Chapter 13: Advertising

Overview of the Topic:

At first, commercial speech had no protection. However, the Supreme Court later admitted that advertising often has certain values in its content and purpose, therefore putting it under the First Amendment protection. Hence, commercial speech is protected when there is a substantial state interest in question.

In order to promote free and fair competition in interstate commerce, the Congress established the Federal Trade Commission in 1914. In 1938, the FTC passed the Lanham Act, which defines unfair and deceptive advertising. The FTC is the primary agency that regulates advertising, and has the authority to pass laws regarding the same.

Other actively involved agencies are the FCC and FDA (Food and Drug Administration). 

Because of its legal authority to test and control different drugs and substance, the FDA also oversees the regulation of tobacco advertising, especially to minors and minorities.

One of the newest forms of false advertising in advertising online. That is why the Congress passed the CAN-SPAM Act (Controlling the Assault of Non-Solicited Pornography and Marketing) in order to regulate spam advertising. Majority of the states have anti-spam laws, making unsolicited e-mail messages unconstitutional.

Defining Key Terms:

Federal Trade Commission: A federal agency established in 1914 with the purpose to promote free and fair competition in interstate commerce.

Puffery: Advertising that exaggerates the merits of products or services – not illegal.

Important Cases:

CentralHudson Gas & Electric Corp. v. Public Service Commission in NY – The New York state court reversed the appeal made by the CHG, in which they stated that the ban on the commercial speech through electric utilities violated First and Fourteenth Amendments.

Sorrellv. IMS Health Inc. – The court affirmed the appeal, as internet-based dissemination cannot be eligible for content-based violations, as the Internet regulations tend to be overbroad and vague.

Relevant Doctrine:

Commercial Speech Doctrine

• The government may regulate advertising that is false, misleading or deceptive
• The government may regulate advertising for unlawful goods and services

Even accurate advertising for legal good and services may be regulated if the government demonstrates:

• A substantial state interest behind the regulation
• The regulation directly advances the states’ interest
• A reasonable fit between the state’s interest and the regulation

The Free Flow of (Commercial) Information

• “Freedom of Speech” applies to both the speaker and the receiver of information.

• “Speech doesn’t lose its First Amendment rights because money is spent to project it, as in paid advertisement.”

• Speech that only proposes commercial transaction is not so removed from “any exposition of ideas” that it lacks all protection.

• The need to make intelligent, informed economic decisions in a free-enterprise economy drives the public interest in entirely commercial information.

• Some forms of commercial speech, including deceptive or misleading ads, may be regulated.

Lanham Act

A plaintiff has standing to bring suit under the Lanham Act when:

1. The defendant’s actions occurred inside “the zone of interest” of the L.A., and
2. The injury to the plaintiff is “proximately caused” by the defendant’s actions.

FTC Mechanisms

Preventive measures

• Opinion letters
• Advisory opinions
• Industry guides
• Trade rules
• Voluntary compliance

Corrective measures

• Cease and desist orders
• Consent orders
• Substantiation
• Litigated orders
• Corrective advertising
• Injunctions

Current Issues/ Controversies:

Some of the ongoing issues in the world of advertising is false advertising, and differentiating it from puffery. Although puffery counts on the rationality of the consumers, sometimes is hard to recognize it against deceptive advertisements.

Commercial speech is everywhere around us, and some people don’t have the sufficient knowledge on certain topics that are being advertised. For instance, when it comes to advertising “scientifically proven” aspects of a product, rarely who is able or willing to explore the truth behind such statements. Hence, many people invest large amounts of money that feed into some company’s budget, not getting the result.

Specifically looking at the American society and culture, it is primarily based on consumerism, which creates such wide space for successful false deceptive and false advertising. Nowadays especially, with the speed of the Internet and the capabilities of constant updates online, it is hard to track down every single deceptive ad. Moreover, this makes the job of false advertisers easier, as it gives them more opportunities to take advantage of fairly large number of naïve consumers.

My Questions/ Concerns:

1. Since the Internet regulation are so challenging to narrow down, how does online advertising play into that issue?
2. Will online advertising ever be fully controlled without the fear of the “chilling effect”?

