Tag Archives: Twitter

August 23, 2011 · 9:48 am

First Amendment doesn’t have a passport #law #blogging #media #defamation #censorship

It might only be 45 words long, but if you are an American journalist, blogger or social media user you can’t pack the First Amendment in your luggage when you travel abroad.

The famous 14 word portion protecting free expression in the United States – ‘Congress shall make no law … abridging the freedom of speech, or of the press’ – does not travel well when your Web 2.0 material is viewed in foreign lands.

That shouldn’t worry you if you have published within US law and are happy to sit at home in North Dakota or Hawaii tapping away on the device of your choice.

But you should think twice before stepping on an aircraft and touching down in a jurisdiction where there are tougher gags on free expression.

Of course, you don’t have carte blanche at home, either. Even the US draws the line at criminal publications involving prohibited materials like child pornography or engaging in criminal activity such as fraud or terrorism.

But there are many things you can publish on social media or on blogs in America that can trigger lawsuits, harsh fines or jail terms in some countries.

Here are some situations where your First Amendment won’t help out:

Hate speech: A US District Court decision in 2011 reinforced the strong protections for angry and inflammatory words under the First Amendment. Judge Lynn Adelman had to consider the free expression rights of neo-Nazi Bill White who was charged over using a website to advocate violence against the ‘enemies’ of white supremacy, including a juror in the trial of a fellow extremist. Judge Adelman allowed his appeal on the grounds that he had not made a direct call to violence against the juror and that White’s speech had First Amendment protection. Judge Adelman explained that the US Constitution ‘…protects vehement, scathing, and offensive criticism of others, including individuals involved in the criminal justice system, such as Juror Hoffman’. He ruled that even speech advocating law-breaking was protected unless it was directed at inciting immediate lawless action and likely to prompt it. The decision sits with earlier Supreme Court hate speech judgments which have found that all but communications integral to criminal conduct – fighting words, threats and solicitations – have free expression protection in America. This is not the case in most other countries, where such comments can see you fined or jailed under laws of blasphemy, vilification or race hate. Australian historical revisionist Fredrick Toben was jailed in Germany for publishing Holocaust denial material on the Internet. In Nigeria, Algeria, Egypt, Tunisia, Sudan and some Middle Eastern countries offenders can be jailed or even executed for blasphemous statements or actions.
Immunity for comments of others: In the US, s. 230 of the US Communications Decency Act (1996) gives immunity to anyone hosting the comments of third parties. It states clearly: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Internet service providers (ISPs) and bloggers are protected from actions over material published without their knowledge on sites they host. This is not the case in many other countries. Earlier this year an Australian Federal Court found a health company was responsible for Facebook and Twitter comments by fans on its accounts in defiance of a court order that the company not make misleading claims about its allergy treatments. The court ruled that the company should have taken steps to remove the comments as soon as it had become aware of them, as Addisons Lawyers explained. The company and its director were fined $7500 each. In the Middle East, anonymous political comments by a blogger on the website of Bashar Al-Sayegh landed the Kuwaiti journalist in jail for three days in 2007. He was charged with insulting the emir of Kuwait and called upon to explain how he allowed the comments to remain on his site for several hours.
Defamation: Under special US protections, you can get away with false publications about celebrities and other public figures as long as you are not being malicious in your attacks. Again, you need to be wary of less forgiving laws in other places, particularly if the celebrity has a reputation they wish to defend elsewhere – people like British actor Hugh Grant or New Zealand film-maker Peter Jackson. The strong US defence stems from New York Times v. Sullivan (1964), where the Supreme Court invoked the First Amendment to rule that public officials had to meet tough new tests before they could succeed in a defamation action, even if the allegations were false. In the US, plaintiffs need to prove the falsity of the material, while in the UK and its former colonies the burden is on the publisher to prove the truth of libellous material. ‘Public figures’ in the US also have to prove the publication was malicious before they can win their cases. All this means you face much less chance of libel action in the US over your writing on important public matters, but you need to be careful if you are posting scandalous material about private citizens, particularly if you know the allegations are untrue. Rock icon Courtney Love learned this $430,000 lesson earlier this year. In Canada, the UK and Australia the ‘responsible communication’ or ‘qualified privilege’ defence requires the publisher to demonstrate that they made proper inquiries in the lead-up to their defamatory expose of an issue of public concern, even though they were ultimately unable to prove its truth.
Exotic foreign laws: The countries of the world with the highest level of censorship maintain tight control over expression and take firm action against online writers who use the Internet to question their authority. This is when the blogger becomes a ‘dissident’ and any use of new media for political expression – or even the use of certain media at all – can land the offender in jail. Reporters Without Borders has released a list of enemies of free Internet speech (pdf file): Burma, China, Cuba, Iran, North Korea, Saudi Arabia, Syria, Turkmenistan, Uzbekistan and Vietnam. They are countries where bloggers, journalists and other ‘dissidents’ have been imprisoned or tortured for daring to write what they think or for encouraging others to do so. Even Thailand, a nation with a relatively free and vibrant media, issues lengthy jail terms under its ‘lese majeste’ laws for any material critical of its royal family. Colorado resident Joe Gordon was detained for 84 days in Thailand this year and faces a charge of translating an unauthorised biography critical of the king.

