Damage Claims against YouTube Dismissed. The English Premier League formed a class of non-US copyright holders to sue YouTube for statutory damages when their programs aired on YouTube. I discussed the original filing here and here. Yesterday, the court ruled that because these foreign entities never registered their works in the U.S., they could not recover Copyright Act damages. The EPL is claiming a small victory because the court did say the foreign entities could prevent or seek damages for unauthorized live broadcasts. The good games will still be on Fox Soccer Channel. It seems many of the past games are on there as well when FSC has nothing else to run.

Drew Acquital. Although the story behind the Lori Drew prosecution is tragic, the use of the Computer Fraud and Abuse Act to prosecute Drew had many concerned the sky was falling. I discussed the initial conviction here. The jury convicted Drew, but the judge last week tentatively acquitted her of the charges. I am not sure what is worse, trying to shoe horn existing law to fit perceptions of cyber-bullying or having many state legislatures, Texas included, create new overly broad online harassment laws.

Houston’s loses case when it “coerced” an employee to give managers access to MySpace group.  I discussed this case here before the trial. Summarily, a Houston’s restaurant manager found out there was a private MySpace group for the restaurant’s employees where employees freely criticized the restaurant and management. The manager “coerced” one of the hostesses to give him her password so he could see what was discussed by the group. Two of the employees who formed the group and participated were then fired. They sued on privacy grounds, wiretapping and violations of state and federal Stored Communications Act violations. The court threw out the wiretapping claim, but allowed the others. The jury determined there was no expectation of privacy, but did find Houston’s accessed stored electronic communications without authority by coercing the hostess to provide her password. Would things have been different if Houston’s had a condition of employment in a contract or policy that if there is discussion of business matters in an electronic forum, Houston’s has the right to view the material? The employee could have then been left with the Hobson’s Choice of giving up the password or face termination. The lesson for employers: if you want to snoop, don’t coerce passwords. If you are the employee, hope the private conversations remain private and study the Stored Communications Act.

Texas Recently-Passed Shield Law May Have Prevented Disclosure of Online Commenters.  I have discussed Texas’s passage of the shield law during this last legislative session at least here and here. My main issue with the law was its lack of protection for bloggers and others who would not be considered journalists as defined in the statute because they do not do journalism for their livelihood or substantial financial gain. Although the details are not very clear, it appears the shield law may allow newspapers to at least prevent the disclosure of online commenters. A criminal defendant near Abilene wanted the identities to allegedly make sure none of the commenters made it on the jury. The newspaper fought the request under the new shield law and First Amendment protections for anonymous speech. The court prohibited the disclosure of the identity, but did not provide an explanation for the ruling. I know nothing about the underlying murder case, but I do feel selfish hoping for a conviction so the issue can go up on appeal.

Yahoo Securities Claim Based on Click Fraud Dismissed. The plaintiff claimed Yahoo committed stock fraud by overstating its revenues when Yahoo recognized revenues Yahoo knew were the result of click fraud and would never actually materialize. Last fall, the court ruled the plaintiff failed to plead a claim, but gave the plaintiff one more try to plead a claim with some concrete allegations that could state a case. Apparently, the plaintiff couldn’t. Having nothing to do with this suit, Yahoo’s stock has fallen from about $24 per share when the case was filed to $14 today.  The decline cannot be a result of overstated click fraud revenues.

Thanks for letting me clear out my “inbox” and at least I didn’t mention Michael Jackson or Sarah Palin. But what’s up with the Governor of South Carolina?

The two-year spectacle known as the Texas Legislative session came to an end with the passage of a journalist shield law (already signed by the Governor) and an online harassment law. 

SHIELD LAW

The shield law was passed weeks ago and signed by the governor to become effective immediately.  My prior post, including the text of the bill, is here.  As discussed, it does not appear the shield law will protect a majority of the bloggers because to be a “journalist” entitled to the privilege from being forced to reveal sources, provide notes or pictures, video, etc., or testify, your reporting has to be a “substantial” part of your livelihood. Texas is now one of at least 37 states with a shield law. 

New York is considering extending its shield law to bloggers.  New York’s existing law is very similar to Texas, but there is a proposal to broaden the protections to include “journalist bloggers” with a definition of a “blog” as “a Web site or Web page that contains an online journal containing news, comments and offers hyperlinks provided by the writer.” Some suggest the New York law already covers bloggers, but New York currently defines journalists as those that do it for “gain or livelihood.” Sound familiar? You can read about New York here and here. Should Texas consider a similar amendment in 2011?

It does not appear the privilege would apply to online commenters either.  An Indiana court held the Hoosier State’s law did not protect the identity of people who comment anonymously on the online version of the local newspaper forcing the paper to reveal the comments identity.   Read about here thanks to Richard Koman of ZDNet.

ONLINE HARASSMENT

Through last minute wranglings, a version of the online harassment law was passed by both the Texas house and Senate. Here is a link to the Texas Legislature page on HB 2003 including its final text.

I still have reservations about whether this bill goes too far. It targets two types of activities. The first appears to address the online bullying and MySpace suicide tragedy. The law makes it a crime to use the “name or persona of another person” to create a page or post a message on a social networking site without the content of the other person with the intent to harm someone.

It seems unclear whether it would be a violation of the law to create a completely fictional persona. In the Megan Meier suicide case, the victim’s mother created a completely fake profile of a young man who befriended the victim and then suggested she should kill herself. If an equally malevolent person created a completely fake persona, would this statute criminalize the behavior? The threshold is also low because a crime is committed if there is intent to “harm, defraud, intimidate, or threaten any person.” What harm is enough? Hurt feelings? Does it require physical or financial harm?