References:

Trager,R., Russomanno, J. & Ross, S.D. (2016), The law of journalism and masscommunication. Thousand Oaks, CA: Sage Publications.

Media Law in the News 4: Ed Sheeran Sued for Copyright Infringement for "Thinking Out Loud"

Summary of the Case

In the summer of 2016, the famous British pop-singer Ed Sheeran faced a second copyright infringement suit of the year, the latter being over his hit song “Thinking Out Loud”.  This suit was one in a series of several copyright and plagiarism suits that have been circulating in the media during 2015 and 2016.

The plaintiffs, the heirs of the composer Ed Townsend, who was the composer behind Marvin Gaye’s “Let’s Get It On”, claim how Sheeran’s “hit song "Thinking Out Loud" copies core elements of the late soul singer's 1973 track”.

This case has often been compared to the lawsuit that Marvin Gaye’s family filed against Robin Thicke and Pharrell, stating how Thicke’s “Blurred Lines” copies Gaye’s famous song “Got to Give It Up”. The said suit was resolved in $7.4 million in damages for the Gaye family. Hence, many critics cannot shy away from drawing lines in between the two cases. Nonetheless, in Ed Sheeran’s case, Gaye family has held their distance from being involved, letting Ed Townsend’s heirs to tackle the case.

In the details of the lawsuit, it is stated that Ed Sheeran “copied the major aspects of the melody, harmony and composition of ‘Let’s Get it On’ for his hit “Thinking Out Loud’ ”. As the comparison of two songs was given in the article, the gist of the songs’ melodies and harmonies truly resemble each other.

This suit, however, seems to find its roots in social media comments that were motivated by the Spin’s article, in which the author of the article explains in detail how much resemblance do the two hits, “Thinking Out Loud” and “Let’s Get It On”, actually have. So, after publishing its critique to the Sheeran’s no.1 hit, many social media users took their time to point out the flaws in the Sheeran’s famous song. Otherwise, it is questionable whether this suit would even find its way to court if it weren’t for the power of mass and social media.

Legal Questions

Considering the fact that the precedent of the Sheeran’s copyright case is set in Robin Thicke’s and Pharrells copyright infringement suit, it will be interesting to see how many details are going to be considered for Sheeran’s case. According to the article, “the precedent set in their case looms over all new copyright infringement claims. Notably, the court took into account not just sheet music, but studio arrangement too, and ruled that "Blurred Lines" significantly aped the vibe of "Got to Give It Up," something that had previously been beyond copyright protection”.

So as it can be seen, new aspects of copyright protection have been added to the law, which might guide the direction of Ed Sheeran’s case as well.

Relevant Doctrine

The category of law in this case is intellectual property, more specifically infringement of copyright (plaintiff’s case) that was brought about by Ed Townsend heirs. For the sake of the understanding, infringement is defined as an unauthorized distribution, use or sale of a product protected by copyright, trademark or patent law.

In order to be eligible for a lawsuit of infringement, the plaintiff’s work must have been previously protected by the copyright, which it was. The lawsuit was filed in 2016, whereas the song in the question, “Let’s Get it On”, in under copyright protection since 1973. Even though the song came out prior to January 1, 1978, it is still protected by the copyright law, as it hasn’t yet been 95 years since the song’s release.

The plaintiff must be able to prove the following four points in order to successfully win the infringement lawsuit in court: whether the work is protected by a valid copyright/ patent law, it also must prove the ownership of the patent that was registered in the official institution for that. Finally, the plaintiff must be able to prove one of the following two aspects – whether there is evidence the defendant directly copied the work, or did the infringer have access to the work, and the two works are substantially similar.

Is the work protected by a valid patent law?

Yes. According to the article, the song was released mid-1970s, where the song had to be officially and legally registered to gain copyright protection, as soon as it was put in some kind of tangible medium (presumably vinyl record at the time). Hence, rational conclusion is that the lawsuit against Sheeran wouldn’t be possible if the plaintiff didn’t disclose a document proving its legal copyright protection.

Does the plaintiff own the copyright?

