In part one, we discussed how fair use may apply to the media’s use of social media images.  In part two, we looked at how the various sites’ terms of service come into play.  Today, we look at the one prominent case in this area and describe some best practices.

 The Agence France-Presse Twitter Case

There is just one well-known case involving the media’s use of social media images.  Agence France-Press and the Washington Post both used images of the Haitian earthquake put on Twitter by photographer Daniel Morel.  A judge rejected AFP’s argument that it could use the images because they were put up on Twitter.  The Twitter terms of service did not provide that the photographer gave his rights in the images away or grant anyone else the right to use the images outside of Twitter.  After denying AFP’s motion for summary judgment, the case, as far as I can tell, is still pending.

Best Practice

1.   Make sure it’s legit

It’s easy to get duped.  Jimmy Kimmel showed us that.  This is more a producer/editorial function rather than legal, but it’s worth noting here.

2.    Get permission

The good news about social media is that it makes it easy for you to reach out to ask permission.  You don’t need any magic language and you don’t need a lawyer to draft anything for you.  Send the person who posted the image – “Hi, I’m the producer, we are considering using this image.  Did you take it and would you mind if we used on the news?” It is not uncommon for there to be a small payment, but most amateurs won’t ask.

3.     Make sure you have permission from the right person

In the AFP case, AFP did reach out and tried to get a license to use the images.  They just did not get them from Morel — the actual photographer.  The AFP staffer saw the images on Twitter and reached to the account where the staffer saw them.  Unfortunately, that person had already lifted them from Morel’s account.  AFP then distributed the images to Getty and Morel was not pleased.   You can read more about the facts of the case here.  For those of you who want some more legal beef on the case, check out Professor Goldman’s post here.

4.     Don’t make promises in your request or box yourself in

Because of fair use, you don’t have to ask for permission.  Even if they say no, you might be able to use it.  Therefore, don’t send a message that implies you are only going to use it if you obtain their permission or suggests that you have to have it.  My example above would be fine.  Sending a message that says: “We have to hear from you soon to know whether we have your permission” implies it’s a requirement and could be used against you if there is a trial later.

5.     Attribution

If you are unable to get permission, then you should at least provide attribution.  Many amateurs would be satisfied with a little notoriety from the attribution.  Attribution won’t get you out of a lawsuit if they get mad, but it may help show you were acting in good faith or alleviate any anger so the person reconsiders whether they really want to file a lawsuit.

The Poynter Institute’s Adam Hochberg wrote an article titled “Twitpic, Flikr Use by Eyewitnesses Raises Questions for News Orgs About Image Rights, Compensation” that includes a good discussion of these issues.  According to the article, the Associated Press requires editors to contact all “citizen photos” and verify each image for both authentication and permission.  The article provides several ideas for an image policy and some of the issues involved.

What is the real harm?

The main point of this series has been to avoid any liability and provide some guidance and good practices.  I am not saying the minimal likely harm should be part of the decision-making process as to whether you violate a copyright.  When dealing with fair use, there is risk, but it is usually not a huge risk.  Assuming it is a close call (and you are not scooping or stealing some paparazzi images of the Royal Baby), you are likely looking at having to pay either actual damages or statutory damages.  The actual damages could be the market rate for the license to use the image.  The statutory damages, on the other hand, are between $750 and $30,000 per work.  If the fair use analysis is a close call and you use best practices, you are likely to be on the lower end of the statutory damages.  In the AFP case, the court ruled he damages would be assessed on each image used by AFP and not on each time it was subsequently downloaded or used after AFP sent it to Getty.  Whether you multiply $5,000 times 8 or 8,000 makes a huge difference.

If you mess it up, your biggest liability is likely going to be the bad P.R. and your legal bill.

The answer is one that frustrates people the most — it depends.  In most circumstances, you run the risk of violating the copyright of the person who took the picture, so the best practice is to seek permission first (more on that in part 3).  But, let’s assume you can’t get permission — after all, you are on a deadline.  So, let’s look at three different scenarios and the “fair use doctrine.”

The Fair Use Doctrine 

The most common response you hear from the journalist is that I’m a reporter so I can use these pictures as a “fair use.”*  Fair use is an affirmative defense to a copyright violation meaning, it is the media’s burden to prove the use was fair.  The Copyright Act specifically lists “news reporting” as an example of what could be fair use.  The Supreme Court, in the one case where it looked at the news reporting fair use angle, ruled that Congress’s inclusion of “news reporting” gives the media a good argument, but there is no presumption that it will always prevail.

