French law students embrace common law; Le Havre confronts modern environmentalism, slave history

Le Havre, France

Our cultural and legal understanding of reputation and privacy are among the countless features of the social contract undergoing rapid evolution in the Trump political era, in Europe as well as the United States.

(All images by RJ Peltz-Steele CC BY-NC-SA 4.0 with no claim to underlying content.) 

Once a fringe area of tort law to which most new lawyers had no exposure at all in law school, defamation and privacy have taken center stage in society, in part thanks to their weaponization in polarized politics and popular culture. Hulk Hogan famously shut down Gawker with a multi-pronged privacy suit masking a billionaire's vendetta (Holiday). Melania Trump sued a blogger and the Daily Mail for falsely claiming she worked as a high-end escort (DiBenedetto). And Donald Trump, well, Donald Trump... inter alia, won a fee award and suffered a massive loss, not over sexual relationships as much as deceptions that ensued.

Faculty of International Affairs, University of Le Havre

Last week, I had the great privilege to teach a one-credit course on American litigation over defamation and privacy to undergraduate law students at the University of Le Havre in the Normandy region of France. You can check out the course and course materials at the blogspot, Litigating Reputation in America. I'll leave the downloadable documents in place for the duration of summer 2026 (Perma.cc for later review).

"Litigating Reputation in America" course site

I centered the class on the fascinating transnational defamation civil suit that French President Emmanuel Macron and his wife Brigitte Macron are prosecuting in Delaware against American podcaster Candace Owens. The case arises from a host of Owens's sensationalist assertions, especially that Brigitte Macron was born a man. A hearing on a motion to dismiss, on jurisdictional grounds only, is scheduled for June 22.

Notwithstanding the seemingly readily disprovable falsity and outrageousness of the assertions at issue, the Macrons face an uphill battle in U.S. courts. Kalshi thinks they'll win (63.7% presently). But the smart money in American defamation litigation is never on the plaintiff. Cf. Tucker Carlson's successful defense against Karen McDougal on grounds, more or less, that no one takes Carlson seriously, so his outrageous assertions could have done no harm.

Meanwhile, in January, a French criminal court convicted 10 defendants of cyberbullying Brigitte Macron with the born-a-man claim (CNS). The contrast between an uphill civil suit in the States and criminal prosecutions in Paris fairly indicates a profound divergence in how social, economic, and political cultures in the United States and Europe, especially in France, respectively value reputation and free speech, and how law and process accordingly balance the two.

In an intensive 15 classroom hours, 24 Le Havre students learned the fundamentals of defamation and privacy torts and engaged with 11 contemporary, ripped-from-the-reporter case studies I prepared for them. The students explored the development of defamation and privacy litigation from client counseling to discovery and dispositive motions, alongside key rules of civil procedure. They argued Rule 12(b)(6) motions to dismiss and negotiated settlements, then rounded out the week with a two-hour final exam.

Civil-law law books, including obligations, at La Galerne Bookstore, Le Havre

I've been teaching American law modules to English-as-a-second-language law students in Europe for 20 years, and never have I seen students perform so well. They embraced the rough-and-tumble of the American adversarial model, while remaining sensitive to issues of professionalism and public policy. True to European thinking, they evinced skepticism of corporate-protective defense doctrines and absolutist free speech claims. They readily adapted their civil-law-trained thinking to precedent-driven common law and analogical argument.

It happened that the well circulated American news story dropped while I was in France, as Futurism put it, "College Professors Say Incoming Students No Longer Understand Middle School Math and Science." I commented on some of my friend chats that the same surely is true for English and arts; it's just harder to quantify.

When I started teaching legal writing in the late 1990s, the challenge was to get students to pay attention to their choices of subjects and verbs. Now many students don't even know what I mean when I say "subject" and "verb." An aside: Shout out to my own relentless K12 grammar instructors: Sharon Reuwer, who in elementary school literally hit me on the head with a book—you could do that back then—until I got my sentence diagramming right; and to Dr. Barbara Dezmon, who in middle school initiated me in language as forensic art, more than mere mechanics.

So as my undergraduate French students dissected their case studies, synthesizing argument from facts and points of law, I could not help but observe, and wonder why, they delivered work product more adeptly than I can expect from most first-year graduate students in the United States. That's not to impugn my home students' potential, nor to generalize unfairly, nor to disrespect those who put in the work and rise to the occasion, but only to fear that too many Americans are inexcusably ill served by their K16 preparation.

Haropa Port offices, Le Havre

I am deeply indebted to the organizing and teaching faculty of the Le Havre program. Professor Baptiste Allard is the driving force behind the program at the University of Le Havre Faculty of International Affairs, along with his Le Havre collegaue, Professor Pierre Capelle. The students are now in week two of the four-week program, in a comparative study of constitutional and administrative law with Professor Akram Faizer of the Duncan School of Law at Lincoln Memorial University.

In the coming weeks, the French students will further explore American law and legal skills with Professor Christine E. Cerniglia, director of clinical and experiential legal education at Stetson Law, and Professor Melanie Reid, associate dean of faculty at the Duncan School of Law. Professors Cerniglia and Reid aim to develop an ongoing relationship with Le Havre that will see American students participating, too, to exchange learning with their French counterparts.

Catène de containers (2017),
a prominent contemporary sculpture by Vincent Ganivet;
behind: post-war apartments in the brutalist architectural style of Auguste Perret

I had some time in Le Havre for tourism, which afforded me the opportunity to explore some scholarly interests in areas including environmental law and the legal history of human rights and the transatlantic slave trade.

