Comparative law research reaches prisoner rights; women's rights; tech patents; internet, drug reg

Law Offices of James L. Arrasmith CC BY-NC 4.0

In fall 2024, I had the privilege of teaching Comparative Law for the sixth time.

For my time and energies, the course is the best one to teach, because it offers the best opportunity for a lifelong learner. Law teaching usually requires mastering a broad and deep range of content so that one can guide students capably through it. Not so in Comparative Law, in which the teacher cannot possibly know the substantive content of all of the legal systems of the world. Rather, the course is about arming students with the tools of comparative methodology, and then savoring the opportunity to learn from them, what they find in their own research.

This year was not lacking in the savory. As I have in the past, I am proud and pleased to share a collection of abstracts representing the yeoman work of my students in the fall semester. You will see that the students devised some wonderfully innovative theses. The subject matter that researchers tackled spanned prisoner legal rights, marijuana and gambling regulation, black women's representation in the legal profession, women's rights in Afghanistan and in Dutch sex work, semiconductor patents, and regulation of online misinformation.

Alayna Wageman, Prisoners Are Human Too: A Comparative Analysis of Prisoners' Right to Legal Assistance in Chile and the United States. Both Chile and the United States guarantee, through their constitutions, the right to legal counsel for individuals who cannot afford a lawyer during criminal prosecutions. However, prisoners lack resources to access legal assistance when their basic human rights are violated while incarcerated. This project seeks to show how the extreme traumatization of citizens in the United States from the years of slavery and the extreme traumatization of citizens in Chile from the years of dictatorship continue to impact the treatment of prisoners today. This paper begins with an overview of the history of slavery in the United States, specifically in Massachusetts, and an overview of the history of dictatorship in Chile. Next, the paper will explain the laws that define the right to legal assistance for prisoners in Chile and Massachusetts. Finally, the paper compares two programs designed to improve prisoners' access to legal resources: the Prisoners' Legal Services (PLS) of Massachusetts in the United States and the Penitentiary Defense Program (Programa de Defensa Penal Pública Penitenciaria) in Chile. This analysis demonstrates how the influence of the historical extreme traumatization of societies continues to impact the treatment of prisoners in both countries, with focus on the limitation of access to legal assistance in prisons. The paper concludes by acknowledging the efforts of the PLS and the Penitentiary Defense Program, which are working to further protect the rights of prisoners.

Bryce Mayo, Comparing the Impact of Sports Gambling Advertising: A Legal Exploration of the United States and Australia. The recent legalization of sports gambling has taken the United States by storm, and as a result, an influx of advertising has taken over every commercial break. Sports fans, avid and casual viewers alike, cannot help but notice sportsbooks like BetMGM, FanDuel, and DraftKings attempt to entice an already invested community into raising the stakes of a game or match. These companies use tactics such as celebrity endorsements, sign-up promotions, and "can't lose bets" on your first wager. This paper compares how the United States and Australia have approached the regulation of sports gambling advertising since its legalization in 2018 and 1983, respectively. Although both countries follow the common law system, the legalization of sports gambling came about in drastically different ways. The United States struck down a longstanding congressional act, while Australia codified sports gambling, even making the first sportsbooks state owned and operated. Recently, Australia has issued licenses to private or publicly owned sportsbooks and their advertising regulations have changed as a result; whereas in the United States, private and publicly owned sportsbooks are the primary recipients of licenses, yet the regulations mirror that of Australia in 1983. Legalizing sports gambling in the United States is in its infancy, and growing pains are inevitable. It appears to be the wild west, quite reminiscent of tobacco advertising in years past. The United States can learn from Australia's experience and seek a balance between maintaining a profitable market and minimizing the creation of degenerate gamblers.

Carson Powell, Quality Over Quantity: A Comparative Analysis of Marijuana Quality Control Regulations Between the Netherlands and the United States. This paper compares the law and regulations of the United States and the Netherlands, on the regulations that are used to ensure the quality of marijuana sold legally. First, the paper focus will be on the Dutch marijuana policy, and its past, current and future regulation protecting the quality of the marijuana sold in "coffee shops." Next, the focus will shift to the United States and specifically Colorado regulations when testing the quality of marijuana. The paper views policies implemented to ensure quality and safety within the production, testing, distribution and the sale of cannabis/marijuana products. Finally, the paper compares Netherlands regulations on marijuana quality assurance and with Colorado laws and regulations that establish the safety of state citizens. The paper compares the laws and regulations, how they relate to each other, and the social results. The paper concludes with recommendations based on the comparisons drawn from the two parties, and whether each can become more effective and efficient with its own processes.

Kennia Joseph, A Comparative Analysis of Gender and Racial Equality for Black and Nigerian Women in the Legal Profession. This paper compares the laws in the United States and Nigeria that address gender and racial equality and their effect on black and Nigerian women in the workforce, specifically in the legal profession. One of the key issues in ensuring gender equality in employment lies in enforcing existing laws and policies. The comparison between Title VII of the Civil Rights Act and the overturned affirmative action practices thereunder, Article 11 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the failed Nigerian Gender and Equal Opportunity Bill of 2016 highlight underrepresentation in the legal field. Despite developing systems to support and encourage race and gender equality, black women from different cultures, and political, societal, and economic climates share experiences in the same profession with similar laws, initiatives, and policies.