Fair use is a factually-specific inquiry and there is no bright line test.  Courts consider these four factors:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

For most commercial news gathering sites and stations, the courts find they are engaged in commercial endeavors – you sell advertising.  The media usually loses this argument.

(2) the nature of the copyrighted work;

Was this a professional photographer taking pictures to sell to the public or is this a less “artistic” photo already being freely shared with the public?  Most likely, if the photograph is being used for news and it is a simple Facebook photo, this factor will weigh in favor of the media.  The issue of whether the image, in and of itself, is newsworthy also comes into play.

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

This is more applicable to excerpts of videos, books and music and is usually considered a wash when dealing with images.

(4) the effect of the use upon the potential market for or value of the copyrighted work.

This is why you may have heard that as long as it is an amateur’s photo you can take it. That may help you with this factor, but this fact alone will not give you the green light.

The Picture of the Non-Celebrity

Neither a scandalous teacher nor, alas, a lottery winner

The local schoolteacher is caught in a scandal with a student.  Or, let’s be positive for once, the local man wins the lottery.  You need a picture of the person so you turn to Facebook or LinkedIn.  Why not just grab it? After all, they put it on the site for the world to see.

First, you want to check the terms of service from the social media site where you found the image (that’s #2 in this series).  I am not aware of a case where an average citizen has sued the media (as opposed to the school district for using an image in an what not to do presentation) for using their Facebook picture.  This is good and bad in that no one has ever ruled you should not use the image, but no one has said it is 100% OK either.

Assuming the license from the social media platform’s terms of service do not give the general public the right to do whatever they want with the image, you should go through the fair use analysis.

Fair Use Factor 1:  Media outlets that take advertising are engaged in commercial activities although the primary goal may be to educate the pubic.  Unless, you are a public interest group or non-profit, you are likely going to come out on the wrong side with this factor.

Fair Use Factor 2:   The more the image itself is newsworthy, the more likely the media will be able to use it.  If the image is one of the teacher with the student that is subject of the scandal, then that image is newsworthy and more likely a fair use.  If the picture shows the subject engaged in the activity related to the story, then it is more likely a fair use.  Also, the further away your purpose of using the image is from the original purpose of the image, the more likely you can use it.  For example, in cases where images from a brochure were used in a news story about Oliver North and his new endeavor and nude modeling pictures of a pageant winner distributed prior to her win were both considered fair use because, in part, the media’s use was different from the original purpose and the images were newsworthy.

Fair Use Factor 3:  This issue is usually a wash because still images require, for the most part, use of the whole thing or at least the key part of it.   The media may be able to say they only used one image out of a large portfolio or album from a social media profile, but this argument has not been made in court to my knowledge.

Fair Use Factor 4:  If the image is from a professional or a free lancer, you are going to lose this battle.  For example, a local Los Angeles station used video of a beating shot by an independent journalist without permission destroying that independent journalist’s ability to license the video for money.  Would the same apply to a Facebook image?  If we are talking about the typical profile picture, usually put up by amateurs for as wide dissemination as possible without any thought to the market value, then the media would probably prevail with this part of the argument.  If the scandal-ridden teacher has pictures  of her and the student she is not able to immediately hide, she could make an argument that because of new events, there is a market for the now sought-after pictures that she could provide on an exclusive basis.  On the flip side, someone probably has access to them ruining any “exclusive” commercial value.

As you have probably figured out by now, there are a lot of factors that go into the analysis and you would be foolhardy to have a hard and fast rule.  This analysis is simply to give you an idea of what issues come into play.  The decision should ultimately be made by the editor/news director, and if there is time, legal.

The Breaking News From Twitter

Almost everyone has phones with cameras and almost everyone has access to social media. Therefore, you will see a lot more “breaking news” caught by everyday citizens who post the images.  I even took an image of a fire and posted it to Facebook from my office.  Again, assuming you don’t have permission, we have to look at the fair use factors.

Fair Use Factor One:  Same as above.

Fair Use Factor Two:  By the nature of the hypothetical, this assumes the image is newsworthy which would give the media a slight leg up in the analysis.

Fair Use Factor Three: This is usually going to be a wash.

Fair Use Factor Four:  We are assuming these are truly amateurs and not professional who are posting the pictures.  If there are 50 other people near the fire/stand-off/crash/revolution taking pictures and posting them, the less likely there is commercial value to the images.  If, by some dumb luck, the Average Joe is hiking in the woods and sees the first talking moose, then there may be commercial value to the “exclusive” nature of the images.

A moose I saw on a hike. It did not talk.

As you can see, there is still no bright-line rule.

