Media Law in the News IV

http://www.nydailynews.com/news/national/mathers-lawyers-push-no-jail-time-snapchat-body-shaming-case-article-1.2974758

Part I - Summary of Issue 
Former Miss May 2014, Playboy model, Dani Mathers is involved in an invasion of privacy case. The case centers around a Snapchat photograph of a nude elderly woman that Mathers took and uploaded in a gym locker room at LA Fitness. Body shaming the woman, Mathers shared the image with her followers on Snapchat with a caption reading, "If I can't unsee this then you can't either", along with a selfie. She has pleaded not guilty to an invasion of privacy charge that carries up to six months in jail. Mathers claimed that she accidentally posted the photo by pressing the wrong button, never intending to share it publicly and that she deeply regrets her actions, acknowledging that body shaming is wrong. Her lawyers are fighting for a no jail diversion program. 

Part II - Legal Questions Raised 
Mathers is being charged with an invasion of privacy misdemeanor. Specifically violating the tort of intrusion. Intrusion involves violating a person's reasonable expectation of privacy. Defined as the intentional invasion of a person's solitude or a person's private concern. Intrusion may be physical such (for example, walking into someone's home uninvited) or technological (for example, hacking iPhone). Unlike libel intrusion has nothing to do with publication but only with how the information/content at hand was obtained. Did the woman photographed have a reasonable expectation to privacy in a gym locker room? By photographing and uploading a picture of the woman did Mathers violate the woman's reasonable expectation to privacy? What category of space is a gym locker room? Is it a private room? 

Part III - Relevant Doctrine/Precedent 
In the plaintiff's case for intrusion one must prove that the plaintiff had a reasonable expectation of privacy and that the intrusion was highly intrusive and highly offensive to a reasonable person. In public and quasi public places people have no reasonable expectation of privacy. Generally in such places there is no intrusion if you take a photograph of anything you see. However, people do have a reasonable expectation of privacy in private places, including homes, private offices, hospital rooms, etc. The area in which Mather is likely to be found guilty is video voyeurism law. Such laws dictate that it is illegal to secretly make videos or photos of a person in private places, such as a bedroom or bathroom. Adopted in WA in 2008, this law has also been adopted in California, the jurisdiction in which the case is being dealt with. It would seem that based on her actions Mathers did violate the woman's reasonable expectation to privacy, as California Penal Code section 647(j) prohibits non-consensual viewing, filming, photographing, videotaping, or recording of persons in private areas, where the person has an expectation of privacy (such as someone using the bathroom or in a changing room). 

Part IV - Conclusion 
As the gym locker room is deemed to be an area in which a person has a reasonable expectation of privacy, akin to a changing room, in addition to the fact that Mathers took the photograph without the woman's consent, it would seem that she is in fact guilty of invasion of privacy by intrusion. The argument that she did not intend to do so seems incredibly weak, as the steps one would take to produce the snapchat in question (add a caption, make the caption big, add a filter) involves more than one step and pressing one wrong button. Considering the purposeful process it would require to take and produce such a photo it is highly unlike it was accidental. Additionally, whether or not Mathers intended to share it is irrelevant as this is not a libel case. Disregarding her intent of publication focusing only on the way in which the photograph was obtained it seems clear that Mathers' actions are in violation of video voyeurism laws and that she is in fact guilty of an invasion of privacy by intrusion.

Ch 12: Intellectual Property

Topic Overview
There are laws in place in order to protect one's physical property in addition to one's intangible property. Intangible property is considered under the law as intellectual property. Trademark laws protecting branding such as product names, ads, movies, books, and cartoon characters. Patent laws protect inventions. Patent, trademark, and copyright laws are all categorized as intellectual property laws. These laws serve to ensure that individuals will benefit financially from their creations and continue to do so.

Defining Key Terms
Intellectual Property Laws: The legal category including copyright, trademark, and patent laws. 

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

Plagiarism: Using another's work or ideas without attribution. 

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

Public Domain: The sphere that includes material not protected by copyright law and therefore available for use without the creator's permission. 

Infringement: The unauthorized manufacture, sale or distribution of an item protected by copyright patent or trademark law. 

Statutory Damages: Damages specified in certain laws. Under these laws, copyright being an example, a judge may award statutory damages even if a plaintiff is unable to prove actual damages. 

Fair Use: A test courts use to determine whether using another's copyrighted material without permission is legal or an infringement. Also used in trademark infringement cases. 