Nick Saathoff, A Comparison Between Patents on Semiconductors in Germany and the United States. Patent law in Germany and the United States protects those who invent or discover patentable processes. Ideologies between the two countries differ in the field. In the United States, a patent is mainly a monetary protection. In Germany, in addition to monetary protection, there is an honor and prestige associated with inventing. This paper discusses patent law in each country specific to the field of semiconductors. Semiconductors are one of the most technologically significant patentable items in the world today. The paper initially provides an overview of patent law in each country and what role semiconductors play. This paper identifies similarities and differences between patent protections, patent quality, and patent strategies in the United States and Germany. In doing so, the paper discusses key requirements of obtaining a patent. The paper discusses one requirement at a time, discussing the interpretation in the United States and the interpretation in Germany. The paper then notes patent statutes in each country specific to the semiconductor industry. Additionally, the paper will discuss nuances in each country’s patent laws in the semiconductor industry.

Rebecca Stump, A Comparative Look at Sex Work in the United States and the Netherlands. Sex work, historically, has been a controversial occupation for a variety of reasons, including religious beliefs, women’s rights, bodily autonomy, and the extent to which the state should regulate an individual's choices over their own bodies. During this period, sex work has been considered a shameful profession, one which must be criminalized to deter human trafficking or coercion. However, as understanding and advocacy for bodily autonomy and freedom to self, and countries such as the Netherlands reform and change their sex work laws, there are movements for change to law in the United States. The aim is for a discussion, through comparison of the legal systems of Nevada and the Netherlands and the main avenues for reform, partial decriminalization and full decriminalization or legalization, the social and legal implications of legalization of sex work to further investigate reform in the United States. Within research regarding sex work, there are critical biases that must be acknowledged prior to engaging in discussion. First, and foremost, is the moral and ethical considerations of sex work. Sex work is not merely seen as an occupation free from moral implication, but an occupation for which every person may offer their individual consideration as to the ethical value of the work. To engage in substantive discussion, morality must be stripped away. Instead, one must be willing to engage in discussion solely on the legal ability of an individual to make a choice regarding the services they offer using their person, and the role of the state in legislating that decision. To that point, a discussion regarding the legality of sex work is necessarily a discussion of the extent to which the state should regulate labor. There exist various viewpoints as to the question of federalism and the role of the state to regulate. This bias must also be considered.

Sean Pillai, Afghan Women's Human Rights: A Legal Analysis of Constitutional Governance vs. the Taliban Rule. Afghanistan’s history of political turbulence and violent turmoil have repeatedly challenged the legal and social status of women. Afghanistan attempted to rebuild as a democratic nation and included rights to protect women. Under the 2004 constitution, women gained significant legal rights, such as access to education, safety and freedom of movement and employment opportunities, marking a stark contrast to the Taliban's earlier reign (1996-2001). However, the progress made was curtailed with the withdrawal of U.S. forces in 2021 and the Taliban return to power. This analysis will address the shift in legal protections and the impact on societal roles for women contrasting the two eras: the 2004 constitutional government and the Taliban regime 2021 to present. By comparing the legal frameworks and implementation of women's rights in key domains such as women's access to education, safety and freedom of movement, and women's access to employment, this paper seeks to provide an understanding of the impact the two legal systems have on women.

Shiloh Worthington, The Digital Services Act vs. Section 230: The Western Hemisphere's Battle Against Misinformation. The European Union and the United States have both recognized the disparate effects of rampant and unchecked misinformation spreading across the internet. However, each has a distinct approach to combatting this epidemic of troublesome content. The EU battle against misinformation is best exemplified by the recently passed Digital Services Act (DSA), which places the primary responsibility of stopping the spread on the platforms themselves. Meanwhile, in the United States, the struggle to fight misinformation is at odds with the First Amendment rights of the platforms. Section 230 of the Communications Decency Act offers platforms total immunity for their misinformation content-removal practices, no matter how it conflicts with individual freedom of expression. Further conflict arises as the EU's DSA attempts to force American-based platforms with European audiences to comply with its content-removal practices under misinformation-related pretenses, even if doing so would remove American citizens' content otherwise protected by the U.S. Constitution.

Watch for these students on upcoming bar pass lists in a state near you!

Flags from Flagpedia, except Afghanistan Taliban from Wikimedia Commons, all public domain.

Researcher seeks to ease persistent anticompetitive constraints on indie films in online environment

Yaleth Calderon, a film school graduate and candidate for the California bar, has published a law review note on antitrust, online technology, and independent filmmaking.

Are There Plenty of Movies in the Sea?: How a Revision of the Terminated Paramount Decrees Could Benefit the Market for Independent Filmmakers appears in the latest issue, volume 20, page 111, of the UMass Law Review. Here is the abstract:

In the early years of filmmaking, the Supreme Court passed the Paramount Decrees as a set of rules prohibiting certain practices by major production companies that restrained competition within the industry. The creation of the internet has not only changed the way society has consumed media, but it has also affected the opportunities for filmmakers to share their works with the world. In 2020, the Paramount Decrees were overturned, dramatically limiting the distribution channels, creative control, and marketing opportunities held by independent filmmakers. This note outlines the injury felt by independent filmmakers and proposes specific rules inspired by the Paramount Decrees that the Federal Trade Commission could enact to mitigate some of the adverse effects of the decision.

The journal is transitioning to a new online publication platform, so volume 20 is not yet online. The new platform is expected to launch in summer 2025. Meanwhile, Calderon generously has made the piece available to Savory Tort readers here.

In an author's note, Calderon wrote that "[t]his article is an attempt to contribute to the ever-changing challenges towards film distribution in the digital era."

Calderon is an alumna of my comparative law class, in which it was a pleasure to have her. She received her B.A. in Cinema and Digital Media and English, with an emphasis in literature, criticism, and theory, from the University of California Davis. Last year, she served as a judicial extern at the L.A. Superior Court. After finishing law school this spring, Calderon plans to return to her home Los Angeles to practice law in California.