I used to comment that this law appears to address bad activities that don’t really happen. Then, I stumbled upon this case thanks to Professor Goldman’s Technology and Marketing Law Blog. It is a sexual assault of a minor case where the victim tried to sue MySpace because the criminal used MySpace to lure the victim. MySpace was dismissed on Section 230 of the Communications Decency Act grounds (more here), but it shows the dangers of social networking sites. Despite another tragic situation, the online harassment law is still not necessary. The criminal is still a criminal and is still guilty of sexual assault with a minor. I am still concerned this law will be abused to criminalize otherwise perfectly legal (although immature) behavior.

The second conduct targeted by the online harassment law criminalizes the sending of an email with the intent to cause the receiver to think the email came from another person because it contains a misleading link or other identifying information. For example, a scammer sends an email that looks like it comes from your bank asking you to go to the website (not actually your bank’s website) to verify account information.

Maybe because I do business and consumer litigation I can understand the need for this bill. Although I think this type of behavior is governed by other statutes, it is helpful to have it clarified in one nice little package. Technically speaking, it could also criminalize the frat house, or law firm, prankster that goes on someone’s email account while the person is out to lunch and sends a fraternity-wide or firm wide joke email. Was there intent to harm? If so, the joke just turned into a Class A Misdemeanor. If anyone is looking to get back at anyone whom may have done that in the past, I recommend they look at this law before they seek revenge.

The Senate quickly passed the Texas Shield Law (HB 670) sending the bill to the Governor for his signature.  The much lengthier version is included in its entirety at the bottom of this post.  Here is the Senate Committee Report analysis on the bill.

As we mentioned in prior posts, the key issue affecting bloggers is the definition of journalist.  It still contains a substantiality requirement that would exclude all those who did not receive a substantial amount of their income or spend a substantial amount of their time reporting.  See the part in red in the bill below.

Michael Lindenberger over at the Citizen Media Law Project seems to agree that Texas’ version of the bill would do little to protect most bloggers.   Lindenberger even suggests that perhaps traditional journalists included the narrow definition to exclude bloggers out of disdain.  The more likely scenario, in my opinion, is that this was a simple compromise to get support for the bill from those who did not want every Willy Lump Lump with a blog trying to invoke the privilege (present Willy Lump Lump excluded of course). 

The  substantiality requirement defines a journalist as one “who for a substantial portion of the person’s livelihood or for substantial financial gain” engages in writing, reporting, etc.   Dictionary.com defines “livelihood” as “a means of supporting one’s existence, esp. financially or vocationally; living.”  Substantial is not defined in the statute.  Applying the law to non-traditional journalists (the retired, unemployed, non-working spouse blogger) is where the the lawyers will spend a lot of time arguing.  I could even argue that even traditional journalis can’t make a “substantial livelihood” doing traditional journalism.  I sure didn’t for my first job. 

The Citizen Media Law Project’s Sam Bayard discusses a New Jersey blogger trying to invoke the Garden State’s shield law to prevent the disclosure of her sources.  By reading that, you can see how a statute defines journalist makes all the difference in the world.

Now, for the actual bill . . .

COMMITTEE SUBSTITUTE FOR H.B. No. 670By:  Wentworth

By:  Wentworth

 

       (In the Senate – Received from the House April 6, 2009;

 

April 7, 2009, read first time and referred to Committee on

 

Jurisprudence; April 20, 2009, reported adversely, with favorable

 

Committee Substitute by the following vote:  Yeas 5, Nays 0;

 

April 20, 2009, sent to printer.)

 

 

A BILL TO BE ENTITLED

 

AN ACT

 

 

relating to a qualified privilege of a journalist not to testify.

 

       BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 

       SECTION 1.  Chapter 22, Civil Practice and Remedies Code, is

 

amended by adding Subchapter C to read as follows:

 

SUBCHAPTER C. JOURNALIST’S QUALIFIED TESTIMONIAL PRIVILEGE IN

 

CIVIL PROCEEDINGS

 

       Sec. 22.021.  DEFINITIONS. In this subchapter:

 

             (1)  “Communication service provider” means a person or

 

the parent, subsidiary, division, or affiliate of a person who

 

transmits information chosen by a customer by electronic means,

 

including:

 

                   (A)  a telecommunications carrier, as defined by

 

Section 3, Communications Act of 1934 (47 U.S.C. Section 153);

 

                   (B)  a provider of information service, as defined

 

by Section 3, Communications Act of 1934 (47 U.S.C. Section 153);

 

                   (C)  a provider of interactive computer service,

 

as defined by Section 230, Communications Act of 1934 (47 U.S.C.

 

Section 230); and

 

                   (D)  an information content provider, as defined

 

by Section 230, Communications Act of 1934 (47 U.S.C. Section 230).

 

             (2)  “Journalist” means a person, including a parent,

 

subsidiary, division, or affiliate of a person, who for a

 

substantial portion of the person’s livelihood or for substantial

 

financial gain, gathers, compiles, prepares, collects,

 

photographs, records, writes, edits, reports, investigates,

 

processes, or publishes news or information that is disseminated by

 

a news medium or communication service provider and includes:

 

                   (A)  a person who supervises or assists in

 

gathering, preparing, and disseminating the news or information; or

 

                   (B)  notwithstanding the foregoing, a person who

 

is or was a journalist, scholar, or researcher employed by an

 

institution of higher education at the time the person obtained or

 

prepared the requested information, or a person who at the time the

 

person obtained or prepared the requested information:

 

                         (i)  is earning a significant portion of the

 

person’s livelihood by obtaining or preparing information for

 

dissemination by a news medium or communication service provider;

 

or

 

                         (ii)  was serving as an agent, assistant,

 

employee, or supervisor of a news medium or communication service

 

provider.

