Showing posts with label news. Show all posts
Showing posts with label news. Show all posts

Tuesday, September 1, 2020

Libel suit must follow first online post in less than three years, Mass. court rules, applying U.S. norm

The Massachusetts Appeals Court today opined that the "single publication rule" of American libel law causes the statute of limitations period for a defamation claim to start running on the day that a news outlet posts the contested content online.

In American libel law, the single publication rule means that a plaintiff may sue only upon the first publication of allegedly defamatory content.  The content may thereafter be distributed through other publications and other media, amplifying the injury to the plaintiff.  That amplification can count toward damages if the plaintiff prevails.  But there may be only one cause of action for defamation, and the clock for the statute of limitations, the time within which the plaintiff must bring suit, starts running from the time of first publication.  The rule is said to serve interests of both judicial efficiency and fairness to defendants.

A newspaper is printed in 2013 on an 18th-century press
in Colonial Williamsburg. (Maggie McCain CC BY 2.0)

There are exceptions to the single publication rule, namely when content is republished to a substantially different audience or is substantially altered and then republished.  The lines drawn by these exceptions became fuzzier in the internet age, because the internet can be characterized as a sort of ongoing "republisher," such that content is published anew with every user download.  Some plaintiffs were able to chart exception to the single publication rule by asserting alteration in the creation of online archives of dated print material, an issue that reverberates in the debate over the right to erasure, or "right to be forgotten."

The norm that emerged in the digital age in the United States is that the first posting of content online counts as the time of first publication.  In a decision today, the Massachusetts Appeals Court followed that norm.

The plaintiff, Wolsfelt, sued defendant Gloucester Daily Times for its coverage of reported incidents of domestic violence.  In each of two incidents, Wolsfelt was arrested.  After the first incident, in November 2011, the Times published online a story that, according to the Court, "largely tracked the police report."  When in February 2012 the criminal court "entered a 'general continuance' with a 'no abuse' order," the Times updated the story online to report "assault and battery charges ... continued without a finding."

After the second incident in June 2012, the Times again published online a story that "largely tracked the police report."  When in February 2013 the criminal court entered "a continuance without a finding" in that case, the Times updated the story online to report a "charge of assault and battery ... continued without a finding for 18 months."  Charges were dismissed in 2012 and 2014, respectively.

In a defamation complaint in February 2015, the plaintiff "asserted that the articles contained 'untrue, incomplete, misleading[,] and damaging assertions,' resulting in harm that included loss of reputation and potential employment."  But the complaint was not filed until more than three years after the first article, its update, and the second article.  The complaint was filed just under three years, the statute of limitations in Massachusetts, from the publication of the second update.  The plaintiff said he learned about the articles only upon applying for employment in February 2013.

The Court affirmed rejection of the complaint insofar as it was predicated on the first three publications, because the statutory limitations periods on those pieces had run.  Analyzing the second update alone, the Court ruled that it was protected by the fair report privilege, a common law affirmative defense to defamation that protects reporting on public records even if the public records themselves, and therefore reports about them, might contain defamatory falsehoods.  The court's decision is consistent with the single publication rule as applied to the internet by courts in other states.

The single publication rule at one time marked an important difference between common law defamation in the United States and defamation law elsewhere in the world, notably the United Kingdom and other common law jurisdictions.  The lack of a single publication rule in other countries exaggerated the problem of "libel tourism," the phenomenon of plaintiffs shopping for forums friendlier than the United States in which to sue for defamation.

However, adaptation of defamation to the internet, with its unprecedented capacity for republication, created far more headaches in legal systems without the single publication rule than in the United States.  Without the rule to draw the limitations period to a close, causes of action based on web publication seem potentially endless.  Accordingly, the single publication rule has gained traction as a U.S. export.  The rule was adopted in the U.K.'s major statutory overhaul of defamation in 2013.  And the rule has been a point of proposal in Australia's ongoing defamation reform.  The single publication rule became law in New South Wales in July (Lexology).

The case is Wolsfelt v. Gloucester Times, No. 19-P-936 (Mass. App. Ct. Sept. 1, 2020).  Justice Dalila Wendlandt wrote for a panel that also comprised Justices Singh and McDonough.

