Archive for the 'Internet law' Category

Facebook sends a Minneapolis reminder that it’s not a forum for free speech

June 16, 2013

The Associated Press’ recent story that a former Nazi commander has been living in Northeast Minneapolis has had a surprising and perhaps ironic consequence:  a reminder that Facebook is not a forum for free speech.

The Facebook page in question is Old Minneapolis, which features photographs of, well, old Minneapolis.  Its operator, Jesse Jamison, reports Facebook shut him down for 12 hours this weekend after he reposted information including a photograph from WCCO-TV identifying the location of the alleged Nazi commander’s Northeast Minneapolis home.

In Jamison’s words, complaints to Facebook were “flooding in,” and Facebook responded by banning the page for a half-day and sending this message referring him to Facebook’s “Community Standards”:

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Here are the Community Standards.  It’s unclear which could have been violated. Was the reposting from mainstream media somehow a “threat” as defined by Facebook, or maybe a publication of “personal information of others without their consent”?  Could Facebook really characterize publication of information regarding an alleged Nazi’s home as “hate speech”?

The incident is a graphic reminder that while Facebook comes free of charge, it is not a public forum for freedom-of-speech purposes.  Because Facebook is privately owned, it is not a “state actor” for First Amendment purposes and the operators can ban whomever they want for whatever reason they want.

 

Indeed, Jamison also writes a Facebook user “was also blocked just for defending the page, and he didn’t use strong or threatening language.  The person that reported him has been banned permanently, and so have a few others that were using threatening language.”

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MPR: Minnesotans are part of the copyright controversy over lawsuits alleging illegal porn downloads

May 20, 2013

Minnesota Public Radio’s Martin Moylan has a nicely done piece involving tactics that porn companies and their lawyers are using to combat what they see as copyright violations involving downloads.

Similar efforts exist involving owners of stock photos who, for example, sue mom-and-pop businesspeople over photographs that web-site builders used without the owner’s consent.  I’ve represented one such Minnesota business, and there are many more who need help.

The statutes authorizing lawsuits over such alleged illegalities typically have attorneys’ fees provisions in them, so such litigation can be attractive to lawyers.  The potential defendants in a tough spot:  pay up a settlement, or pay a lawyer to try to defend the case.

10 steps bloggers should take to avoid getting sued

September 21, 2012

Being sued over blog posts is bad, and being threatened with legal action can be just as bad.  Saturday morning, at the 2012 Minnesota Blogger Conference, I am presenting on …

10 steps bloggers should take to avoid getting sued

1. Tell the truth

Libel is a claim that a communicator has harmed someone’s reputation by publishing something false.  So truth is the ultimate defense to a libel suit.   A blog post that says horrible things about someone is not libelous if it is true.

2.  Report for jury duty

Sometimes even false posts are legally protected.  That’s because a jury ultimately decides whether the blogger did “what a reasonable blogger would do” under the circumstances.

3.  Focus on the famous

Politicians, celebrities, and other public figures must prove “actual malice” to win a libel suit.  So if you stick to writing about famous people, the risk of legal liability decreases.

4.  Act like the AARP era

Most of a blogger’s legal defenses were enacted with the Mainstream Media in mind.  So emulate the “AARP” generation by Avoiding Anonymous Sources, Attributing Information, Retracting When Necessary, and Publishing Regularly.

5.  Know when truth doesn’t matter

Bloggers do risk liability for publishing true information if doing so is an invasion of privacy.  So don’t publish Social Security numbers or bank-account information, and tread carefully with racy pictures.

6.  Stay local

Most laws governing bloggers are state laws, enforced separately and differently in each state.  So posting about people outside Minnesota increases the chance, complexity, and cost of litigation.

7.  Keep SLAPP in the face

Minnesota is among states with laws that protect against “SLAPP” lawsuits, which are Strategic Lawsuits filed to prevent Public Participation.  The SLAPP laws provide extra protection to bloggers who write about public issues

8.  Picture a troll

“Copyright trolls” patrol the internet, looking for material used without the owner’s permission.  Bloggers are easy prey.   Know where your pictures come from, and get permission to publish if necessary.

9.  Act in moderation

Some believe that bloggers can avoid legal liability by not moderating comments.  I disagree.  Moderate your comments and remove the dicey ones.

10.  Blog as a matter of policy

Read your business and homeowners’ insurance policies for whether you’re covered if you’re sued.  Consider purchasing a separate policy for bloggers.

Don’t plan to sue your computer consultant

September 13, 2012

If a computer consultant messes up your website, can you sue him or her?  It will be difficult to do so in Minnesota, it appears.

In a case that hasn’t gotten much attention, a federal judge in Minnesota ruled this month that state law does not provide a cause of action for computer-consultant “malpractice.”  The judge’s reasoning was that computer consultants are not “professionals” on par with lawyers, doctors, and others who have a “heightened standard of care” and therefore can get sued for malpractice.

