jurisdiction – Techdirt (original) (raw)

Elon Musk’s Ridiculous SLAPP Suit Gets Green Light from Partisan Judge

from the free-speech-attack dept

When it comes to Judge Reed O’Connor, the only thing more predictable than his partisan rulings is the Supreme Court overturning them. But that hasn’t stopped him from giving the green light to Elon Musk’s ridiculous SLAPP suit against Media Matters. O’Connor’s problematic decision basically means that Elon has won. Even if the eventual case goes against Elon and rightly points out that Media Matters did nothing wrong, the cost of the case and the wider impact on speech has been a disaster.

When Elon sued Media Matters for publishing an article that everyone (including Elon) admits is true, people pointed out the many reasons why the case was terrible and should get tossed out. But first among them was the question of venue.

The case was filed in the Texas courtroom of Judge Reed O’Connor, even though none of the parties had any clear connection to Texas. The plaintiff was X Corp, a Nevada entity that (at the time) was headquartered in California (it has since announced it is closing down its headquarters there, but still), suing Media Matters (based in Washington DC), its CEO Angelo Carusone (based in DC) and one of its writers, Eric Hananoki (based in Maryland).

There is no connection to Texas other than that Elon Musk (who was not a direct party to the case) has other companies there. But Judge O’Connor just recently ruled in this very same case that you can’t assume that just because Elon controls both Tesla and ExTwitter that the companies are connected. So, you would think that this would further extend to saying Elon’s presence in Texas is meaningless.

Just last week, another judge, Amit Mehta in Washington DC, called out that a related investigation by Missouri AG Andrew Bailey (kicked off in response to a request from Elon Musk to pile on against Media Matters) was clearly and obviously an unconstitutional attack on Media Matters’ protected speech.

But Judge O’Connor marches to the beat of his own partisan piper. Recently, Joe Patrice at AboveTheLaw gave a short summary of Judge O’Connor’s history of extremist partisan decisions that even this Supreme Court felt the need to overturn:

Judge Reed O’Connor is, by all accounts, a joke. Elevated to the federal bench by the grace of the Federalist Society vetting machine, O’Connor has spent his tenure striking down Obamacare — and getting overturned by the Supreme Court — striking down other parts of Obamacare — and getting overturned by the Supreme Court — striking down the Indian Child Welfare Act — and getting overturned by the Supreme Court — inventing a constitutional right for crybaby anti-vaxxers — and, well, you’re not going to believe this, but he got overturned by the Supreme Court on that too.

While it wasn’t a huge surprise that O’Connor refused to recuse himself from the case over his Tesla shares, it’s still been bizarre to watch him act as if there’s a credible complaint here. First, O’Connor allowed discovery to go ahead before the motion to dismiss was decided (which isn’t entirely uncommon but in a case like this was still aggressive). And then last week he rejected the motion to dismiss entirely.

Media Matters had pointed out the very clear flaws in the claimed Texas jurisdiction and venue. But O’Connor comes up with a nonsensical excuse that most other judges would have laughed at: that because Hananoki’s articles mentioned Oracle’s ads, and Oracle is (temporarily) headquartered in Texas, there is jurisdiction over Hananoki.

Notably, Oracle only moved its headquarters to Texas during the pandemic and recently announced it was moving them again to Nashville. It’s also a meaningless point, given that Oracle allows employees to be remote, its founder (Larry Ellison) works mostly from Hawaii, its CEO, Safra Catz, lives in Florida, and many other execs remain at its original headquarters in California. The Texas HQ has always been more of a paper move than anything real.

But it’s enough for Judge O’Connor, even though Oracle is not a party to the action:

The body of the Hananoki articles targeted, among others, Oracle, a Texas-based company that placed ads on Plaintiff’s platform. Indeed, the Hananoki Original article included Oracle in the headline.

Judge O’Connor then also points out that this means that “the harm suffered” may have occurred in Texas:

This targeting of the alleged tortious acts at the headquarters of Texas based companies is sufficient to establish specific jurisdiction in Texas. See Johnson v. TheHuffingtonPost.com, Inc., 21 F.4th 314, 318 (5th Cir. 2021) (“The key question, under Calder, is whether the forum state was ‘the focal point of the [alleged libel] and of the harm suffered.’” (quoting Calder v. Jones, 465 U.S. 783, 789 (1984))). As just described and as set out below, each Defendant engaged in the alleged tortious acts which targeted harm in, among other places, Texas.

But… that’s wrong? I mean, just fundamentally. The harm alleged in the complaint is not to any of the “Texas-based companies.” Rather it’s X Corp., which, at the time, was not a Texas-based company in any sense. Doesn’t matter according to O’Connor.