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

Types of Marks: A trademark is only protected if it is distinctive. There is a spectrum of distinctiveness in trademark law. The more unique or distinct a mark, the more likely it will be eligible for trademark registration. 

• Fanciful marks - invented marks, including made up words (for example, Lexus) most likely receive trademark protection. 
•  Arbitrary marks - words that have ordinary meanings unrelated to the product or service (for example, Apple). 
• Suggestive  marks - marks that suggest a product's source or manufacturer's business but do not describe what the product is (for example, Playboy). 
• Descriptive marks - marks that describe the product or service and leave little to a consumer's imagination and that must attach a distinctive meaning to the product or service (called secondary meaning) to be trademarked. 

Tacking: Allows a trademark owner to slightly alter a trademark without abandoning ownership of the original mark. 

Important Cases
Metro Golden Mayer Studios Inc. v. Grokster Ltd. (2005): The Court ruled in favor of MGM. In a unanimous decision the Court ruled that companies that distributed software and promoted software to infringe copyrights, were liable for the resulting acts of infringement. Secondary liability doctrines. 

American Broadcasting Companies Inc. v. Aereo Inc. (2014): The Court ruled in favor of ABC. Deeming Aereo to be broadcaster not just an equipment provider, thus violated copyright laws. 

Relevant Doctrine
Statute of Anne: The first copyright law, adopted in England in 1710, protected authors' work if they registered them with the government. 

Berne Convention: The primary international copyright treat6s adopted by many countries in 1888. Later adopted by the US in1988. 

The 1976 Copyright Act: Copyright protection applies to "original works of authorship" that are "fixed in any tangible medium of expression". The U.S. Copyright Office suggests viewing these categories broadly. For example, computer software is considered a literary work and is protected. 

Works that are protected by copyright: 

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

Exclusive Rights in Copyrighted Works: The copyright holder with exclusive rights may do the following: 

• Reproduce the copyrighted work
• Prepare derivative works based upon the copyrighted work 
• Distributed copies of the copyrighted work to the public by sale or other transfer of ownership, or by retail lease or lending (except for CDs and Computer Software) 
• Perform the copyrighted work publicly in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual works. 
• Perform the copyrighted work publicly by means of a digital audio transmission int he case of sound recordings.

Moral Rights: Under U.S. copyright law, the rights of certain artists - creators paintings, drawings, prints, sculptures, and art photographs - to require that their names be associated with their works, to forbid others from claiming to be creators of the works and to prevent intentional harm to or modification of a work that would harm the artists' reputation. 

First Sale Doctrine: Once a copyright owner sells a copy of a work, the new owner pay possess or transfer or otherwise dispose of that copy without the copyright owner's permission. 

Infringing Copyright: A copyright plaintiff must prove the following:

• The work used is protected by a valid copyright - meaning it is an original work fixed in a tangible medium
• The plaintiff owns the copyright
• The valid copyright is registered with the Copyright Office
• And either: 
• There is evidence the defendant directly copied the copyrighted work, or 
• The infringer had access to the copyrighted work, and the two works are substantially similar

Fair Use Defense: For what purpose was the copyrighted work used without permission?

• What was the nature of the copyrighted work that was used without permission?
• How much and what portion for the copyrighted work was used without permission?
• What effect did the unauthorized use have on the copyrighted work's market value?

Transformative Use: Transformative Use is on the primary defenses used today when arguing fair use. Courts must also apply the other fair use factors (discussed in this section) to transformative use, but often it is the transformative use determination that carries the most weight. Transformative use is generally fair use if the answer to two questions is "yes": 

• "Has the material you have taken from the original work been transformed by adding new expression of meaning?" 
• "Was valued added to the original by creating new information, new aesthetics, new insights, and understandings?"

Safe Harbor: The takedown notification provision of the Digital Millennium Copyright Act that protects interest Service Providers and video sharing websites from claims of infringement when: 

• They did not know the content infringed someone's copyright 
• Did not earn money directly from the posted material 
• Promptly complied with a takedown notice. 

Lanham Act: Protects trademark from infringement. Under the Lanham Act, trademark confusion occurs when the mark is likely to cause consumer confusion in the marketplace.

Current Issues or Controversies

How new technologies will be dealt with in the eye of the law. 

My Questions & Concerns
1. Does copyright/patents extend to other countries? Is there copyright jurisdiction? 

References

Trager, R., Russomanno, J. & Ross, S.D. (2012), The law of journalism and mass communication. Thousand Oaks, CA: Sage Publications.