So, what does it all mean for the average American journalist, blogger or microblogger? Quite simply: think before you publish, and think before you travel.

You won’t be extradited and tried by aliens if you keep within the law of your own country. But you should revise your travel itinerary to avoid countries whose governments or citizens may have been offended by your blogs or postings.

If you have been particularly provocative in your writing and you really must travel then consider your other 54 US state and territory jurisdictions or perhaps pack your bags for a Scandinavian vacation. While they don’t have a First Amendment, those countries usually come in well ahead of the US on the Freedom House and RSF free expression rankings.

© Mark Pearson 2011

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer! My only advice is that you consult a lawyer before taking any legal risks.

Why the #law stops you venting on #Facebook and #Twitter about the #Morcombe case

By MARK PEARSON Follow @Journlaw

[For readers outside Australia, please see background and coverage links in the Courier-Mail]

Child sex crimes rank among the most offensive and upsetting actions of human beings upon each other, so it is little wonder that people want to vent on social media when an arrest occurs in a high profile case like the Daniel Morcombe murder.

Ordinary citizens need to realise that their comments on Facebook, Twitter and other websites are ‘publications’ in the eyes of the law, and there are three types of restrictions in Queensland applying to such cases.

1. Suppression order on identities of witnesses. In this case the main factor limiting publication of the accused’s identity was a non-identification order placed on the names of witnesses during an earlier inquest into the victim’s disappearance. The Queensland Coroner lifted this ban on the identification of the accused on the afternoon of August 16, after media representation, so he can now be named as part of a fair and accurate report of court proceedings. See: http://www.abc.net.au/news/2011-08-16/morcombes-alleged-killer-named/2842126

2. Ban on identification of the accused in certain sex cases. The law in Queensland is similar to that of South Australia, which I have blogged about previously. In Queensland, the preliminary proceedings can be reported, but the identity of the accused must remain secret until after they have been committed for trial (Criminal Law (Sexual Offences) Act 1978, s. 7). It carries a two year jail term. The laws differ from those in other Australian states and territories where only the identity of the sex crime victim is suppressed. (In other states and territories, the accused in a sexual crime can be identified unless their identity might lead to the identification of the victim or unless a judge or magistrate decides to suppress the identity on other public interest grounds.)

3. Ban on prejudicial coverage. Once a suspect has been arrested OR charged with a crime, there are tough restrictions about what can be published about the matter in that jurisdiction. This is because our justice system works on the assumption that an accused is innocent until PROVEN guilty in a court of law. Just because police have arrested someone does not mean that person is guilty. There are too many examples of miscarriages of justice over the years for us ever to assume that an arrest means guilt. Until the person has been either convicted or acquitted, the matter is ‘sub judice’ (Latin for ‘under a judge’). You face serious fines and jail terms for sub judice contempt, as talkback hosts Derryn Hinch and John Laws have learned.

As we explain in The Journalist’s Guide to Media Law, the main areas of concern during the sub judice period include: any indication of prejudgment (whether as to guilt or innocence), publishing potentially inadmissible evidence, publishing witnesses’ statements beyond what is given in evidence in court, revealing criminal records and alleged confessions of the accused, or identification of the accused where it may be an issue in the trial (always assume it will be).

It is no defence to your sub judice contempt charge that others did the same thing (just as it is no defence to a speeding charge to say that you were following a car going 20 km/h faster).