Professor Allard is my partner on the environmental law team of the Global Law Classroom, a project born of Professor Reid's ingenuity. I have learned volumes from Professor Allard about the role of global shipping and sea transportation in global environmental law and climate change. Admittedly, there are times when the ins and outs of EU shipping regulations make my eyelids droop. But in Le Havre, I took a boat tour of Haropa Port, and what I saw there charged the subject with a new vitality for me.

Entrance to Port of Le Havre

I've seen many commercial ports in the world, but never so close, gliding on a small passenger boat through an intracoastal waterway alongside massive tankers and container ships. The Port of Le Havre is the largest container port in France, with three terminals, and also receives world-class cruise liners. Oil is the port's number one cargo commodity, implicating the port in contemporary geopolitics. Seeing the scale of the operation, it's impossible not to wonder at humanity's ability to transform a natural landscape to commercial ends, and also to be fretful over environmental risks and consequences.

Kriti Journey, a crude oil tranker, flagged Marshall Islands

Hafnia Nanjing, an oil and chemical tanker, flagged Singapore

 

Container loading

Almost as intriguing as the physical operations of the port are its works in communications and public relations. The boat tour I took and the port's public exhibition center are awash with boastful facts. There also are brochures and special exhibition days that feature recent and upcoming green initiatives at the port. That's good, of course. Yet for the touristic observer such as me, even unusually informed as I am, it's impossible casually to disentangle fact and propaganda, much less to interrogate the presentation for greenwashing.

Vole au Vent, a heavy-lift, self-elevating, jack-up installation vessel, flagged Luxembourg,
loading locally manufactured wind turbines for off-shore destinations

A register of slave transactions,
Maison de l'armateur

The Port of Le Havre also figures in the history of slavery. People from Africa were trafficked through Le Havre, part of the triangular route, to French colonies in the Americas. Le Havre was the imputed port of origin for more than 450 slave voyages trafficking at least 142,341 persons from 1571 to 1848, according to data at Slave Voyages

Maison de l'armateur

. A memorial plaque in "the slave streets of Le Havre" remembers 90,000 trafficked persons. Either way, incredibly, Le Havre was only the third largest slave port in France, where an estimated 1.38 million people were embarked for enslavement.

"Closet" celebrating accomplished
free persons of color,
Maison de l'armateur

The Le Havre Ship Owner's House, or Maison de l'armateur, is a preserved 18th century residence that showcases the opulent lifestyle of the successful merchant of the time. That lifestyle was built on a range of commodities, slavery included. Yet Africans who passed through Le Havre, including those who remained and were enslaved before definitive abolition in France in 1848, were omitted from patriotic historical narratives—whitewashing.

Socially and legally, modern France has dedicated itself peculiarly, present populist inclinations notwithstanding, to memory initiatives, that is, the compulsory remembrance of historical wrongs. The criminalization of Holocaust denial is probably the most often cited example of "French memory laws." But brutal colonialism and the slave trade figure in too.

Accordingly seeking to balance its presentation, the Ship Owner's House presently features a fascinating tandem exhibition, Reminiscences: Phantoms of Slavery (May 8 to Sept. 20, 2026). The exhibition is not set aside in a single space, the usual museum M.O.; rather, the African story is told right alongside the ordinary exhibition with the juxtaposition of radically differently themed art and information. The juxtaposition is often clever, for example, haunting the vestibule of a genteel bedroom with an amber glow behind silhouettes of African celebrants.

Émile Loubon, Le Port du Havre au XIXe siècle (1843),
with museum tags showing offloaded goods

Diorama depicting post-colonial reparations rally, Maison de l'armateur

Acerbic art characterizing a black stain on whitewashed history, Maison de l'armateur

There's plenty in Le Havre to stimulate the mind, not to mention the palate, of the law student and law professor. I hope the students who endured my lessons got something worthwhile from the week, if I dare not hope they learned as much as I did.

I offer my sincere gratitude to the students and staff at Le Havre, to Professors Allard and Capelle, as well as Professor Allard's husband for his hospitality, and to Professors Cerniglia, Faizer, and Reid, as well as Professor Cerniglia's partner, for their generous friendship and collegiality.

Jusqu’au Bout du Monde (2018) by Fabien Mérelle, Port of Le Havre; St. Joseph's Church, behind

Belgian scholar finds fault on both sides of Atlantic, charts midway course for U.S.-EU data privacy

KU Leuven Profs. Jan Wouters, Evelyne Terryn, and Peggy Valcke; Sylvia Lissens; me; KU Leuven Prof. Marieke Wyckaert, dissertation committee chair; and via Zoom, Prof. Przemysław Pałka, Jagiellonian University, Poland (photo presumed © and used with permission) 

Congratulations to newly minted-Doctor Sylvia Lissens, who defended her dissertation in the Leuven Centre for Global Governance Studies at Katholieke Universiteit (KU) Leuven in Belgium on October 1.

