Q2 2010 Quick Links Part 1 (Content Regulation Edition)

By Eric Goldman

Online Publication

* Too Much Media, LLC v. Hale, 2010 WL 1609274 (N.J. Super. A.D. April 22, 2010). Curating blogger and message board commenter does not qualify for New Jersey’s reporter shield law. The case also says that online defamation is libel, not slander (to the extent it makes a difference).

* Insightful interview with the FTC’s David Vladeck. “We did not do a good job with the…Endorsement Guides [rollout].” Really…you think? The latest “guidance” from the FTC, the Facts for Businesses, hardly improves the situation.

* Former nurse charged with encouraging other folks in Internet chat rooms to commit suicide, which at least two did.

* Brayshaw v. Tallahassee, 4:09-cv-00373-RS-WCS (N.D. Fla. April 30, 2010) Publishing personal information about police officers to Ratemycop.com is protected by the First Amendment.

* Mortgage Specialists v. Implode-Explode Heavy Industries (N.H. Sup. Ct. May 6, 2010). Dissolving an injunction against a website republishing user-submitted comments on First Amendment grounds.

* Jiron v. Jiron, 2010 WL 1978704 (Ind. App. Ct. May 18, 2010). Mom giving a 10 year old unsupervised access to a MySpace account (and listing his age as 19) was a factor in Mom losing custody rights.

* McGee v. Patel, 2010 WL 1838621 (Cal. App. Ct. May 7, 2010). Ex-boyfriend sets up a password-protected blog and writes about his ex-girlfriend and her new boyfriend. The ex-girlfriend has a password to the blog, and she gives her new boyfriend the password after seeing blog postings threatening him. The ex-boyfriend says he didn’t expect the new boyfriend to be reading the blog because:

[California Penal Code] Section 502 provides that it is a public offense for a person to “[k]nowingly and without permission provide[ ] or assist[ ] in providing a means of accessing a computer, computer system, or computer network….” or to “[k]nowingly and without permission access[ ] or cause[ ] to be accessed any computer, computer system, or computer network.” There is nothing in the record to suggest that appellant’s blog could be considered a “computer, computer system, or computer network.” More importantly, it is clear that respondent had J.S.’s permission to use her personal password to access appellant’s blog, and respondent therefore was not acting “without permission” when he read appellant’s posts.

I think this is wrong on two fronts. The servers hosting a blog should qualify for 502 protection, and an authorized user can’t share passwords without permission and have all of the password recipients also become authorized users.

* Edelman v. Croonquist, 2010 WL 1816180 (D.N.J. May 4, 2010). Court dismisses mother-in-law’s lawsuit that a comedienne’s shtick constitutes defamation, false light or infliction of emotional distress because the jokes were non-actionable opinions, not statements of fact.

* NY Times on the difficulties that schools have policing/responding to cyberbullying.

* JC v. Beverly Hills Unified School District, 2010 WL 1914215 (C.D. Cal. May 6, 2010). “Plaintiff’s geography-based argument-i.e., that the School could not regulate the YouTube video because it originated off campus-unquestionably fails.” However, “the Court finds that no reasonable jury could conclude that J.C.’s YouTube video caused a substantial disruption to school activities, or that there was a reasonably foreseeable risk of substantial disruption as a result of the YouTube video…. C.C. felt embarrassed, her feelings were hurt, and she temporarily did not want to go to class. These concerns cannot, without more, warrant school discipline.”

* Insider Pages has launched a new doctor review website called Doctor Finder. Some of the data comes from HealthGrades (not a blog favorite). I’ll be interested to see how Medical Justice feels about Doctor Finder.

Pornography

* U.S. v. Strayer, 2010 WL 2560466 (D. Neb. June 24, 2010):

The court finds the seventeen-and-a-half to twenty-year sentence recommended under the Guidelines (based on the imposition of numerous and excessive enhancements for circumstances that appear in nearly every child pornography case such as use of the Internet, amassing numerous images, possessing images of prepubescent minors and violence, and some “distributing” of images in return for other images) is greater than necessary to protect the public and to deter Strayer from re-offending. The mandatory minimum sentence of five years is appropriate to achieve the goals of sentencing in this case. Five years is a significant term of imprisonment for a first offender. The public will be adequately protected by a five-year term of supervised release with strict conditions and by the provision of mental health treatment and sex offender treatment to Strayer.

The mere fact of the prosecution of these cases arguably deters others from engaging in this sort of conduct. The additional deterrent value of a sentence any longer than five years would be marginal. With respect to general deterrence, although conduct like Strayer’s may sustain the market for child pornography, much of that market is driven by compulsive behavior that arguably will not be deterred in any event. The deterrent effect of a lengthy sentence is further lessened by the international character of the market for child exploitation offenses. To the extent that harsh punishment is necessary to deter harm to children, punishing a less-culpable offender as harshly as the worst does not satisfy the goals of sentencing and encourages disrespect for the law.

* American Booksellers Foundation for Free Expression v. Strickland, 2010 WL 1488123 (6th Cir. April 15, 2010). Upholding a state restriction on distributing “harmful to minors” material. Shades of O’Connor’s concurrence/dissent in Reno v. ACLU.

* United States v. Richardson, No. 09-4072 (4th Cir. June 11, 2010). AOL, as an email service provider, was not a government agent when it automatically searched its network for child porn and then complied with its statutory child pornography reporting obligations.

47 USC 230

* The Ohio Attorney General has weighed in on myTriggers’ side in the myTriggers v. Google antitrust lawsuit, arguing that 47 USC 230(c)(2) doesn’t protect Google. For more on the myTriggers & TradeComet antitrust lawsuits against Google, see this interesting American Lawyer article.

* ReputationDefender’s GC on 47 USC 230 and the Internet’s maturation. When he says “near-perfect anonymity is easily achieved,” he might want to check with the AutoAdmit defendants to see if they agree!

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