Tuesday, May 19, 2020

First Amendment right of access to court records is alive and kicking in electronic era

Developments in the First Amendment right of access to court records were on the menu this afternoon for a continuing legal education program from the American Bar Association (ABA).

The First Amendment protects "the freedom of speech, or of the press," and the U.S. Supreme Court in most contexts has rejected the First Amendment as carving out an affirmative access doctrine.  Yet access to court proceedings and records is an exceptional and narrow area of First Amendment law that grew out of criminal defendants' trial rights in the 1970s and 1980s.  (Co-authors and I wrote about the First Amendment and related common law right of access to court records in the early days of electronic court record access policy.)

Lately there has been some litigation pushing to clarify, if not expand, the First Amendment right of access to court records.  Specifically, courts in two federal jurisdictions, the U.S. Court of Appeals for the Ninth Circuit and the U.S. District Court for the Eastern District of Virginia, have recognized a right of timely access to newly filed trial court complaints.

The public access problem arose as a corollary to the economic exigency that has constrained contemporary journalism.  When I graduated from journalism school, and triceratops roamed the earth, a good journalist on the court beat checked the dockets at the clerk's office at the end of every day.  But the luxury of one journalist-one beat is long a thing of the past, and now it's harder for the working journalist to keep close tabs on new developments at the courthouse.  In this atmosphere, some state court clerks—most definitely not all, our presenters hastened to clarify—took to withholding newly filed complaints from the public record, whether while pending for "processing," or, one might speculate, to deter coverage of sensitive subject matter long enough for news editors to lose interest.

Courthouse News Service (CNS) is a national media entity reporting on civil litigation in state and federal courts.  I reference CNS often myself, here on the blog and in teaching and research, especially for pretrial court coverage, which is hard to come by in the United States.  CNS pushed back against the delayed release of pleadings, suing successfully in civil rights under the principal federal civil rights statute, 42 U.S.C. § 1983.  CNS had to beat abstention in both jurisdictions, which it did, after a first appeal and remand in the Ninth Circuit.

Relying on the range of federal precedents supporting the principle that "access delayed is access denied," CNS substantially prevailed upon its second go in federal trial court in California.  That case was called Planet, and CNS also won on appeal in, and remand from, the Ninth Circuit in a case called Yamasaki.  Remarkably, the third CNS case, in federal court in Virginia, featured full-on discovery, experts, and motions practice on its way to a four-day bench trial and CNS win.  Questions of fact arose from the clerks' purported necessity for delay while pleadings were "processed."  The court in Virginia declined formally to follow Planet, favoring a tougher articulation of the requisite First Amendment scrutiny.

The take-away from all of the cases is that the First Amendment does attach to newly filed pleadings, under the Press-Enterprise II "experience and logic test"; that timely ("contemporaneous," which doesn't mean instant) access matters from a First Amendment perspective; and that delays in access must survive heightened constitutional scrutiny.

These are the access-to-pleadings cases that the ABA presenters discussed:

  • Courthouse News Serv. v. Planet, 947 F.3d 581 (9th Cir. Jan. 17, 2020) (“Planet III”), aff'g in part & vacating in part Courthouse News Serv. v. Planet, 44 Media L. Rep. 2261, 2016 WL 4157210 (C.D. Cal. May 26, 2016).
  • Courthouse News Serv. v. Yamasaki, 950 F.3d 640 (9th Cir. Feb. 24, 2020), remanding, for further proceedings consistent with Planet III, Courthouse News Serv. v. Yamasaki, 312 F. Supp. 3d (C.D. Cal. May 9, 2018).
  • Courthouse News Serv. v. Schaefer, ___ F. Supp. 3d ___, 2020 WL 863516 (E.D. Va. Feb. 21) (dkt. no. 102), appeal filed, No. 20-1386 (4th Cir. Apr. 2, 2020).