Media Law in the News III

http://www.dailyreportonline.com/id=1202779325292/Judge-OKs-Libel-Suit-Against-CNN-Over-Investigative-Report?mcode=0&curindex=0&curpage=1

Part I - Summary of Issue
A libel case against CNN will go forward after an Atlanta federal judge found the evidence against the cable network to be substantial. The plaintiff is David Carbone, former CEO of St Mary's Medical Center. The case centers around a report CNN did investigating children's deaths at the Florida hospital. Carbone is seeking $30 million in damages from CNN, claiming that a faulty statistical analysis tainted the 2015 investigation titled, "Secret Deaths: CNN Finds High Surgical Death Rate for Children at a Florida Hospital". As a result the hospital's pediatric cardiac surgery program shut down and Carbone was forced to resign and has since been unemployed. As the case proceeds it will likely turn its focus to how CNN compiled and interpreted the statistics used in its investigation, boiling down to an "academic disagreement over statistical methodology". The judge held that Carbone's claims centering around the statistics cited by CNN presented factual questions that should be decided by a jury. Carbone contended that CNN's reporting on the hospital personally defamed him as he was at the time the hospital's chief administrator, having hired the surgeon in question in regards to the investigative report. CNN published and broadcasted Carbone's name several times in connection with the investigation. Carbone has also claimed that CNN continued to report that Florida's Agency for Health Care Administration had launched an investigation of St. Mary's sparked by its reports despite the agency issuing a statement declaring that it was not investigating the hospital. 

Part II - Legal Questions Raised
Whether or not Carbone should be considered a public figure has sway on the case. Carbone's role as the former CEO of St. Mary's should be questioned. Criteria include: plaintiff occupies a position of real or apparent importance, the public cares about the plaintiff's qualifications, does the plaintiff has access to media, does the plaintiff accept risk of media criticism. It is possible he may be considered as a public figure too, such criteria include that public figures are involved in resolving important public questions, or through their fame, help shape public opinion. If determined to be a public official/figure Carbone will need to prove actual malice, building a wall of bricks as evidence. As a private citizen he only needs to prove negligence.

Part III - Relevant Doctrine/Precedent
Going through the plaintiff's case for libel Carbone's case appears to meet all of the areas. As the report appeared on CNN, a form of mass media, publication is assumed. As it directly names and includes pictures of Carbone identification is met, as at least one person would reasonably believe the material is of and concerning the plaintiff. Defamation is also fulfilled as Carbone has demonstrated injury in his profession in his resignation and unemployment. Fault as discussed in the paragraph above is depends on Carbone's status as a public or private figure. The jury will decide on the dispute over statistical methodology, determining whether the CNN report is substantially true, capturing the "gist" or "sting" charge, examining the falsity or truth regarding CNN's assertion that St. Mary's mortality rate for pediatric cardiac surgery is three times the national average. Carbone contents that in calculating the statistic CNN compared "apples to oranges", comparing the number of more risky pediatric open heart surgeries at St. Mary's to a national average which included both risky and less risky heart surgeries. Carbone stated that upon pointing out the inaccuracy CNN "doubled down" on the original statement rather than correcting it, a fact that may potentially be used as a brick of evidence in proving actual malice or even in order to prove negligence. CNN's continued claim that the AHCA was launching a investigation appears to be blatantly false as the agency itself issued a statement asserting the opposite, that they were not investigating St. Mary's. Damages for actual injury may also be proven as Carbone lost his job as a result of the report and is now unemployed. 

Part IV- Conclusion
It seems that Carbone has a fairly solid case for libel. This specific case emphasizes the importance of the definition of falsity in a libel case, being that the statement is not substantially true, concerning the "gist"/"sting" of the charge rather than precise specificity. The importance of capturing the gist of the story over precision is highlighted here, hypothetically it would be inane to condemn CNN for its statement that St. Mary's mortality rate for pediatric cardiac surgery is three times the national average, when the mortality rate in actuality 2.98 times the national average. Nitpicking like this would be ridiculous. To me this case demonstrates and reiterates the necessity of considering whether or not a publication captured the gist of a story in examining its falsity. 

Ch 11: Obscenity, Indecency, and Violence

Topic Overview
Aside from the Supreme Court's legal definition of obscenity there is little agreement as to what should be protected and what should be illegal. Some argue for the criminilization of such material whereas others support it as a form of expression that should be protected under the First Amendment. This chapter covers the historical context and laws surrounding obscenity, indecency, and pornography.