The Picture, Itself, Is Newsworthy

Unfortunately, the compromising image of the politician (thanks Anthony Weiner) is news in and of itself.  The same goes for the nude images of the beauty pageant winner or a news story about an image.   The mere existence of these images is the story.  You can’t tell the story without them.  While this may be the easiest analisys, in can still be perilous.  You most likely will be able to use it, unless someone has an exclusive or there is commercial value to the copyright holder.

For a legal article on this topic from 2011, check out Professor Daxton R. “Chip” Stewart’s article, “CAN I USE THIS PHOTO I FOUND ON FACEBOOK? APPLYING COPYRIGHT LAW AND FAIR USE ANALYSIS TO PHOTOGRAPHS ON SOCIAL NETWORKING SITES REPUBLISHED FOR NEWS REPORTING PURPOSES” in the Journal of Telecommunications and High Tech Law.

*The other common excuse is that the pictures are in the public domain because they were posted on Facebook for the world to see.  That’s just not legally correct unless the specific social media platform says that is the case.  We will examine that in part two.

I think Scottie Pippen is one of the most overrated players in the history of the NBA.  My opinion may be soured because I am a Houston Rockets fan and the experiment with him, Olajuwon and Charles Barkley did not end well.

Of course, that’s just my opinion.  What if, however, I reported, as fact, Scottie Pippen declared bankruptcy when, in truth, he never did?

According to Graydon Head’s Jack Out of the Box blog, Scottie Pippen sued media outlets because of the erroneous reporting, but the case was dismissed by the Seventh Circuit Court of Appeals.  If you are a public figure, take heed — even when the reporting is blatantly wrong, actually recovering may be difficult.  The trial court dismissed the lawsuit because the court did not believe Scottie Pippen proved any damages and failed to prove any “actual malice.”

Damages

If people were going around claiming I was bankrupt when I wasn’t, I would not be happy. Neither was Pippen.  He claimed it defamation per se which means the defamation was of such a nature to be patently harmful to your reputation so that you don’t have to prove any actual damages.   Pippen suggested that claiming he filed bankruptcy implied he could not handle his job.  The court disagreed noting the ability to handle finances did not impugn his ability to do his commentator or spokesperson work.

 Actual Malice

When you are a public figure, you have to show the media engaged in actual malice–which means you have to show the reporter knew or really should have known the information was false.  Pippen argued a simple web search would have revealed whether or not Pippen had filed bankruptcy.   Negligence – or failure to reasonably investigate – does not equal actual malice.

Pippen even proved to some of the media outlets that he did not file bankruptcy and complained that some outlets did not retract the story.  Failure to retract does not equal actual malice.

Also of note, the Seventh Circuit determined Illinois law would likely join the majority position of applying the single publication rule to the Internet.  This means that the statute of limitations begins to run the first time the defamatory content appeared on the Internet.

What Does It Mean?

Yes, the media outlets won, but the victory did not come cheaply.  I am sure they would have preferred to have gotten the facts right then to be dragged through litigation that went to the court of appeals.  The end result in Texas would have probably been the same, but there are certain procedural advantages that may have made the process cheaper and quicker such as the Anti-SLAPP dismissal and the new Texas retraction demand requirements.

Then again, maybe Scottie Pippen wasn’t in this case for the money.  He seems to have publicized the fact that he never did declare bankruptcy and the reports that he did were just wrong.  He may have just wanted to win this one in the court of public opinion.  Now, if he can shake that “only because of Michael Jordan” debate although the numbers and this play should give Pippen some cred.  Maybe, my original opinion was a little harsh.

 

TheDirty.com is not exactly deserving of sympathy.  Much like Playboy and Hustler pushed the boundaries of the First Amendment in the past, rumor sites like TheDirty.com are pushing the limits of Section 230 immunity for online defamation under the Communications Decency Act.

A judge and jury in Kentucky apparently have had enough.  This week, a jury found TheDirty.com “encouraged the development of what is offensive” and was therefore liable for the defamatory posts about former Cincinnati Bengals cheerleader Sarah Jones. The jury awarded Jones $38,000 in actual damages and $300,000 in punitive damages.

As a refresher, Section 230 of the CDA provides:  “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”  Because the websites are not the publisher or speaker, the sites can’t be liable for defamation.  Most courts immediately dismiss website operators from defamation suits when the claim is based on user generated content known as UGC.

Although subjects of defamatory posts hate the CDA, the law is good.  There would be no Google, YouTube, Twitter of Facebook if these sites had to defend, let alone be held liable for, each defamatory post by their users.