CLE presenters also discussed record access in the following cases.  I've added links to cases in trial court dispositions.
  • Brown v. Maxwell, 929 F.3d 41 (2d Cir 2019) (remanding for in camera document review in journalist bid to access records in case of sexual abuse victim's allegations against late financier Jeffrey Epstein).
  • In re New York Times, 799 Fed. Appx. 62 (2d Cir. 2020) (affirming in part and vacating in part sealing of two parts of transcript of guilty plea hearing in Foreign Corrupt Practices Act prosecution of former Goldman Sachs employee Timothy Leissner).
  • Mirlis v. Greer, 952 F.3d 51 (2d Cir. 2020) (secreting video depositions of non-party witnesses, their privacy interests overcoming access presumption, upon access bid by online blogger in case by former student at orthodox Jewish school against the school and principal, alleging the principal sexually molested him while he was a student).
  • Trump v. Deutshce Bank AG, 940 F.3d 146 (2d Cir. 2019) (denying access to taxpayer names as not "judicial documents," upon news organizations' motions to intervene and unseal unredacted letter filed by bank in appeal, in order to learn the redacted names of taxpayers whose income tax returns were in bank's possession, in case of bank resistance to subpoenas in House investigation of President's tax returns).
  • King & Spalding, LLP v. U.S. Dep’t of Health and Hum. Servs., No. 1:16-CV-01616, 2020 WL 1695081 (Apr. 7, 2020) (denying seal, but allowing withdrawal, of information about attorney fees filed with motion, rejecting firm's claim of need to protect competitive information).
  • United States v. Avenatti, No. 1:19-CR-00373, 2020 WL 70952 (S.D.N.Y. Jan. 6, 2020) (denying motion, filed by Government, defendant, and subpoena target, to seal records related to subpoena duces tecum issued on behalf of defendant on non-party in criminal proceeding).
  • VR Optics, LLC v. Peloton Interactive, Inc., No. 1:16-CV-06392, 2020 WL 1644204, at *10 (S.D.N.Y. Apr. 2, 2020) (dkt. no. 308, at 17-20) (denying, as moot, motions by both parties to seal trial court records in patent dispute).
  • Motion to Intervene and Unseal, Dawson v. Merck & Co., No. 1:12-cv-01876 (E.D.N.Y. filed Sept. 12, 2019, dkt. no. 121) (decision pending) (seeking unsealing and removal of redactions in court records in settled multi-district product liability litigation over alleged side effects of prescription drug, "Propecia," upon motion of news agency Reuters).

One indicator I found encouraging from an access advocate's perspective is the incidence of court rulings in favor of access even when both parties want to seal.

The ABA program was sponsored by the Forum on Communications Law.  The presenters were:

Saturday, October 26, 2019

Social-science saucebox opines on bike-bridge closures

A reporter stopped me on a run last week to obtain my critical policy analysis of the bridge-replacement situation on the East Bay Bike Path.  Suffice to say, my testimony was breathless.


Watch at NBC 10 Providence.

Wednesday, October 9, 2019

Info reg round-up: French feud, global injunction, foreign discovery, and literal grains of paradise

I've lately been swamped by developments in global information regulation.  Here's a round-up of highlights with links to read more.

Google-France feud.  Fresh on the heels of Google v. CNIL (read more), tensions are heating up again between Google and France, as Google refuses to play ball with France's new copyright law.  The 2019 EU Directive on Copyright in the Digital Single Market aimed, inter alia, to protect publishers from the scraping of their news product for aggregators' clips and snippets without compensation.  France was the first country, and only so far, to transpose the directive's article 15 (né draft article 11) into national law.  Effective this month, the French law would compel an aggregator such as Google to pay news publishers for the content that appears in Google search results.  How much money Google makes from Google News is disputed, but it's a lot.  Google contends that news providers are well compensated by traffic driven to their websites.  The news industry doesn't feel that way and blames aggregators for killing the business model of news, public interest journalism along with it.  Now Google has said that search results in France will exclude content that would require payment under the new copyright law.  The News Media Alliance, a U.S. industry association, has called Google's move "extortion."

Eva Glawischnig-Piesczek, Austrian Green
EU: Global injunction of one country's "defamation."  The European Union (EU) continues to amp up internet service provider (ISP) accountability.  A chamber of the Court of Justice of the EU (CJEU) ruled that European law—including EU information market directive, the Treaty on the Functioning of the EU, and the freedom of expression—does not preclude a member state from issuing a global injunction to take down unlawful content.