Adverse publicity can even result in a mistrial or even an acquittal, which is the last thing most social media commentators would want in a sex or murder trial.

It is especially difficult for social media users and bloggers untrained in media law to navigate all these rules so the best policy is to avoid comment on any matters before the courts until the justice process has run its course. Leave that to the trained, professional journalists who report with the backing of experienced editors and legal advisers.

© Mark Pearson 2011

How #bloggers can apply the Kipling formula to social media #law

By MARK PEARSON Follow @Journlaw

Rudyard Kipling explained the secret to good writing in his poem The Elephant’s Child:

“I keep six honest serving-men (they taught me all I knew);

Their names are What and Why and When and How and Where and Who.”

A century later, we still use those serving-men to teach news writing but they can also be used as a lens to consider cyberlaw and how it applies to the online writer. Each raises legal questions and highlights the risks you face.

Who? #YesYouAreLiable…

There are several ‘who’ elements to the online writing enterprise – and each can have an impact on your legal liability for what you write.

Identity and anonymity are important issues in the law of online authorship, and I devoted my last blog to the way courts have considered the latter.

Most bloggers cherish their independence, but this comes at a price. If you are the sole publisher of your material, then prosecutors and litigants will come looking for you personally. Those who write for larger organisations or companies share that responsibility. A litigant can still sue you as the writer, but they might choose to target your wealthier publisher – particularly if you are an impoverished freelancing blogger. In the 20^th century, large media organisations would usually cover the legal costs of their reporters or columnists if they were sued and give them the services of their in-house counsel to guide them through any civil or criminal actions. Most of the so-called ‘legacy media’ still do that today, so if you are a mainstream journalist or columnist thinking of going solo with your blog you might factor this into your thinking. Another advantage of writing for a mainstream publisher is that your work will be checked by editors with some legal knowledge and perhaps reviewed by the company’s lawyers before being published.

A crucial ‘who’ element is your audience. Many areas of the law only require your publication to reach single person for you to be liable for its content. (In the case of libel, it needs to be a third person beyond you and the person you are defaming.) You might think you are just corresponding with your cosy group of Twitter followers or Facebook friends – all with a shared sense of humour or sarcasm – but your remark can be detected when it is forwarded or retweeted to someone else and can go viral very quickly. As soon as it comes to the attention of the authorities or counsel for the person you have offended, the courts will only look to the fact that you were responsible for the original publication.

If others add to your words with more inflammatory material of their own, they carry responsibility for the new publication. Think twice before retweeting or forwarding the legally dubious material of others, because this becomes a new publication under your own name, so at the very least you will share the legal liability with the original publisher. And of course never retweet, ‘like’ or forward anything without reviewing it thoroughly first.

Of course then there is the ‘who’ element related to the people you name in your blog or social media posting. These can present legal risks. Sometimes people cannot be named because their identities are protected under legislation because they are children, victims of sex crimes, or vulnerable in some other way. Courts can also suppress people’s identities for other reasons, and sometimes even suppress the fact that they have issued a suppression order, known as a ‘super injunction’, as journalists and Tweeters in the UK are well aware.

What? #…ForAlmostAnything

Lawyers and prosecutors will of course look closely at ‘what’ has been published to decide whether your work is a criminal offence or might be subject to a civil action.

Throughout the world all kinds of online material has been the subject of legal action. This has included the publication of words, symbols, still and moving images, sounds, illustrations, headlines, captions and links. Sometimes it is the very words alone that are banned (such as the name of a victim of a sex crime) while on other occasions it is the totality of the coverage that gives rise to a meaning that damages a reputation or intrudes (such as a photograph of someone accompanying a negative story). In some countries it is the publication without a licence that is banned.

When? #…NowAndThenAndForever?…

The instant nature of new media does not mix well with an online writer’s impulsiveness, carelessness or substance abuse. There is an old saying: ‘Doctors bury their mistakes. Lawyers jail theirs. But journalists publish theirs for all the world to see’. That can be applied to anyone writing online today. At least in bygone times these mistakes would gradually fade from memory. While they might linger in the yellowing editions of newspapers in library archives, it would take a keen researcher to find them several years later. Now your offensive or erroneous writing is only a Google search away for anyone motivated to look.