Dr. Lissens's dissertation is The U.S. and EU Approach Towards Personal Data Protection: "A Collision of Tides or a Convergence of Waves?": A Legal Exploration of the Differences and Convergences Between the United States and the European Union. The first paragraph of the dissertation gives a sense of its ambitious scope:

This research addresses the question of what the core differences between the U.S. and EU legal approaches towards personal data (protection) are and if there are signs of convergences. The question is approached through functional comparative law research conducted on three levels to reflect the perspectives of the three main stakeholders: the private sector, civil society, and the public sector, consisting of government intelligence and law enforcement agencies. The United States and the European Union seem to understand and qualify personal data differently in words and deeds, but upon closer inspection they have more in common than may seem at first sight. Consequently, it was possible to develop a roadmap for how the U.S. and EU approaches can co-exist, based on the convergences between the U.S. and EU approaches towards data privacy on all three levels.

I have learned and benefited immensely from serving on Lissens's dissertation committee for about the last five years. I myself posited a convergence in the data privacy expectations of American and European people many years ago, before the EU General Data Protection Regulation (GDPR) superseded its predecesor EU Data Protection Directive. I dared not then conceive a practical framework for a U.S. "adequacy" determination under what became the GDPR, which is the aim of Dr. Lissens's work. 

Faculty of Law at KU Leuven, Belgium
RJ Peltz-Steele CC BY-NC-SA 4.0

The dissertation is especially bold by European standards for suggesting that the EU might have to trim the sails of the GDPR to meet the United States partway. Most works in this vein take the GDPR at face value as a favorable norm. Lissens rather criticizes the GDPR for exporting worldwide norms with almost imperial ferocity, thus failing to give legal regimes and cultural communities around the world an opportunity to develop data privacy standards that might be qualitatively different or appropriately more or less protective of personal liberty. This critique resonates with contemporary critical perspectives in comparative law, which might note that the individualist model of privacy right that the GDPR promotes discounts the prominence of collectivist values in non-European legal systems.

On October 1, Lissens defended her theses ably against healthy skepticism both from European interrogators and from me. I asked whether the hodgepodge of U.S. state data protection systems, as long as Congress remains paralyzed, can possibly be GDPR "adequate" when the state systems reach only consumer transactions. 

Consumer privacy is mostly what the GDPR is worried about, Lissens reasoned, and the EU might have to settle for the states' laboratory approach. Contrary to what I have witnessed as the prevailing ethos among young people in Europe, Lissens argued that European people might have to become comfortable with the notion known to U.S. law that being photographed in a public place is not a privacy violation.

On the national security front, Lissens, like EU courts and human rights advocates, finds plenty cause for concern in dragnet U.S. security surveillance. But she also calls out EU member states for national security practices that are not so different from American methods.

I asked Lissens whether the U.S.-EU Data Privacy Framework can hold up when it does not require the United States to divulge to European complainants how their privacy was compromised or what was done about it. She fairly answered that European citizens usually can expect nothing more from their own governments. 

Moreover, Lissens questions the competence of European courts in the EU treaty system to apply data protection law at all to the national security apparatuses of EU member states, much less to challenge U.S. policy. While she has admiration for the work of European privacy advocates such as Max Schrems, she challenges the very premise of the Schrems decisions in the EU Court of Justice insofar as they assumed jurisdiction over national security policy by way of data protection enforcement.

Among Lissens's distinguished credentials is a 2020-21 stint at Duke University, my alma mater in law, where she held a scholarship to study as a master's student and started adding expertise in U.S. law to her multi-jurisdictional expertise. Lissens, who herself has taught comparative law and graciously visited my class in the past via Zoom, is on the academic job market. She is a gifted scholar and teacher, so schools, place your bids.

Society suffers erosion of trust; Skechers isn't helping

Google Gemini CC0

Trust seems in short supply in contemporary American culture, and secret surveillance of our children feels unhelpful.

At the start of each academic year in 1L Torts, I introduce students to 20th-century legal scholar Roscoe Pound and his observation that tort law tends in a socially evolving society to redress ever more abstract injury, as if on a trajectory from physical trauma to mere hurt feelings (YouTube). I want students to see that it's important to put the brakes on this trend at some point, lest tort law so invade the province of everyday life that we refrain from social interaction for fear of liability. Much of the study of tort law is about this braking, drawing the line.

It was alarming, then, to hear a discussion on the National Public Radio (NPR) podcast It's Been a Minute describing what many people regard as "cheating" in a relationship, in tandem with the view that cheating can be equated with abuse. Host Brittany Luse related results of a YouGov poll: "55% of Americans believe flirting with another person is cheating. 64% say the same about holding hands with another person, and 73% say the same about forming an intense emotional attachment to another person." 

Luse further explained, "Some people are claiming that cheating is abuse. There's actually a whole community of people that have been cheated on who call themselves Chump Nation, and some of them are really adamant about this interpretation." The Cut writer Kathryn Jezer-Morton suggested that from this perspective, which she did not endorse, cheating would effect a legal wrong, specifically, a breach of contract—or, I would suggest, in the absence of a contract, a tort.

Jezer-Morton aired my reaction to the proposition: "I don't feel comfortable equating cheating with abuse, personally." Just as overuse of tort law can strangle social and economic relationships, freelance culture journalist Shannon Keating worked out the unintended consequences:

I mean, I think one quite negative effect of [sensitivity to cheating] being so hyper-present in dating culture is that, if you think about how easy it is for someone to feel slighted and then go post about it online, there's high stakes just going into a relationship when you don't necessarily have the presumption of privacy. Or of being able to trust that you'll be able to work something out with your partner directly and give each other grace for tough stuff. 

I get that an errant lustful look is adultery in the heart (Matthew 5:28). But I'm not sure that's a workable rule for legal liability. And in a romantic relationship, truth is essential, and grace is divine. In any event, and decidedly unlike physical abuse or the most extreme cases of infliction of emotional distress, these are matters of social norms and morality, not law. 