The facts reveal the problematic scope of the state power implicated, as the case arose from a Facebook post disparaging, e.g., "traitor," an Austrian politician.  The disparagement was regarded as defamation in the Austrian courts, but would be protected as core political commentary or hyperbolic opinion in the United States and many other countries.  The prospect of a state order with global reach was raised by the recent CJEU decision in Google v. CNILSlate's take took no prisoners: "In so ruling, the court demonstrated a shocking ignorance of the technology involved and set the stage for the most censor-prone country to set global speech rules."

The case is Glawischnig-Piesczek v. Facebook Ireland Ltd., No. C-18/18 (Oct. 3, 2019).

US: Extraterritorial discovery.  The Second Circuit meanwhile published an opinion that pushes outward against the territorial bounds of U.S. law.  The court ruled that statutory civil procedure under 28 U.S.C. § 1782 may reach records held outside the United States and is co-extensive in scope with the maximum long-arm personal jurisdiction of constitutional due process.

The case arose from Banco Santander's acquisition of Banco Popular Español (BPE) after a criminal investigation and government-forced sale of the latter.  Mexican nationals and investors opposing the acquisition sought discovery in the U.S. District Court in New York against Santander and its New York-based affiliate, Santander Investment Securities (SIS), under § 1782.  The law compels discovery against a person or legal entity that "resides or is found" in the U.S. jurisdiction.

Santander New York (© Google Earth)
The court rejected Santander's contention, supported by academic opinion, that the language could not reach a mere "sojourner" in the jurisdiction.  The court furthermore held that the presumption against extraterritoriality of statutory interpretation does not apply to a jurisdictional statute, and even if it did, the design of the Federal Rules of Civil Procedure, with which the statute fits, plainly and expressly encompasses extraterritorial reach.

However, the court held, only SIS, not Santander, was within the reach of long-arm personal jurisdiction.  SIS was subject to general jurisdiction, but was not meaningfully involved in the BPE acquisition.  Santander had hired New York consultants to contemplate an acquisition of BPE, which could subject Santander to specific jurisdiction, but that was an entirely different transaction, prior to the government-forced sale of BPE.

Though the case deals with conventional discovery, it has important implications for transnational business in the age of e-discovery.  Expansive U.S. discovery practice is incompatible with more restrictive norms in much of the world, Europe included.  Section 1782 is a potentially powerful tool for savvy litigants to get their hands on opponents' materials when foreign courts won't allow it.  That's bound to rub transnational business and foreign regulators the wrong way.

The case is In re Del Valle Ruiz, No. 18-3226 (2d Cir. Oct. 7, 2019).  Hat tip to New York attorney Ken Rashbaum, at Barton LLP, who telephonically visited my Comparative Law class and referenced the case, and will be writing more about it soon. 

Gin labeling and grains of paradise.  OK, this is more about misinformation than information, and it is globally important.  Law and gin, two great international cultural forces and loves of my life, come together in a recently filed lawsuit over grains of paradise.  You can't make up stuff this dry yet thirst-quenching.

Bombay Sapphire Bottle (by @Justintoxicate)
In a class-action complaint removed to the U.S. Southern District of Florida in mid-September, plaintiffs accuse Bacardi USA, maker of Bombay Sapphire Gin, and Winn-Dixie supermarkets of selling "adulterated" product, because Bombay gin contains a botanical literally called "grains of paradise."  According to the complaint, grains of paradise, scientific name Aframomum melegueta, "is an herbaceous perennial plant native to swampy habitats along the West African coast."  Turns out, it's illegal under Florida law, section 562.455.

The ABA Journal explained: "The 150-year-old Florida law was passed when people thought grains of paradise was a poisonous drug. The misconception likely arose when home distillers added other, dangerous ingredients to gin to 'mask the awful distilling and make more money,' according to Olivier Ward, a British gin expert and consultant who spoke with the Miami Herald."  Bacardi is not hiding anything and maintains that its products comply with all health and safety regulations.  The complaint itself states that grains of paradise are listed in the ingredients and actually etched on the gin's blue bottle.

