Flipping the Script
Traditionally, the link between celebrities, privacy, and the first amendment follows a well-worn path—The media invades a famous person’s privacy, the famous person seeks help in the courts, and the two sides battle over the limits of the first amendment. However, a recently filed case in Los Angeles has deviated from this usual course and has, in turn, shed light on an infrequently discussed tension embedded in the first amendment.
The case stems from a custody battle between actor Jason Patric and Danielle Schreiber, his ex-girlfriend and the mother of his child. California law automatically considers the child—born through in vitro fertilization—to be solely within the custody of the mother, barring a pre-conception written agreement. Having penned no such agreement, Patric lacks any parental rights, and is challenging Schreiber’s denial of access to the child.
Amidst this messy custody battle, a novel first amendment issue has emerged. In an effort to raise awareness of the issue (as well as money for his cause) Patric has appeared on television, given interviews, and formed an organization, “Stand Up for Gus.” He named the organization after his son, and he frequently mentions Gus, and uses his image, in his interviews and public appearances.
Faced with the increased publicity, Schreiber is fighting back. She has requested a restraining order blocking Patric from using their son’s name or likeness for “commercial” purposes absent permission from the child’s guardian—meaning Schreiber. Her argument draws both on past celebrity efforts to maintain control over their public personas as well as the privacy interest of a 4-year old child who has become a very public part of a high-profile custody dispute.
She notes that not only is the child’s name and likeness being spread through various media, but that it is often being manipulated for the benefit of Patric and a “false narrative” that benefits his custody claims. Schreiber points specifically to a picture in People that implies that the child was in a room he was never in, and had lived with his father when in fact they had “lived separately.”
The counterargument from Patric and his attorneys rests squarely on the First Amendment. They argue that restricting the use of the child’s likeness and name is simple censorship, restraining both Patric’s ability to affectively argue not just for custody of his child, and also his efforts to increase public support for changes to the state’s custody laws. Patric’s camp notes that the injunction would bar Patric from talking about his own son in any context, not just in newsprint or on television. They also highlight the danger that prioritizing individual privacy over “commercial” and “charitable” speech presents to free expression on other issues, particular those topics at the intersection of the deeply personal and the inherently political.
An appeals court is set to hear the case later this month, with a decision forthcoming shortly thereafter. The court will face a difficult question in balancing not just the interests of the feuding parents, but also that of the child, whose individual privacy interests seem all but forgotten in the dispute.
In recent months there has been a significant upsurge amongst states in support of legislation against the use of revenge porn. As discussed in class, revenge porn is a form of pornography that features explicit images of women posted by ex-lovers, which are typically accompanied by denigrating language, and identifying details of the women such where they live, work, as well links to forms of social media that they might use. This has proved to be an especially devastating form of harassment as victims have lost jobs, been approached by strangers recognizing their photographs, and a result suffered tremendous personal anguish. States have, however, begun to enact legislation addressing this problem.
In October 2013, California became the second state following New Jersey to adopt anti-revenge porn legislation. However, revenge porn victims and anti-revenge porn advocates have noted that the legislation passed by the state of California is applicable only to a minority of revenge porn victims. According to a survey conducted by the Cyber Civil Rights Initiative, 80 percent of photos posted on revenge porn sites are self-taken. With regard to the California law addressing revenge porn, this point is relevant because under the new law an individual can only be charged with a crime if the individual published the photos that they themselves had taken of the victim. This law clearly leaves open enormous loopholes. It does not cover self-taken pictures, pictures posted by third parties, pictures posted by hackers, situations in which the confidentiality of the image is in dispute, and perhaps most disturbingly when there is “insufficient intent to cause emotional distress.” This requirement is especially problematic because it places the burden upon prosecutors to prove the defendant’s intent. On April 30, 2014, Governor Jan Brewer of Arizona passed a similar law addressing the issue. The Arizona law makes it a crime “to intentionally disclose, display, distribute, publish, advertise or offer a photograph, videotape, film, or digital recording of another person if the person knows or should have known that the depicted person has not consented to the disclosure.”
A recent article published by Forbes explains some first amendment considerations that come into play when crafting legislation addressing the issue of revenge porn. Without the intent requirement to cause serious emotional distress, these laws could face significant first amendment complications. Eric Goldman notes that “intimate depictions are often part of other people’s life history” and that these are “stories that a person may want to tell in full.” He further notes that privacy laws are be design crafted to suppress the flow of truthful information and cites as an example the Anthony Weiner sexting scandal. He argues that while a law such as the one passed in California would not apply because those photos were self-taken, a law restricting a recipient’s ability to disseminate those images may hinder valuable social discourse. In this instance, the recipient would potentially be barred from substantiating the claim that they received the photos and the public would presumably be denied proof of evidence of the questionable decision making of a public official. Goldman goes on to make the point that while involuntary porn laws would be more effective if they applied to website operators, 47 USC 230 states that websites are not liable for third party content.