Jones sued Dirty World Entertainment Recordings which owns TheDirty.com.  The site, as expected, immediately filed a motion to dismiss the complaint because all claims were based on the UGC.   The trial judge denied the motion arguing the defendant purposefully seeks out and encourages defamatory content.   The court wrote “the very name of the site, the manner in which it is managed, and the personal comments of defendant Richie” shows that the site “specifically encouraged development of what is offensive about the content.”  Therefore, the summary judgment was denied.  With TheDirty.com as a defendant, it is not surprising the jury ruled in favor of Jones.

If you have had the unfortunate reason to visit TheDirty.com, you know the judge is correct in that they do everything they can to encourage defamatory and offensive content. I have argued before that the CDA should be amended to allow for claims against sites like this that encourage defamation.  I always thought the change would come through the legislative process rather than judicial fiat.  Not surprisingly, TheDirty.com is appealing. You can read more about the case here.

What does it mean?

If you run Facebook, the local newspaper site, or a community site regarding butterflies, you still have nothing to worry about.  If you purposefully run an inflammatory site, you need to pay attention to what the court of appeals does with this case.

TheDirty.com asks people to “submit dirt.”  Their submission form has entries for the “dirt,” and provides a link to upload photographs.  The court seized on the fact that in response to the post about Jones, the site operator wrote “I love how the Dirty Army has a war mentality.”  Facebook and the Christian Science Monitor website don’t do this.

The CDA is usually a slam dunk defense for websites that are sued over UGC.  Plaintiffs first tried to argue the sites actually “created” the content.  Now, plaintiffs will argue the sites are “encouraging” the defamation.  While a good policy, I am not sure it will hold up on appeal without a change to the statute by Congress.

So, what about sites like RipOffReport and PissedConsumer.com?  Is the next line of attack that they “encourage” defamatory content?  I would not be surprised if a plaintiff is making that argument right now in response to a motion to dismiss.

We will keep our eye on the appeal.

Sometimes, when you read the basics of a story, it sounds so incredulous, you think “surely, there has to be more to it.”  Enter the story of 19-year-old Texan Justin Carter.   The quick headlines usually read – Texas Teen Faces Eight Years for Facebook Comment.

Unfortunately for Justin, the post was about shooting up kindergartners.  Hence, he was charged with making “terroristic threats” and was for over three months because of a $500,000 bond that recently got paid by an anonymous supporter.

During an online multi-player game of League of Legends when Justin was 18, he got into an argument with someone on Facebook about it.  After someone called him messed up in the head, according to the arrest warrant in the case, Justin wrote:

“I’m f–ked in the head alright, I think Ima SHOOT UP A KINDERGARTEN

“AND WATCH THE BLOOD OF THE INNOCENT RAIN DOWN

“AND EAT THE BEATING HEART OF ONE OF THEM.”

According to Justin’s family, the next two lines were “lol” and “jk.”

Allegedly, a Canadian woman saw the post and called the police.  For more on the story, read here.  Surprisingly, that’s about it — the whole story.  It does not appear Justin was a real threat, had any past issues, meant for any law enforcement to get involved, or took any actions to carry out the alleged threat.

Instead, he has been charged with a violation of Section 22.007 of the Texas Penal Code which reads:

TERRORISTIC THREAT. (a) A person commits an offense if he threatens to commit any offense involving violence to any person or property with intent to:

(1)  cause a reaction of any type to his threat by an official or volunteer agency organized to deal with emergencies;

(2)  place any person in fear of imminent serious bodily injury;

(3)  prevent or interrupt the occupation or use of a building, room, place of assembly, place to which the public has access, place of employment or occupation, aircraft, automobile, or other form of conveyance, or other public place;

(4)  cause impairment or interruption of public communications, public transportation, public water, gas, or power supply or other public service;

(5)  place the public or a substantial group of the public in fear of serious bodily injury; or

(6)  influence the conduct or activities of a branch or agency of the federal government, the state, or a political subdivision of the state.

. . . 

(e)  An offense under Subsection (a)(4), (a)(5), or (a)(6) is a felony of the third degree.

The main issue in this case is hilited — Intent.  It is not clear whether the prosecutor is going to try and prove a violation of 4, 5, or 6 (we know they are pressing for a third degree felony), but does it really matter?  Can anyone prove, beyond a reasonable doubt, Justin intended to scare anyone or get law enforcement involved.

There are real threats made on social media and elsewhere.  People that make bomb threats or take other actions meant to scare targeted people or waste law enforcement’s time should be prosecuted.  People who have bad taste shouldn’t.

We can prove beyond a reasonable doubt, the comment was in bad taste — but the same may hold true for trying to prosecute the man unless there really is more to this story that has not come out yet.

