from my brother, Spencer Peltz, in AP Gov at Calvert Hall, where he is student body president.

Probably needless to say, I agree with the sentiment wholeheartedly.  India's Telecom Regulatory Authority is headed wisely in the opposite direction.  Read more at Global Net Neutrality Coalition.  Tiered access, a.k.a. internet censorship, is bad for social liberals and economic conservatives.  The only winner under the Pai FCC plan is corporate oligarchy, and that's not free-market capitalism.  Oh, there're other winners, too: people and commercial enterprise every else in the world, India included.  Guess whom that leaves as losers?

Fourth Amendment privacy case, set for oral argument Nov. 29, touches on US-EU data protection divide

I've published a short preview of Carpenter v. United States, 819 F.3d 880 (6th Cir. 2016), cert. granted, No. 16-402 (U.S. June 5, 2017) (SCOTUSblog), a Stored Communications Act, 18 U.S.C. § 2703(d), set for oral argument in the U.S. Supreme Court on Wednesday, November 29.  Here's an excerpt; link below to the full article and the ABA publication in which it appears.

U.S. Supreme Court accepts cell phone privacy case with transnational implications

A privacy case headed to the U.S. Supreme Court will give justices an opportunity to examine “the third-party doctrine” in U.S. constitutional law. The doctrine manifests a central feature of American privacy policy, marking a divide that has flummoxed transnational data transfer negotiators.

*  *  *

The urgent problem on the transnational scene is that the secrecy paradigm is incompatible with emerging global privacy norms. In EU data protection, for example, privacy follows data downstream. A person can divulge information with strings attached, and the strings are enforceable against subsequent recipients, such as Internet retailers. Even in public places, a data collector, such as a surveillance camera owner, has affirmative obligations to captured subjects. This incompatibility goes a long way to explain the incongruence of European apoplexy and American nonchalance in reaction to global surveillance by the U.S. National Security Agency.

*  *  *

However suspenseful, Carpenter proffers bad facts to kill the third-party doctrine outright. As the Sixth Circuit observed, ordinary people know that cell phones communicate with nearby towers, and their location data are not as damningly precise as GPS. The privacy intrusion was therefore modest, and statute afforded some safeguard. What will be interesting to see in Carpenter is whether more justices lend their voices to the Alito or Sotomayor position, and whether the replacement of Justice Scalia with Justice Gorsuch unsettles the Court’s fealty to originalism.

Read the article at pp. 5-6 of the fall 2017 newsletter of the Privacy, Cybersecurity & Digital Rights Committee of the Section of International Law of the American Bar Association, available here in PDF. 

Mass. SJC remands internet jurisdiction, defamation case

The Massachusetts Supreme Judicial Court (SJC) last week remanded an internet jurisdiction case because the lower court jumped to constitutional due process arguments without first applying the state long-arm jurisdiction statute.  The case, replete with fun Internet trade names, highlights the limits of Massachusetts long-arm jurisdiction relative to the global growth in jurisdictional reach in online commerce.

SCVNGR, Inc., doing business as "LevelUp," is a Delaware-incorporated, Boston-headquartered tech company that works with customers through an app to promote participating restaurants with deals and a special payment system.  Punchh is a Delaware-incorporated, California-headquartered company with a similar business model.  Punchh works with customers in Massachusetts and with restaurants with Massachusetts locations, but Punchh denies any physical tie to Massachusetts.

At one time, LevelUp and Punchh entered into an agreement to work together.  But according to LevelUp, Punchh then bad-mouthed LevelUp to LevelUp clients.  LevelUp terminated their agreement, but the allegations state, the bad-mouthing didn't stop.  LevelUp sued in Massachusetts superior court on theories including defamation, trade defamation, tortious interference, and statutory unfair competition.  Punchh disputed personal jurisdiction.

The trial court dismissed for want of personal jurisdiction on federal constitutional due process grounds.  The trial court declined to apply the state long-arm statute because, the court explained, the parties had only argued due process.  LevelUp appealed, and the SJC transferred the case from the appeals court sua sponte.  Notwithstanding the trial court's dispositive conclusion on due process, the SJC opined, it was reversible error not to analyze the state long-arm law first.  That is to say, it was reversible error not to have observed the doctrine of constitutional avoidance.

The Massachusetts long-arm statute is not the typical sort that U.S. law students read about in civil procedure, defining state personal jurisdiction as maximally co-extensive with the limits of constitutional due process.  Rather, Massachusetts constrains long-arm jurisdiction to eight scenarios:

• (a) transacting any business in this commonwealth;
• (b) contracting to supply services or things in this commonwealth;
• (c) causing tortious injury by an act or omission in this commonwealth;
• (d) causing tortious injury in this commonwealth by an act or omission outside this commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this commonwealth;
• (e) having an interest in, using or possessing real property in this commonwealth;
• (f) contracting to insure any person, property or risk located within this commonwealth at the time of contracting;
• (g) maintaining a domicile in this commonwealth while a party to a personal or marital relationship out of which arises a claim for divorce, alimony, property settlement, parentage of a child, child support or child custody; or the commission of any act giving rise to such a claim; or
• (h) having been subject to the exercise of personal jurisdiction of a court of the commonwealth which has resulted in an order of alimony, custody, child support or property settlement, [in certain modification or enforcement proceedings].

Certainly the statute affords plenty of room to argue still over the bounds of due process.  But the terms of a statute may be subject to limiting construction.

The SJC declined to hint at the appropriate outcome under the statute, bemoaning an incomplete record.  However, the Court observed that the first four provisions of the statute, paragraphs (a) to (d), might be in play.  In a footnote, the Court recalled Calder v. Jones, 465 U.S. 783 (1984) (Justia), in which the U.S. Supreme Court allowed California jurisdiction over a non-resident defamation defendant because the defendant was alleged to have calculated its libel to cause injury in California.  As the SJC moreover observed, the U.S. Supreme Court later limited Calder in Walden v. Fiore, 134 S. Ct. 1115 (2014) (Justia), finding "minimum contacts" wanting when a non-resident's "allegedly unlawful seizure of money elsewhere caused harm to plaintiffs living in Nevada."

The Calder-Walden dichotomy, played out in a defamation context such as SCVNGR v. Punchh, serves as reminder that the United States has rather a dearth of case law in the area of long-arm Internet jurisdiction.  After the earth-rattling assertion of jurisdiction by the High Court of Australia in Dow Jones v. Gutnick in 2002, observers such as me should be forgiven for expecting that we would have moved the ball forward a good bit more in 15 years.  Internet jurisdiction remains a turbulent battlefield in lower domestic courts both here and around the world.

The case is SCVNGR, Inc. v. Punchh, Inc., No. SJC-12297 (Mass. Nov. 8, 2017).

[UPDATE: The Superior Court denied jurisdiction under the long-arm statute in September 2018.  See coverage at Massachusetts Lawyers Weekly (MLW), by Eric T. Berkman (subscription required) (quoting yours truly).  Image at right from MLW.]