for MeinProf.de: A- for German decision on website liability By wendy.seltzer.org Published On :: 2007-06-11T06:02:56-05:00 My OII colleague Tobias Escher reports on a German decision on website operator liability for user-posted content. A professor unhappy with his reviews on Meinprof.de, such as comments calling him a "psychopath," sued. The site had removed the comments on his complaint, but he nonetheless demanded that the site pay a fine and be enjoined from allowing similar comments to be re-posted. The appeals court sensibly rejected that injunction. According to Tobias: The court has decided that a general cease and desist for unacceptable comments is against the law. As a professor one has to face public criticism that cannot be prohibited ex ante. ... In general this is a positive outcome for web sites that leverage the wisdom of the crowds as it offers some protection for the often not-for-profit operators of these sites. However, this does not justify defamatory comments on those sites and the court has emphasized the operators duty to remove those entries as soon as they are recognized. Last but not least, the subject under public scrutiny does matters as professors might well be made to face personal criticism in their role as public figures while teachers and nurses might have to be treated differently. German law lacks a CDA Section 230, which immunizes U.S. service providers from defamation liability for user-contributed comments. So RateMyTeachers.com can ignore claims of defamation, leaving U.S. teachers to fight back with words, leaving their own comments or questioning the reliability of the site. German sites, by contrast, can be held liable for their users' false assertions. If such liability were automatic, triggered immediately upon the posting of a defamatory comment, sites that permitted users to post content might as well paint lawsuit targets on their homepages: anyone could claim to have been defamed there; anyone unhappy with postings could get a heckler's veto against not just individual posts but the site itself. Sensibly, then, the MeinProf.de court limits the potentially unbounded liability in a manner similar to the U.S. caution against prior restraints of speech. The site can't be held liable until it has been given an opportunity to defend or remove the post; those who want to make libel claims against hosts should start by giving the host notice. My U.S.-centric view is still that posters and their subjects should battle over online defamation between themselves, leaving their online hosts out of the picture. As we all depend on intermediaries to speak online, our speech gets less free with each new burden and risk-sensitivity we put on the intermediaries. Those who feel victimized have access to the same speech technologies to respond -- putting them on a more level playing field than arises when one calls in the law and an intermediary is chilled. In the German context and legal tradition, however, this decision seems to get close. Full Article
for Exclusive Rights: The Wrong Goal for NFL By wendy.seltzer.org Published On :: 2007-07-02T01:09:30-05:00 The NFL just doesn't know when to stop. The Washington Post reports on a new NFL policy limiting journalists' use of video online: In a move designed to protect the Internet operations of its 32 teams, the pro football league has told news organizations that it will no longer permit them to carry unlimited online video clips of players, coaches or other officials, including video that the news organizations gather themselves on a team's premises. News organizations can post no more than 45 seconds per day of video shot at a team's facilities, including news conferences, interviews and practice-field reports. Now this policy isn't copyright-based -- the NFL doesn't have copyright in the un-fixed statements of its players and coaches -- but good old real property law. The NFL teams own their facilities, and with them have the right to exclude people physically, as trespassers. So the NFL is telling sportswriters, who depend on physical access to gather the background for their stories, they'll be barred at the gates if they use more than 45 seconds of video online. Houston Chronicle columnists John McClain and Anna-Megan Raley show the absurdity of this policy by trying to complete interviews in 45 seconds, stopwatch in hand. Even stopping at 45 seconds, they apparently violate the policy if the video is not removed after 24 hours and doesn't link to nfl.com! While the football league may be within its legal rights on this one, its policy still reflects a fundamental misunderstanding of the medium. The league depends on independent journalists to do the research that keeps people following the sport between games, and journalists have turned to the Internet to dig deeper than they could in print or time-constrained TV. Readers go to sportwriters' websites and blogs precisely for perspectives they don't get from the official NFL.com website. Limiting the richness of media available on these sites is more likely to alienate fans and journalists than to drive traffic to NFL.com. Just look where the Olympics is. Sometimes rights to exclude are best left un-exercised. By contrast, the National Hockey League has taken a better course, striking deals with YouTube, Sling Media, and Joost to permit people to see hockey when and where they want. "We're not content fascists," Keith Ritter, president of NHL Interactive Cyber Enterprises, which represents the league's interests in new media, tells the LA Times. Perhaps it's time for the Houston Chronicle team to battle global warming and pick up hockey sticks! Thanks Scott! Full Article
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