Calderon's subject matter is dear to my heart, too. Morgan Steele, my daughter, works in film in Los Angeles and has directed shorts. She just made a cameo in an Instagram promo (below) for The Gorge (streaming today on AppleTV+ (subscription wall)). Paul McAlarney, my friend and former TA and RA, now a New York lawyer, was an independent filmmaker before law school.

Exactly as Calderon recognizes, the streaming environment has multiplied the potential for independent distribution in film, but anticompetitive practices in the market have precluded the full realization of that potential, to the detriment of both creators and viewers.

View this post on Instagram

A post shared by Apple Films (@applefilms)

Entrepreneur Jones develops one-stop tour site

A new website, Flaming Travel aims to fill a market gap in tour and adventure searching, giving world travelers a one-stop shop to search multiple providers.

Flaming Travel is the brainchild of my friend and aptly self-described serial entrepreneur Ben Jones. The multi-talented and polyglot Jones is head of OutStride, where he is a founder coach for other and would-be entrepreneurs. Read about Ben's story at Medium, read his writing at Medium, and follow his adventures on Instragram.

Ben and I hike the Tian Shan, Kyrgyzstan, 2023.
© Justin Cohen

At present, Flaming Travel lists tours by UK-based Lupine Travel and expat-China-founded Young Pioneer Tours. Further development will see the addition of more providers. The idea is to make it faster and easier especially for frequent travelers to identify opportunities to visit new destinations.

Besides a search interface, Flaming Travel allows users to sort data by date, duration, company, country, and the number of countries on an itinerary. So at minimum, Flaming Travel will save users time over visiting multiple websites.

Most travel company websites (notably excepting Lupine: shout out to Megan & co.) list tours by destination or region and have no comprehensive list by date. But frequent travelers might be more concerned about fitting opportunities into available windows of time off work, than concerned about destination. Ability to sort market data chronologically will be a boon to getaway planners.

This post is not an ad, by the way. I'm eager to share Ben's innovation and stimulate interest in world travel.

Gladstone, Doctorow game out tech reg quagmire

Cory Doctorow
Houari B. via Flickr CC BY-NC-SA 2.0

On the Media's Brooke Gladstone talked to Cory Doctorow, author, internet activist, etc., on September 1 about, well, everything, and it's a breathtaking hour of must-listen radio.

The conversation wrapped up every issue I care about in technology and society today into a neat and intelligible bundle of the utter mess that it is: intellectual property, antitrust, privacy and data protection, politics and corruption, and the corporatocracy that's incinerating democracy. Doctorow is more optimistic than I that human civilization can yet be saved, so the program is not even a downer in the end.

I feel like I'm someone who knows a fair bit about this stuff, so I was humbled by how much I learned. I want to spill it all here, but I ought not be a spoiler. I'll share just a tidbit.

You know that thing when videos go viral and some average joe or jane inspires another generation of youth to plot a career as a social media sensation?

Yeah, not a thing.  At least not always an organic thing. Companies such as TikTok "twiddle" or "heat up"—terms of art—selected content to make it "viral," even while users think that they collectively are driving virality by demand.

Why? It's a "giant teddy bear" strategy, Doctorow explained. The carney at the fair lets an early player on one of those unwinnable-by-design games "win" the giant teddy bear, knowing that that customer will carry it around all night, inadvertently advertising the game to everyone else. The viral video maker thinks that a million people just loved that nutty dance and doesn't even realize that she or he is a tool, carrying the giant teddy bear around.

How do the companies get away with telling us one thing and doing something else? Because they change the rules whenever they like, Doctorow said. There are no rules about how they can change the rules.

Huzaifa abedeen via Wikimedia Commons CC BY-SA 4.0

And don't even get me started on the plethora of legal mechanisms that protect this monstrous Big Tech monopolization. Dare to start asking questions, and you'll find yourself on the business end of demand letters citing the DMCA, the Computer Fraud and Abuse Act, and patent and trademark law, just to get the ball rolling.

Yes, I realize that I am writing on a Google platform right now. What's a writer to do? I confess, I made a conscious decision at one point simply to surrender to Google. I have a Nest doorbell, a Pixel phone, and a Google Drive. But, you see, this is what Doctorow is talking about. It's next to impossible to get along in the virtual world today without surrendering.  Try buying diapers from Diapers.com instead of Amazon.

Doctorow is a big fan of Lina Khan and the example she's setting with the Federal Trade Commission's sudden scrutiny of the tech sector. Unfortunately, Doctorow said, it's easier to stop monopoly from happening than to dismantle it after it's taken hold. If you're my age, you'll remember how long AT&T reigned supreme before the feds came a-knockin'. Better late than never. I'll be interested to see if Khan-ology persists, or corporate power in Washington is now too big to break.

The podcast is How Big Tech Went to Sh*t, from WNYC's On the Media (Sept. 1, 2023).

Google censors opinion condemning private censors

On December 31, Google blocked access to a Savory Tort post from 2019 on free speech and censorship in New Zealand.

I received this message from Google on New Year's Eve:

As you may know, our Community Guidelines (https://blogger.com/go/contentpolicy) describe the boundaries for what we allow--and don't allow--on Blogger. Your post titled "NZ prosecutions for sharing Christchurch vid would suppress news, free speech, but worse is empowerment of private censors" [my boldface] was flagged to us for review. This post was put behind a warning for readers because it contains sensitive content; the post is visible at http://www.thesavorytort.com/2019/03/nz-prosecutions-for-vid-sharing-would.html. Your blog readers must acknowledge the warning before being able to read the post/blog.

Why was your blog post put behind a warning for readers?