British actor Stephen Fry learned this in 2010 when he tweeted his two million followers, insulting Telegraph journalist Milo Yiannopoulos over a critical column.

“Fry quickly deleted the tweet once others started to latch on to it, but as we know that rarely helps when you’ve posted something injudicious online: the internet remembers,” Yiannopoulos wrote.

This also creates problems for digital archives – because if the material remains on the publisher’s servers it is considered ‘republished’ every time it is downloaded. This means that even where there might be some statutory time limitation on lawsuits, under some interpretations the clock starts ticking again with each download so you do not get to take advantage of the time limit until you have removed the material from your site.

A New York District Court considered whether material was actually ‘published’ when it was posted to the Internet. In Getaped.com Inc v. Cangemi, a motor scooter business claimed parts of its website had been copied. Cangemi argued the website was not a publication, but rather like a ‘public display’ or performance. Judge Alvin Hellerstein said ‘when a webpage goes live on the Internet, it is distributed and “published”’.

Where? #…JustAboutAnywhere…

The Dow Jones v. Gutnick decision by Australia’s High Court in 2002 showed just how long the arm of cyberlaw could be. In that case it stretched all the way from Melbourne, Australia, to allow a businessmen to take suit against a publisher based in New Jersey, USA. The same kind of thing happened this year when a Californian court ordered US-based Twitter to hand over the name, email address and phone number of a British-based local government councillor whose council wanted to sue him for defamation over comments he had allegedly posted anonymously. A year earlier the same South Tyneside council had also managed to have Google and the blogging site WordPress ordered to hand over IP addresses to identify a whistleblower.

While foreign countries cannot normally enforce their laws beyond their borders, you might be called to account for your blogs and postings under their laws if you happen to travel there. And citizens in other countries can go to court and get a declaration against you in your absence, perhaps ordering you to pay a certain sum in damages for something you have published.

Depending on the international legal agreements in place, the courts in your jurisdiction might be empowered to apply the laws of another state or territory in a case against you. The landmark US case in the field centred around two companies’ dispute over the use of the name ‘Zippo’ – one a manufacturing company and another an Internet news service provider. A Pennsylvania court developed a sliding scale to help it decide whether the web news service had enough commercial dealings in the state for the court to have jurisdiction.

Not that long ago you had to be served personally with a summons for a criminal charge or a writ for the launch of a civil action against you. In many places this can be done online – via email or even via a message to your social media account. The Supreme Court of the Australian Capital Territory became one of the world’s first courts to allow legal documents to be served on defendants via a personal message on their Facebook pages when they had defaulted on their home loan payments. Other methods of contacting them had failed and their house was about to be taken from them.

Why? #…EspeciallyIfYouAreMalicious…

Lawyers, prosecutors and judges will also look to your motives for publishing the material you have written. The motivation that will work against almost any defence in a publishing case is malice. Even the United States, which has one of the strongest defamation defences in the world under its First Amendment freedom of the press protection, will not excuse a slur against somebody if it can be proven to be false and malicious. Malice has a wide range of definitions in international law. Your online behaviour can be used as evidence in court, as well. Lawyers will dig for all kinds of proof that you have been less than honest about your behaviour or have shown a lack of good faith or malice in your dealings.

How? #…SomeMediaAreRiskier

Your method and your medium can be important factors in your legal exposure. The simple fact is that some publishing mechanisms are more law-friendly than others. Sometimes this will depend on the type of material you are publishing. For example, there is an argument that Twitter users may be less prone to copyright infringement because the very nature of the medium limits the amount of another person’s work they can borrow and the retweeting function implies that everyone expects their work to be recycled by others. Photographers and a US District Court judge disagree with this, however. Twitter users might leave themselves more exposed in the area of defamation because there is so little space in which to give context and balance to their criticism of others. Tweeting from an event as it unfolds, such as a conference or a court case, has its dangers because your tweets might contain errors in the quotes of others or might be taken out of context by someone just reading a tweet rather than the overall coverage.

The ‘How?’ legal element can be crucial to several defences. If you have written your blog fairly and accurately it can go a long way to establishing a defence to defamation or a contempt of court charge over a report of a court case.

——

You might like to look back over some of your recent blogs, tweets and Facebook postings and apply the 5Ws and the H of legal analysis to them. How well do they shape up? …And who is that knocking at your front door? 😉

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