 

             (3)  “News medium” means a newspaper, magazine or

 

periodical, book publisher, news agency, wire service, radio or

 

television station or network, cable, satellite, or other

 

transmission system or carrier or channel, or a channel or

 

programming service for a station, network, system, or carrier, or

 

an audio or audiovisual production company or Internet company or

 

provider, or the parent, subsidiary, division, or affiliate of that

 

entity, that disseminates news or information to the public by any

 

means, including:

 

                   (A)  print;

 

                   (B)  television;

 

                   (C)  radio;

 

                   (D)  photographic;

 

                   (E)  mechanical;

 

                   (F)  electronic; and

 

                   (G)  other means, known or unknown, that are

 

accessible to the public.

 

             (4)  “Official proceeding” means any type of

 

administrative, executive, legislative, or judicial proceeding

 

that may be conducted before a public servant, including a

 

proceeding under Rule 202, Texas Rules of Civil Procedure.

 

             (5)  “Public servant” means a person elected, selected,

 

appointed, employed, or otherwise designated as one of the

 

following, even if the person has not yet qualified for office or

 

assumed the person’s duties:

 

                   (A)  an officer, employee, or agent of government;

 

                   (B)  a juror;

 

                   (C)  an arbitrator, referee, or other person who

 

is authorized by law or private written agreement to hear or

 

determine a cause or controversy;

 

                   (D)  an attorney or notary public when

 

participating in the performance of a governmental function; or

 

                   (E)  a person who is performing a governmental

 

function under a claim of right, although the person is not legally

 

qualified to do so.

 

       Sec. 22.022.  PURPOSE. The purpose of this subchapter is to

 

increase the free flow of information and preserve a free and active

 

press and, at the same time, protect the right of the public to

 

effective law enforcement and the fair administration of justice.

 

       Sec. 22.023.  PRIVILEGE. (a) Except as otherwise provided

 

by this subchapter, a judicial, legislative, administrative, or

 

other body with the authority to issue a subpoena or other

 

compulsory process may not compel a journalist to testify regarding

 

or to produce or disclose in an official proceeding:

 

             (1)  any confidential or nonconfidential information,

 

document, or item obtained or prepared while acting as a

 

journalist; or

 

             (2)  the source of any information, document, or item

 

described by Subdivision (1).

 

       (b)  A subpoena or other compulsory process may not compel

 

the parent, subsidiary, division, or affiliate of a communication

 

service provider or news medium to disclose the information,

 

documents, or items or the source of any information, documents, or

 

items that are privileged from disclosure under Subsection (a).

 

       Sec. 22.024.  LIMITED DISCLOSURE GENERALLY. After notice

 

and an opportunity to be heard, a court may compel a journalist, a

 

journalist’s employer, or a person with an independent contract

 

with a journalist to testify regarding or to produce or disclose any

 

information, document, or item or the source of any information,

 

document, or item obtained while acting as a journalist, if the

 

person seeking the information, document, or item or the source of

 

any information, document, or item makes a clear and specific

 

showing that:

 

             (1)  all reasonable efforts have been exhausted to

 

obtain the information from alternative sources;

 

             (2)  the subpoena is not overbroad, unreasonable, or

 

oppressive and, when appropriate, will be limited to the

 

verification of published information and the surrounding

 

circumstances relating to the accuracy of the published

 

information;

 

             (3)  reasonable and timely notice was given of the

 

demand for the information, document, or item;

 

             (4)  in this instance, the interest of the party

 

subpoenaing the information outweighs the public interest in

 

gathering and dissemination of news, including the concerns of the

 

journalist;

 

             (5)  the subpoena or compulsory process is not being

 

used to obtain peripheral, nonessential, or speculative

 

information; and

 

             (6)  the information, document, or item is relevant and

 

material to the proper administration of the official proceeding

 

for which the testimony, production, or disclosure is sought and is

 

essential to the maintenance of a claim or defense of the person

 

seeking the testimony, production, or disclosure.

 

       Sec. 22.025.  NOTICE. An order to compel testimony,

 

production, or disclosure to which a journalist has asserted a

 

privilege under this subchapter may be issued only after timely

 

notice to the journalist, the journalist’s employer, or a person

 

who has an independent contract with the journalist and a hearing.

 

The order must include clear and specific findings as to the showing

 

made by the person seeking the testimony, production, or disclosure

 

and the clear and specific evidence on which the court relied in

 

issuing the court’s order.

 

       Sec. 22.026.  PUBLICATION OF PRIVILEGED INFORMATION.

 

Publication or dissemination by a news medium or communication

 

service provider of information, documents, or items privileged

 

under this subchapter is not a waiver of the journalist’s

 

privilege.

 

       Sec. 22.027.  NEWS MEDIA RECORDINGS.  Extrinsic evidence of

 

the authenticity of evidence as a condition precedent to the

 

admissibility of the evidence in a civil proceeding is not required

 

with respect to a recording that purports to be a broadcast by a

 

radio or television station that holds a license issued by the

 

Federal Communications Commission at the time of the recording.

 

The court may take judicial notice of the recording license as

 

provided by Rule 201, Texas Rules of Evidence.

 

       SECTION 2.  Chapter 38, Code of Criminal Procedure, is

 

amended by adding Articles 38.11 and 38.111 to read as follows:

 

       Art. 38.11.  JOURNALIST’S QUALIFIED TESTIMONIAL PRIVILEGE

 

IN CRIMINAL PROCEEDINGS

 

       Sec. 1.  DEFINITIONS. In this article:

 

             (1)  “Communication service provider” means a person or

 

the parent, subsidiary, division, or affiliate of a person who

 

transmits information chosen by a customer by electronic means,

 

including:

 

                   (A)  a telecommunications carrier, as defined by

 

Section 3, Communications Act of 1934 (47 U.S.C. Section 153);

 

                   (B)  a provider of information service, as defined

 

by Section 3, Communications Act of 1934 (47 U.S.C. Section 153);

 

                   (C)  a provider of interactive computer service,

 

as defined by Section 230, Communications Act of 1934 (47 U.S.C.

 

Section 230); and

 

                   (D)  an information content provider, as defined

 

by Section 230, Communications Act of 1934 (47 U.S.C. Section 230).