Defining Key Terms
Pornography: A vague not legally precise term for sexually oriented material.

Indecency: A narrow legal term referring to sexual expression and expletives inappropriate for children on broadcast radio and television.

Obscenity: The dictionary defines it as relating to sex in an indecent, very offensive or shocking way. The legal definition of obscenity comes from Miller v. California - material is determined to be obscene if it passes the Miller test.

Prurient Interest: Lustful thoughts of sexual desires.

Patently Offensive: Term describing material with hard core sexual conduct.

Seriously Social Value: Material cannot be found obscene if it has serious literary, artistic, political, or scientific value determined using national, not local, standards

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

Child Pornography: Any image showing children in sexual or sexually explicit situations.

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

Important Cases
Miller v. California (1973): Concerning the distribution of adult material. Ruled in favor of California, finding Miller guilty. Redefined obscenity.

FCC v. Fox Television Stations Inc (2012): Concerning obscene language on Fox Television networks. The Court found the FCC regulations to be unconstitutionally vague.

Relevant Doctrine
Hicklin Rule: A rule taken from a mid 19th century English case and used in the United States until the mid 20th century that defines material as obscene if it tends to corrupt children. 

Miller/SLAPS Test for Obscenity (absolute): The government must show a work, considered in its entirety, 

• 1) Arouses sexual lust 
• 2) Is hard core pornography 
• 3) Has no serious social value

Pacifica Test for Indecency: The material must

• 1) Describe or depict sexual or excretory organs or activities and 
• 2) Be patently offensive as measured by contemporary community standards for broadcasting. 
• Several factors for determining if content is patently offensive: 
• 1) How explicitly or graphically the material describes sexual activities, 
• 2) Whether the material dwells on sexual activities 
• 3) Whether the material is meant to shock or sexually excite the audience.

Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act: Makes it illegal to provide someone with or request from someone an image that is indistinguishable from that of a minor. 

Children's Internet Protection Act (CIPA): This law stops money from going to schools and libraries that do not install "technology protection measures" on their computers accessing the Internet. 

Current Issues or Controversies

The balancing of freedom of expression and decency. At what point does one begin to infringe upon the other? Can the two co-exist? Should one have priority over the other?

My Questions & Concerns
1. This chapter focused heavily on video games, cable, and the internet. How is music content regulated? 

2. The way the internet and increased exposure to scandalous material is changing our definition as to what should be considered obscene. Are we becoming desensitized?
3. The punishment for autopornography doesn't seem fitting to the crime.

References

Trager, R., Russomanno, J. & Ross, S.D. (2012), The law of journalism and mass communication. Thousand Oaks, CA: Sage Publications.

Media Law in the News II

https://courthousenews.com/buzzfeed-apologizes-to-alleged-hacker-in-wake-of-libel-lawsuit/

Part 1- Summary of Issue
BuzzFeed’s decision to publish a dossier with unverified claims that a Russian tech guru executed cyber attacks on the Democratic party has resulted in a libel lawsuit brought on by plaintiff Aleksej Gubarev, whose name was released in BuzzFeed’s publication of the document. This dossier is said to have originated from a private source. BuzzFeed has since deleted the plaintiff’s name and apologized for releasing the man’s name but is standing by its decision to publish the document. The document in question contains substantiated reports that Gubarev and his company, XBT Holdings helped Russian intelligence agencies carry out cyber attacks on Democratic leadership. Supposedly compiled by a private firm as opposition research for the presidential race, the dossier contains a “slew of seemingly outlandish claims”, in addition to multiple sources attesting to Russian interference in the election. In regards to Gubarev, the document cites multiple dubious reports that his web hosting and development firms (XBT and Webzilla), “had been using botnets and porn traffic to transmit viruses, plant bugs, steal data and conduct ‘altering operations’ against Democratic Party Leadership”, reading “Entities linked to one Aleksei Gubarev were involved and he and another hacking expert, both recruited under duress by the FSB … we significant players in this operation. In its publication of the dossier BuzzFeed did include of a disclaimer of sorts prefacing the article by stating, “The allegations are unverified, and the report contains errors”. To date the lawsuit claims that BuzzFeed has not reached out to Gubarev for response on the cyber attack claims. Gubarev reports that since the publication of the defamatory material his reputation has been in “tatters”, claiming that his wife has been the victim of online harassment and that his family’s security has been compromised. Gubarev’s businesses have also suffered, reporting that they have sustained “harm to [their] previously unblemished reputations with their clients, lenders, vendors, and other”, alleging that “At least one lender has declined to do business with XBT and/or Webzilla based on the defamatory statements published by the Defendants”. Relevant to the case is whether Gubarev is considered to be a public figure out not, According to the lawsuit, Gubarev, who is married with three young children, “is not, in any way, shape, or form, a public figure”. Claiming that “outside of technology circles, he is not known at all”. This is a civil suit, the specific tort being defamation, categories of defamation including libel and