Your content has been evaluated according to our Adult Content policy. Please visit our Community Guidelines page linked in this email to learn more [link below]. We apply warning messages to posts that contain sensitive content. If you are interested in having the status reviewed, please update the content to adhere to Blogger's Community Guidelines. Once the content is updated, you may republish it at [URL omitted]. This will trigger a review of the post.

For more information, please review the following resources:
Terms of Service: https://www.blogger.com/go/terms
Blogger Community Guidelines: https://blogger.com/go/contentpolicy 

Sincerely,
The Blogger Team

Setting aside for a moment the irony of private censorship of a post about private censorship,* I wanted to understand what triggered the block. As the headline indicates, I fretted in the post about New Zealand criminal law being turned against online re-publishers of the horrifying video of mass shooting at a Christchurch mosque in 2019. I wrote that the lack of newsworthiness exception in New Zealand law would be problematic in U.S. First Amendment law, and the prosecution could not withstand analysis under Brandenburg v. Ohio (1969). And I wrote some about how the modern internet has posed a challenge to the dated First Amendment doctrine.

Willow Brugh via Wikimedia Commons and Flickr CC BY-SA 2.0

At first, I thought maybe I linked to the objectionable video itself; I had not. I did mention by "dot com" name a problematic website from earlier internet days that was infamous in freedom-of-information circles for hosting gruesome content. But I didn't hyperlink it, and the site no longer exists at that address anyway.

The message from Google referred to the "Adult Content policy."  Here's what the policy disallows:

We do allow adult content on Blogger, including images or videos that contain nudity or sexual activity. If your blog contains adult content, please mark it as 'adult' in your Blogger settings. We may also mark blogs with adult content where the owners have not. All blogs marked as 'adult' will be placed behind an 'adult content' warning interstitial. If your blog has a warning interstitial, please do not attempt to circumvent or disable the interstitial - it is for everyone’s protection.

There are some exceptions to our adult content policy:

• Do not use Blogger as a way to make money on adult content. For example, don't create blogs that contain ads for or links to commercial porn sites.
• We do not allow illegal sexual content, including image, video or textual content that depicts or encourages rape, incest, bestiality, or necrophilia.
• Do not post or distribute private nude, sexually explicit, or non-explicit intimate and sexual images or videos without the subject’s consent. If someone has posted a private nude, sexually explicit, or non-explicit intimate and sexual image or video of you, please report it to us here [hyperlink omitted].

There's nothing remotely sexual about the 2019 post. Nor is there any depiction or description of violence, other than a reference to the mere occurrence of the tragedy, which was well reported in news media with plenty more detail.

Links to The Savory Tort were once banned from Facebook, too, for more than a year. When I inquired, Facebook sent me a form message saying that The Savory Tort violated Facebook terms of service for content. I sent further inquiries, made appeals, etc., but Facebook never clarified how the terms were violated. Indeed, Facebook never responded with other than form messages confirming the ban. For all the hoopla about a "Facebook supreme court" and thoughtful, human review of content, those avenues apparently are not open to the little people such as me.

Ultimately, a former student and labor attorney complained about the ban to Facebook, after he was denied permission to share a link to my blog. He kindly let me know. Subsequently, consequently?, and suddenly, links could be posted. The ban vanished as mysteriously as it had appeared. Not a word from Facebook, then or since.

The Facebook ban came about upon a complaint from someone who didn't like something I wrote, I suspected. That happens. For example, I wrote once about a family law case in the Massachusetts Supreme Judicial Court, and I was threatened with legal action by the disappointed party. 

It's easy for someone to complain to Facebook or Google Blogger about online content. The complaint is not necessarily reviewed by a real person, or it is and the person is incompetent or indifferent. It's easier to block or take down content than arbitrate a dispute. That's why trolls and publishers have been able to abuse the notice-and-takedown system that has debilitated fair use of intellectual property.

Here, Google said that the post "was flagged to us for review" (my italics) and "has been evaluated." The choice of words, muddling passive voice notwithstanding, suggests that a third party triggered the review. How anyone, even a bot, at Google then could have found adult content, or anything in violation of the content terms, is a mystery to me. I can conclude only that the block was imposed automatically upon the complaint, with no review at all.

I would seek further explanation or ask for a human review, but that, it seems, is not an option. Google offers me the opportunity to have the block reviewed only after I "update the content to adhere to Blogger's Community Guidelines." I see no violation of the guidelines now, so I don't know what to update.

Now let's come back around to that irony, which might not be coincidental.  (Irony and coincidence are not necessarily the same thing, whatever Alanis Morissette would have you believe.)  The dangers of private online censorship was the theme of my post in 2019. The block on my post occurred in December 2022 only weeks after Elon Musk began to censor his critics on Twitter. Musk is still at it, by the way, seemingly having acceded this week to Indian government demands that Twitter censor critics of Prime Minister Narendra Modi. 

At the same time in December that Musk was making headlines with Twitter censorship, the Supreme Court scheduled (for Feb. 21) the oral argument in Gonzalez v. Google LLC (track at SCOTUSblog). The case asks whether internet service providers such as Google enjoy section 230 immunity from liability in the provision of targeted content, such as search results, apart from the conduct of traditional editorial functions, akin to newspaper editors choosing letters to the editor. David McGarry explained for Reason two weeks ago, "The plaintiff is Reynaldo Gonzalez, whose daughter was murdered in a 2015 terrorist attack. [He] argues that YouTube, a Google subsidiary, should face liability because its algorithms recommended terrorist content posted on the platform that Gonzalez says aided the Islamic State."

That's a potential liability exposure that might incline Google to censor first and review later.

Perhaps someone triggered the automatic censorship of a great many online articles about private censorship, hoping to make the very point that private censorship is dangerous. If that's what happened here, I would offer a grudging salute. But I would like to see the point actually made, not just fruitlessly attempted.

