Author Archive | Samantha Scheller

Bloggers Receive Same Constitutional Protection as Traditional Press in Defamation Claims, Rules 9th Circuit Court of Appeals

By on January 18, 2014 in Journalism

KeyboardThe 9th Circuit Court of Appeals ruled Friday that bloggers receive the same First Amendment protection as traditional members of the press when facing defamation charges. Writing the majority opinion, Judge Andrew Hurwitz held that, “[t]he protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities . . . [because] in defamation cases, the public-figure status of a plaintiff and the public importance of the statement at issue — not the identity of the speaker — provide the First Amendment touchstones.”

The plaintiffs, Obsidian Finance Group and its co-founder Kevin Padrick, sued blogger Crystal Cox for defamation after Cox wrote about the plaintiffs’ allegedly fraudulent conduct on her blog. Cox’s blog states that she is dedicated to, “Exposing Obsidian Finance Group and Kevin D. Padrick for Abuse of his Power as Trustee in the Summit Accomodators.” The defamation claim cites a number of Cox’s blog posts regarding the plaintiffs’ alleged bankruptcy code violations. Cox’s blog claims the plaintiffs were involved with corruption, deceit on the government, and money laundering, among other claims.

The court, citing Gertz v. Welch, held that the plaintiffs had the burden of proving negligence for their defamation claim despite the fact that Cox is not an institutional media defendant. Judge Hurwitz distinguished between matters of private and public concern, holding that Cox’s allegations are a matter of public concern as the post concerned alleged fraud upon Obsidian’s investors and the blog post was published to “the public at large.”

The case was on appeal from a December 2013 judgment ruling for the plaintiff in which Cox was ordered to pay $2.5 million for damages sustained by the plaintiff.

Samantha Scheller is a 2L at the UNC School of Law.

(Photo courtesy of Flickr user orangeacid, licensed under a CC BY-SA 2.0 license.)

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States Regulate Access to Online Accounts After Death

By on October 31, 2013 in Internet, Privacy

pfycdwtotStates have taken matters into their own legislative hands over who can gain access into an individual’s online account information after death.

A great deal of personal information lives online: important financial records are stored in online banking accounts and email, and social media sites contain personal data including photos and videos. After death, unless that individual entrusted another with their password information, an individual’s log-in and password information can remain online.

According to a 2012 report, 30 million former Facebook users have died — yet their online profiles continue to exist, prompting online memorials and providing an online outlet for mourning relatives and loved ones. Although a number of websites have policies relating to how accounts are handled after death, some individuals are creating “digital estate plans” in order to better prepare for their digital passing.  Others want access to the deceased’s account information to shut down these social media profiles and to access important financial accounts postmortem.

This year, seven states passed laws concerning the management of digital accounts after death: Connecticut, Idaho, Indiana, Nevada, Oklahoma, Rhode Island, Virginia, and Maine. A handful of other states have also proposed legislation that would aid an executor or personal representative in gaining access to an individual’s digital assets. Although these laws are generally uniform in purpose, their execution and administration vary widely.

Some online social media sites argue that a few of these state laws may be unconstitutional as, under the Computer Fraud and Abuse Act and the Stored Communications Act, sites are prohibited from disclosing account information without a court order.

Samantha Scheller is a 2L at UNC Law.

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EU Holds News Website Liable for Anonymous Comments

By on October 14, 2013 in Internet, Journalism

Screen Shot 2013-10-14 at 3.10.14 PMLast week, the European Union held an Estonian news website liable for anonymous comments posted by third parties on its site.

The EU case concerned a 2006 article published on the Estonian news site Delfi. The article was about changes to a Northern Europe ferry company’s travel routes. Because the route alterations would cause delay and make traveling more expensive, a number of angry commentators left “highly threatening or threatening posts” in response to the article.

The owner of the ferry company sued Delfi for defamation and was awarded €320, or $433 in USD. Delfi, arguing that it was not responsible for the comments, appealed to the EU.

The EU recently upheld the Estonian court’s judgment, holding that the website’s freedom of expression rights, governed by Article 10 of the European Convention on Human Rights, were not violated by the ruling. The EU court explained that freedom of expression rights may be interfered in order to protect an individual’s reputation so long as the intervention is “proportionate to the circumstances.”

In analyzing whether intervention is proportionate to the circumstances, the EU analyzed four issues: (1) the context of the posts; (2) steps taken to prevent publication of defamatory comments; (3) whether the authors of the posts could be made liable for their posts; and (4) the consequences of holding Delfi liable. In concluding its analysis, the EU court held that the lower court’s ruling was justified and proportionate to interference with Delfi’s Article 10 rights.

Samantha Scheller is a 2L at UNC Law.

(Image courtesy of Flickr user MPD01605 pursuant to a Creative Commons CC BY 2.0 license.)

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Twitter and Nielsen Ratings Team Up to Track Viewership

By on October 9, 2013 in Internet, Journalism

4156535452_9f2ee39b7e_bTwitter is teaming up with Nielsen Ratings to aid the service in monitoring what television shows are most frequently tweeted about by its users. The novel approach, called a “unique audience,” makes it easier than ever for the Nielsen system to provide accurate information about television viewership numbers on any given night.

The new system allows Nielsen Ratings to track how many tweets are sent, what television show those tweets reference, who those tweets are seen by, and how many times those tweets are seen. With 200 million Twitter users, the data will be a powerful tool for advertisers looking to broadcast during commercial breaks of the most-viewed television programs.

The “unique audience” information gained from Twitter will also help Nielsen track what has traditionally been extremely difficult to measure: the spoken word. In Twitter’s case, it’s easy to capture what millions of Americans are watching through the data trail left behind. By allowing Nielsen to create a rating system based on tweets, Twitter is opening up access to that once impossible-to-track information.

The ratings system provides more information about viewership than ever before by monitoring conversations — not by the spoken word — but by the typed tweet.

Samantha Scheller is a 2L at UNC Law.

(Image courtesy of Flickr user flash.pro pursuant to a Creative Commons CC BY 2.0 license.)

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California Passes “Limited” Revenge Porn Legislation

By on October 8, 2013 in Journalism

Screen Shot 2013-10-06 at 12.51.42 PMA new California law may cause potential revenge porn posters to think twice before exploiting ex-lovers online.

California Governor Jerry Brown signed Senate Bill No. 255 on October 1. The new law will aid potential victims of “revenge porn” — those individuals whose sexually explicit photos and videos are posted online by (typically) ex-lovers — by making it a misdemeanor to post such graphic images or video “with the intent to cause serious emotional distress.” Defendants who violate the law could land a place in jail for up for 6 months or be fined up to $1,000.

The newly-passed law is already receiving criticism about its limited scope of protection. Critics argue that because the law does not protect against the posting of photos that were self-shot by the victims, a large number of individuals who submit revenge porn posts will remain protected. Rather, the law targets only those photos posted which were taken by the poster.

One of the fundamental cornerstones of copyright law holds that copyright rights are given to the author of the work. One possible remedy for those who have been exposed due to revenge porn is filing a takedown notice under the Digital Millennium Copyright Act. The takedown notice requires that the owner of a website remove some content due to a copyright claim made by the owner of that content.

The American Civil Liberties Union also opposed the bill, citing concerns that the bill was overly vague.

Samantha Scheller is a 2L at UNC Law.

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