 

             (2)  “Journalist” means a person, including a parent,

 

subsidiary, division, or affiliate of a person, who for a

 

substantial portion of the person’s livelihood or for substantial

 

financial gain, gathers, compiles, prepares, collects,

 

photographs, records, writes, edits, reports, investigates,

 

processes, or publishes news or information that is disseminated by

 

a news medium or communication service provider and includes:

 

                   (A)  a person who supervises or assists in

 

gathering, preparing, and disseminating the news or information; or

 

                   (B)  notwithstanding the foregoing, a person who

 

is or was a journalist, scholar, or researcher employed by an

 

institution of higher education at the time the person obtained or

 

prepared the requested information, or a person who at the time the

 

person obtained or prepared the requested information:

 

                         (i)  is earning a significant portion of the

 

person’s livelihood by obtaining or preparing information for

 

dissemination by a news medium or communication service provider;

 

or

 

                         (ii)  was serving as an agent, assistant,

 

employee, or supervisor of a news medium or communication service

 

provider.

 

             (3)  “News medium” means a newspaper, magazine or

 

periodical, book publisher, news agency, wire service, radio or

 

television station or network, cable, satellite, or other

 

transmission system or carrier or channel, or a channel or

 

programming service for a station, network, system, or carrier, or

 

an audio or audiovisual production company or Internet company or

 

provider, or the parent, subsidiary, division, or affiliate of that

 

entity, that disseminates news or information to the public by any

 

means, including:

 

                   (A)  print;

 

                   (B)  television;

 

                   (C)  radio;

 

                   (D)  photographic;

 

                   (E)  mechanical;

 

                   (F)  electronic; and

 

                   (G)  other means, known or unknown, that are

 

accessible to the public.

 

             (4)  “Official proceeding” means any type of

 

administrative, executive, legislative, or judicial proceeding

 

that may be conducted before a public servant.

 

             (5)  “Public servant” means a person elected, selected,

 

appointed, employed, or otherwise designated as one of the

 

following, even if the person has not yet qualified for office or

 

assumed the person’s duties:

 

                   (A)  an officer, employee, or agent of government;

 

                   (B)  a juror or grand juror;

 

                   (C)  an arbitrator, referee, or other person who

 

is authorized by law or private written agreement to hear or

 

determine a cause or controversy;

 

                   (D)  an attorney or notary public when

 

participating in the performance of a governmental function; or

 

                   (E)  a person who is performing a governmental

 

function under a claim of right, although the person is not legally

 

qualified to do so.

 

       Sec. 2.  PURPOSE. The purpose of this article is to increase

 

the free flow of information and preserve a free and active press

 

and, at the same time, protect the right of the public to effective

 

law enforcement and the fair administration of justice.

 

       Sec. 3.  PRIVILEGE. (a) Except as otherwise provided by

 

this article, a judicial, legislative, administrative, or other

 

body with the authority to issue a subpoena or other compulsory

 

process may not compel a journalist to testify regarding or to

 

produce or disclose in an official proceeding:

 

             (1)  any confidential or nonconfidential unpublished

 

information, document, or item obtained or prepared while acting as

 

a journalist; or

 

             (2)  the source of any information, document, or item

 

described by Subdivision (1).

 

       (b)  A subpoena or other compulsory process may not compel

 

the parent, subsidiary, division, or affiliate of a communication

 

service provider or news medium to disclose the unpublished

 

information, documents, or items or the source of any information,

 

documents, or items that are privileged from disclosure under

 

Subsection (a).

 

       Sec. 4.  PRIVILEGE CONCERNING CONFIDENTIAL SOURCES.  (a)  A

 

journalist may be compelled to testify regarding or to disclose the

 

confidential source of any information, document, or item obtained

 

while acting as a journalist if the person seeking the testimony,

 

production, or disclosure makes a clear and specific showing that

 

the source of any information, document, or item:

 

             (1)  was observed by the journalist committing a felony

 

criminal offense and the subpoenaing party has exhausted reasonable

 

efforts to obtain from alternative sources the confidential source

 

of any information, document, or item obtained or prepared while

 

acting as a journalist;

 

             (2)  is a person who confessed or admitted to the

 

journalist the commission of a felony criminal offense and the

 

subpoenaing party has exhausted reasonable efforts to obtain from

 

alternative sources the confidential source of any information,

 

document, or item obtained or prepared while acting as a

 

journalist;

 

             (3)  is a person for whom probable cause exists that the

 

person participated in a felony criminal offense and the

 

subpoenaing party has exhausted reasonable efforts to obtain from

 

alternative sources the confidential source of any information,

 

document, or item obtained or prepared while acting as a

 

journalist; or

 

             (4)  disclosure of the confidential source is

 

reasonably necessary to stop or prevent reasonably certain death or

 

substantial bodily harm.

 

       (b)  If the alleged criminal conduct is the act of

 

communicating, receiving, or possessing the information, document,

 

or item, this section does not apply, and Section 5 governs the act.

 

       (c)  Notwithstanding Subsection (b), if the information,

 

document, or item was disclosed or received in violation of a grand

 

jury oath given to either a juror or a witness under Article 19.34

 

or 20.16, a journalist may be compelled to testify if the person

 

seeking the testimony, production, or disclosure makes a clear and

 

specific showing that the subpoenaing party has exhausted

 

reasonable efforts to obtain from alternative sources the

 

confidential source of any information, document, or item obtained.

 

In this context, the court has the discretion to conduct an in

 

camera hearing. The court may not order the production of the

 

confidential source until a ruling has been made on the motion.