Other than drawing more attention to the damaging online material, paying for a lawyer and having to answer uncomfortable questions under oath, what are the other risks about bringing a defamation claim?  If you are not careful, you could end up paying the defendants’ attorneys’ fees.

Twenty-seven states and the District of Columbia have passed Anti-SLAPP or “Anti Strategic Lawsuits Against Public Participation” legislation to deter the proliferation of defamation suits brought on by social media.  Texas passed its version in 2011 “to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.”  Tex. Civ. Prac. & Rem. Code § 27.002. 

So How Does it Work?

“If a legal action is based on, relates to, or is in response to a party’s exercise of the right of free speech, right to petition, or right of association, that party may file a motion to dismiss the legal action.”  Id. at 27.003(a).  “[A] court shall dismiss a legal action against the moving party if the moving party shows by a preponderance of the evidence that the legal action is based on, relates to, or is in response to the party’s exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association.”  Id. at 27.005(b).  

Although cloaked in soaring Free Speech rhetoric, Anti-SLAPP statutes are primarily procedural and don’t provide another defense to meritorious defamation claim.  It can be a powerful procedural tool when the Defendant files a motion to dismiss on one of the three grounds stated above.  To overcome a motion to dismiss, the claimant must “establish[] by clear and specific evidence a prima facie case for each essential element of the claim in question.”  Id. at 27.005(c) (emphasis added).

Although not defined, it certainly means a defamation plainitff should be prepared to satisfy it immediately after filing his claim because discovery will be very limited.  The Anti-SLAPP law in Texas allows for a defendant to appeal a decision immediately if the trial court does not dismiss the suit which can slow down legal proceedings.

So What Happens?

If a defendant successfully dismissed the case, Texas courts are required to award the defendant “(1) court costs, reasonable attorney’s fees, and other expenses incurred in defending against the legal action as justice and equity may require; and (2) sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions described in this chapter.”  Id. at 27.009(a).  

For more on the Texas version, including examples of the new law in action, check out www.slappedintexas.com.

Special thanks to my colleague at Looper Reed Joe Virene who graciously allowed me to poach much of this information from his initial research.   

See part one on how to avoid litigation and be proactive to protect yourself online from libel.

See part two on how to unmask the anonymous online commenter or blogger.

After reading part one of this series on whether legal action is the right move to respond to negative online comments as discussed in part one, you have decided you need for defamation.  So, how do you figure out who do sue when your tormentor is merely an anonymous handle on some website or an unclaimed blogger?

The Law

As I have said before, you need to know the law and have a little luck.  First, the law, which is suprisingly developed in this area.  

Yes, anonymous speech is protected.  The Federalist Papers anyone?  But like all forms of speech, if anonymous speech goes to far, it can have consequences.

Before an Internet Service Provider (ISP) or site will be forced to give up information about an anonymous person, most states follow what is known as the Cahill test first spelled out in the Delaware case of Doe v. Cahill.  The Cahill test requires a plaintiff, suing for defamation, to make a prima fascia case of defamation to find out the identity from an internet service provider.  In other words if your case is no good and you don’t really have a defamation claim, some judges won’t let you get information from ISP’s or websites.

Once a court decides the plaintiff has enough facts to make an initial showing of a defamation claim and can present facts that may defeat various First Amendment defenses, many courts will require the ISP or website to release the name if anyone fights it.

How it works

Assuming you don’t know who the person is, you would file your own Doe lawsuit.  Once you have a lawsuit on file, you send the necessary subpoena to the site where the anonymous commenter is libeling you or to the hosting service if it is an entire site.  Most site’s terms of use expressly state they cannot guaranty your anonymity and will turn over information in response to a proper subpoena.  The process can be expensive, especially when dealing with multiple states and multiple jurisdictions.

Usually, the information provided in response to the first subpoena is nothing more than in IP address.  It is rare for a site to require a real name and address.  Sometimes, all you get is an “anonymous” email address registered through yahoo, hotmail or gmail, which then requires you to repeat the process with those email services. 

So what is an IP address and what does it reveal?

For a more detailed discussion in plain English from CNET, go here or read this story from ABC News.  The IP address is nothing more than a long string of numbers.   For finding people, the most important part is the first three numbers which usually tell you who the ISP is.  You can discern a general location from the rest of the information and you can find sites online that will give you some of that general, but not exact, information from an IP address. 

For a site, you can check the WHOIS database on a site like Domain Name Tools and find out the IP address or identity.

Once you know the ISP, you then repeat the process by sending a subpoena to them who can then usually reveal the location of the computer or network. 