On the moral front, meanwhile, I worry that mistrust is becoming endemic in our culture in more than just intimate relationships. I suspect that growth in mistrust is fueled by politicians' strategic sewing of hate. 

In this vein, I was struck by a radio ad that aired incessantly as I was driving around Nevada for two weeks this summer with few channels to choose from. The ad was for a new kids' shoe by Skechers. Skechers online describes the new shoes and their special feature: "Each pair is designed with a secure, hidden pocket under the insole that perfectly fits most locator tags, so you can always know where their favorite shoes are."

So there are distressing implications if we are living in a society in which kids need to LoJack their $60 shoes. But you might've already worked out that missing shoes is not really the problem. My suspicions were aroused when, toward the end of the radio ad, the announcer said that the hidden compartment in the shoes would be undetectable to the wearer. 

The website doesn't mention the "Find My Child" take on the "Find My Skechers" feature. But radio ad or not, the functionality has not been lost on consumers (e.g., Instagram reviewer, KTLA).

I don't put myself on any pedestal for parenting. It was a trial-and-error adventure. Sometimes I did well, sometimes not so much. And we did once flirt with phone tracking software. But we were all upfront about it. I don't remember ever thinking that secret surveillance would build healthy family dynamics.

Maybe kids victimized by Find My Skechers should be able to sue their parents for data protection infringement.

That should make the world better.

Digital rights defenders gather in Taipei to tackle mass surveillance, online propaganda, authoritarianism

Culled from my notes, here are some of the most interesting things I heard last week in Taipei at RightsCon, the world's leading summit on digital rights for technology, commercial, civil society, and government sectors.

A dragon towers over the 2025 Taiwan Lantern Festival in Taoyuan.
RJ Peltz-Steele CC BY-NC-SA 4.0

Chinese Surveillance Technology

China is methodical in suppressing conversation around the world about the repression of the Uyghur people, according to representatives of the World Uyghur Congress (WUC). Within days of her speaking at the Hudson Institute, WUC Chair Rushan Abbas said, her sister and aunt in China disappeared. Chinese officials sometimes approach venues hosting conferences that will discuss the Uyghurs and offer them double the price to cancel the conference contract, according to Haiyuer Kuerban, director of the WUC Berlin office. Now governments in England and Germany are keen to buy from Chinese firms such as Huawei the very tech that Chinese authorities use to surveil Uyghur activists and their families, Kuerban said, a perverse reward for the facilitation of human rights abuse.

Linjiang night market bustles in Taipei.
RJ Peltz-Steele CC BY-NC-SA 4.0

If you use a China-based media service such as WeChat even outside China, you might be helping the Chinese surveillance apparatus. Open Technology Fund Fellow Pellaeon Lin explained that censors scan files shared online and "fingerprint" them to tailor the blocking of sensitive content from recipients in China. Scanning and fingerprinting happens on Chinese tech even when users share content wholly outside China. Chinese users, meanwhile, can't penetrate "the great firewall" as easily as in the past, Lin explained. Authorities can see when a VPN is used, if not the content, and that's reason enough to bring someone in for questioning. Tor is better than a VPN because it wraps and disguises internet traffic within innocent transmissions. But Lin warns, it's a game of cat and mouse; the censors are always refining their methods.

Undersea Infrastructure

Remember that all of these panels took place in Taiwan, so criticism of China carried a grave sort of resonance. While discussion of digital rights naturally suggests the metaphysics of cyberspace, the infrastructure of the infosphere exists very much in the real world. One fascinating panel of experts fretted over the vulnerability of the world's undersea cables. Recent outages, such as the cut cable in the Gulf of Finland at Christmas, concerningly exhibit indicia of human agency. Professor Yachi Chiang, of the National Taiwan Ocean University, said, to my surprise, that Taiwan is located at right about the world's highest-density crossroads of undersea traffic. She's right; you can see it at the Submarine Cable Map by TeleGeography:

Submarine Cable Map CC BY-SA 4.0

The security challenges of this network are massive. About 20% of damage results from natural forces, such as deterioration and shark bites, Chiang said; sharks like to bite cables. About 70% of damage is caused by people. A lot of that is inadvertent, anchoring by fishing vessels. But there's no easy way to determine whether there was a malicious act, much less a nation behind it. In the Christmas incident, Finnish officials have alleged a deliberate anchor drag by a Cook Islands-flagged vessel doing Russia's bidding, NPR reported in December.

Taiwan had five incidents already in 2025, Chiang said, with four domestic lines and one international line disrupted. In one incident, the Taiwan Coast Guard took a vessel into custody and detained the crew. That incident was suspicious, because the boat had irregular routing for fishing and inexplicably bore a changeable nameboard. But the capture was exceptional, only possible because the ship was in Taiwanese waters, Chiang explained. On the high seas, ships bear flags of convenience, and any claim against the vessel must be taken up with the flag nation. Those claims in distant and ill developed bureaucracies go nowhere. So some better coordinated legal response is needed to protect the undersea information infrastructure, Chiang concluded.

Authoritarianism in Africa

While the United States retreats to some amalgam of isolationism and opportunism, China is dominating the developing world technologically. China built more than 70% of the 4G network in Africa, Amnesty International's Sikula Oniala said, and now is working on 5G. Chinese-made TVs are flooding the market, Oniala said, but to work, they must be connected to the internet via their Chinese software, raising specters of surveillance and control.