The case is Marrache v. Bacardi, U.S.A., Inc., No. 1:19-cv-23856 (S.D. Fla. docketed Sept. 16, 2019).

Friday, February 1, 2019

Teachable moment in Torts:
'Complaint alleges mom with dementia dumped outside Long Beach healthcare facility'

National media this week picked up this story from CBS Los Angeles about a woman suffering from dementia who wound up on the street after what looks like a botched transfer between a hospital and her residential facility.  The victim's daughter filed a complaint with regulatory authorities, but so far has said she will not file suit.  As advanced or two-semester classes in U.S. tort law wade into the deep end of the pool this spring, this story invites analysis on a number of fronts.  Here are some questions to get the discussion going.



1. Does the victim, through her daughter, have any cause of action in common law tort?  Can the injury requirement be met for the general negligence tort? for recklessness?

2. Is there a breach of duty here that can support a business tort?  Are there damages recoverable in business torts?

3. Could this be actionable "negligent infliction of emotional distress" (NIED)? in some states?  Can you demonstrate balance in the elements of negligence to persuade a court that NIED here will not open the floodgates?

4. How does the victim's dementia affect the torts case?  Is she an eggshell plaintiff?  Could she have been contributorily negligent?  Can she have been both at the same time?

5. Could the outcome of the regulatory investigation affect proof or liability in a tort case?

6. Does any tort theory rest in the daughter as plaintiff on her own behalf?  Is there any way to plaintiff-bystander liability?

7. Low temperatures in Los Angeles in the last week were only in the 50s (F), but northern cities have been in the grip of below-zero record lows.  Suppose the victim had been outside in Chicago and suffered frostbite.  How does that change the disposition of her tort claims? her daughter's?

8. Further entertaining the idea that the victim suffered physical injury, can the defendant make dispositive arguments on duty? on causation?  What's the difference?  Could there be a "scope of liability" problem in the terms of the Third Restatement?

9. There are two healthcare facilities involved.  Could both be defendants?  Would both be liable?  Would liability be joint or several? apportioned? to what effect?



🌠 Coming this June from Carolina Academic Press!
The Media Method:
Teaching Law with Popular Culture

Edited by LSU Law Prof. Christine A. Corcos, @LpcProf, Media Law Prof Blog
With contribution on torts by yours truly

Saturday, April 7, 2018

Popular singer's 'right to be forgotten' outweighs free speech in Italian case over archival video and biting commentary

Because Manchester City FC might need it after today's derby match, let's consider the right to be forgotten.

As an aspect of European, and increasingly global, data protection law, "the right to be forgotten," or right to erasure, unsettles the tummies of American media advocates.  The right to erasure runs up against the presumptive rule of U.S. First Amendment law that there can be no punishment for the republication of truthful information lawfully obtained.  Read more about that here (predating implementation of the EU General Data Protection Regulation).  The Italian Court of Cassation has issued a potentially important decision at the intersection of the right to erasure and the freedom of expression.  

Hat tip @TheItalianLawJournal.  For a few months to come, or until a better translation comes to light, I'm parking a very rough Google Translate rendition of the ruling here in PDF.  The translations that follow here are mine, refining the Google Translate rendering. The original court decision can be found here.


Antonello Venditti by Angela_Anji (CC BY-NC-SA 2.0)
The case stemmed from a TMZ-style confrontation by an RAI-1 "Live Life" («La vita in diretta») crew of Italian singer Antonello Venditti (Facebook) in 2000.  I've not seen the video, but Venditti apparently resisted the interrogators with sufficient gruffness that he earned his way onto the program's 2005 "ranking of the most obnoxious and grumpy characters in the entertainment world."  The story occasioned rebroadcast of the 2000 segment, along with commentary mocking his diminished fame in the intervening years.  Antonello took offense and sued, claiming "a right to be forgotten" attached to the 2000 video. 