Yes. With the lawful copyright protection that had to be registered and couldn’t be automatically assigned to the published work, it can be assumed that the plaintiff has the ownership over the copyright.

Was the patent registered in the Copyright Office?

Although this information is not given in the article, it may be acceptable to guess that the copyright protection was issued to the plaintiff in the relevant institution. As it was stated previously, any work released prior to January 1, 1978 had to be registered and granted copyright protection. Also, further looking at the level of fame of the song, and other work by Ed Townsend, it can be assumed that all of his work must have been lawfully protected and registered in the Copyright Office.

Is there evidence the defendant directly copied the work, or did the infringer have access to the work, and the two works are substantially similar?

Considering the facts given in the article, the plaintiffs claim that “[t]he melodic, harmonic, and rhythmic compositions of ‘Thinking’ are substantially and/or strikingly similar to the drum composition of ‘Let’s’ ”. Hence, in this particular case, the plaintiff chose to answer the latter question in the attempt to prove the copyright infringement.

Taking into account the given facts in the analysis of the plaintiff’s case, it can be concluded that, even with the assumed elements of the case due to the lack of information in the article, the plaintiffs have a strong case against the defendant (Ed Sheeran). However, since the analysis hasn’t touched upon the Fair use or Transformative Use defense, it cannot be claimed that the plaintiff’s case would be actually successful.

Conclusion

Contemporary laws on copyrights are limiting new and emerging artists and creators in building off of some previous works. Nonetheless, after listening to both of the songs (‘Thinking Out Loud” and “Let’s Get It On”), the melody and the harmony seem to be substantially similar. Additionally, through the analysis of the plaintiff’s case for infringement, it seems as if Ed Townsend heirs meet all the standards in order to successfully prove the infringement case against Sheeran in court.

Nonetheless, since the articles covering this story were fairly vague and didn’t offer a lot of technical details of the case, there are still many elements that could weigh the case either way.

References

Andrews,T. M. (August 10, 2016). Ed Sheeran sued for copyright infringement for second time this year.

Blistein,J. (August 9, 2016). Ed Sheeran Sued for Allegedly Copying Marvin Gaye's 'Let's Get It On'.

Kenneally,T. (August 9, 2016). Ed Sheeran Sued for Song Theft Again: Does ‘Thinking Out Loud’ Rip Off ‘Let’s Get It On’?

Word Count: 1144 words

Chapter 12: Intellectual Property

Overview of the Topic:

Intellectual property serves as an umbrella term consisting of copyrights, trademarks and patents. Although each of the aspects have their own definition according to which they are applied, the U.S. copyright law protects the rights of creators of “original works of authorship” to use their creations. The Statute of Anne was the very first copyright law, originating in England, where the U.S. found most of the basis for creating its own copyright law.

Congress has its own rights in terms of adopting copyright laws, which were given by the U.S. Constitution. One of the most significant international treaties on copyright is the Berne convention that happened in 1886, signed by the U.S. in 1988.

The U.S. copyright law finds its essential form in the 1976 Copyright Act, which offers an exact definition of a copyright, and what kinds of work it entails in its protection. However, certain works, especially media circulation works, are more often seen as plagiarism rather than copyright violation, as not absolutely every work in tangible form gains the right to copyright.

In regards to original work, it is copyrighted from the moment it is given in some form of a tangible medium. However, when talking about the work created by an employee for the purpose of his profession and job, it is considered to be ‘work made for hire’. This means that the copyright of the work belongs to the employer, not the employee.

In order to retain protection of original material, it is not necessary to provide a copyright notice. Copyrights may be given away, sold or leased, depending on the original owner of the work.

Copyright after January 1, 1978 last during the lifetime of the creator’s work, plus 70 years after his/ her death.

Infringement identifies as the violation of the copyright protection, and is framed in a 4-point balancing test, which is used by courts in the infringement cases.

The ever growing use of digital media compelled the government to bring new regulations. Hence the Digital Millennium Copyright Act, in which technologies that circumvent copyright protections are banned. The law protects the ISPs against the copyright lawsuits if the ISP takes down the material that the creator says is posted without permission (safe harbor protection).