Starlink deployment over
Rhode Island, February 2025.

RJ Peltz-Steele CC BY-NC-SA 4.0

Authoritarian impulses in Africa are ever more complemented by Chinese technology and strategies. Governments control the gateways for internet access; last year, protests were met with internet shutdowns in Kenya, Mozambique, Tanzania, Mauritius and Equatorial Guinea, VOA reported. Amid the civil war in Sudan, both sides have used internet shutdowns strategically, cutting off information about unfriendly protests, permitting access when it undermines the enemy, and charging usurious rates for access to vital information, according to Hussam Mahjoub, co-founder of Sudan Bukra, an independent television channel.

While Starlink seems to promise liberation from government gateways, authorities in countries such as Sudan refuse to license the service and are pressuring the company to limit roaming access for accounts opened abroad, such as in neighboring Kenya, Mahjoub said. Worse, Tor Project Executive Director Isabela Fernandes warned, beware the gift bearer. The Bolsonaro regime in Brazil used Starlink data to track down and kill indigenous activists, she said.

Correspondingly, public access to information (ATI, freedom of information, or FOI) law is on the wane. In Kenya, Uganda, and Zimbabwe, mass surveillance is chilling human rights activism. And governments—even Kenya, the ATI law of which, on paper at least, I praised—are following Chinese examples in ATI law, Oniala said, reducing transparency purportedly in the name of national security.

Data Protection in Africa

Even with the best of intentions, African governments hardly can be expected to stand up to tech giants such as Meta, with turnovers that dwarf nations' GDPs, Open Technology Fund Fellow Tomiwa Ilori said. Speaking to African countries' efforts to establish meaningful enforcement of data protection laws, Ilori analogized: "You only get to kill snakes because they don't move together." In other words, African countries must coordinate their efforts. Franco Giandana Gigena, an Argentine lawyer and policy analyst for Access Now, described a similar dynamic in Latin American countries' inability to resist incentives from the U.S. government and American corporations to look the other way on data protection enforcement.

In the vein of collective action, the African Union Convention on Cyber Security and Personal Data Protection came into force in 2023, upon accession by Mauritania. However, the convention, adopted in 2014, already is dated. Ilori suggested it would benefit from optional protocols on extraterritorial application and stronger enforcement, and overall, African people need more education about their rights.

At that, there might be cultural impediments to EU-style data protection. Thobekile Matimbe, a senior project manager for the Nigeria-based Paradigm Initiative, said that the convention perspective on privacy, while inspired by the EU General Data Protection Regulation (GDPR), is more communitarian than individualist. Curiously, the African perspective, which prizes the integrity of the family, for example, over self-determination or the right to dissent, marks the same ground from which the human right of data protection emerged in the European tradition. The problem, Matimbe explained, is that authoritarians invoke the communitarian perspective to subordinate personal freedoms to the purported imperative of national security. That rationalization has seen surveillance deployed in Malawi, for one example, targeting human rights advocates, critics of government, and journalists, Matimbe said.

Disinformation Regulation

The classical dichotomy between true and false no longer works to balance free expression and disinformation regulation, according to Lutz Güllner, head of the European Economic and Trade Office in Taiwan. As Ukrainian journalist and Public Interest Journalism Lab CEO Nataliya Gumenyuk put it, debunking just isn't working anymore.

The problem, Güllner said, is that disinformation can have truth at its core, but the dis arises in the spin. That's why, he said, the EU's new Digital Services Act (DSA) aims not at content, but at manner of presentation: imposing on Big Tech a responsibility to police platforms for manipulative amplification of speech or suppression of others' speech (for example, planting an item of disinformation in a flood of mundane but accurate news). That isn't to say that the DSA strikes the right balance. Dionysia Peppa, a Greek lawyer and senior policy analyst for Beirut-based SMEX, said that the DSA rule on takedown of illegal content does not define "illegal," devolving authority to member states. In a time of right-leaning elections in Europe, states might disagree sharply over politically charged questions, such as when policy criticism of Israel becomes illegal hate speech.

In a similar vein, Liliana Vitu, chair of the Audiovisual Council of Moldova, talked about the challenges of combatting Russian propaganda in mass media. Banning "primitive propaganda" in "news" and talk shows was easy, she said. The devil lay in entertainment. For example, Russia-originating programs might consistently portray European characters as gay, effeminate, or weak, playing to stereotypes, she explained, while Russian characters appear masculine and strong.

Ukrainian journalists Nataliya Gumenyuk and Angelina Kariakina
talk about The Reckoning Project, which trains conflict journalists
in the preservation of evidence to prosecute war crimes.
RJ Peltz-Steele CC BY-NC-SA 4.0

As mere debunking doesn't work, Gumenyuk described research from The Reckoning Project seeking to figure out how journalists should combat disinformation. Viewers suffer from "compassion fatigue" at all the suffering in the world, she said. So when confronted with fact-based news accounts, such as the appearance of a drowned Syrian boy on a Bodrum beach, or the torture and murder of civilians in Bucha, Ukraine, viewers resisted and complained that journalists are out to manipulate them emotionally. The same viewers, though, proved receptive to people's firsthand accounts in documentaries. Gumenyuk described her astonishment at one study subject's testimony that he trusted the documentary more than the news because journalists were not telling the story. He seemed utterly unaware that the documentary form is a product of journalism and no more or less capable of conveying viewpoint than a news story.