If it is a company that has multiple people using one server, then you have to go seek the information from the company.  If it reveals a consumer with a wireless router, then you go find that individual and hope the individual does not try to blame the freeloading neighbors.  If it reveals a library or the Starbuck’s you’ve got another issue.

Timing is also important.  Many states have a one-year statute of limitations for defamation claims and many ISP’s and website only store information for a period shorter than that.

A more sinister approach to revealing the identity of the anonymous blogger who has dedicated a site to you or your company can be seen here.  But, do you really want to mimic Glenn Beck?

Similar stories:  Unmasked online critic is judge.  An online defamation lawsuit gone bad from Venkat on the Technology and Marketing Law Blog

Up Next . . .

Anti-SLAPP and defending these suits.

 

From a legal business development standpoint, the advice is not good.  For clients, the advice can be invaluable.  Rather than wait to be attacked online and then sue, be proactive.  If the attack comes, consider fighting bank online rather than through the courts, which is usually your last resort.

Being Proactive

1.  Monitor.  You can’t protect your brand if you don’t know what is going on or being said about you.  This is a must for every company or person with a full range of services and options to match every budget from the free Google Alerts to full service firms that monitor, collect and analyze your references.  This not only helps you keep an eye on what is being said about you, but can help monitor for trademark infringement, defamatory comments or counterfiets.

2.  Engage with officially-sanctioned voices.  If you don’t, then the first thing someone will see when searching for you online will be the imposter or the negative review.  The more popular networking sites have officially sanctioned profiles.  Even if you don’t have much to say, claim those before someone else tries to. 

3.   Go to the hosting site first.  This sounds like advice from my mother than from your lawyer, but you often do catch more flies with honey than vinegar.  Many review and social sites place legally correct disclaimers on their sites that they are not liable for user generated content.  Yet, their terms of service that no one reads also usually state they do not allow for imposters, libel, harassment or a whole list of other wrongs.  Often, you can simply send the website operator the content you have a problem with and explain how it violates their own standards.  While they may not have to take it down, they often will.

 4.  Embrace the parody.   Many times, your nemesis is engaging in parody.  There has been everything from a fake BP public relations twitter account to a fake Big XII commissioner account on Twitter who despite the commissioner’s ouster is still going strong musing on college football.  Assuming you have taken care of #2 or #3 if the imposter is clearly not engaging in parody, there is not much you can do.  Parody is usually protected by the First Amendment and fair use when it comes to copyright and trademarks.  Done right and when appropriate, acknowledging the parody, companies and individuals can gain a lot of goodwill by embracing the parody.

5.  Mitigate the Pain.   You may not be able to remove the content, but sometimes, you can push it down to obscurity.  How many pages deep into the search results do you go when looking up something?  If you can move the bad content down, then very few people will see it.  Online reputation management experts claim to know the secret sauce to have the negativity moved down which usually takes some time to create more timely positive content.  It is certainly not a permanent or quick fix.  It can, however, be quicker and less expensive than litigation.

 6.  Sue when you gotta sue.  Sometimes you just have to sue.   It rarely makes economic sense and it is usually not done as a bottom line business decision to recover more from the bad guy then you will spend on attorneys’ fees.  Sometimes, however, your reputation and good name are that important.   Then, and usually only then, it makes sense to go to the courts with certain caveats.  First, filing the lawsuit will often bring more attention to the problematic online content.  Second, truth is a defense which means you will be asked questions under oath that usually are not allowed in the run of the mill car wreck or contract dispute.  Sue only if you are ready for that.

Next time . . .

Unmasking the anonymous annoyance.

 

Here is the editorial that originally ran in the December 9, 2010 Houston Chronicle:

U.S. should be cautious in going after WikiLeaks

By TRAVIS CRABTREE

Dec.  8, 2010,  8:29PM

Since WikiLeaks <http://topics.chron.com/topics/Wikileaks>  dumped some 250,000 U.S. <http://topics.chron.com/topics/United_States>  diplomatic cables into the public domain, many have called for the controversial Web site to be shut down and/or its executives jailed. Congressman Peter King, Republican ranking member of the Homeland Security Committee, suggested WikiLeaks should be named a terrorist organization. That would, in effect, put the Web site on the same footing with al-Qaida and even make it legal, if improbable, that the U.S. could attack the site’s servers under the guise of protecting national security <http://topics.chron.com/topics/National_security> .

The trouble with any such heavy-handed response is that it is exactly how you would expect a terrorist group or repressive regime to react. No question, the individual or individuals who provided such sensitive information to WikiLeaks should be prosecuted if it can be proven that laws were broken. But banning Web sites and prosecuting those who report the news is exactly what totalitarian states do.