The case involved a Michigan law firm that hired Thompson-Reuters’ Minnesota-based West Publishing arm to develop and design a website.  Something went wrong, and hundreds of emails did not end up getting forwarded.  The law firm claimed that negligence caused hundreds of thousands of dollars in lost business.

But Judge John Tunheim ruled that even if that was true, Minnesota—like Wisconsin and a few others states—did not provide a cause of action for computer-consultant “malpractice.”

I am not sure I agree with such rulings.  People hire web designers and other computer consultants because they do not know how to work the web themselves.  Such “consultants” do, in fact, have specialized knowledge, and arguably should be held to heightened standards.  Stay tuned as the law evolves on this one …

Big Minnesota win for big record companies

September 13, 2012

Record companies spun a big win this week in a case involving the Brainerd, Minn. woman who allegedly downloaded and shared a couple dozen copyrighted songs.

The Eighth Circuit Court of Appeals ruled that it was not unconstitutional to impose a $220,000 penalty on Jammie Thomas-Rasset because the damages were not “so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.”  By doing so, the appeals court reversed the trial judge’s reduction of the award to $54,000.

For support, the Eighth Circuit cited the 1984 landmark case of Sony v. University City Studios, where the United States Supreme Court cleared the way for homeowners to use videocassette recorders to record shows off TV.  The Eighth Circuit then explained:

With the rapid advancement of technology, copyright infringement through online file-sharing has become a serious problem in the recording industry. Evidence at trial showed that revenues across the industry decreased by fifty percent between 1999 and 2006, a decline that the record companies attributed to piracy. This decline in revenue caused a corresponding drop in industry jobs and a reduction in the number of artists represented and albums released.

Thomas-Rasset’s lawyers have vowed a Supreme Court appeal, and I can’t blame them–even though copyright infrinigement is a big deal.

Lost in such cases, though, is a painful truth:  While the record companies can come away big winners, the creative artists who frequently have to surrender their copyrights are the ones who get left behind.

Minnesota Court of Appeals protects a blogger’s right to tell the truth

August 20, 2012

This morning, the Minnesota Court of Appeals released a decision that wisely protects bloggers’ rights to tell the truth, particularly on matters of public concern.

The case, Moore v. Hoff, involved a long-simmering Minneapolis dispute between John Hoff, who writes a blog titled “The Adventures of Johnny Northside,” and Jerry L. Moore, who worked in the University of Minnesota’s Urban Research and Outreach-Engagement Center.

Hoff made a blog post that Moore claimed were defamatory, and in turn Moore claimed that his termination from the university was linked to the allegedly false post.  Moore sued Hoff for defamation but also for interfering with his business relations.  A jury found that the posts were not false but nevertheless found interference with business relations.

But the Minnesota Court of Appeals reversed the jury verdict, ruling that a claim based on interference with business relations must involve a falsity, not a truth.  The court further explained that the communication involved matters of public concern in North Minneapolis.

Minnesota online communicators should be heartened by this holding, which affirms bloggers’ places in the media marketplace.

Recent Minnesota Supreme Court decisions are unfriendly to free speech

August 20, 2012

Summer has delivered two sizzling First Amendment decisions from the Minnesota Supreme Court, neither of which is good for online communicators.

The most recent decision came earlier this month.  State v. Crawley involved a Minnesota statute that makes it a crime to knowingly file a false police report.  In a 4-3 decision, the court held that even though the statute criminalizes expression based on its content–something the First Amendment abhors–the law was OK because it could be read to criminalize only defamatory speech, which is not protected by the First Amendment. 

In other words, the Minnesota Supreme Court wrote language into a statute that doesn’t exist.  In a dissent, Justice Stras called the court to the carpet and said the justices should not get in the business of writing statutes.  It is hard to disagree.

The other decision, Tatro v. University of Minnesota, which was released in June, received more mainstream media play than Crawley.  In fact, I talked about it when I was interviewed on Channel 9 last week.

In that case, the court ruled unanimously that the university could discipline a student in its morturary sciences program for making Facebook posts that most people would find to be, quite frankly, tasteless.  The court acknowledged that the university was abridging freedom of speech but justified the ruling because the university had a policy prohibiting certain online communication.

From a free-speech perspective, Tatro is much less problematic than the recent Crawley case.  At least the university had a policy.  As for Crawley, all communicators, online and otherwise, should be concerned that the state’s highest court would rewrite a speech-restrictive statute as they did.

I would not be at all surprised to see the case end up in the United States Supreme Court, as a Minnesota case did 20 years ago.  That case was R.A.V. v. City of St. Paul, where the nation’s high court disagreed with the Minnesota Supreme Court over a St. Paul ordinance that criminalized the messages that cross burnings are intended to convey.  Interestingly, the Minnesota Supreme Court based its Crawley decison on R.A.V.

Interesting stuff.  Stay tuned.

Minnesota law banning emails and other communications for 50 years is constitutional

December 28, 2011

When a Minnesota court orders that an alleged domestic abuser cannot email, message, or otherwise contact the victim for 50 years, there is no First Amendment violation, according to a Minnesota Court of Appeals decision issued Monday.