“The Changing Attitudes Toward Cyber Gender Harassment: Anonymous as a Guide?”
By Danielle Citron
This article begins with a case study demonstrating the growing seriousness of and changing attitudes towards gendered online harassment. It tells of the experience of Kathy Sierra, noted game developer and co-creator of the educational Head First series, who in 2007 was a victim of an extreme cyber harassment campaign. Trollers began targeting Sierra, filling her e-mail inbox and the message board of “Creating Passionate Users” (a popular blog she had created dedicated to inspiring creativity in computer software developers) with threatening comments, including such not-so-veiled threats as one juxtaposing an image of Sierra with a noose next to her next with the words “the only thing Kathy Sierra is good for is her neck size.” After Sierra publicly spoke out against the personal and violent nature of the messages she had been receiving (especially surprising given the non-controversial topic area of “Creating Passionate Users”) the trollers responded by widely circulating her security number. The harassment continued and became so bad Sierra ultimately shut down her blog.
Her comments about feeling frightened by the increasingly violent nature of the harassment and her decision to close down “Creating Passionate Users” were widely criticized as being overly reactionary by fellow bloggers. The thought was that every web user (and especially, every online personality) is at some point going to be victimized by trolls, and perhaps even a cyber mob, so Sierra had brought it upon herself by having any cyber presence.
The article then discusses revenge porn as a more recent and extreme example of online harassment, which demonstrates how, left unchecked as a result of the aforementioned victim-blaming attitude, such harassment has been able to escalate over time. The article ends with an optimistic discussion of a growing intolerance to online harassment, including recent legislative efforts to criminalize revenge porn, which in turn reflect greater appreciation for the very real and very serious damage dealt to the victims of certain forms of online harassment, particularly revenge porn. Another example of this is seen in the efforts of hacktivist groups like Anonymous, who have dealt to revenge-porn-posters a form of street justice by accessing and widely disseminating their own personal information in retaliation. Although the author condemns this mob-style and unregulated retribution, she hopes it is indicative of greater public intolerance of online harassment.
Connecticut journalist Pedro Rivera filed a suit on February 18, 2014 against Hartford police officers. Rivera was of the opinion that the police officers violated his First Amendment rights to gather news as he was using a remote-controlled drone to take pictures of a car wreck, and the officers had demanded that he stop doing so. Although his device was hovering at an altitude of 150 feet, he said he was operating in public space and observing events that were in plain view. This case brings us to a hot topic of discussion in the recent times and encourages us to consider whether drone journalism could be recognized as a legitimate way of collecting news without hampering the privacy rights of the public.
There has been a considerate amount of deliberation on the use of drones in the journalism sector. Drone technology marches on despite the myriad issues of privacy, safety, and liability. Whether Rivera actually has a case against the police is still a doubtful question as the legality of drone use is unclear and uncodified till the present day. Only a handful of states have their own laws for domestic drone use, and there is no federal regulation, which deals with the use of drones with cameras attached for the purposes of covering news. Without clear rules allowing or banning journalists from using drones, reporters are caught between First Amendment and privacy rights.
In my opinion, drone journalism should be a legitimate way of collecting and propagating information. It is an extension of the journalists’ First Amendment right and is a valuable tool to capture dangerous events like natural disasters or chemical leaks. Disaster coverage is one major application of drone technology. A small drone operating over a large disaster area such as a tsunami aftermath, floods or bushfires can provide reasonably high quality pictures of a large area at low cost. It may also enhance the safety of the journalists operating in a disaster zone
However, the public’s expectation of privacy is one factor that is against recognizing drone journalism as a valid activity. Privacy law has not kept up with the rapid pace of drone technology. Several bills are currently going through Congress, which attempt to provide privacy protections to Americans who may be a victim of drone surveillance.
I believe that strong privacy protections are entirely consistent with policies that encourage growth of the drone industry. In fact, clear privacy protections, are good not only for the personal privacy rights of residents but also for the first amendment rights of journalists and the drone industry itself, which will not be restricted or hindered by privacy protections but rather would benefit from clear legal guidelines and the public assurance that this technology will be used appropriately.
Anonymity and the Internet
In April 2014, the lower house of Russian Federal Assembly passed amendments to anti-terrorism law, which now poses restrictions over anonymity on the Internet. The bloggers who enjoy more than 3000 visitors per day are required to provide their correct names and contact information. In the event that such details are not posted openly online, the government has the right to demand identifying information from ISPs or website operators. Human rights groups across the board are criticizing this move by the Russian government. The director for Europe and Central Asia at Human Rights Watch described this regulation as “another milestone in Russia’s relentless crackdown on free expression.”