Under the Federal Lanham Act, trademarks are protected from infringement. The common law protects unregistered marks within the geographic area where they are used. Marks can have several forms and identifying aspects. A mark must be registered with the Trademark Office in order to gain the Lanham Act protection.

Domain names may also be registered as trademarks.

Defining Key Terms:

Intellectual Property: The legal category including copyright, trademark and patent law.

Copyright: An exclusive legal right used to protect intellectual creations from unauthorized use.

Statute of Anne: The first copyright law, adopted in England in 1710, protected authors’ works if they registered them with the government.

Berne Convention: The primary international copyright treaty adopted by many countries in 1886 (U.S. 1988).  

Work made for hire: Work created when working for another person or company. The copyright in a work made for hire belongs to the employer, not the creator.

Transmit Clause: Part of the 1976 Copyright Act that says a broadcast network is performing when it transmits content; a local broadcaster is performing when it transmits the network broadcast; and a cable television system performs when it retransmits broadcast to its subscribers.

First-sale doctrine: Once a copyright owner sells a copy of a work, the new owner may possess, transfer or otherwise dispose of that copy without the copyright owner’s permission.

Fair use: A test courts use to determine whether using another’s copyrighted work without permission is legal or an infringement.

Trademark: A word, name, symbol or design used to identify a company’s goods and distinguish them from similar products other companies make.

Circumvent: To go around or bypass.

Important Cases:

Metro-Goldwyn-MayerStudios Inc. v. Grokster Ltd. – Grokster was found guilty because it intentionally and knowingly distributed copyrighted works to their service clients.

American Broadcasting Companies Inc. v. Aereo Inc. – The court found Aereo guilty of infringement as it distributed service of television programs at the same time that they broadcasted. (The Digital Millennium Copyright Act).

Relevant Doctrine:

Copyrights & Patents

The Congress shall have the power to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

The 1976 Copyright Act

Copyright protection applies to “original works of authorship” that are “fixed in any tangible medium of expression”. The given categories are suggested to be considered broadly. These include:

• Literary works
• Musical works, including any accompanying words
• Dramatic works, including any accompanying music
• Pantomimes and choreographic works
• Pictorial, graphic and sculptural works
• Motion pictures and other audiovisual works
• Sound recordings
• Architectural works

Exclusive Rights in Copyrighted Works

Holder of exclusive rights can:

1. Reproduce the copyrighted work.
2. Prepare derivative works based upon the copyrighted work
3. Distribute copies of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease or lending.
4. Perform the copyrighted work publicly in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures, as well as other AV works.
5. Display the copyrighted work publicly in the case of literary, musical, dramatic, and choreographic works, pantomimes, pictorial, graphic or sculptural works, including the individual images of a motion picture or other AV work.
6. Perform the copyrighted work publicly by means of a digital audio transmission in the case of sound recordings.

Infringing Copyright

Plaintiff’s case:

1. The work used is protected by a valid copyright.
2. The plaintiff owns the copyright
3. The copyright is registered at the Copyright Office
4. Either:
1. There is evidence the defendant directly copied the work, or
2. The infringer had access to the work, and the two works are substantially similar.

Fair use defense

1. For what purpose was the copyrighted work used without permission?
2. What was the nature of the copyrighted work that was used without permission?
3. How much and what portion of the copyrighted work was used without permission?
4. What effect did the unauthorized use have on the copyrighted work’s market value?

Transformative Use (carries most weight in the Fair Use defense)

One of the primary defenses for fair use. The answer to two questions should be yes in order for the defense to be successful.

1. Has the material you have taken from the original work been transformed by adding new expression or meaning?
2. Was value added to the original by creating new information, new aesthetics, new insights and understandings?

Types of Marks

Fanciful marks: invented marks.

Arbitrary Marks: words that have ordinary meanings unrelated to the product or service.

Suggestive marks: marks that suggest a product’s source/ business.

Descriptive marks: marks that describe the product or service and leave little to a consumer’s imagination.

Current Issues/ Controversies:

One of the most famous cases of working against and with the copyright law is Mickey Mouse and Disney’s work. Disney keeps extending the copyright for Mickey Mouse’s character.