A Minnesota man brought an appeal to challenge a law that authorizes courts to issue “orders for protection” 50 years in duration under certain circumstances.  In the case, the man had pleaded guilty assault and violating a prior order that his wife sought for her protection.  After the husband served time for stalking and harassing another woman, he again was arrested for violating the order issued with respect to his wife.

So the court issued another order for 50 years, pursuant to a Minnesota statute that forbids an alleged abuser from having any contact with the victim “whether in person, by telephone, mail or electronic mail or messaging, through electronic devices, through a third party, or by any other means.”

The husband’s claim was that the statute constituted a prior restraint on his right to engage in expression.  The court of appeals disagreed, likening the law to those that provide protest-free buffer zones around abortion clinics.  The court observed that such laws ban conduct, not speech.  The court went on to explain that state government has a “strong intrest in preventing violence in a domestic setting,” and that the law was narrowly tailored because it “applies only to the most persistent abusers.”

Fifty years is, indeed, a long time.   But the court was correct to characterize the law as one addressing actions, not speech.  The law bans all contacts with the victim, regardless of what the alleged abuser might say.  And that, under the First Amendment, is permitted.

The decision is the second this month in which the court rejected First Amendment challenges to court orders arising from domestic relations.  Earlier in December, the court ruled that blogging about a former girlfriend can constitute harassment and that a Minnesota man could be ordered to remove his blog from the internet.

Court of appeals orders for blog to be shut down

December 21, 2011

The Minnesota Court of Appeals has ruled that blogging can constitute harassment, and has ordered a Minnesota man to remove his blog from the internet.

As the decision released last week explains, the blog at issue chronicled the blogger’s ongoing issues with a former girlfriend.  Writing in the third person, the blogger wrote about his former girlfriend’s alleged sexually and physically abusive relationships, and questioned the woman’s mental health.  He publicized and promoted the blog by sending electronic messages to his former girlfriend’s relatives and friends, and also set up fake Facebook identities to post the blog to other Facebook users.

The woman already had a no-harassment order in place, and after the blogging she went to court to successfully obtain another one—one that specifically prohibited “[a]ny email or other electronic message contact with third-parties that contains any material concerning [the former girlfriend] that affects or intends to adversely affect [her] safety, security, or privacy.”  The court’s order also directed the blogger to remove the blog form the internet.

On appeal, the blogger claimed blogging is “comparable to publishing pamphlets and leaving them on your front doorstep for the public,” and that the First Amendment protected his blogging.  The Minnesota Court of Appeals disagreed.  The court acknowledged that “material published on the Internet receives the same level of protection as information published in other media.”  However, the court  held that “the constitution does not protect harassing words” and likened the blog to “fighting words” that that First Amendment does not protect.

The outcome makes sense, but the court’s reasoning could have been clearer.  Its blanket statement that “harassing words” cannot receive First Amendment protection is not entirely correct.  As the United States Supreme Court made case in the landmark case of R.A.V. v. City of St. Paul, when government seeks to ban words instead of conduct, there might be an unconstitutional—and for many, an unfortunate—result.  (In the case of R.A.V., an invalidated criminal conviction for cross-burning.)

But on balance, what I think the  court of appeals was attempting to articulate was that the act of blogging can, under certain circumstances, constitute harassment.  And here, apparently, the blogger went beyond merely posting his content and took affirmative acts to make sure people who knew his former girlfriend saw his blog—efforts that, according to the court opinion, caused the former girlfriend distress.

And that, in the eyes of the law, is not protected conduct under the First Amendment or otherwise.

North Dakota looks to Minnesota for help with court-records access dilemma

November 1, 2011

North Dakota’s newspaper and broadcast associations are decrying a plan to limit online access to some criminal-court records.  But the state’s courts system also is looking to Minnesota for help.

The concern is over how easy it is to access online the court records of people who are charged with crimes but never convicted of those crimes.   The easy access access hinders innocent people from getting apartments and jobs–anecdotally at least.

Minnesota has a record “expungement” process by which criminal defendants may petition a court to seal court records.   But North Dakota is taking a different tack by considering a rule that would leave the records in paper files but shield them from online access on a case-by-case basis.

The Reporters Committee for Freedom of the Press’ website describes the proposal.  The RCFP also links to a letter from Jack McDonald, a lawyer for the journalist associations, who explains the proposed rule could effectively seal all such data from public view as courts go paperless.

But minutes from the commission’s meetings also demonstrate that court-system staff mebmers have been directed to investigate Minnesota’s expungement process as a potential alternative.

Minnesota’s system still hinders journalists from obtaining truthful information–something that remains a concern.  And the solution to the North Dakota problem would be best solved by providing more information, not less.  For example, teh courts’ website could make it glaringly clear when onetime defendants were not convicted of crimes.

But as it stands, the proposed two-tiered approach to availability of public records chips away at the public’s right to know and vests government with discretion to keep truthful information from the public.