The question of anonymity over the Internet is indeed an important one in today’s world where the Internet has become a global forum, the voice of the world. Anonymity provides a safe environment for anyone to publish his or her views without the fear of social, economic or political retribution. This is the reason that anonymity has become an important ingredient to freedom of expression on the Internet.
The trouble with anonymous posting is that it provides people with the liberty of saying anything without any liability. Death threats, racists remarks, sexist remarks, hate speech are all very common on the comments section of websites like YouTube, which allow users to post under a pseudonym or anonymously. The governments around the word are trying to find ways of reducing anonymous activity on the Internet on the excuse of curbing this behavior. In October of 2013, Emily Bazelon, editor of Slate stated that the society would be better off if everyone was forced to put their name to their words. This approach, however, is not strong enough to deny billions of people the right to take part in an online discourse without fear of retribution.
The U.S. Supreme Court has also time and again defended the right to anonymity as being important protection for Ihe internet. Internet offers a new and powerful democratic forum in which anyone can participate. This participation will remain effective only if people enjoy their right to anonymity in this vast system.
Indian government’s surveillance system and its implications for free speech & privacy
In 2013, the Indian government embarked on the Central Monitoring System (CMS), with the objective of enhancing the capability of security agencies such as the National Investigation Agency for fighting crime and terrorism, and allowing tax authorities to monitor communications. However, the CMS received more attention than it probably expected as it has been facing opposition from several human rights organizations and activists, such as the Human Rights Watch, due to serious privacy concerns. The system may be defined as ‘a mass electronic data surveillance program’, which enables the government to keep a tab on all phone and internet communications in India, bypassing service providers.
The Human Rights Watch believes that such a surveillance system has chilling implications for free speech and privacy concerns. It is concerned that such a surveillance system has the potential of being used for politically motivated reasons to target any opposition and curb free speech, in covert ways. The project seems to be shrouded in secrecy as very little information has been made available about its working procedure, the standards it follows, who can authorize such surveillance, what data can be collected and other factors. The fear of such data being used for political reasons may not be unfounded, as no information is available on safeguards against interception by political entities, and use of such data to target judges, opposition leaders, media persons etc. carrying out sensitive assignments. These issues raise questions regarding the extent to which government agencies should be allowed to monitor and invade the privacy of its own citizens and how can free speech concerns be balanced in such a situation.
The existing framework, comprised of the Indian Telegraph Act, 1885 and the Information Technology Act, 2000, is not adequate to address such concerns. Although the scope of interception has been narrowed down to five instances (under section 5(2) of the Telegraph Act, 1885) i.e., national sovereignty and integrity, national security, relations with foreign states, public order and incitement to the commission of an offence, questions have been raised if these grounds are too broad for security agencies to get approvals for all interception activities, however weak the basis for such requests may be. This raises concerns of allowing an agency to monitor any citizen without sufficient proof.
To add to it, India’s Privacy Bill is still underway and is yet to receive the Parliament’s assent. Other than that, India does not have an adequate legislations to prevent privacy transgressions. Indian privacy activists are also concerned that the CMS might inhibit free speech and without adequate considerations to citizens’ privacy.
“It would be nice if the rights that we value all played nice with each other – if free speech didn’t butt heads with the right to protect your reputation – but that’s not how it works.” In today’s web-based, reputation-driven marketplace, a few negative comments posted online can cause significant damage to businesses. In the April 30 episode of WNYC’s New Tech City, Manoush Zomorodi and Alex Goldmark discuss how companies are experimenting with new ways to stop bad comments from ruining their business, and the implications of these efforts for the free speech rights of consumers.
In 2008, Jen Palmer purchased less than twenty dollars of merchandise on KlearGear.com. When the items never arrived, and when the company was non-responsive, she penned a scathing review on a consumer website. She signed off as “Jen from Bountiful Utah,” and went on with her life. Several years later, her husband received an email from KlearGear’s counsel, demanding that they take the comments down, or pay up. The Palmers refused, and the couple’s credit tanked when 90 days later the company reported a $3500 fine as unpaid debt. According to the company, in buying the trinkets from KlearGear’s website, the Palmers had agreed to a “non-disparagement” clause in the terms of service that prohibited the posting negative comments about the company. Anywhere. The Palmers sued for damages resulting from the change in their credit score.
As Kurt Opsahl of the Electronic Frontier Foundation points out in the New Tech City report, another way the law has recently been used to combat the reputational effects of online reviews is through copyright law. According to Opsahl, Medical Justice, which provides “medico-legal protection services,” has recently advised doctors to include a copyright clause in the forms that patients sign before receiving treatment. In signing onto the provision, the patient (likely unwittingly) relinquishes any rights to future reviews. If the doctor doesn’t like what she reads, she can demand that they be taken down, or sue to enforce her copyright.