Of peculiar resonance with current events in the United States, the Italian court took note of a German right-to-erasure case about "an affair in which a German citizen, who held a major political and business position in Germany, had requested the erasure of information from the web relating to an episode of collusion with Russian crime dating back several years earlier, republished several years after."  The Court of Justice of the EU ruled that "the public's interest in information prevailed over the individual's interest in oblivion."  However, the Italian court observed, the ruling resulted from a fact-intensive inquiry.

The court must engage with "the search for the right balance between the interest of Internet users in information and the fundamental rights of the person," the Italian court explained.  "Therefore, the editor of a newspaper that stores in its historical archive on the internet the news, making it available to a potentially unlimited number of people, is required to prevent, through the dissemination of even remote facts, without any meaningful and current public interest, possible harm to the right to be forgotten by the people who were involved."

The freedom of expression must yield to the right to erasure, the court held, upon analysis according to five factors:

  1. the contribution made by the dissemination of the image or of the news to a matter of public interest;
  2. the actual and current interest in the dissemination of the image or news (for reasons of justice, police, or protection of the rights and liberties of others, or for scientific, educational, or cultural purposes), to be considered absent in case of prevalence of a popular interest [italics added; in original, divulgativo: I'm not sure how to translate that and don't think "popular" or "informed" is right], or, worse, merely economic or commercial interest of the subject that spreads the news or the image; 
  3. the high degree of notoriety of the subject represented, for the economic or political reality of the country;
  4. the methods used, for the particular position held in public life, and, in particular, to obtain and give information, which must be truthful (because it is drawn from reliable sources, and with a diligent research work), disseminated in ways that are not excessive for information purposes, in the interest of the public, and free from insinuations or personal considerations, so as to highlight an exclusive objective interest in the new dissemination;
  5. the preventive information about the publication or transmission of the news or image at a distance of time, in order to allow the interested party the right of reply before its disclosure to the general public.
Applying its multi-factor test, the court decided that RAI's interest in the rebroadcast video segment was outweighed by Antonello's privacy and data protection rights.  The court below had erred by finding Antonello's fame dispositive.  Reminding one of the analysis of Elmer Gertz in U.S. defamation lore, the court held that Antonello's large public following "certainly" did "not invest[ him] with a primary role in national public life."  Moreover, RAI's purpose, five years on, lacked merit. The court found it "undeniable that the reiterated broadcast ... had [the] unique purpose of allowing the inclusion of the singer ... in a ranking of ... 'the most obnoxious and grumpy of the entertainment world,' invented by the same broadcaster, allowing, in this way, the satisfaction of an interest that is exclusively informative [again, divulgativo], for commercial purposes, and for the television operator's audience."  The broadcaster's derogatory comments about Antonello's fame in 2005 aggravated the offense, the court added.  

The court also rejected "satire" as a defense.  The representation of Antonello was not "paradoxical, surreal and hyperbolic critique," but referred to "true fact," "clearly directed to a mere and unjustified denigration of the artist."  The broadcaster sought to use the 2000 video to represent Antonello in 2005 as "a singer, for years, in decline."

This case is the very stuff of American media advocates' nightmares.  Newspapers decry the right to erasure as a threat to online archives—though representations in archives, as archives, are readily factually distinguishable from the Antonello case.  The more realistic threat would be to the "TMZ"/"Talk Soup" format of entertainment media, or even the clever uses of archival video that have become the staple of commentary on The Daily Show with Trevor Noah and Last Week with John Oliver.  Certainly under a rule such as the Italian court employed, broadcasters, even straight news broadcasters, would have to take more care with their use of B roll.  

I've advocated in favor of evolving U.S. privacy law toward European data protection norms.  But the Italian court went too far here, lending credence to American nay-saying.  I fault the court's analysis of Antonello as, in U.S. terms, a "private figure."  The lower court got it right in finding Antonello's public status dispositive relative to this RAI commentary.  It's especially telling and troubling that as to the satire argument—the RAI program seems on the mild side of the Talk Soup genre—the court faulted RAI commenters for the truth in their observation of Antonello's waning fame.  The court set up the Italian judiciary to be a "super editor" of popular media, an arbiter of taste.  American courts appropriately struggle with newsworthiness determinations in privacy law because they do not want that job.