The Reckoning Project, which Gumenyuk co-founded, occupies a compelling position at the junction of journalism and law. Gumenyuk said she tired of seeing reports collected by journalists excluded from war-crime investigations and prosecutions because the journalists did not understand rules of evidence. The Reckoning Project brings together journalists and lawyers to accomplish their complementary missions in seeking truth and justice. Gumenyuk gave as an example the questions a journalist might ask of a witness of atrocities, such as those committed by Russian forces against civilians in Bucha. Ordinarily, a journalist might ask, "How did the Russian soldiers kill this man?" But a leading question yields exclusion of the response as evidence in a legal proceeding. So journalists are trained to ask instead, "Tell me what happened that day."

Apropos of lawyering skills and picking up on the point that tech and its ill-intentioned users evolve faster than law and regulators, Armenian attorney and former head of the Armenian Data Protection Authority Gevorg Hayrapetyan played my tune when he told an audience:

One of the most important disciplines in law is philosophy of law, what law is and what it ought to be. One of the most important steps in developing human rights is recognizing the right.

Data protection, after all, was not a thing until someone thought of it. Maybe that's why it's not a thing in the United States. If we strip black-letter law of theory and policy and dumb down the American law school curriculum to comprise a glorified bar course and skills-training program, then we're headed in the right direction. Right? Asking for a friend.

Time to Save the World

Even were we all so inclined, is there time yet to save the world? Probably not. Law and regulation can't keep up, Güllner said, so the answer has to come from education, to develop people's sensory reflexes to detect disinformation. That will take a generation. "Ask my Ukrainian colleagues," he said. "We don't have that long."

Vitu described complex Moldovan legislation with multi-factor tests to determine whether disinformation conveys falsity and threatens national security. But that took years to develop with civil society stakeholders at the table to protect free expression; propaganda meanwhile grew yet more sophisticated. "Moscow never sleeps," she lamented. 

And Raša Nedeljkov, with the Serbian Center for Research, Transparency and Accountability, summed up the anxiety wracking the world:

A beacon of light for us was U.S. democracy. Now look what is happening.

Maybe that's the silver lining, journalist Tess Bacalla of the Asia Democracy Network suggested: The rest of the world, especially the European Union, will have to step up.

Hospitals may track patients online and sell their data without violating state wiretap law, high court rules

Mike MacKenzie (via Flickr) CC BY 2.0

State wiretap law does not prevent hospitals from tracking patients on the web and selling their data, the Massachusetts Supreme Judicial Court ruled last week.

The plaintiff is a patient at two hospitals in the Beth Israel Lahey Health network. As the court explained the facts, the plaintiff "reviewed information available to the public on the hospitals' websites regarding doctors (including their credentials and backgrounds) and medical symptoms, conditions, and procedures." Without her consent, the hospitals shared the plaintiff's browsing data with third parties to generate revenue from targeted advertising.

The plaintiff sued under state wiretap law and got some traction in the lower courts, where the theory has bubbled up in other cases, too. The high court ended the trend, though, ruling that the state wiretap law, which threatens criminal penalties such as imprisonment, while reaching interpersonal communications such as telephone calls and email and text exchanges, was not intended to reach persons' interactions with websites.

The 47-page majority opinion by Justice Scott L. Kafker, drew a vigorous and almost as lengthy dissent from Justice Dalila Argaez Wendlandt, who accused the hospitals of lying to patients in their pledges of confidentiality and argued that the alleged misconduct falls squarely within legislative intent in prohibiting the interception of electronic communication.

I won't belabor the back and forth, as ample commentary already has been published about the case (e.g., JD Supra, Commonwealth Beacon, Bloomberg, National Law Review, Law360 (subscription), Massachusetts Lawyers Weekly (subscription)), and there is plenty more to come. Rather, I will comment only that the decision reflects the sorry state of privacy law in the United States.

The majority and dissent both make defensible arguments. I come down with the dissent on the technical merits of what the wiretap law was designed to prevent, i.e. "the spirit of the law," regardless of whether the legislature could have foreseen web surveillance. At the same time, the majority is right that the legislature likely would not have wanted to imprison every actor engaging in the kind of web surveillance that has become pervasive in our online society.

The missing link between the two positions is the meaningful data protection law that the United States still doesn't have, and which Americans want and expect, while almost three decades have passed since the European Union Data Protection Directive. The later General Data Protection Regulation (GDPR) has been in force for six years.

Wiretap law was once the stuff of political intrigue, à la Watergate. The Massachusetts statute characteristically dates to the 1960s. Just as the advent of the internet made media law again hotly relevant to society, so wiretap law found new life in the electronic era. Courts had little difficulty transposing the law of wired telephone surveillance to wireless cell phones and electronic communication media such as email and texts. Even the U.S. Supreme Court got in on the action.

That's why I think Wendlandt has the better argument on the technical merits, by the way. The majority's distinction of interaction with a person or a website, when there are persons receiving surveillance data from the website, seems meaninglessly formalistic.

With electronic communication burgeoning in the internet era and electronic interception easier to accomplish without the need for specialized hardware, wiretap laws have been repurposed to do more work than they were designed for, becoming a key tool in the personal privacy arsenal.

The problem in tort law, to oversimplify modestly, always has been what Professor Daniel Solove termed "the secrecy paradigm." The common law of privacy torts, which also emerged largely in the 1960s, was not designed to handle the nuances of an online world. Rather, tort law, like the Fourth Amendment right against search and seizure, focused on secrets kept. A person might resort to the law to protect an intimate secret shared with a spouse. But the person who discloses financial information to a bank has forfeit legal privacy. 