 

       (d)  An application for a subpoena of a journalist under

 

Article 24.03, or a subpoena of a journalist issued by an attorney

 

representing the state under Article 20.10 or 20.11, must be signed

 

by the elected district attorney, elected criminal district

 

attorney, or elected county attorney, as applicable. If the

 

elected district attorney, elected criminal district attorney, or

 

elected county attorney has been disqualified or recused or has

 

resigned, the application for the subpoena or the subpoena must be

 

signed by the person succeeding the elected attorney.  If the

 

elected officer is not in the jurisdiction, the highest ranking

 

assistant to the elected officer must sign the subpoena.

 

       Sec. 5.  PRIVILEGE CONCERNING UNPUBLISHED INFORMATION,

 

DOCUMENT, OR ITEM AND NONCONFIDENTIAL SOURCES.  (a)  After service

 

of subpoena and an opportunity to be heard, a court may compel a

 

journalist, a journalist’s employer, or a person with an

 

independent contract with a journalist to testify regarding or to

 

produce or disclose any unpublished information, document, or item

 

or the source of any information, document, or item obtained while

 

acting as a journalist, other than as described by Section 4, if the

 

person seeking the unpublished information, document, or item or

 

the source of any information, document, or item makes a clear and

 

specific showing that:

 

             (1)  all reasonable efforts have been exhausted to

 

obtain the information from alternative sources; and

 

             (2)  the unpublished information, document, or item:

 

                   (A)  is relevant and material to the proper

 

administration of the official proceeding for which the testimony,

 

production, or disclosure is sought and is essential to the

 

maintenance of a claim or defense of the person seeking the

 

testimony, production, or disclosure; or

 

                   (B)  is central to the investigation or

 

prosecution of a criminal case and based on something other than the

 

assertion of the person requesting the subpoena, reasonable grounds

 

exist to believe that a crime has occurred.

 

       (b)  The court, when considering an order to compel testimony

 

regarding or to produce or disclose any unpublished information,

 

document, or item or the source of any information, document, or

 

item obtained while acting as a journalist, should consider the

 

following factors, including but not limited to whether:

 

             (1)  the subpoena is overbroad, unreasonable, or

 

oppressive;

 

             (2)  reasonable and timely notice was given of the

 

demand for the information, document, or item;

 

             (3)  in this instance, the interest of the party

 

subpoenaing the information outweighs the public interest in

 

gathering and dissemination of news, including the concerns of the

 

journalist; and

 

             (4)  the subpoena or compulsory process is being used

 

to obtain peripheral, nonessential, or speculative information.

 

       (c)  A court may not consider a single factor under

 

Subsection (b) as outcome-determinative in the decision whether to

 

compel the testimony or the production or disclosure of the

 

unpublished information, document, or item, or the source of any

 

information, document, or item.

 

       Sec. 6.  NOTICE. An order to compel testimony, production,

 

or disclosure to which a journalist has asserted a privilege under

 

this article may be issued only after timely notice to the

 

journalist, the journalist’s employer, or a person who has an

 

independent contract with the journalist and a hearing. The order

 

must include clear and specific findings as to the showing made by

 

the person seeking the testimony, production, or disclosure and the

 

clear and specific evidence on which the court relied in issuing the

 

court’s order.

 

       Sec. 7.  PUBLICATION OF PRIVILEGED INFORMATION. Publication

 

or dissemination by a news medium or communication service provider

 

of information, documents, or items privileged under this article

 

is not a waiver of the journalist’s privilege regarding sources and

 

unpublished information, documents, or items.

 

       Sec. 8.  PUBLISHED INFORMATION. This article does not apply

 

to any information, document, or item that has at any time been

 

published or broadcast by the journalist.

 

       Sec. 9.  REIMBURSEMENT OF COSTS.  The subpoenaing party shall

 

pay a journalist a reasonable fee for the journalist’s time and

 

costs incurred in providing the information, item, or document

 

subpoenaed, based on the fee structure provided by Subchapter F,

 

Chapter 552, Government Code.

 

       Art. 38.111.  NEWS MEDIA RECORDINGS. Extrinsic evidence of

 

the authenticity of evidence as a condition precedent to the

 

admissibility of the evidence in a criminal proceeding is not

 

required with respect to a recording that purports to be a broadcast

 

by a radio or television station that holds a license issued by the

 

Federal Communications Commission at the time of the recording.

 

The court may take judicial notice of the recording license as

 

provided by Rule 201, Texas Rules of Evidence.

 

       SECTION 3.  This Act applies only to information, documents,

 

or items or the source of any information, document, or item

 

obtained or prepared for publication in a news medium or

 

communication service provider on or after the effective date of

 

this Act.

 

       SECTION 4.  This Act takes effect immediately if it receives

 

a vote of two-thirds of all the members elected to each house, as

 

provided by Section 39, Article III, Texas Constitution.  If this

 

Act does not receive the vote necessary for immediate effect, this

 

Act takes effect September 1, 2009.

The Texas Shield Law Bill made it out of committee this week.  HB 670 is being sent to the House without any amendments.  I discussed the bill and provided the bill in its entirety here and here in earlier posts.  Although some protection for journalists is better than none, it appears it will not apply to a majority of bloggers because the definition of journalist requires “substantial financial gain” or for reporting to be a “substantial” part of your livelihood.  The Judiciary and Civil Jurisprudence committee approved of the bill 7 for, 1 against and 3 abstentions. Although it still has a way to go before it becomes law, this year’s version made it farther than the 2007 version that died in committee.

The Online Harassment Bill (HB 2003) is scheduled for a public hearing on March 25, 2009, with the Criminal Jurisprudence Committee. I previously posted about the Online Harassment Bill here. I still question the lack of definitions in the bill for the terms “electronic mail program” and “electronic message board” that may make this bill too broad covering perfectly innocuous and common behavior.

[February 26 Update — Back here in Texas]  It appears this is becoming a shield law blog for the last week or two.  We’ll get back to internet marketing and other online media issues shortly.  Yesterday, however, the House version of the Texas shield law was assigned to a public hearing for Monday, March 2, 2009, in the Judiciary and Civil Jurisprudence Committee.  This is further than the 2007 version got.