Accordingly, the evidence taken as true shows Hananoki targeted his conduct at Texas.Because Defendant Hananoki “purposefully directed [his] activities” at Texas, and Plaintiff’s claims against Hananoki are “deriving from, or [are] connected with” those activities, specific jurisdiction exists

I’ve seen plenty of weird jurisdiction and venue cases in my two and a half decades covering the internet (internet jurisdiction questions can be crazy…) but I’ve never seen a justification quite like this one.

Judge O’Connor says that Media Matters itself as an entity would avoid jurisdiction in Texas if the site was “passive” but if it’s “interactive” then it’s fine. I’ve never heard this distinction before, and it makes no sense.

Defendant’s affidavit describes the website as interactive. Since the website is interactive, the traditional jurisdictional rules apply. Johnson, 21 F.4th at 319 (website is interactive if it solicits information, makes purchases, and click on ads.) These rules seek to determine whether Plaintiff’s suit results from Media Matters purposefully targeting Texas. Id. For the reasons stated above, Media Matters targeted Texas…

He then quotes another case to say that “a defendant who targets a Texas company with tortious activity has fair warning that it may be sued there”:

(“if you are going to pick a fight in Texas, it is reasonable to expect that it be settled there.”)

Except that… no one picked a fight in Texas. This is a made-up thing. Again, literally none of the parties were based in Texas.

Getting past the jurisdiction questions first, there’s still the issue of venue (i.e., is this the right place to file this lawsuit). And the obvious answer again here is “absolutely fucking not.” But, this is Judge O’Connor, so of course he thinks it makes sense.

Plaintiff sufficiently alleges a substantial part of the events occurred within the Northern District of Texas. Plaintiff alleges that Defendants waged a campaign against X’s blue-chip advertisers. It alleged AT&T, headquartered in the Northern District, was one of its blue-chip advertisers targeted by Defendants. The gravamen of Plaintiff’s claims are that Defendants intended to negatively impact Plaintiff’s blue-chip clients, including a client based in this district. This sufficiently establishes that a substantial part of the events at issue in this lawsuit occurred here.

Judge O’Connor rushes through the rest of the motion to dismiss. On the issue of no breach of contract because there was no such contractual breach, Judge O’Connor says that in Texas you can have tortious interference in merely getting someone to end a contract even without a breach (which is quite incredible).

Judge O’Connor does the judicial equivalent of a “who can really say” shrug regarding the argument that any harm of ExTwitter allowing ads next to neo-Nazis on ExTwitter came from ExTwitter, not Media Matters accurately pointing out the ads next to neo-Nazis:

Finally, Plaintiff plausibly alleges that Defendants proximately caused their harm. Proximate cause requires proof of both cause-in-fact and foreseeability. Defendants present a compelling alternative version of events to Plaintiff’s. However, the Court will not “choose among competing inferences” at this stage. … Accordingly, Plaintiff’s Amended Complaint alleges sufficient facts to state a claim of tortious interference with contract.

Media Matters had (correctly) pointed out that the claim of business disparagement requires there to be “false and disparaging information published” and that it has to have been done with actual malice (a pretty high standard, which includes that Media Matters knew or highly suspected the material was false at the time).

Incredibly, Judge O’Connor apparently writes the “false” part out of this requirement altogether, saying that disparaging is enough. His analysis of “malice” ignores the actual standard (which is reckless disregard for the truth), and says (incorrectly) that the frequency and tenor of the statements supports malice (which is not the standard, according to the Supreme Court, which seems to need to keep correcting O’Connor).

First, construing the facts pled by Plaintiff in the light most favorable to it, that Defendants manipulated and intended to deceive Plaintiff’s advertisers is sufficient to support the first element. Plaintiff alleges Defendants acted with malice and without privilege by asserting Defendants’ reporting was false and the “frequency and tenor of Media Matters’ statements disparaging X and the safety of advertising on the X platform” supports an inference of actual malice. And finally, Plaintiff has pled a plausible claim regarding special damages in that Defendants tortious acts undermined “advertisers’ faith in X Corp.’s abilities to monitor and curate content.

Almost every similar case I can think of dismisses on the actual malice point by pointing out that merely claiming “actual malice” does not make it actual malice. You have to show the reckless disregard for the truth. But here, O’Connor not only ignores the fact that ExTwitter admits in its complaint that nothing is false, he ignores the requirements of actual malice.

This is pretty stunning.

Unfortunately, this fits with O’Connor’s priors, in which he appears to bend over backwards to come up with excuses to support “his side.” If that means ignoring the Supreme Court standard, so be it. Tragically, all this is going to do is add (massively) to the costs facing Media Matters, as with the discovery order and O’Connor’s fee shifting order about whether or not he needed to recuse over his ownership of Tesla stock.

The non-profit has already laid off a bunch of employees because of the costs of this lawsuit. This decision more or less guarantees an approximately ten-fold increase in costs (after the motion to dismiss is when things get ridiculously expensive).