Intimate space is not the theory of privacy that animates data protection in Europe and most of the rest of the world. In the theory abroad, the human right of privacy flows forward with personal data as they are handed off from person to person and corporation to corporation. In the United States, the Health Insurance Portability and Accountability Act (HIPAA) provides a modicum of privacy protection in this vein, but the circumstances in which it pertains are extremely narrow—web activity is not protected health information, and a web host is not a healthcare provider—and it authorizes no private right of action for violation.

In the absence of a legal model of downstream privacy preservation in the United States—notwithstanding a perplexing emerging plethora of competing state laws, if usually limited to commercial contexts; Massachusetts has been working on joining the pack, but has not yet—wiretap law has been unexpectedly instrumental to protect personal privacy in a narrow class of cases, because wiretap law focuses on the misconduct of clandestine surveillance rather than on the purportedly private nature of the intercepted content.

To be fair to the Massachusetts majority, though, such use of anachronistic wiretap law takes us down a road of ever more speculative application as the electronic avatar increasingly becomes an embodiment of personal identity. Electronic tools such as Google Analytics watch our every word. And we don't necessarily want to stop that wholesale. The other day, I watched a dated TV movie that Amazon thought I would like, and it was right. Time travel, Ireland, and Jane Seymour? Drop everything.

Notwithstanding which side in the instant case has the better argument in statutory interpretation, the legal response to the problem presented, that is, surveillance of web usage for the relatively innocuous if mercantile purpose of advertising, would arise better from business regulation than from common law or statutory torts.

Alas, if I had the magic potion that would make our broken Congress favor consumer protection over corporate profits, I would be running for President.

The case is Vita v. New England Baptist Hospital, No. SJC-13542 (Mass. Oct. 24, 2024).

In 'Baywatch' case, court ponders discovery rule for models' tort claims over ads posted on Facebook

Models suing an adult entertainment club occasioned the high court of Massachusetts to ponder the problem of social media and the statute of limitations on media torts in a decision Wednesday.

When I heard that the Massachusetts Supreme Judicial Court decided a case about Baywatch, I knew I would want to blog about it.

Alas, I was misled. "Bay Watch" in the instant matter has nothing to do with the The Hoff or 1990s TV.

Plaintiffs allege this ad depicts model Paola Cañas.
From Compl. ex. D.

Still, it's an interesting case. Bay Watch, Inc., is the owner of an adult entertainment club in Stoughton, Massachusetts, Club Alex's. In a lawsuit filed in federal district court in June 2021, six globally recognized models alleged that Club Alex's posted their images, some of them in scant swimwear, to Facebook to promote the club, even though none of the models had any association with the club. The models alleged trademark infringement, misappropriation ("right of publicity"), defamation, and conversion.

The issue in the trial court was the statute of limitations for the state tort claims. Sitting on the generous end of the spectrum, Massachusetts allows three years for media tort claims. But the ads the plaintiffs complained about appeared from 2013 to 2015. The district court accordingly granted summary judgment on the tort claims to the defendant in 2023. But on a plaintiff motion to reconsider at the end of the year, the court agreed to certify the limitations question to the Massachusetts Supreme Judicial Court (SJC).

Alas, not that one (IMDb).

The plaintiffs in the trial court had tried to avail of "the discovery rule," a common law rule that tolls the statute of limitations when it would work an unfairness on a plaintiff who is reasonably not cognizant that she suffered an injury for which there might be a legally responsible actor. 

The discovery rule gets a lot of play in toxic tort cases, in which illness alleged to have resulted from exposure to toxic substances might take years to manifest, and the risk of exposure might not even have been known to the victim at the time. Buttressing his decision with gender-equity-oriented social science, the late Judge Jack Weinstein famously used the discovery rule in the 1990s to give reprieve to plaintiffs suing the makers of DES, a once widely prescribed synthetic estrogen replacement that turned out to be dangerously carcinogenic.

The discovery rule is appealing as a matter of fairness, but applying it can introduce a thorny question of fact. And there are many more thorns when the rule is invoked in a case without the clear delimiters of physical injury.

It's often said, as a default matter, that the limitations period for media torts, such as defamation, runs from the time of publication. Usually that rule works well enough. But in some cases, plaintiffs are able to invoke the discovery rule. If cases are any indication, then defamation occurs in the disruption of business relationships more often than in the pop culture paradigm of media subject versus publisher. A businessperson, for example, might think she lost a contract on the merits of a bid and only later discover that she lost the contract upon the whisper of a false and harmful rumor into the right ear.

Proliferation of media in the internet age has made courts slightly more willing to afford plaintiffs an argument for the discovery rule, because mass media publication in a sea of online content might not rise to an injured's attention as quickly as a story in the town paper in ye olden days. But courts' patience is not without limit. In the online environment, courts have adapted another rule familiar to the conventional interplay of mass media and the discovery rule. As the SJC opined, in part quoting the Massachusetts Appeals Court:

"[W]here an alleged defamatory publication is broadly circulated to the public, and did not involve concealment or confidential communications," the discovery rule will not be applied, and the cause of action will accrue upon publication, as such widespread publication should have been discovered by the plaintiff.