Appallingly lax cybersecurity, which is solely the fault of the U.S. government <http://topics.chron.com/topics/Federal_government_of_the_United_States> , should not take us down that road.

It is actually a road we’ve previously traveled, albeit before the Internet <http://topics.chron.com/topics/Internet> , with the release of the controversial Pentagon Papers in 1971. Once the New York Times <http://topics.chron.com/topics/The_New_York_Times>  published those top secret documents suggesting the war in Vietnam <http://topics.chron.com/topics/Vietnam_War>  could not be won, the federal government sought to prevent the Times from publishing more. In a gross oversimplification, the U.S. Supreme Court <http://topics.chron.com/topics/Supreme_Court_of_the_United_States>  ruled the government could not prevent publication, known as engaging in “prior restraint.” The court said the government could, however, hold accountable those who publish classified or secret information after publication if laws were broken.

The same rules apply to WikiLeaks, which is why some, including U.S. Attorney General <http://topics.chron.com/topics/United_States_Attorney_General>  Eric Holder, are suggesting retribution post-publication. Going forward, authorities essentially have three options.

First, the government could go the China-Google route and prevent the site from being seen in the U.S. It would still be available in other countries and reported on inside and outside our borders. Unless we are interested in outsourcing our already dwindling journalism jobs, it would be an exercise in futility and a black eye on our human rights <http://topics.chron.com/topics/Human_rights>  record.

Second, the government could also attempt to seize the domain name as it did with sites engaged in counterfeiting and copyright infringement. The government took the domain names, but not the actual sites. Just like the counterfeiters, WikiLeaks could simply put up a new address registered outside the U.S. and continue.

Finally, the government could prosecute WikiLeaks as a conspirator to espionage. Under federal law, espionage is committed if secret information is “communicated, delivered or transmitted” to any citizen of a foreign country “with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation.” A conspirator is just as liable as the person who actually steals the information.

No matter what happens, a precedent will be set — one that will guide, inform and shape actions in this relatively new area of the law.

To be sure, we can’t prosecute or take the domain name of every newspaper in America. Courts are loath to prosecute news outlets unless they publish the identity of covert agents, nuclear secrets or certain intelligence communications like codes and passwords. If WikiLeaks actively helped steal from government computers as opposed to merely providing an outlet, then by all means, it should be prosecuted.

For now, the only real crime WikiLeaks appears to have committed was to lack discretion. Many news outlets consider the effect of their reporting and black out names of informants and other information that does not take away from the news value of the story. The newsworthiness of the content often is not substantially diminished by the absence of names.

Rather than engaging in the self-restraint often employed by news organizations, WikiLeaks apparently left that information in for the world, and foreign dignitaries, to see.

How should we as Americans respond?

Those who support the essential balance between a responsible free press and open government should reconsider their support of donation-supported WikiLeaks until it exercises better discretion.

For those who are still angry, I would argue the real culprit here is the government’s failure to safeguard its sensitive information. According to initial reports, the military let a 22-year-old private download this information from the proprietary Secret Internet Protocol Router Network, SIPRNET, using nothing more than a simple flash drive. The ire should be aimed at the system that let it happen. This leak should never have happened in the first place.

Crabtree practices online media and commercial litigation law with the law firm of Looper Reed & McGraw in Houston.

The Electronic Frontier Founation agrees (not surprising).

Senator Dianne Feinstein does not ( little surprising), but Congressman Ron Paul does (when not taken to extremes, he sometimes makes sense):

If the responsible editors of professional journalism outlets withheld these newsworthy cables after taking necessary steps to redact information that would lead to personal safey out of fear of U.S. prosecution — that would be criminal.

 

wikileaks.pngPlenty has been written on the contents of the recent disclosure of the diplomatic cables.  To no one’s surprise, Wikileaks has been sued before and I wrote about one of their last legal battles here.  That one involved a private bank.  Now, what can the U.S. Government do (legally) to the site?

The First Amendment, Vietnam War and Prior Restraint

Let’s first focus on the Federal Government’s ability to ban site and the disclosure of documents altogether.  That is called prior restraint and has been tried before.  History and Constitutional Law scholars will remember the Pentagon Papers case.  The New York Times was provided confidential information about the Vietnam War and wanted to print it.  The Government sought a temporary injunction preventing the publication of part of the information that had not yet been printed.  In a gross over-simplification, the Supreme Court ruled the Government could not prevent the publication, but could hold those who publish it accountable after publication if laws were broken.

