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July 2015

MediaLawLetter June 2015

in this issue

Other Side of the Pond: Updates on English and European Media Law

Emotional Distress Claims; Phone Hacking Damages; Delfi and More By David Hooper Supreme Court Cuts Back Tort of Intentional Infliction of Mental SufferingRhodes v OPO 2015 UKSC32 Rhodes is a distinguished classical pianist who sought to publish his memoirs which detailed the difficulties that he had experienced in life following sexual abuse during his childhood. …

ECHR Grand Chamber Confirms Liability of Online News Portal for Offensive Comments Posted by Readers

By Dirk Voorhoof On 16 June 2015 the Grand Chamber of the European Court of Human Rights delivered the long awaited final judgment in the case of Delfi AS v. Estonia, deciding on the liability of an online news portal for the offensive comments posted by its readers below one of its online news articles….

Pennsylvania’s Revictimization Relief Act Struck Down

Deemed “Manifestly Unconstitutional” By Eli Segal and Amy Ginensky On April 28, 2015, Chief Judge Christopher C. Conner of the United States District Court for the Middle District of Pennsylvania struck down Pennsylvania’s six-month-old Revictimization Relief Act as “manifestly unconstitutional.” Abu-Jamal v. Kane. Drafted in response to the selection of Mumia Abu-Jamal—in prison for life…

Florida Court Applies Privilege To ABC News Outtakes In Murder-For-Hire Case

Court Also Denies Defense Bid for In Camera Review By Charles D. Tobin A Florida state court will not let the defendant in a murder-for-hire case subpoena outtakes of an ABC News 20/20 investigation that closely followed detectives’ behind-the-scenes work. Order Denying Defendant’s Motion for Subpoena Duces Tecum, State v. Luongo, Case No. 14-13813F10A (Fla….

Another One Bites the Dust: Minnesota’s Criminal Libel Law Struck Down

By Eric Robinson Another criminal libel statute has been consigned to the dustbin of history, with the Minnesota Court of Appeals holding the state’s criminal libel law, Minn. Stat. § 609.765, unconstitutionally overbroad. Minnesota v. Turner, No. A14-1408, 2015 Minn. App. LEXIS 31 (Minn. App. May 26, 2015). This leaves 13 states — Florida, Idaho,…


BBB Wins Injurious Falsehood, Tortious Interference Claim Over Consumer Warning

Statements Not “Of and Concerning Plaintiff; Opinion By Joseph E. Martineau and J. Nicci Warr When Others First, a Michigan charity, mailed solicitations for car donations to St. Louis consumers, the St. Louis Better Business Bureau (“BBB”) investigated and issued a News Warning to consumers. The Warning, which was also posted on the BBB’s website,…


Prosecutor’s Blog and Tweets Not State Action

No Connection Between Official Duties and Online Political Commentary In an interesting analysis of state action in the context of social media, the Ninth Circuit affirmed dismissal of a Section 1983 claim against a Los Angeles county prosecutor who blogs after hours about conservative politics, media bias and criminal law. Naffe v. Frey, No. 13-55666…

Court Dismisses Defamation, Emotional Distress Claims Against TV Station

Court Applies Libel-Proof Doctrine By Adrianna C. Rodriguez The Fayette County, Kentucky, Circuit Court dismissed claims for defamation and intentional infliction of emotional distress brought by a career criminal against Gray Television Group, Inc., and its local television station WKYT-TV for its accurate reporting of his arrest on charges of kidnapping and raping a woman….


Presumed Damages Suffer Further Blow in New Jersey

Private Plaintiffs Cannot Seek Both General Damages and Presumed Damages By Bruce S. Rosen The New Jersey Supreme Court has clarified and confirmed its 2012 decision in W.J.A. v. D.A., 210 NJ 229, ruling that private defamation plaintiffs without concrete proof of damages are limited to nominal presumed damages – essentially allowing those with the…


Pennsylvania Supreme Court Hears Two Newspaper Cases

By Kevin C. Abbott and J. Timothy Hinton, Jr. In the first half of 2015, the Pennsylvania Supreme Court has heard oral arguments in two appeals of newspaper cases, both involving the Scranton Times. Both cases have the potential to affect Pennsylvania defamation law. No decisions have been issued yet. Joseph v. The Scranton Times…


Next Gen Report: Facing Public Records Concerns, Cuomo Abandons Email Purge Policy

By Patrick Kabat A long-stewing battle over the Governor’s implementation of a records retention policy that would have required the ongoing, automated deletion of vast swaths of public records was recently averted. The Cuomo administration has withdrawn the policy, and though the full scope of interim email purges remains uncertain, the legislative attention it generated…


Witness for the Press: A Few Thoughts on the Gentle Art of Testifying Before Congress

By David McCraw I can say this much about my first time testifying before Congress: At least the committee chair did not accuse me of “living in la-la land.” That sad fate was reserved for another witness, Melanie Pustay, whose office at the Justice Department oversees the Freedom of Information Act. Ms. Pustay found herself…


Historian Wins Release of Grand Jury Records of Espionage Investigation of Chicago Tribune

WW II Investigation Was First and Only Effort to Prosecute Major Newspaper for Espionage By Brendan Healey President Roosevelt was livid. The United States had broken the top-secret code of the Imperial Japanese Navy—one of the more closely guarded United States secrets of World War II—and President Roosevelt believed the Chicago Tribune had just disclosed…


Non-Disclosure Order to Lifted

Time for Discussion of Grand Jury Subpoenas Seeking Information on Anonymous Commenters? By Gayle C. Sproul The frequency with which media entities are served with grand jury subpoenas for information regarding anonymous commenters has not been the subject of much, if any, public discussion. That changed on June 8, 2015, when it became public knowledge…


Supreme Court Resolves Online Threats Case On Narrow Grounds

Leaves Legal Standards Unclear By Jeff Hermes On June 1, 2015, the U.S. Supreme Court decided Elonis v. United States, in which the Court once more grappled with questions regarding legally actionable threats. Unfortunately, while many had hoped that the Court would take the opportunity to elucidate the parameters of the “true threats” doctrine under…

From the Executive Director’s Desk: A Brief Introduction to the MLRC Staff

By George Freeman As I approach the end of my first year at the MLRC, there are two questions I have been asked most often. The first is when will I begin making MLRC conferences more like the ABA Boca conferences with which I had long been associated, with their sports, games and much greater…

MediaLawLetter June 2015

 Download Publication MLRC From the Executive Director’s DeskA Brief Introduction to the MLRC Staff SUPREME COURT Supreme Court Resolves Online Threats Case On Narrow GroundsLeaves Legal Standards UnclearElonis v. United States PRIOR RESTRAINT S.D.N.Y.: Non-Disclosure Order to LiftedTime for Discussion of Grand Jury Subpoenas Seeking Information on Anonymous Commenters? ACCESS N.D. Ill.: Historian Wins…