At the end of the day, I'm not so broken up about the block, as opposed to a ban like Facebook's, which frustrated me no end, as I could not share content at all with family and friends. A reader who encounters a sensitive content warning wall might be only more interested to know what lies beyond. And my target audience isn't children anyway. 

I figure there's a reasonably good chance that this post will wind up behind a warning wall for having referred to a warning wall. So be it. Anyone interested enough to be investigating a four-year old story of censorship probably will get the ironist's point, and mine.

* My journalism ethics professor at Washington and Lee University in the early 1990s, the late great Lou Hodges, railed against the word "censorship" to describe private action, so would have regarded the term "private censorship" as outrageously oxymoronic. Professor Hodges was steeped in classical learning and recognized that the word "censor" comes from the Ancient Roman word referring to a public magistrate whose responsibilities, on behalf of the state, included counting people and property—thus, "census"—and the enforcement of public morals through what we now call "censorship." To honor Professor Hodges, I long insisted on the same distinction. But in recent years, I have given in to the modern trend to employ the term regardless of the private or public nature of the actor. Professor Hodges could not then have anticipated that we would soon have an "Internet" that looks very much like a public commons, thus reviving the seemingly antiquated First Amendment problem of the company town. The term "censorship" seems to me apt for a world in which transnational corporations such as Google and Meta might as well be governments from the perspective of ordinary people.

Invasion of Ukraine marks six months; Russian propaganda flows despite court OK of EU media ban

#IStandWithUkraine

On July 27, the European Union (EU) General Court upheld a continental broadcast ban on Russia Today (RT).

The EU Council promulgated the ban in March 2022. The Council accused the Russian Federation of channeling propaganda through Russian-funded but purportedly "autonomous" RT in furtherance of a "strategy of destabilisation" of European countries by "gravely distorting and manipulating facts."

The regulation asserted that "propaganda has repeatedly and consistently targeted European political parties, especially during election periods, as well as targeting civil society, asylum seekers, Russian ethnic minorities, gender minorities, and the functioning of democratic institutions."  RT agents are allowed to continue reporting in the EU through research and interviews.

By "broadcast," the regulation is not talking only airwaves. The ban purports to apply across media outlets: "cable, satellite, IP-TV, internet service providers, internet video-sharing platforms or applications." 

I'm Team Ukraine, but the broadcast ban struck me as a curious development. It sets a troubling "kill the messenger" precedent and seems to conclude that the John Stuart Mill "truth will out" premise is hifalutin hooey.

I'm actually OK with that conclusion. When I teach free speech to students in tort, constitutional, or information law classes, I make a point of demonstrating the many flaws of marketplace theory in the real world. But closing the book on the theory as a matter of supranational regulation is an unsettling further step.

Similarly, it must be conceded that war propaganda is efficacious, notwithstanding its truth or falsity. Research and experience have confirmed that concession time and again since Edward Bernays published his classic treatment, Propaganda, in 1928. I read Bernays for a seminar in journalism school in the wake of the fall of the Berlin Wall. That study first interested me to the confounding problem of expressive liberties in wartime. 

In its July 27 judgment, the Grand Chamber of the General Court navigated these murky waters to conclude that the broadcast ban justifiably impinged on the freedom of expression. In the challenge by RT France, the Council adduced evidence to satisfy the court that RT was in fact a mouthpiece for Russian antagonism to European security. Conducting the necessity and proportionality analysis of European free speech law, long developed by the European Court of Human Rights, the general court concluded that the ban on RT appropriately furthered the twin aims of preserving order in the EU and abating the attack on Ukraine.

The court took pains to describe the RT ban consistently as temporary and to emphasize the context of Russian military aggression, thus signaling that the ruling is grounded heavily in extraordinary circumstances and has limited precedential value.

For therein lies the hazard of effectively suspending civil liberties in a time of exigency but undeclared war. Western EU ministers must be mindful that their critical populist adversaries in Hungary and Poland have restricted media freedom in the name of public order. Proceed down the slippery slope: Should we ban World Cup 2022 coverage by Qatar-funded Al Jazeera?

Characteristically, Russia answered the EU court ruling with a threat of retaliatory restrictions on western media in Russia. But on both sides, media bans might be so much posturing anyway.

RT.com via VPN based in Dublin

The actual efficacy of the ban is doubtful, if for no other reason than the internet's famous resilience to censorship. In a study published in July, the Institute for Strategic Dialogue found that RT content was still reaching European consumers through alternative domain names and mirror websites.

It might not be even that difficult to find RT. Using my Dublin-based VPN, I just now accessed RT.com directly and through a Google.ie search without impediment.

Today, August 24, marks six months since the invasion. The International Law Section of the American Bar Association (April) is organizing a social media campaign to maintain the visibility of the war in Ukraine. Lawyers are asked to post the Ukraine flag on LinkedIn and Twitter with the hashtag #IStandWithUkraine and tags @American Bar Association International Law Section and @Ukrainian Bar Association on LinkedIn and @ABAInternatl and @Association_UBA on Twitter.

Lisbon graffiti writer seeks internet access

I passed this graffiti in the Entrecampos area of Lisbon while attending the annual meeting of the Law and Society Association earlier this month (photo by RJ Peltz-Steele CC BY-NC-SA 4.0).

The text struck me as a curious coupling of "free expression" to excess and an unrealized "right to receive," or right of access to information and the internet.

It looks like someone tried to obliterate the middle section of the text, but as best as I can read it, it says, in whole: "I am a local artist in need of internet connection without any restriction. If you have a network that works and you [are] up for sharing, please text me the [user?] name, password and your approximate address to 969 158 614. In exchange, you(r) might get a poem."