As for now, the copyright for the character has been extended around five or six times, pushing for new reforms in the Copyright law. That is where the Copyright Act of 1976 comes from – Disney’s efforts not to lose the copyright for the famous mouse.

The newest expiration year is 2023, however, Disney will probably try to call for new reforms in order to prevent Mickey Mouse from entering the public domain.

The problem around this is that, most of the given reforms in the Copyright Law originate from a single, but a powerful company, whose tradition is the base of its revenue. Whether the established laws influence others positively or negatively seems to be overlooked.

Some of these laws are influencing newer generations from being able to create new work, as most of the copyrights are being extended. This being said, the inability to work off of previous works angers many emerging creators and artists.

My Questions/ Concerns:

1. How do minors who have access to the Internet, blogs, and other online works can be held liable for unknowingly performing infringement by using googled photos?
2. How much power does the Berne Convention have, since it is fairly outdated compared to the development of the media, distribution of work, and the emergence of new work that might gain copyright?

References:

Schlackman,S. (February 15, 2014). How Mickey Mouse Keeps Changing Copyright Law. Art Law Journal.

Trager,R., Russomanno, J. & Ross, S.D. (2016), The law of journalism and masscommunication. Thousand Oaks, CA: Sage Publications.

Media Law in the News 3: The Trentonian to oppose judge’s ‘unconstitutional’ prior restraint order

Summary of the Case

In the news article The Trentonian to oppose judge’s ‘unconstitutional’ prior restraint order, a judge in a child custody case established the prior restraint, hence prohibiting the publishing of a story about the case to the Trentonian newspaper. Namely, the reporter was following the case in question in court, where he got a copy of the official report from the mother of the child.

The case itself is about a 5-year-old child who was caught carrying drugs on several occasions in his school. After this, he was taken by the social services until the time of the trial. Other than the custody trial, this case had some follow up lawsuits in which the father of the child was charged for the possession of heroin, which is why the child ended up 

bringing it to his school.

The newspaper, The Trentonian, covered all the relevant stories regarding the family. Furthermore, after obtaining the copy of the document from a mother, the reporter for the Trentonian was familiar with the law regarding his rights of obtaining such reports and documents, and he accessed it lawfully.

Nevertheless, the judge still held onto his decision to establish prior restraint when it came to publishing the information from the report. The Trentonian immediately appealed to this decision, stating how it “is a case where the newspaper has documents that were lawfully obtained, and it has the right to publish their content. Any order that restrains it from doing so in unconstitutional. And it is presumed unconstitutional from the start”.

What is more, the newspaper and its representatives in court said that the judge’s decision equals for “censorship” therefore limiting the reporters’ First Amendment rights to inform the public about any given topic, including the sensitive ones, such as the case itself. 

Commenting the case, the legal director of the American Civil Liberties Union of New Jersey Ed Barocas maintained that this decision “[impedes] on the rights of the free press”.

Overall, the officials, journalists, and the readers have repeatedly expressed their disapproval of the judge’s decision, especially because the newspaper protected the boy’s identity throughout their reports about the case. Additionally, according to the law, the reporters working directly in the court have the limited privilege, in addition to the right to publish the information acquired from official reports given to them in the court.

Legal questions

Reading the news article about the case, some of the legal questions that came up are regarding the process of establishing the prior restraint in this case. Although there seem to be no elements that pass the Near test, the article also states how the judge’s decision was “issued orally from the bench and served on the newspaper Wednesday as it prepared to publish a story” about the case. 

Hence, the question is does the oral prior restraint have the same legal weight as the officially brought court decision? To add, the judge brought the decision without the presence of the reporter or his representatives, which puts the authority of the process in question, as it did not fulfill its official obligations about the prior restraint.

Relevant Doctrine

The category of law in question is the prior restraint, which has been put on the official report from the child custody case. In its definition, prior restraint is presumed to be unconstitutional, and the least acceptable form of intervention. Essentially, prior restraint means that the government, or its officials as it happened in this particular case, have the right to block media publication before the publication happens.