Not only would the Government have to overcome the First Amendment defense, Wikileaks is not based on the United States and therefore would probably not be subject to a court order from a U.S. district court. 

Much like the Pentagon Papers case, there will be criminal prosecutions against those who leaked the information, but we will have to see what other actions will be taken against those who publish the stolen or leaked information.

What are the other options?

The first is on the technology side.  China keeps out certain websites, why can’t we?  Others have discussed the tech side of the issue such as this post from the Technollama.  As pointed out in that site, there could be ways to prevent the site from being viewed the U.S., but that would not prevent it from being viewed in other countries and being reported on in the mainstream press.  The U.S. would not be the free speech/free press beacon taking a symbolic measure that would have no effect on leaked information from becoming news.  It is not a road we want to start going down.

What about seizing the domain?  After all, the Government just seized about 70 domain names from sites the Government claimed were trafficking in seized goods.  The Government can seize “property” of those engaging in flagrant copyright infringement or those who sell counterfeit goods.  There is a debate beyond the scope of this post about the broadening of the government’s ability to seize domain names through a proposed bill named COICA going through Congress right now.

There are two drawbacks to this tactic.  First, the only thing the Government could seize would be the “property” in the United States which could be the domain name.  The code and data that make up the actual website would not and could not be seized since they are located outside of the United States.  Wikileaks would simply have to come up with a new domain name and register it outside of the U.S. and likely outside the reach of the Government.  The sites who had their domain names seized are starting to do the same thing right now.  This would be another cat and mouse game the Government would not want to be involved in.

Homeland Security

As in the Pentagon Papers, the person suspected of leaking the information to Wikileaks is facing criminal issues.  The suspect is Bradley Manning — a young Private First Class of the U.S. 10th Mountain Division in Iraq.  Manning was charged with violations of Article 92 and Article 134, of the Uniform Military Justice Code for “transferring classified data onto his personal computer and adding unauthorized software to a classified computer system,” and “communicating, transmitting and delivering national defense information to an unauthorized source.” He could face 52 years.

I freely confess that I am not a military justice or national security law expert.  But, there has been some chatter about trying to hold Wikileaks liable as a conspirator or as an accomplice.   The informant on the Pentagon Papers was charged with violations of the Espionage Act of 1917, but was later acquitted. 

The Federal Government has known for months that Wikileaks had this information that was released this week.  And there has been some debate as to whether the Wikileaks’ founder could be prosecuted under the rarely-used Espionage Act of 1917

Republican Congressman Peter King, Republican ranking member of the Homeland Security Committee, suggested Wikileaks should be named a terrorist organization because it puts the country’s national security at risk.   MSNBC is taking a poll on that right now.  That would put Wikileaks on the same level as al-Qaida and make it difficult for the site to raise money or hold any assets in the U.S.  Taking it to the extreme, there could be a drone attack on Wikileaks’ servers. 

Presumably, that would involve the Office of Foreign Assets Control and a designation of Wikileaks as a Special Designated Organization.  Such a designation would mean Wikileaks would be designated as a company controlled by, or acting for or on behalf of, targeted countries or an entity such as terrorists and narcotics traffickers.

Again, not being an expert, I don’t know all of the laws that would apply, but it seems there could be some effort to make the Wikileaks founder liable for conspiracy to commit espionage, 18 U.S.C. 794(c) or for conveyance without authority of government property, 18 U.S.C. 641.  

Espionage, under the U.S. Code, is committed if you, “with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit, to any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance, or information relating to the national defense.”  The law further states that “if two or more persons conspire to violate this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.”

Section 641 makes it illegal to embezzle, steal, “purloin” or knowingly convert for your own use a government record, or to receive, or retain government records with intent to convert it for your own use or gain. 

My editorial comments:

This episode emphasizes the need for journalistic discretion, training and ethics.  Major news outlets consider the public safety of the news they print and quite often will blackout names of informants and other information that does not take away from the news value of the story.  For 99.99% of the world, the newsowrthiness of the documents would not have been lessened if certain names were blacked out that may protect the individual informants, national security and other lives.  Apparently, Wikileaks left that information out there for the world to see rather than exercising the types of debates we had in journalism school and newsrooms.

It also emphasizes the need for the Government to take care of its own business.  This leak should never have happened in the first place.  The ire towards Wikileaks would be diminished had the information been leaked to the New York Times and they exercised some discretion.  While there would be some debate about the exercise of editorial discretion, it would be unlikely there would be calls to be put the editor-in-chief in jail.  The real ire should be aimed at the lax protection of this so-called sensitive information.