I might have been better persuaded if the writer had asked in rhyme.

Uruguay busca idear carta de derechos digital

Palacio Legislativo en Montevideo
(foto por Tiana Gerfauo Gonzalez CC BY-SA 3.0)

Uruguay está redactando una carta de derechos digitales.

En agosto, escribí sobre la iniciativa pionera para constitucionalizar los derechos digitales en Chile. Ahora Uruguay está haciendo lo mismo.

Una comisión de expertos en Uruguay estará integrada por representantes del gobierno, de las ONG, y de la academia. En 2020, escribí con favor de la voluntad de Uruguay, de mentalidad anti-cártel, de transmitir al público los partidos de fútbol nacional. Los uruguayos tienen la mentalidad adecuada.

Considerando la adopción generalizada de sistemas de protección de datos en América del Sur, sobre  el ejemplo de la GDPR europeano, especialmente en Chile, y ahora prometidas innovaciones en derechos digitales, los Estados Unidos parece cada vez más alienado como una nación que no está dispuesta a obligar a la corporatocracia a ceder a las necesidades de las personas y los derechos humanos.

HT @ Observacom.

'Don't panic,' lawyers say, as Oz High Court clears way for website liability over defamatory user comments

The High Court of Australia last week greenlit defamation claims against website operators for user comments, the latest evidence of crumbling global immunity doctrine represented in the United States by the ever more controversial section 230.

There is plenty news online about the Aussie case, and I did not intend to comment.  For the academically inclined, social media regulation was the spotlight issue of the premiere Journal of Free Speech Law.

Yet I thought it worthwhile to share commentary from Clayton Utz, in which lawyers Douglas Bishop, Ian Bloemendal, and Kym Fraser evinced a mercifully less alarmist tone when they wrote, "don't panic just yet."

The Australian apex court extended the well known and usual rule of common law defamation, when not statutorily suspended: that the tale bearer is as responsible as the tale maker.  In the tech context, in other words, "[b]y 'facilitating, encouraging and thereby assisting the posting of comments' by the public," the defendants, notwithstanding their actual knowledge or lack thereof, "became the publishers," Bishop, Bloemendal, and Fraser wrote.

But it's a touch more complicated than purely strict liability.  "What is relevant is an intentional participation in the process by which a posted comment may become available to be accessed by other Facebook users," Bishop, et al., opined.  "So does that mean you should take down your corporate social media pages? That would be an over-reaction to this decision."

The lawyers emphasized that this appeal was interlocutory.  On remand in New South Wales, the media defendants may assert defenses, including innocent dissemination, justification, and truth.  Bishop, et al., advise:

In the meantime, if your organisation maintains a social media page which allows comments on your posts, you should review your monitoring of third-party comments and the training of your social media team in flagging and (if necessary) escalating problems to ensure you can have respectful, non-defamatory conversation with stakeholders.

Funny they should say so.  Coincidentally, I gave "feedback" to Google Blogger just Friday that a new option should be added for comment moderation, something like "archive," or "decline to publish for now."  The only options Google offers are spam, trash, and publish.

I have two comments posted to this blog in recent years that I hold in "Awaiting Moderation" purgatory, because they fit none of my three options.  Every time I go to comment moderation, I have to see these two at the top.  The comments express possible defamation: allegations of criminality or otherwise ill character about third parties referenced on the blog.  I don't want to republish these comments, because I do not know whether they are true.  But I don't want to trash them, because they are not necessarily valueless.  Moreover, they might later be evidence in someone else's defamation suit.

I moderate comments for this blog, so I don't think it's too much to ask the same of anyone else who publishes comments, whether individual, small business, or the transnational information empires that peer over my shoulder.  

I do worry, though, about how that works out for the democratizing potential of the internet.  I'm trained to recognize potentially defamatory or privacy invasive content; I've done it for a living.  Are we prepared to punish the blogger who contributes valuably to the information sphere, but lacks the professional training to catch a legal nuance?  Or to pay the democratic price of disallowing dialog on that writer's blog?  As a rule, ignorance of the law is no excuse, in defamation law no less than in any other area.  But understanding media torts asks a lot more of the average netizen than knowing not to jaywalk.

I don't profess answers, at least not today.  But I can tell that the sentiment of my law students, especially those a generation or more younger than I, is unreticent willingness to hold corporations strictly liable for injurious speech on their platforms.  So if I were counsel to Google or Facebook, I would be planning for a radically changed legal future.

SDNY rules against Locast, knifes beleaguered free TV

[UPDATE: At 9:47 a.m. today, Thursday, Sept. 2, I received word that Locast is suspending operations, effective immediately.]  

Locast, an online retransmitter of broadcast television, and the American public together suffered a major blow on August 31, as the federal district court in New York handed partial summary judgment to ABC, CBS, Fox, and NBC in the networks' copyright infringement lawsuit.

Locast has irritated me, but only for not expanding fast enough.  Where I live, near Providence, R.I., the service is not available.  It is available in New York to the south and Boston to the north, but access is strictly geo-fenced.  As a result, my family cannot see free broadcast TV without springing for an expensive subscription to a cable service or streaming-channel consolidator.

That's not really Locast's fault.  Broadcasters have reduced their power over the years, making free TV incrementally more difficult to access.  I live just nine miles from the broadcast towers that serve the Rhode Island state capital, but I cannot receive any signal with an interior or window-mounted antenna.

Indeed, the networks seem to want out of the broadcast game altogether.  Kickbacks from online consolidators such as Hulu Live and YouTube TV, and the networks' profits from their own services, such as Paramount+ (and Hulu Live, in part), are more lucrative than broadcasting and come with no FCC regulatory strings attached.  Local affiliates, including vital broadcast news outlets, fall through the cracks, wreaking further havoc in our information market, but that's no matter to the bottom line.  Locast threatened to breathe life back into the corpse of free TV, so the networks pursued the service with a vengeance. 