In order to successfully prove or lawfully pass the prior restraint, the case has to be put through the “Near test”, which was originally established in the Near v. Minnesota case. The test consists of the six elements, which are: obscenity, incitement to violence, foreseeable overthrow of the government, fighting words, obstruction of military recruitment and the publication of military troop locations, including exact numeral values.

Except for the six basic elements of the test, there are four exceptions that do not have to be proven in court. Those are national security, fighting words, incitement to violence, and obscenity.

Taking into consideration the fact that the prior restraint was passed because the court case was in the family court, which are usually confidential. However, since the reporter acquired the report from the complaint that was involved in the lawsuit, it was accessed lawfully, hence the reporter should have had full right to publish the facts from the case in its story.

Also, the document in question doesn’t fall into any of the categories given in the “Near test”. The case is involving a child and a family in a custody lawsuit over the incident in which the child was caught carrying drugs in his folder. There were no elements of obscenity involved, nor fighting words. Moreover, the matter in question doesn’t involve any troop information nor military recruitment obstruction information.

Possibly the only element that could be met in the “Near test” is the national security element, however, the gist of the case is not revolving around the details of the drugs or any part that could actually bring national security into question.

Also, as it was already mentioned, the prior restraint in this case was brought about verbally and without the opposing representatives present, which can lead to the assumption that the prior restraint wasn’t lawfully established.

Although this is not in the category of prior restraint, the reporter in question does have qualified privilege, which should have also been considered during the case. Namely, when the reporter follows a story in court, he gains the qualified privilege of being able to publish the information from the official reports that have been acquired lawfully.

Conclusion

Finally, we see how the personal discretion of the judge can lead to unlawful, yet authorized decisions in court, such as the prior restraint in this case. According to the “Near test”, the judge had no legal basis to pass the prior restraint on this story, especially because the official report was given to the reporter by one of the complaints involved in the lawsuit.

This decision, if it gets supported by other court officials, might cause the ‘chilling effect’ in the free press. Censorship of the press is ultimately the greatest limitation to the core of the free press, the U.S. constitutional rights given to the press, and the public’s right to know of factual information, regardless of the topic. 

Word Count: 1079 words

References

Avilucea I. (October 28, 2016). The Trentonian to oppose judge’s ‘unconstitutional’ prior restraint order. The Trentonian. 

Shea, K. (February 15, 2017).  Newspaper reporter takes the stand in prior restraint case. New Jersey Local News. 

Chapter 11: Obscenity, Indecency & Violence

Overview of the Topic:

Media has been filled with sexual expression since its beginnings. That is why, in order to regulate public displays of obscenity, federal laws have been passed, that ban obscenity production and distribution. Since the definition of obscenity comes from the Miller v. California case, content must pass the Miller test in order for obscenity to be proven in court.

In 1973, the Supreme Court adopted its official definition of obscenity. However, regarding Internet obscenity, the relevant laws are still undefined and vague, as most of those regarding online interactions are.

When it comes to variable obscenity, it is illegal to provide minors with the sexual content that would not be obscene to adults. Nonetheless, the First Amendment protect the possession of obscene materials, as far as it doesn’t categorize as child pornography. There are different ways in which the government can attempt to seize the possessions of the people guilty of distributing obscene material.

The First Amendment protection covers indecent material, except the material on broadcast radio and television. Other than the explicitly sexual material on broadcast television and radio, the FCC and the Supreme Court recently defined fleeting expletives as indecent, therefore equally subjected to indecency regulations. In order to warn parents about the material shown on certain programs, the Congress requires for the manufacturers to set V-chips that read off the ratings of certain programs and television stations.

In terms of online obscenity and indecency, the Supreme Court overturned several congressional attempts to regulate Internet indecency. However, in fear that the regulation of online content will greatly disrupt the freedom of expression given to online users, the Supreme Court chose to leave the Internet with no censorship present, giving it full First Amendment protection.

Because of their communicative content video games are fully protected by the First Amendment. Although some state courts have attempted to regulate the distribution of violent video games to minors, the video industries have voluntarily adopted a labeling system that provides information on the content of certain video games.