[February 23, 2009 Update]  It is as if the Shield Law gods wanted me to write a long-winded tome on federalism.  Don’t worry, I’m not.  I do feel compelled to mention that along with state legislatures like Texas, there is a movement for a federal shield law from the U.S. Congress and Senate.  Thanks to this post from the Citizen Media Law Project, we get the update on the federal shield law

The interesting part is there are competing bills in House and the Senate.  Not surprisingly, the two legislative bodies are struggling with the very same issue we are here in Texas–the definition of a journalist.  CMLP’s Michael Lindenberger hi-lites the all too familiar difference between the two federal bills:

Again, the 2009 bills differ in a key respect, namely in how they define journalists. The Senate bill is fairly straightforward and generous in this regard. It covers a person “who is engaged in journalism,” and defines the latter by: 

the regular gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.

The House version, on the other hand, puts limits on who is covered in a way that potentially leaves most bloggers and many others outside the protective zone of the shield. From the bill: 

The term “covered person” means a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public for a substantial portion of the person’s livelihood or for substantial financial gain and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person.

“Substantial” isn’t defined, but one would assume that many bloggers, student journalists and even those who freelance for magazines or papers that pay poorly, could have a hard time utilizing the protections afforded by the bill, should this version become law.

For those interested in more on the federal status, Michael’s post has links to the historical attempts at a federal shield law and its basis in federal common law.  It is a useful resource.

[Original Post]  We discussed the filing of the Texas Shield Law in the Texas House a few weeks ago here.  My prior posting included the entire text of the bill as well as a discussion as to how it would apply (or more like not apply) to a majority of online bloggers. 

This week, an identical bill was filed with the Texas Senate. (SB 915). It is the companion bill with the House which allows deliberation of the bill from both bodies of the Texas Legislature at the same time rather than waiting for the House version to pass and then the Senate beginning deliberations months from now.   Remember, the Texas Legislature only meets once every two years and only for a handful of months.

The House version (HB 670) was moved to the Judiciary and Civil Jurisprudence Committee.  Movement to committee merely means that the bill has been assigned a committee. The next thing to look out for will be a hearing. Or, it could die in the committee and never be considered further if the chairman never allows it come to a hearing. The Committee chairman for the Judiciary and Civil Jurisprudence Committee is Representative Todd Hunter (R) of Corpus Christi. 

While it is nice to see movement (some bills never even get assigned), the same bill in 2007 (HB 382) reached this stage and then stalled.  It never made it out of committee which is a requirement before the entire House votes on it. Last session’s version defined a journalist as someone who writes for “financial gain” to a “group of people.”  This year’s version defines journalist as someone who writes as “substantial portion” of the person’s livelihood or for “substantial” financial gain.  We will see if the addition of “substantial financial gain” and “substantial portion” of the livelihood requirements helps this year. With the state of the economy and no high profile cases of jailed journalists, this year’s version may have no more success than last session’s.   We’ll keep you posted.

The Texas Legislature meets every two years and almost every two years a state Shield Law to give journalists immunity is proposed, but never passes.  This year’s biennial session began last week and is no different.  Representative Martinez Fischer proposed House Bill 670 on Friday, January 16.  The bill, as introduced, is included in its entirety below. 

I want to focus on what it does and does not do for online media.  The first place is always to look at the definition of journalist because the law gives certain immunities to “journalists.”  The proposal generally defines journalists as someone that for a “substantial portion of the person’s livelihood or for substantial financial gain, gathers, compiles, prepares, collects, photographs, records, writes, edits, reports, investigates, processes, or publishes news or information that is disseminated by a news medium or communication service provider.” There are certain provisions that apply to management, companies and “journalists” hired by educational institutions.

What that means is I, as the author of this blog, probably do not qualify because of the “substantial” portion of the livelihood or “substantial” financial gain requirement (unless of course someone wants to pay me a lot more money to do this). However, full time bloggers and online publishers are covered. After my initial reading of the bill, it seems that is where some interesting legal maneuvering will take place because there is no definition in the statute of “substantial.”

Of course, a form of this type of bill has been introduced time and time again in the Texas Legislature, but has never become law. I’ll track this version to see how close Texas gets this year.

Here is the bill:

By: Martinez Fischer H.B. No. 670

A BILL TO BE ENTITLED

AN ACT

relating to a qualified privilege of a journalist not to testify.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Chapter 22, Civil Practice and Remedies Code, is

amended by adding Subchapter C to read as follows:

SUBCHAPTER C. JOURNALIST’S QUALIFIED TESTIMONIAL PRIVILEGE

Sec. 22.021. DEFINITIONS. In this subchapter:

(1) “Communication service provider” means a person or

the parent, subsidiary, division, or affiliate of a person who

transmits information chosen by a customer by electronic means,

including:

(A) a telecommunications carrier, as defined by

Section 3, Communications Act of 1934 (47 U.S.C. Section 153);

(B) a provider of information service, as defined

by Section 3, Communications Act of 1934 (47 U.S.C. Section 153);

(C) a provider of interactive computer service,

as defined by Section 230, Communications Act of 1934 (47 U.S.C.

Section 230); and

(D) an information content provider, as defined

by Section 230, Communications Act of 1934 (47 U.S.C. Section 230).

(2) “Journalist” means a person, including a parent,

subsidiary, division, or affiliate of a person, that for a

substantial portion of the person’s livelihood or for substantial

financial gain, gathers, compiles, prepares, collects,

photographs, records, writes, edits, reports, investigates,

processes, or publishes news or information that is disseminated by

a news medium or communication service provider and includes:

(A) a person who supervises or assists in

gathering, preparing, and disseminating the news or information; or

(B) notwithstanding the foregoing, a person who

is or was a journalist, scholar, or researcher employed by an

institution of higher education at the time the person obtained or

prepared the requested information, or a person who at the time the

person obtained or prepared the requested information:

(i) is earning a significant portion of the

person’s livelihood by obtaining or preparing information for

dissemination by a news medium or communication service provider;

or

(ii) was serving as an agent, assistant,

employee, or supervisor of a news medium or communication service

provider.