Part II - Legal Questions Raised
Gubarev status as a public figure or private citizen. Whether or not the Court deems Gubarev a public figure carries further implications as to how the case will proceed. Under the landmark Supreme Court ruling in New York Times v. Sullivan, libel plaintiffs deemed to be public figures are subject to a more difficult judicial standard, and typically have to prove “actual malice” on the part of a defendant. Actual malice referring to knowledge of a statement’s falsity, or reckless disregard for the truth. Some criteria to examine whether or not the plaintiff occupies a position of relor or apparent importance include whether or not the public cares of the plaintiff’s qualifications for, or performance in office, whether the plaintiff has access to media, and whether the plaintiff accepted risk of media criticism. While Gubarev is clearly not a public official, he may be found to be a limited purpose public figure. Limited purpose public figures while not household names become well known with regards to a particular issue. It is possible Gubarev may be found to be a limited purpose public figure within technology circles. If so the case would proceed so that Gubarev must prove actual malice, rather than negligence if he were to be found a private citizen. If the Court does find Gubarev to be a limited purpose public figure he will have to prove actual malice, which includes a knowledge of falsity and reckless disregard for the truth. Reckless disregard is shown by circumstantial evidence, building a wall of bricks.

Part III - Relevant Doctrine/Precedent

In this section I’ll be going through the elements of the plaintiff’s case for libel. The first area being Publication, concerning whether the document in question has been seen/heard by a third party which understands. In this case it is assumed as it involves mass media. Identification concerns whether the story is of and concerning the plaintiff. Proving identification in court involves at least of person reasonably believing the material was of and concerning the plaintiff. Identification can occur even if the plaintiff is not named or id the defendant didn’t mean to identify the plaintiff. As the plaintiff is clearly named in the document and has suffered backlash from those believing the story to be of and concerning the plaintiff it is evident that identification has occurred. Defamation concern injury to reputation, focusing on what others think about the plaintiff. Proving defamation in court requires that a substantial and respectable minority of the community thinks less of the plaintiff, shuns the plaintiff, or shows hatred or contempt for the plaintiff. This can be prove if the plaintiff is hurt in her job or profession and or if the plaintiff is accused of a serious crime. It would seem that Gubarev meets both qualifications. As he reports injury in his occupation, stating that “at least one lender has declined to do business with XBT and/or Webzilla based on the defamatory statements published by the Defendants”. In addition to being accused of a cyber attack which may potentially be considered a felony. Proving fault is contingent upon whether or not Gubarev is considered a public figure. If so, in proving actual malice he must build a wall of bricks. One such brick may be BuzzFeed’s failure to reach out to Gubarev for comment prior to publishing the article, another may be censoring other’s names in the document but not Gubarev, another may be failure to do an independent investigation on the dossier. If Gubarev is found to be a private citizen he only need prove negligence. Proving falsity in Court concerns whether or not the community would think differently of the plaintiff if the story were completely accurate. In Gubarev’s case it would seem so, especially considering the backlash suffered already from people believing the story to be true. Damage may be found in the injury Gubarev’s business suffered from losing clients. Damages may be necessary to compensate for business lost.

Part IV - Conclusion

After going through the elements of the plaintiff’s case it would seem that Gubarev is fairly likely to succeed in his suit against BuzzFeed, as he can prove all of the requirements of a libel case. Additional information to be considered include that the dossier originated from a private source. Due to this BuzzFeed may have lost the fair privilege or neutral reporting privileges had the dossier been obtained from a court record or other public document. I’m curious as to how the Court will determine Gubarev’s status as a public or private figure. Would it be possible to categorize Gubarev as an involuntary public figure? One made public by the spotlight of this case? May an individual be considered an involuntary public figure within the scope of a case which made them so?

Ch 10: Electronic Media Regulation

Topic Overview
This chapter covers electronic media regulation, across a variety of platforms, including mediums such as the Internet. Electronic media, specifically radio and TV must comply with regulations not applicable to print. Throughout history as new technological developments further media, new regulations must be implemented as the law attempts to keep up. 