Locast is a non-profit, and its "business" model is simple.  It sets up a technology hub in a place such as Boston and converts local broadcast signals to online streams.  Home cord-cutters thus have their access to free TV restored through the internet service they already have, no antenna needed.

On the face of it, of course, this business model would constitute copyright infringement for copying and redistributing the broadcast signals.  But Congress, in a rare showing of commitment to the public interest rather than to the profit margins of our corporate overlords, built an exemption into the Copyright Act.  Governmental or nonprofit organizations are permitted to retransmit "without any purpose of direct or indirect commercial advantage, and without charge to the recipients of the secondary transmission other than assessments necessary to defray the actual and reasonable costs of maintaining and operating the secondary transmission service."

Locast is freely available and supported only by voluntary donations.  But streaming is interrupted at 15-minute intervals by 15-second pleas for donations.  Like the ad-free versions of pay-TV services, Locast offers absolution from these interruptions in exchange for a minimum "donation" of $5 per month.  The $5-donation model proved sufficiently successful that Locast was able to cover its operating costs and use the excess to expand to new markets.

And that, expansion, was Locast's sin, in the eyes of the district court.  Judge Louis L. Stanton opined that Congress could have written "maintaining and operating and expanding" into the statutory exemption, but did not.  So Locast's dedication of additional accounts received to expansion was fatal to its claim of copyright exemption.

I find the court's reading of the statute exceedingly cramped.  Locast plainly is spending money to do precisely what Congress intended: making free TV available to people who cannot receive it without hiring a contractor to install an antenna tower.  That the books must balance within each micro-market rather than across live markets, in the utter absence of evidence that a dime has been diverted to any other objective, absurdly splits hairs.

Locast lawyers, joined by the Electronic Frontier Foundation, say they are examining the ruling.  Locast announced yesterday that it is for now ceasing streaming interruptions requesting donations. 

There are ways that Locast can work around its current predicament, I reason. Locast has been supported by some major corporate donors who are not old-school TV insiders, such as AT&T, which contributed $500,000.  Internet service providers such as AT&T benefit from Locast, because retransmissions are streamed into homes, rather than broadcast.  With more careful balancing of the books, it should be possible, if cumbersome, to parse operations between discrete markets and to raise capital to support expansion directly.

It's a shame that such gamesmanship should be required for what is clearly a public service.  And a bigger problem might remain for American information and entertainment consumers in the ongoing, if prolonged, death throes of free TV.  We might hope that Congress would obviate the fray with bold measures that would reinvigorate the landscape of electronic expression by enhancing public-interest limitations on digital intellectual property and guaranteeing access to the internet for all Americans.

We also might hope to see pigs take flight.

The case is American Broadcasting Cos. v. Goodfriend, No. 1:19-cv-07136 (S.D.N.Y. Aug. 31, 2021). I bet Judge Stanton is one of those people who has both cable and Fubo and can't use either one unless someone helps him with the remote.

Chile reflexiona sobre los derechos digitales en desarrollo de nueva constitución

Foto por jpereira via The Loop (c. 2019; CC no especificada)

[English.] La creación de una nueva constitución está en marcha en Chile, y los derechos digitales podrían figurar de manera importante en un nuevo modelo de derechos civiles.

Los votantes chilenos pidieron una convención constitucional en una votación de 2020. La actual constitución de 1980 fue redactada bajo la dictadura de Pinochet. Entró en vigor con el fin del régimen de Pinochet en 1990 con la transición del país a la democracia, pero su texto original y sus muchas enmiendas nunca han sido verdaderamente un producto de la democracia. En contraste, la presente convención se desarrolla con una asombrosa representación de la diversidad chilena, incluidos los pueblos indígenas, casi sin precedentes en la historia de las democracias occidentales.

Chile tiene un historial de marcar el ritmo legal para América Latina. Chile y Costa Rica fueron inusuales en la experiencia latinoamericana por no haberse convertido en una guerra civil después de la independencia. Esa estabilidad suministró un terreno fértil para el desarrollo legal. Andrés Bello elaboró el código civil del país, siguiendo el modelo francés, en 1857. El código Bello fue muy influyente en el continente y anima el derecho civil latinoamericano todavía hoy en día. Costa Rica se convirtió en un innovador en derechos humanos en el sistema interamericano en el siglo XX.

Una propuesta de línea de base en el proceso chileno exige como mínimo el acceso a internet como un derecho humano. La realización del derecho requeriría el desarrollo de la infraestructura de internet en todo el vasto país, 2,653 millas de norte a sur, abarcando desiertos y montañas. La responsabilidad del gobierno sería sustancial. No se podía dejar que el sector privado desarrollara la infraestructura de internet con los márgenes de ganancia derivados de la densidad de población, una limitación que ha atrofiado la penetración de Internet de alta velocidad en los Estados Unidos.

Pero el acceso a internet es solo un mínimo, y hay muchas otras propuestas sobre la mesa que llevarían los derechos humanos convencionales, como la libertad de expresión y la privacidad, al mundo en línea. Muchos países han reconocido aspectos de los derechos humanos convencionales en el entorno en línea. Incluso en los Estados Unidos, los tribunales han reconocido que las órdenes judiciales civiles y penales que limitan el acceso de una persona a internet pueden contravenir los derechos civiles si no se adaptan estrictamente.