(3) “News medium” means a newspaper, magazine or

periodical, book publisher, news agency, wire service, radio or

television station or network, cable, satellite, or other

transmission system or carrier or channel, or a channel or

programming service for a station, network, system, or carrier, or

an audio or audiovisual production company or Internet company or

provider, or the parent, subsidiary, division, or affiliate of that

entity, that disseminates news or information to the public by any

means, including:

(A) print;

(B) television;

(C) radio;

(D) photographic;

(E) mechanical;

(F) electronic; and

(G) other means, known or unknown, that are

accessible to the public.

(4) “Official proceeding” means any type of

administrative, executive, legislative, or judicial proceeding

that may be conducted before a public servant.

(5) “Public servant” means a person elected, selected,

appointed, employed, or otherwise designated as one of the

following, even if the person has not yet qualified for office or

assumed the person’s duties:

(A) an officer, employee, or agent of government;

(B) a juror or grand juror;

(C) an arbitrator, referee, or other person who

is authorized by law or private written agreement to hear or

determine a cause or controversy;

(D) an attorney or notary public when

participating in the performance of a governmental function; or

(E) a person who is performing a governmental

function under a claim of right, although the person is not legally

qualified to do so.

(6) “Violent offense” has the meaning assigned by

Article 17.032(a), Code of Criminal Procedure, and includes crimes

found in Sections 22.07, 43.25, 43.26(e), and 71.022, Penal Code.

Sec. 22.022. PURPOSE. The purpose of this subchapter is to

increase the free flow of information and preserve a free and active

press and, at the same time, protect the right of the public to

effective law enforcement and the fair administration of justice.

Sec. 22.023. PRIVILEGE. (a) Except as otherwise provided

by this subchapter, a judicial, legislative, administrative, or

other body with the authority to issue a subpoena or other

compulsory process may not compel a journalist to testify regarding

or to produce or disclose in an official proceeding:

(1) any confidential or nonconfidential information,

document, or item obtained or prepared while acting as a

journalist; or

(2) the source of any information, document, or item

described by Subdivision (1).

(b) A subpoena or other compulsory process may not compel

the parent, subsidiary, division, or affiliate of a communication

service provider or news medium to disclose the information,

documents, or items or the source of any information, documents, or

items that are privileged from disclosure under Subsection (a).

Sec. 22.024. LIMITED DISCLOSURE GENERALLY. After notice

and an opportunity to be heard, a court may compel a journalist, a

journalist’s employer, or a person with an independent contract

with a journalist to testify regarding or to produce or disclose any

information, document, or item or the source of any information,

document, or item obtained while acting as a journalist, other than

as described by Section 22.025, if the person seeking the

information, document, or item or the source of any information,

document, or item makes a clear and specific showing that:

(1) all reasonable efforts have been exhausted to

obtain the information from an alternative source;

(2) the subpoena is not overbroad, unreasonable, or

oppressive and, when appropriate, will be limited to the

verification of published information and the surrounding

circumstances relating to the accuracy of the published

information;

(3) reasonable and timely notice was given of the

demand for the information, document, or item;

(4) in this instance, the interest of the party

subpoenaing the information outweighs the public interest in

gathering and dissemination of news, including the concerns of the

journalist;

(5) the subpoena or compulsory process is not being

used to obtain peripheral, nonessential, or speculative

information; and

(6) the information, document, or item:

(A) is relevant and material to the proper

administration of the official proceeding for which the testimony,

production, or disclosure is sought and is essential to the

maintenance of a claim or defense of the person seeking the

testimony, production, or disclosure; or

(B) is central to the investigation or

prosecution of a criminal case regarding the establishment of guilt

or innocence and, based on something other than the assertion of the

person requesting the subpoena, reasonable grounds exist to believe

that a crime has occurred.

Sec. 22.025. LIMITED DISCLOSURE: INFORMATION OBTAINED BY

OBSERVING CRIME OR PERSON ALLEGED TO HAVE COMMITTED CERTAIN CRIMES;

PREVENTION OF CERTAIN HARMS. (a) A journalist may be compelled to

testify regarding or to produce or disclose any information,

document, or item or the source of any information, document, or

item obtained while acting as a journalist if the person seeking the

testimony, production, or disclosure makes a clear and specific

showing that the information, document, or item or the source of any

information, document, or item:

(1) was obtained as the result of an eyewitness

observation of criminal conduct by the journalist and a court

determines by clear and specific evidence that the person

requesting the testimony, production, or disclosure has exhausted

reasonable efforts to obtain the information, document, or item

from alternative sources;

(2) was obtained from a person who has confessed or

admitted to the commission of a violent offense or to a crime

against a child victim younger than 14 years of age at the time the

offense was committed and a court determines by clear and specific

evidence that the person requesting the testimony, production, or

disclosure has exhausted reasonable efforts to obtain the

information, document, or item from alternative sources;

(3) was obtained from a person for whom probable cause

exists that the person has participated in a violent offense or in a

crime against a child victim younger than 14 years of age at the

time the offense was committed and a court determines by clear and

specific evidence that the person requesting the testimony,

production, or disclosure has exhausted reasonable efforts to

obtain the information, document, or item from alternative sources;

or

(4) is reasonably necessary to stop or prevent

reasonably certain death or substantial bodily harm.

(b) If the alleged criminal conduct is the act of

communicating, receiving, or possessing the information, document,

or item and the information does not relate to conduct constituting

a violent offense under Section 22.021(6), this section does not

apply, and Section 22.024 governs the act.

(c) Notwithstanding Subsection (b), Subsection (a)(1)

applies to any information, document, or item disclosed or received

in violation of a grand jury oath given to either a juror or a

witness under Article 19.34 or 20.16, Code of Criminal Procedure.