Defining Key Terms
Electronic Media: Refers to broadcast and newer forms of media that utilize electronic technology or the digital encoding of information to distribute news and entertainment. Even though many newspapers are now distributed via the Internet, they are not considered electronic media because historically they have been in print form. 

Federal Communications Commission (FCC): An independent U.S. government agency, directly responsible to Congress, charged with regulating interstate and international communications by radio, television, wire, satellite, and cable. The Communications Act of 1934 established the FCC; its jurisdiction covers the 50 states, the District of Columbia, and U.S. possessions. 

Federal Radio Commission (FRC): A federal agency established by the Federal Radio Act in 1927 to oversee radio broadcasting. The Federal Communications Commission succeeded the FRC in 1934. 

Notice of Proposed Rulemaking: A notice issued by the FCC announcing that the commission is considering changing certain of its regulations or adopting new rules. 

Broadcasting: Defined by the Communications Act of 1934 as use of the electronic spectrum to send signals to many listeners and viewers simultaneously. 

Lowest Unit Rate: The maximum rate a broadcaster or cable system may charge a politician for advertising time during the 45 days before primary elections and the 60 days before general elections. 

PEG access channels: Channels that cable systems set aside for public, educational, and government use. 

Net Neutrality: The principle that holds that ISPs cannot charge content providers to speed up the delivery of their goods - all Internet traffic is treated equally. 

Important Cases
Red Lion Broadcasting Co. Inc. v. Federal Communications Commission (1969): Ruled unanimously in favor of the FCC, asserting that the Fairness Doctrine was consistent with the First Amendment. 

Turner Broadcasting System Inc. v. Federal Communication Commission (1994): The court ruled that the must carry provisions were content neutral, ergo not a violation of the First Amendment. This case established that cable television companies were First Amendment speakers. 

Relevant Doctrine
Fairness Doctrine - television and radio stations had to:

• 1. Air programs discussing public issues and 
• 2. Include a variety of views about controversial issues of public importance. 

Retransmission Consent: Part of the federal cable television law allowing broadcast television stations to negotiate. 

Spectrum Scarcity: The limitation that arises because only a certain number of broadcast radio and television stations in a geographical area may use the spectrum without causing interference. Spectrum scarcity is the primary reason courts allow Congress and the Federal Communications Commission to regulate broadcasters. 

Zapple Rule: A political broadcasting rule that allows a candidate's supporters equal opportunity to use broadcast stations if the candidate's opponent's supporters use the stations. 

Nonpublication Rules: FCC regulations requiring cable systems not to carry certain programming that is available through local broadcast stations. 

Open Internet Order (2015) - Bans three practices:

• Throttling: Broadband providers cannot impair or degrade Internet traffic on the basis of content, applications of services. 
• Paid Prioritization: No "fast lanes". Put another way, broadband providers may not favor some traffic over other traffic, and they may not prioritize delivery of content and services by their affiliates. 
• Blocking: Broadband providers may not block access to legal content, applications or services. 

Current Issues or Controversies
Differing views on Net Neutrality and the Open Internet Order. It seems like this issue is predicated on two essentially opposing views of what the Internet should be. The opposing views remind me of positive and negative liberty. 

My Questions & Concerns
1. What is the difference between an independent U.S. government agency and a federal agency? FCC and FRC? Are they both government agencies? 
2. Will net neutrality hurt or help the Internet? 

References

Trager, R., Russomanno, J. & Ross, S.D. (2012), The law of journalism and mass communication. Thousand Oaks, CA: Sage Publications.

Ch 6: Protecting Privacy

Topic Overview

This chapters focuses on concerns over privacy and government and press interference with one's privacy. Marketers, data brokers, and other online businesses also pose a threat to privacy. Many popular sites install key tracking devices, building a profile to sell to advertisers. Cell phone technology and privacy also come under concern as our mobile phones are yet another avenue for sensitive personal information to be leaked. The FTC is the main government agency that protects consumer privacy and enforces federal privacy laws. In response to growing concerns over consumer privacy the FTC has encouraged companies to strive for transparency in how they collect and use consumer information and that given the growing number of connected devices world wide, security should be a priority for companies developing devices.

Defining Key Terms
Appropriation: Using a person's name, picture, likeness, voice, or identity for commercial or trade purposes without permission. 

Commercialization: The appropriation tort used to protect people who want privacy. 

Right of Publicity: The appropriation tort protecting a celebrity's right to have his or her name, picture, likeness, voice, and identity used for commercial or trade purposes. 