Clauses like these can be expected to have – in fact, are intended to have – chilling effects on speech. Understandably, businesses don’t want people to say bad things about them online. These provisions are intended to make consumers feel sufficiently threatened that they determine that a negative review of their experience with a business is not worth the hassle of damage to their credit or of a court battle. Businesses may be seeking creative mechanisms like these to keep customers from ever posting in the first place because of the difficulty of going after post once it is up – particularly given the degree to which online comments are often posted anonymously, or under a pseudonym.
New Tech City discusses a case, now pending in the Virginia Supreme Court, which raises the issue of the right to speak anonymously, and when that anonymity may be sacrificed in order to allow a business owner to protect himself from allegedly false and malicious comments. The case was brought by Joe Hadeed, who owns a carpet cleaning business in Northern Virginia. Hadeed claims that negative reviews of his business on Yelp have caused him serious harm, and that after cross-checking the posts with his business records, he determined that the comments were not even posted by real commenters. Hadeed is asking that the courts order Yelp to turn over the names of the users that posted the allegedly defamatory comments.
While there is generally no protection for fraudulent, misrepresentative speech, it is difficult – if not impossible – to evaluate the truth or falsity of the speech unless the identity of the speaker is revealed. Yet the right to speak anonymously is a core part of First Amendment rights. Anonymity is crucial for the protection of free speech because it allows those who advocate unpopular views to speak without fear of retribution. In the context of Yelp – as New Tech City points out – the ability to post anonymously not only protects users from retribution for unfavorable reviews, but also facilitates reviews of businesses – such as plastic surgeons or divorce attorneys – which users might be reluctant to associate themselves with if they had to post their names. In this way, anonymity enables the production of a public resource that would not otherwise exist, and empowers consumers in the marketplace.
But reputation is everything for a small business like Hadeed’s. And the power of malicious commenters may be contextually dependent. Malicious comments may have little impact on sites where the comments section is ancillary to the main content, or where they are quickly lost in a sea of postings. But they may be amplified on a site like Yelp, where the comments are the focus of the website’s content, particularly where only a few reviews have been posted on the business’s profile. Because of limitations under the Communications Decency Act on the liability of intermediaries like Yelp for the content of users’ posts, business owners like Hadeed need to go after the individual posters themselves. But unless businesses are able to identify the posters, they are out of luck. The use of online anonymity to skirt liability for defamation is a very real concern.
There is a tension here – one that courts are just beginning to work through. As online fora are increasingly used to navigate the marketplace – giving consumers the power of review and incentivizing businesses to find ways to control those reviews – we are likely to see an increase in litigation that raise free speech issues.
The Right of Privacy as worded out in the Fourth Amendment, and interpreted by legal scholars, limits itself to the protection of secrets and intimacies, or to the walling off of a narrow set of places where it is reasonable to expect that surveillances will not occur. However, with the increasing use of computers and the phenomenal growth of Internet, the law enforcement agencies are faced with the uphill task of finding the right place for information relating to personal identification within the traditional privacy rubric of secrecy, intimacy, or spatial considerations. Moreover, Internet raises some new privacy concerns that were unheard before. This is because, the material that enters the open channels of the Internet spreads so quickly and so far, its persistence and irretrievability amplify the damage it can do. Therefore, the widespread dissemination of information, which does not fall within the traditional privacy domain, poses an exceptional problem.
This particular problem is highlighted in the first article, namely – French Court Takes On the Privacy and Hate Speech Dilemma, whereby the French Court, to curtail online hate speech, outweighed the privacy concerns arising in litigation. On June 12, a French Court of Appeals ordered Twitter to unmask the identities of persons who anonymously tweeted anti-Semitic content in violation of French law. In appeal, however, Twitter argued the once the names of the anonymous users were given, it will bring on a potential harm to their privacy rights. The court ignored Twitter’s arguments stating that if there seems to be any irregularity pertaining to the names being given out pursuant to the lower court’s order, the plaintiff in the action, the Union of French Jewish Students, would be liable for any damages caused to the Twitter users whose privacy was compromised.
However, this strict outlook towards Internet anonymity with respect to hate speech is quite common in other international jurisdictions as well. US Courts, through litigation over the period of time, recognize that there is a right to anonymity within the broad right to expression. Evidently, this is not true according to the French legal standards. India, where the law against hate speech is still in the embryonic stage, recognizes the same principle. The Indian Supreme Court, while dismissing a Public Interest Litigation (PIL), reiterated the constitutionality of Canadian hate speech laws and expressed a desire for the Indian law to follow the same.