La idea que el acceso a Internet para recibir información, en lugar de hablar, ha sido una propuesta precaria en los derechos humanos, de la misma manera que los regímenes modernos de derechos humanos siempre han luchado con el acceso a la información (ATI). Hace diez años, un informe del Relator Especial de la ONU sobre la libertad de expresión describió acertadamente el acceso a internet como un derecho "habilitador" ("enabler" right). En los últimos años, expliqué esta caracterización del ATI en el marco moderno de los derechos humanos.

Participantes del proceso constitucional chileno, coordinado por Patricio Urriola Aballai, director ejecutivo de la Fundación Abriendo Datos, publicaron en mayo una "Carta Magna Digital" que explora el potencial de los derechos digitales para ser reconocidos como derechos humanos.  HT @ Observacom.

Birth announcement: Ontario court is reluctant parent of new tort of 'internet harassment'

UNESCO image CC BY-SA 4.0

The tort world is abuzz with a court decision in Ontario that has birthed a new common law cause of action for online harassment.

The facts that gave rise to the case were extreme.  The defendant was the subject of a New York Times story (subscription) on January 30 about the difficulty of remediating online reputational harm.  The perpetrator of the harassment targeted some 150 victims, including children, spat accusations ranging from fraud to pedophilia, and was adjudged a vexatious litigant and jailed for contempt of court.  Floundering in a dearth of effective enforcement mechanisms, the Ontario Superior Court of Justice (para. 171) recognized a "tort of harassment in internet communications" that means to be narrow:

where the defendant maliciously or recklessly engages in communications conduct so outrageous in character, duration, and extreme in degree, so as to go beyond all possible bounds of decency and tolerance, with the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff, and the plaintiff suffers such harm.

The case is Caplan v. Atas, 2021 ONSC 670 (Ont. Super. Ct. Jan. 28, 2021).  Jennifer McKenzie and Amanda Branch at Bereskin & Parr have commentary.  Hat tip to Dan Greenberg for bringing the New York Times story to my attention.

Jarosiński to talk cloud law, from Europe to Zoom, in free transnational legal webinar series

Jarosiński

Wojciech Jarosiński, a friend and colleague, will speak in November on "The Cloud: A New Legal Frontier."  The talk is part of a free webinar series of the American Law Program (ALP) of the Columbus School of Law at The Catholic University of America (CUA) in Washington, D.C., and the law school, foreign program office, and American law student society at Jagiellonian University (UJ) in Kraków, Poland.

In just under a decade, armed with master's-in-law-degrees from UJ and CUA, attorney Jarosiński has risen to prominence as an accomplished attorney in transnational business.  Now a partner at the Maruta Wachta law firm in Warsaw, he heads the dispute resolution practice group, leading or supervising a portfolio of more than 200 technology cases valued at more than US$2bn.  At the same time, I know Wojtek to be a gifted and globally minded person.  In his spare time, he is a co-founder, expedition planner, and skipper for Vertical Shot Expeditions, a wilderness adventure company offering photography expeditions in remote locations from pole to pole.

Here is the description of the talk, which will be in English.

Until recently, the cloud was mainly storage for surplus holiday photos. Today, the cloud plays a vital role in commerce: allowing businesses to thrive in geographically distant markets, limiting operational costs, and enabling workplace flexibility for employees. These applications, though, bring sleepless nights for judges who try to apply existing law to a new reality.

This webinar will begin with a brief introduction to the cloud’s basics: where the cloud is located, what is stored there, and whether it is even possible to avoid the cloud in today’s business world. Then, the session will move to opportunities for lawyers to guide their clients through cloud regulations—highlighting the importance of legal education in cross-border legal concepts. Finally, the webinar will consider dispute resolution regarding cloud-based services. The webinar will consider Zoom, Apple Mail, Amazon Web Services, Oracle, and many other popular services, as well as the Court of Justice of the European Union Schrems II decision and the U.S. Cloud Act. 

The talk is scheduled for Tuesday, November 24, at 1 p.m. U.S. EST (6 p.m. GMT, 7 p.m. CET).  All of the talks in the series are free, but advance registration is required.  

Here is the full schedule.  [UPDATED, Oct. 22: All fall dates are now open for registration.]

• OCTOBER 21 – Marc Liebscher, "Wirecard, Europe’s Enron? – Auditor Liability to Investors in Corporate Fraud"
• OCTOBER 28 – Sarah H. Duggin, "Why Compliance Matters – The Increasing Significance of the Compliance and Ethics Function in Global Corporations"
• NOVEMBER 19 – Roger Colinvaux, "Nonprofits in Crisis: Changes to Giving Rules and Politicization"
• NOVEMBER 24 – Wojciech Jarosiński, "The Cloud – A New Legal Frontier"
• DECEMBER 2 – Justyna Regan, "Data Privacy in the US: Where We Stand Today and Predictions for the Future"
• DECEMBER 9 – Megan M. La Belle, "Artificial Intelligence and Intellectual Property"

I'm proud to claim Wojtek as an alum of one of my classes in 15 years' teaching in the CUA-UJ ALP, though I doubtless have naught to do with his success.  Regrettably, the ALP is not running live this year, because of the pandemic.  Lemonade from lemons, though, is the fascinating work being produced by the Law Against Pandemic project (CFP, CFP en español).  I was privileged meanwhile, in May, to offer an item on American tort law to the pilot iteration of the ALP webinar series.

View this post on Instagram

Our fearless leader @wjarosinski relaxing on a Pripyat rooftop with all his essential gear. #verticalshotexpeditions #chernobyl #pripyat #adventureawaits #exploretocreate #pelicase #peliproducts #gearpatrol #thenorthface #neverstopexploring #peakdesign #mypakage #adventureisoutthere #photographyadventures

A post shared by Vertical Shot Expeditions (@verticalshotexp) on Aug 9, 2017 at 6:36am PDT