(d) An application for a subpoena of a journalist under

Article 24.03, Code of Criminal Procedure, or a subpoena of a

journalist issued by an attorney representing the state under

Article 20.10 or 20.11, Code of Criminal Procedure, must be signed

by the elected district attorney, elected criminal district

attorney, or elected county attorney, as applicable. If the

elected district attorney, elected criminal district attorney, or

elected county attorney has been disqualified or recused, the

application for the subpoena or the subpoena must be signed by the

person succeeding the elected attorney.

Sec. 22.026. NOTICE. An order to compel testimony,

production, or disclosure to which a journalist has asserted a

privilege under this subchapter may be issued only after timely

notice to the journalist, the journalist’s employer, or a person

who has an independent contract with the journalist and a hearing.

The order must include clear and specific findings as to the showing

made by the person seeking the testimony, production, or disclosure

and the clear and specific evidence on which the court relied in

issuing the court’s order.

Sec. 22.027. PUBLICATION OF PRIVILEGED INFORMATION.

Publication or dissemination by a news medium or communication

service provider of information, documents, or items privileged

under this subchapter is not a waiver of the journalist’s

privilege.

SECTION 2. Chapter 38, Code of Criminal Procedure, is

amended by adding Article 38.11 to read as follows:

Art. 38.11. JOURNALIST’S TESTIMONIAL PRIVILEGE.

Subchapter C, Chapter 22, Civil Practice and Remedies Code, applies

to a criminal proceeding.

SECTION 3. This Act applies only to information, documents,

or items or the source of any information, document, or item

obtained or prepared for publication in a news medium or

communication service provider on or after the effective date of

this Act.

SECTION 4. This Act takes effect September 1, 2009.

Sometimes there are a lot of stories in one week.  This was one of those weeks.  Because of the law practice, the family and that little thing called life, rather than post about each one, here are some interesting stories I just did not get to.   

Does becoming a more popular blogger subject you to a subpoena?  In this story, blogger, Kathleen Seidel, was subpoenaed by a litigant based on her commentary on the strengths and weaknesses of the case.  As pointed out in the Citizen’s Media Law Project post, she must have some influence to incur the wrath of one of the litigants.  Read about it here.

A British Christian group is suing Google claiming it is prohibiting access to its anti-abortion ad. Not surprisingly, FoxNews was all over this story here.

The Society of Professional Journalist’s Freedom of Information blogs brings us this tidbit on proposed legislation requiring the White House to make more of a concerted effort to retain electronic documents.  One good thing about the current status, it can really only improve.   

Sex apparently sells, so why not try it here on the eMedia Law blog.  This may be a case of please sue each other and go away.  The Citizen’s Media Law Project brings us the story of one celebrity-gossip blogger suing another because one blogger accused the other of making promises for promotion of the other in exchange for sex tapes which leads to defamation, invasion of privacy, etc., etc., etc.  Because it makes my head hurt, you can read about it here.  Just so you know I am not the only one to digress into this story, the Wall Street Journal Law Blog discusses it here, with picture and all. Not a picture of the video, but of some of the players.

Since we have already gone down this road, why not end the week with the new You Tube divorce strategy — throw your ex in the mud in a melodramatic video. In case you have not seen the video, click here. Admit it, you already watched it once. Over 2 million people have. Unfortunately, that is more than one-third of the number of people who tune into Friday Night Lights on Average. No further commentary needed.

The federal shield law protecting the identity of journalists’ resources made it out of the Senate Judiciary Committee yesterday. However, additional exceptions were added to the original House version that offered more broad protections.

One of the biggest unanswered questions is whether or not the definition of journalist in the law would cover bloggers. The Free Flow of Information Act, does not have the word “journalist” in the act in it. Rather it protects all persons engaged in “journalism” which is defined as “the regular gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.”

Despite the broad breath of application, the exceptions to the Act are equally broad. One exception would require disclosure if “there are reasonable grounds to believe that a crime has occurred.” Another requires disclosure if the information is not being sought in conjunction with an investigation. Then, it may be compelled if the information is “essential to the resolution of the matter.”

The House Judiciary Committee approved a federal shield law to protect journalists from being forced to disclose their confidential sources. The committee voted to send H.R. 2102 — the Free Flow of Information Act — to the full House of Representatives for approval.

33 states and the District of Columbia have shield laws and 17 other states have recognized reporter’s privilege as a result of judicial decisions, federal courts currently have no uniform set of standards to govern when testimony may be sought from reporters.

The legislation is sponsored by Reps. Rick Boucher (D-VA), John Conyers (D-MI), Mike Pence (R-IN), Howard Coble (R-NC) and John Yarmuth (D-KY) in the House and by Sens. Richard Lugar (R-IN) and Christopher Dodd (D-CT) in the Senate. A similar bill in the Senate (S. 1267) is pending action.

According to the RTNDA, as written, H.R. 2102 provides journalists with a qualified privilege, requiring them to testify to prevent “imminent and actual harm” to national security or “imminent death or significant bodily harm” to individuals. Journalists would also be required to reveal sources if such testimony could identify someone who has disclosed significant trade secrets or certain financial or medical information, or if a compelling case can be made that there is an overriding public interest in the disclosure.

he legislation also protects information — held by telephone companies, Internet services and other communications providers — that would otherwise reveal confidential sources.

The Bush Administration is against any federal shield law, but even more so if extends protections to bloggers. The current version of the Free Flow of Information Act protects many, including bloggers, from facing jail time for refusing to reveal sources. The Administration believes its makes criminal investigations more difficult and could handcuff national security.

BetaNews reported that assistant attorney general for Justice Department’s Office of Legal Policy Rachel Brand argued the proposal’s definition of a journalist was so broad that “it really includes anyone who wants to post something to the Web.”