Intrusion Upon Seclusion: Physically or technologically disturbing another's reasonable expectation of privacy. 

Reasonable Person: The law's version of an average person. 

Public Record: A government record, particularly one that is publicly available. 

Important Cases
Cox Broadcasting Corp v. Cohn (1975): Brought by the father of a seventeen year old rape and murder victim against Cox Broadcasting for including his daughter's name in the report on the basis of the Georgia Privacy Statue. Court ruled in favor of Cox Broadcast, stating that the statue was unconstitutional. 

Riley v. California (2014): Landmark Supreme Court case ruling that the warrantless search and seizure of the digital contents of a cell phone is unconstitutional during an arrest. 

Katz v. United States (1967): Involving the eavesdropping on Katz by federal agents. Which served to convict him on gambling related charges. Katz challenged this convication on the basis that the recording could not be used as evidence. The Court ruled in Katz's favor stating that Katz is entitled to Fourth Amendment protection for his conversations and that a physical intrusion into the area he occupied was unnecessary to bring the Amendment into play. 

Relevant Doctrine
Constitutional Right to Privacy 

• Protection comes from the Third, Fourth, Fifth, and Fourteenth Amendments. 
• The Constitution protects from governmental invasion of privacy. 
• Harlan's reasonable expectation of privacy test from Katz establishes a Fourth Amendment right to privacy when: 
• 1. A person exhibits an actual expectation of privacy, and 
• 2. Society is prepared to recognize this expectation as reasonable.

The Four Privacy Torts

• 1. False Light: Intentionally or recklessly publicizing false information a reasonable person would find highly offensive. 
• 2. Appropriation: Using another's name or likeness for advertising or other commercial purposes without permission (Appropriation includes two different torts, commercialization and right of publicity). 
• 3. Intrusion: Intentionally intruding on another's solitude or seclusion. 
• 4. Private Facts: Publicizing private, embarrassing information. 

False Light: A privacy tort that involves making a person seem in the public eye to be someone he or she is not. Several states do not allow this.
Plaintiff's Case

• Publicizing 
• False Facts
• About someone who is identified
• That would be highly offensive to a reasonable person
• Acting intentionally or recklessly (according to Supreme Court) or negligently if plaintiff is a private citizen.

Defense

• Libel defenses

Appropriation - 2 Torts:

• Commercialization: Applying to someone who wants to remain private and unknown except to family and friends. Using this person's name, picture, likeness, or voice for advertising or other commercial purposes without permission is commercialization. It is invading this person's privacy, causing emotional distress. 
• 2. Right of Publicity: Applying to someone who wants to be known far and wide, to be a celebrity - a musician, athlete, movie tar, or television personality. Using this person's name, picture, likeness, voice, or identity - or a look alike or sound alike - for advertising or other commercial purposes without permission invades this person's right of publicity. It diminishes the person's economic value. 

Commercialization 

Plaintiff's Case 

• Using a person's name, picture, likeness (drawing, avatar), or voice or identity.
• For advertising or other commercial uses
• Without permission 

Defenses

• News
• Public domain 
• First Amendment 
• Incidental use
• Advertising for a mass medium 
• Consent

Artistic Relevance Test: A test used to determine whether the use of a celebrity's name, picture, likeness, voice, or identity is relevant to a dispute work's artistic purpose. Used in cases regarding the infringement of a celebrity's right of publicity. 

Transformative Use Test: A test used to determine whether a creator has transformed a person's name, picture, likeness, voice, or identity for artistic purposes. If so, the person cannot win a right of publicity suit against the creator. 

Predominant Use Test: In a right of publicity lawsuit, a test to determine whether the defendant used the plaintiff's name or picture more for commercial purposes or protected expression. 

Intrusion by Trespass

Plaintiff's Case

• A reasonable expectation of privacy 
• Intentional intrusion on the privacy 
• The intrusion would be highly offensive to a reasonable person 

Defense

• Consent 

Private Facts: The tort under which media are sued for publishing highly embarrassing private information that is not newsworthy or lawfully obtained from a public record. 

Plaintiff's Case

• Publicizing
• Private, intimate facts
• That would be highly embarassing to a reasonable person 
• And are not of legitimate concern to the public 

Defenses

• First Amendment: Truthful information lawfully obtained from public records 

Current Issues or Controversies
The issue of revenge porn sites. It seems ridiculous that such sites are legal, even more so that one would have to pay $250 to remove pictures or videos from the site. It immediately seems deeply inherently wrong. On an individual case by case level perhaps an IIED suit would be relevant, but as to how such sites should be condemned as a whole I am at a loss. 