In other words, the limitations period runs upon publication, unless plaintiff can invoke the discovery rule because a reasonable person would not have recognized the harm and arguably causal actor, unless the thing was out there for everyone so the plaintiff should have recognized the harm and arguably causal actor—in which case we come back around to publication again.

If that sounds circular .... Right. The problem with this approach is that if a reasonable person would not have recognized harm, cause, and actor, then, by definition, the plaintiff cannot be expected to have recognized harm, cause, and actor. In tort analysis, the word "should" means "a reasonable person would."

What this approach really allows is for the court to deny the plaintiff the latitude of the discovery rule as a matter of law, and to dismiss, without having to hassle (or Hassel) with the plaintiff's reasonable cognizance as a question of fact suitable for trial. In short, what the court giveth, the court may taketh away.

And that's what happened in the instant case. The federal district court first indicated that it was inclined to dismiss because the ads appeared too long ago. When the plaintiffs tried to invoke the discovery rule, the court was skeptical. These are world famous models with agents whose job it is to scan for unlicensed uses of clients' likenesses, and with lawyers who have sued over misappropriations before. All the same, the court concluded, credibility notwithstanding, these images were out there in the world long enough that the plaintiffs should have found out about them. So no discovery rule.

What seems to have given the court pause on reconsideration is that the images here were posted on social media. A paralegal in the employ of the plaintiffs

attested that there is no software that would allow her to efficiently search for the images in question and that Internet search engines do not search social media posts. As a result, the only available method is this "particularized research of particular establishments." It is this process, presumably, that led the plaintiffs to the defendant's Facebook posts.

But that took time.

The witness had a point. Google seems slow to index social media when it does at all. Many writers have trumpeted "the death of the search engine," as users prefer to seek answers in familiar social media not as polluted as Google search results with commercialization and distortions resulting from digital marketing under the guise of "optimization."

As well, the tech giants seem to have backed off image searching. When reverse image search first came out, I had fun seeing what famous people Google thought I looked like. Now, no matter what image I start with, Google either finds me, or finds nothing, saying, "Results for people are limited. Try searching a larger [image] area." The search tools can't have gotten dumber; that must be a choice. The SJC observed in evidence in the case that Facebook terminated its image search tool in 2021.

You see it, right?

There are now reverse image search apps, by the way, especially for celebrity matches. I'm apparently a dead ringer for UK actress Natalie Dormer (image via Flickr by Gage Skidmore CC BY-SA 2.0, cropped) or the great James Earl Jones (image via Flickr by Phil Davis CC BY-NC-SA 2.0, edited). Eat your heart out, Hollywood. The Celebs app sees me.

The federal district court thus asked the SJC to clarify how the statute of limitations works in a social media world.

In a characteristically methodical opinion for a unanimous court, Justice Scott Kafker stepped through the analysis in 25 pages. The opinion is elaborative, but it adds nothing new. The approach remains: publication, unless discovery rule, unless broad circulation. At greater length in conclusion, here is the court's explanation of the discovery rule in the context of social media:

Claims ... that arise from material posted to social media platforms accrue when a plaintiff knows, or reasonably should know, that he or she has been harmed by the defendant's publication of that material. Given how vast the social media universe is on the Internet, and how access to, and the ability to search for, social media posts may vary from platform to platform and even from post to post, that determination requires consideration of the totality of the circumstances regarding the social media posting, including the extent of its distribution, and the accessibility and searchability of the posting. The application of the discovery rule is therefore a highly fact-specific inquiry, and the determination of whether plaintiffs knew or should have known that they were harmed by a defendant's post on social media must often be left to the finder of fact. If, however, the material posted to social media is widely distributed, and readily accessible and searchable, a judge may determine as a matter of law that the discovery rule cannot be applied.

The record was insufficient, the SJC opined, to determine how the approach should work in the instant case. The plaintiffs had equivocated, the SJC observed, when asked when they first knew about the postings. If they knew before 2018, the court reasoned, then case over. Someone should ask them that.

It is possible for the conventional "whisper" scenario to play out on social media. The SJC cited a California case, Jones v. Reekes (Cal. Ct. App. 2022), in which plaintiff had been blocked from viewing the defendant's postings. Still, the California court concluded that the postings "were otherwise available to the public[,] and the block was easily circumventable;" moreover, the plaintiff was on alert generally to the defendant's derisive commentary. So the plaintiff was precluded from availing of the discovery rule, and the date of publication controlled.

Now I can't unsee it.

Jones was thus not exceptional as a mass media case, and I don't think Bay Watch is either. I suspect the SJC was being deferential to the federal trial court, giving it a chance to make the final call. It seems to me quite clear already that the district court did what the SJC commanded when it first ruled for the defense in 2023. The SJC having confirmed the rule, there seems little more for the district court to do but reenter that judgment.

The result might seem unfair to the assiduously searching plaintiffs, or, more precisely, their agents and lawyers. But the statute of limitations furthers meritorious competing interests, including finality in freedom from legal jeopardy on the part of all publishers.

The case in the SJC is Davalos v. Bay Watch, Inc., No. SJC-13534 (Mass. Sept. 4, 2024) (Kafker, J.) (FindLaw). The case in the federal court is Davalos v. Baywatch, Inc., No. 1:21-cv-11075 (D. Mass. Dec. 15, 2023) (Gorton, Dist. J.) (Court Listener).

UPDATE, Sept. 12: I was saddened to hear of James Earl Jones's passing shortly after I published this post (N.Y. Times, Sept. 9, 2024). All joking of resemblance aside, I was a fan.