Defining Key Terms:

Obscenity: Content relating to sex in an indecent, very offensive or shocking way. Originates from Miller v. California case.

Hicklin rule: A rule taken from a mid-19^th-century English case that was used to define material that corrupts children.

Prurient interest: Lustful thoughts or sexual desires.

Variable obscenity: The concept that sexually oriented material would not meet the definition of obscenity if distributed to adults, but would be found obscene if distributed to minors.

Safe harbor policy: FCC policy designating 10 p.m. to 6 a.m. as a time when broadcast radio and television stations may air indecent material without violating federal law or FCC regulations.

Important Cases:

Millerv. California (1973) – The court ruled Miller guilty for distributing indecent material on brochures mailed to resident of Newport Beach, California. This is the case in which the official definition of obscenity was determined.

FCC v.Fox Television Stations Inc. (2012) – The court ruled that the regulations imposed by the FCC on the fleeting expletives were vague, and could potentially influence the increase of a “chilling effect”.

Relevant Doctrine:

The SLAPS test

In order to prove that some kind of publication/ distribution is obscene, the government must prove all three parts of the Miller test are true. The third part of the test says the material, taken as a whole, must lack serious literary, artistic, political or scientific value (SLAPS).

The Miller Test

1. “the average person, applying contemporary community standards” – whether or not the material causes prurient interests,
2. The work depicts or describes sexual conduct specifically defined by the applicable state law in an offensive way,
3. The work as a whole doesn’t pass the SLAPS test.

Internet censorship

According to the Supreme Court, the interest to avoid the chilling effect through the regulation of the Internet is a priority over censoring the content found online.

Current Issues/ Controversies:

Although the government consistently tries to adjust to the flow of the Internet and the content that finds its way to different websites, the controversies over Internet censorship cannot size. This not only brings the basic obscenity and indecency regulations in questions, but the applicability of the Miller test to the nature of online content.

The vagueness of the majority of the regulations regarding online content is a challenge to narrow down, as the societal standards for obscenity and allowed sexual content also fluctuate constantly. Nonetheless, the Supreme Court and other governmental entities are regularly challenged with the cases of Internet obscenity, indecency and censorship.

Even though the government fears the “chilling effect” that might become one of the consequences of regulating online content, some recent Internet obscenity cases have shown elements of the Supreme Court’s changing directions in terms of allowing full freedom of expression on the Internet.

References:

Trager,R., Russomanno, J. & Ross, S.D. (2016), The law of journalism and masscommunication. Thousand Oaks, CA: Sage Publications.

Media Law in the News 2: Facebook Defamation Leads to $500K Settlement

Summary of the Case

Several days ago, a settlement on a defamation case has been settled to $500,000, over a Facebook comment made by the defendant back in November 2015.

Other than solely defamation, the plaintiff (Davyne Dial) sued Jacquelyn Hammond for intentional infliction of emotional distress and negligence. The comment on Facebook, which ultimately gave the space for the plaintiff to make the said allegations, falsely accused the plaintiff of drunkenly killing her son.

In 1976, Dial did lose her 11-year-old son in an accidental shooting while playing with another boy, an incident in which Dial wasn’t involved. After reading the comment made by Hammond, Dial realized the level of attention around the remark started growing, causing for Dial to have her reputation greatly damaged. In her comments about the case, Dial stated that “she feels Hammond's comment crossed a line of civility than she could not tolerate”, adding how “she hopes the large settlement amount conveys a strong message to the general public in an age when most interactions with other people are virtual”.

Additionally, Dial and Hammond used to be two major rivals in the efforts to gain control over a local, low-wattage radio station WPVM. Today, Dial is the general manager for the station.

The way that the Facebook comment made by Hammond reached Dial is over a screenshot of the comment by one of Dial’s friends, who sent the picture to Dial and warned her about Hammond. Although the Facebook comment was removed by the defendant only couple of minutes after it was posted, Dial was able to add more evidence of the intent behind the remark made by Hammond, hence bringing the case to the court.

In Hammond’s defense, her attorney stated that the comment made was “misplaced in the wrong thread”, removed and “restated in the proper forum”. However, after having several screenshots from the initial thread, Dial was able to prove that Hammond’s comment was connected to the topic.