My Questions & Concerns
1. What does it mean to be technologically disturbed? 

References

Trager, R., Russomanno, J. & Ross, S.D. (2012), The law of journalism and mass communication. Thousand Oaks, CA: Sage Publications.

Media Law in the News

http://www.seattletimes.com/seattle-news/education/uw-on-edge-over-perception-of-rise-in-hate-speech/

Following Breitbart news editor Milo Yiannopoulos’ speech and the recent inauguration of President Trump, the University of Washington has reported a sharp rise in perceptions of racial tension and hate speech on campus. UW spokesperson Norm Arkans has acknowledged that Trump’s election and inauguration seems to have incited a wave of hate speech, as the university struggles to respond appropriately. Professor of psychology and former undergraduate at the UW, Chris Crandall’s research shows that President Trump’s election did not create new biases, rather it unleashed the expressions of such prejudices. Nationwide there is a greater sense of willingness to openly express bias and prejudice, predicated on the election of Donald Trump. Crandall reports that this sentiment has extended to people of various political parties, including Democrats who as his research portrays earlier felt it was wrong to express bias but now believe it is acceptable. Yiannopoulos’ speech at the UW further touched upon this concept, as he concluded by stating that Americans are becoming hypersensitive, raising a generation who can’t handle critical words, asserting that cyberbullying is not the same as real bullying. Yiannopoulos is of the belief that people should ignore things they find offensive, stating that “if someone is speaking on campus you don’t like, don’t attend the lecture”. Many students in response to Yiannopolus’ scheduled visit argued that the event should be cancelled out of concern for student safety. Despite this, UW President Ana Mari Cauce supported Yiannopoulos’ right to speak, condemning the violence but upholding the public institution’s commitment to the free exchange of ideas. Recent tensions have manifested in a Facebook group labelled, “UW Wall Building Association” as it advertises a pro-Trump demonstration event set to take place and encourages people to bring bricks, which raises a potential concern for violence. The Republican Club responsible for hosting Yiannopoulos have not claimed the group page, stating that the event is fake intended to bait students and the media. However, the Latinx Student Law Association has called upon the institution to intervene and investigate who is behind the post/page, on the basis that event constitutes harassment, a violation of the Student Code of Conduct. The letter from the student association to the institution states that the UW Wall group is in violation of the code as it targets a specific group based on race, national origin, and citizenship, accusing the group of creating a “hostile and offensive environment in which undocumented and Latinx UW students feel unsafe and welcome. The letter has been signed by 1,500 UW community members so far. The University commented that while unsure whether the Trump event is real or fake they will have security in place the day of the alleged demonstration. However the University has not said what it will do regarding the Facebook group. These issues touch upon both criminal and civil law.

In consideration of these issues several questions rise. The first being if the UW Wall group does in fact pose a true threat to students. To determine this I refer to Virginia v. Black (1992) which states that punishable true threat exists if the the speaker directs threat to one or more individuals with the intent of causing listeners to fear bodily harm or death. When dealing with online threats the Supreme Court did not make a definite statement as to whether online threats equal true threats but it did note that conviction for online threats requires showing intent to violate the law and make a true threat. This then raises the question, does the existence of the page/post direct threat towards one or more individual with the intent of violating the law causing listeners to fear bodily harm or death? After analysis, I would say no, the group/post does not direct threat towards anyone with the intent of violating the law and causing others to fear for their lives.

As the Student Association accuses the group’s post of creating a hostile and offensive environment whether the post is an incitement to violence also comes into question. Relevant is the Brandenburg Test, which states that speech is an incitement to violence if it is directed to inciting or producing imminent lawless action and likely to incite or produce such action. Again, after analysis I would say no, while offensive the group/post is in no way a direct incitement towards producing violent action.

Also relevant is content based restriction. This is essentially such a restriction, as the terms of its questionability have basis in its speech content, content which targets a certain group of people, echoing a certain ideology. By following compelling interest applying strict scrutiny it becomes evident that the UW Wall group and its post pose no threat to public health, safety, and welfare.
The UW wall group’s actions while seemingly hateful and offensive do fall under protection of the law. The case at hand is simply a matter of free speech and a group exercising its right to freedom of expression. While in violation of the University’s Code of Conduct the actions of the group do not seem to be illegal.