MediaLawLetter February 2010
Download Publication LIBEL & PRIVACY Cal. App.: Rolling Stone Editorial Content Receives Broad First Amendment ProtectionNot Commercial Speech Because of Gatefold Advertisement ContextStewart v. Rolling Stone; Keller v. Electronic Arts N.Y./Ind.: Right of Publicity Grabs Legislative AttentionNew York Bill Would Protect Rights of Deceased CelebritiesS.6790; HB.1335; S.2775 Mass.: Reporter Not Protected by Massachusetts Anti-SLAPP LawQuick…
Ethics Corner: Technology-Based Ethical Challenges: Practical Advice For Dealing With The Disclosure Of Metadata
There is no denying it. There is no way of getting around it. Technology is rapidly evolving and developing every day and lawyers continue to find ways to utilize enhancements in technology to assist them in their everyday practices. As a result, new ethical issues and potential pitfalls are also continuing to arise and presenting…
Supreme Court of Canada Decision in Quan v. Cusson
The Supreme Court of Canada’s landmark decisions in Grant v. Torstar Corp. 2009 SCC 61 and Quan v. Cusson 2009 SCC 62 have brought Canadian law into the 21st Century by creating the “Public Interest Responsible Communication Defense,” which provides protection for false and defamatory facts in circumstances where the publication is a matter of…
French Court Rules in Favor of Roman Polanski on Photo Privacy Complaints
Arrested on September 26, 2009 at the Zurich airport, the film director Roman Polanski is currently on bail in his chalet, after more than two months spent in a Swiss prison. He is waiting for Switzerland’s response to a US extradition request over his guilty plea over a sexual relationship with a 13 year old…
Tenth Circuit Remands Issue of First Impression Concerning Bar Organization’s Right to Interview Jurors
The Tenth Circuit recently considered an appeal involving an issue of first impression concerning the First Amendment right to interview jurors but declined to decide the issue. Clyma v. Sunoco Inc., No. 08-5153, 2010 WL 367540 (10th Cir. Feb. 3, 2010) (Baldock, Holmes, Siler, JJ.). The case arose when the Oklahoma Employment Lawyers Association (“OELA”),…
The Public Right of Access “Unmoored” in the Southern District of New York
A federal district court in New York ruled that there exists a First Amendment public right of access to administrative adjudicatory proceedings conducted by New York City’s Transit Adjudication Bureau (“TAB”), thereby expanding the right of access beyond the Second Circuit’s jurisprudence, which has not yet addressed whether such a right applies in the context…
Eastern District of Michigan Judge Upholds Reporter’s Source Protection Under 5th Amendment
Detroit Free Press Reporter David Ashenfelter can continue to shield the identity of a confidential source who provided information for a story about an investigation of a federal prosecutor for misconduct during a high profile terrorism prosecution, an Eastern District of Michigan judge ruled on February 9, 2010. Convertino v United States Department of Justice,…
Defamation Lawsuits and the Religion Clauses
The relationship between defamation law and the First Amendment’s freedom of religion guarantees was explored recently by state appellate courts in New Jersey and Oregon. Both cases required courts to explore the extent to which the First Amendment provision: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,”…
Libel Tourism Bills Introduced in Arizona and Utah
The Arizona State Senate this month passed a libel tourism bill that would codify the unenforceability of foreign libel judgments unless compliant with the First Amendment. On February 22 the bill passed by a vote of 30-0. SB 1268 provides that “A court of this state shall not recognize a foreign country judgment if the…
“Tweet” About Moldy Apartment Held Non-actionable in Illinois Defamation Case
In a non-media case involving Twitter, a state trial court in Chicago dismissed a defamation complaint brought by a real estate company against a tenant who “tweeted” about mold in her apartment. Horizon Group Management, LLC v. Bonnen, No. 09 L 8675 (Ill. Cir. Ct. Cook Co., Ill. Jan. 20, 2010). While the briefing included…
Court Refuses to Dismiss Section 1983 Claim
The perils of media ride-alongs and reality television were demonstrated again this month when an Illinois federal district court refused to dismiss a Section 1983 claim against A & E Television and related defendants over the filming and broadcast of an arrest as part of a documentary series. Frederick v. The Biography Channel, No. 09…
Ex-Con Loses Libel Case Against Book Author and Publisher
A New Jersey appellate court affirmed summary judgment in favor of the author and publisher of a book discussing plaintiff’s criminal past. Berkery v. Estate of Lyle Stuart, et al., No. A-5105-07 (N.J. App. Feb. 19, 2010) (Carchman, Lihotz, Ashrafi, JJ.). The court held that plaintiff was a public figure with respect to his criminal…
Illinois Appellate Court Affirms Fair Report Privilege for Newspaper In Holiday Misidentification Mishap
In a ruling beneficial to news gatherers, an Illinois appellate court affirmed dismissal of a defamation complaint based on misidentification, and held that the fair report privilege does not have a timeliness component or obligation to review updated material. Eubanks v. Northwest Herald Newspapers, No. 07-L-205 (Ill. App. 2nd Dist., Jan. 22, 2010) (Schostok, Jorgensen,…
Third Circuit Affirms Dismissal of Privacy Claims Involving Google’s Street View Service, but Reinstates Trespass Claim
On January 28, 2010, the United States Court of Appeals for the Third Circuit affirmed in part and reversed in part the dismissal of Aaron C. Boring and Christine Boring’s claims against Google, Inc. stemming from pictures taken by Google’s representatives of the Boring’s allegedly private property for use on its Street View service. Boring…
D.C. Circuit Reinstates Libel Complaint Against NGO
On January 29, 2010, the D.C. Circuit held that an allegedly defamatory report by an international policy research group was unprotected by the fair report, fair comment, or opinion defense because the report was based on what the court found to be a misreading of an official document, namely the 1998 frozen assets list of…
Tenth Circuit Affirms Dismissal of Suit Against John Grisham, Random House, and Other Authors and Publishers
The United States Court of Appeals for the Tenth Circuit affirmed dismissal of defamation, false light invasion of privacy, intentional infliction of emotional distress, and conspiracy claims brought by a former prosecutor, an Oklahoma State Bureau of Investigations agent, and an OSBI criminalist against John Grisham, three other authors, and their publishers. Peterson et al….
Reporter Not Protected by Mass. Anti-SLAPP Law
By Sarah Wunsch The Massachusetts Supreme Judicial Court (SJC) ruled on February 1, 2010 that a journalist for a community newspaper was not entitled to use the protections of the state “anti-SLAPP” law when a Boston real estate developer sued for defamation for statements in news stories she wrote about him and related local government…
Right of Publicity Grabs Legislative Attention
A number of state legislatures are considering bills that would create a right of publicity for deceased persons or amend existing right of publicity statutes. Below is a summary of bills introduced in 2010. NEW YORK The New York State Senate again introduced legislation that would amend the state’s “right of privacy” statute, Civil Rights…
Rolling Stone Editorial Content Receives Broad First Amendment Protection
The California Court of Appeal issued its highly-anticipated decision in Stewart v. Rolling Stone on January 28, 2010. In a decision that will be welcome news for all who sell advertising in their pages or on their programs, the court ruled in Rolling Stone’s favor, broadly affirming the First Amendment’s protection of the editorial content…