Finally, the judge ruled the case in the plaintiff’s advantage with $250k of actual damages and $250k of punitive damages that altogether come up to $500k settlement. In the article, a specialist in tort law Michael Green maintained that it is “extraordinarily rare to have a private defamation suit to result in a recovery of that magnitude”. However, the case seems to be of such volume due to the false accusation of the plaintiff’s immediate involvement in her son’s death.

Legal Questions

Since the news article talks about a settled case, there are little legal questions that could be raised. Nonetheless, my interest in this case is whether there was a better defense available for the defendant. Reading the article, I couldn’t find the defendant’s attorney’s statements as effective as they might have been if there were some additional effort put into finding a stronger defense for Hammond. Additionally, it is a lot harder for the plaintiff to prove libel in court than it is for the defendant, as the defense needs only one strong defense in order to have the charges dropped.

Another interesting portion of this case is the fact that the Defamation suit was brought forward regarding an online comment. As the Internet still has full First Amendment protection, it is interesting to see the course of this case, as a lot of intentional and malicious comments are made online without successful libel/ defamation suits.

Relevant Doctrine

Even though the case mentions several categories of law, including negligence and the intentional infliction of emotional distress, the main allegation that navigated the course of the lawsuit was the Plaintiff’s case for Defamation – Libel. The reason why it is libel is because the remark made was a false fact written on Facebook. In order to prove Defamation (Libel) in court, the plaintiff (Dial) had to prove the six elements of the libelous case – publication, identification, defamation, falsity, fault and damage.

Publication

In order to prove publication, the plaintiff must be able to prove that the comment was read by at least one other person outside Dial and Hammond. Considering the fact that the comment was read and screenshotted by one of Dial’s friends, this proves publication.

Identification

Proving identification means that the plaintiff must find at least one other person who reasonably believes that the comment was directly of and concerning the plaintiff. Same as for publication, the fact that Dial’s friend sent the snapshot to Dial to warn her about Hammond’s comment gives us the external person who identified Dial as being called out.

defamation

In its definition, defamation stands for the injury to a plaintiff’s reputation, in which the plaintiff has to prove that a substantial and respectable minority of the community thinks less of her or shuns the plaintiff. Additionally, if the defamatory comment falsely accuses the plaintiff of a serious crime, the defamation is automatically assumed. Knowing the content of the comment made by Hammond (“I didn’t get drunk and kill my kid”), it falsely accuses Dial of murdering her child, so the defamation is assumed.

Fault

For the plaintiff to prove fault, we have to consider the level of engagement with media by both the plaintiff. Since Dial works as a general manager for the local radio station, and runs a Facebook page/ forum site. This would make Dial a limited purpose public figure, as she doesn’t necessarily always have a high level of access to the media. Nonetheless, Dial has to prove actual malice in order to win the case. Actual malice is defined as the knowledge of truth, and the reckless or intentional disregard for the truth when making the false statement. According to the article, Hammond knew that Dial had lost a child previously, which adds the fact that the comment was directed at the plaintiff.

Falsity

To answer whether the statement is substantially true, it is already proven that it is not. Dial was not involved in the incident in which her 11-year-old son died.

Damage

According to the facts given in the article, the damages mentioned are actual injury and punitive damages. There could be no presumed damages, as the defamation didn’t influence any potential financial losses. So, in the case, Dial got $500k for the overall damages. In order to get punitive damages, however, Dial had to prove actual malice regardless of her level of access to the media.

Conclusion

Finally, the libel lawsuit against Hammond’s Facebook comment was successfully proven by Dial. By having screenshots of the comments regarding the false accusation of Dial’s involvement in the death of her child, she was able to prove defamation, and other mentioned allegations (IIED & negligence). As it was discussed above, the interesting part is that Dial managed to successfully bring out a defamation case for a Facebook comment, knowing that the Internet regulations are still relatively vague and unclear in certain cases, especially regarding Social Media.

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References

Boyle, J. (Feb 12, 2017). Facebook defamation leads to $500K settlement. USA Today.