In other words, even if Media Matters were to win this case down the road, it has already lost. The cost of this kind of lawsuit is punishment, and O’Connor has now made multiple rulings that exact that type of punishment at soul-crushing levels.

And thus, Elon has successfully suppressed Media Matters’ speech. Never, ever, let anyone tell you he supports free speech after engaging in this kind of activity. He is actively abusing the judicial system to suppress speech. And he’s doing it gleefully with support from fans who also, falsely, insist they favor free speech.

Elon isn’t letting up either. Almost before the ink was dry on the order denying the motion to dismiss, ExTwitter filed a motion to compel Media Matters to hand over all sorts of confidential “donor-related documents.” Remember when Republicans absolutely hated any move to force non-profits to disclose donors? Apparently, that only applies to organizations that support Republicans. If you work against them, you should be forced to reveal your donors.

This ruling is, itself, an attack on free speech, in a case brought by someone who falsely claims to be a free speech absolutist. The end result is a travesty and a disaster for speech.

Filed Under: actual malice, breach of contract, business disparagement, elon musk, jurisdiction, reed o'connor, slapp suit, texas, venue
Companies: media matters, oracle, twitter, x

Riot Games, Moonton Settle Copyright Dispute After 7 Years Of Drama

from the and-we-have-no-idea-what-happened dept

Nearly seven years ago, we discussed a copyright dispute between Riot Games and a Chinese game publisher, Moonton. At issue were mobile games published by Moonton, such as Mobile Legends, that sure looked like fairly straight clones of Riot Games titles, chiefly League of Legends. We don’t typically cover what look like legit copyright disputes, since they aren’t really our flavor of news. We did so in this case primarily because of comments Moonton put out publicly, including a flat denial of the copyright claims as well as some cryptic comments about the publisher “protecting” itself from media that was putting out good-faith reporting on the dispute. Here is that snippet from Moonton’s statement.

Meanwhile, for some media and competitors who have spread the unreal information and rumors against us, we reserve the right to protect ourselves and pursue legal actions.

So, what has happened in the subsequent seven years? Well, mostly a great deal of confusion as to where this dispute should even be heard, for starters.

The two gaming giants have been locked in disputes since 2017 when Riot Games initially sued MOONTON, alleging the replication of in-game elements from their popular game, League of Legends. The case, however, was dismissed, with the court ruling that it fell under the jurisdiction of a Chinese court.

Back in 2022, Riot Games reignited legal proceedings against MOONTON, claiming copyright infringement over certain content in Mobile Legends: Bang Bang that resembled elements from both League of Legends and its mobile version, League of Legends: Wild Rift. The US court dismissed the case, suggesting that it should be resolved in a different jurisdiction.

So, a great deal of flailing about with US courts deciding America was not the proper venue for any of this. Meanwhile, in true Streisand Effect fashion, the dispute and some of the commentary from Moonton attacking the press served only to keep the accusations of copyright infringement and cloning circulating around the gaming media and press.

And then, after all of this volleying of venues and lawsuits, both sides recently settled the dispute and the lawsuits are going away.

Riot Games has formally concluded its extensive legal dispute with MOONTON Games regarding intellectual property matters linked to Mobile Legends: Bang Bang.

“MOONTON Games and Riot Games have reached a global settlement on their intellectual property disputes. After several rounds of communication, the two parties officially signed a settlement agreement recently, and Riot Games decided to formally withdraw the related lawsuits,” MOONTON Games announced in a release sent to the media.

Although the details of the settlement are undisclosed, Riot Games’ withdrawal of lawsuits indicates a mutual agreement between the two entities.

As always, these undisclosed settlement terms are immensely frustrating and prevent us from seeing what was actually agreed to under the hood. That being said, given the pictorial evidence in the suits to back up the claims of cloning and copyright infringement, it is difficult for me to believe that Moonton walked away from this without donating any pints of blood to Riot’s lawyers.

And my real point in all of this harkens back to Moonton’s statement about protecting itself from rumors in the media. To publicly comment on this same dispute’s resolution that still doesn’t provide any clarity to the public and media as to what actually happened here and what was agreed to serves only to prolong the rumor mill filling in the void. If the company really wants to protect itself from the scary, evil media, it could try being just a bit transparent.

Filed Under: china, copyright, jurisdiction, league of legends, mobile legends, settlement, video games
Companies: moonton, riot games

Texas Court Dismisses Ken Paxton’s Lawsuit Against Yelp For Accurately Describing Crisis Pregnancy Centers

from the the-court-has-seen-through-your-censorial-attempt,-paxton dept

Last fall, we wrote about Yelp going to court in California to try to block Texas’s indicted and facing trial shortly Attorney General Ken Paxton from suing the company for using its speech to accurately warn users that “Crisis Pregnancy Centers” do not generally offer any actual medical care.

As you may know, anti-abortion advocates have opened up so-called “crisis pregnancy centers,” which are designed to look like medical facilities to help pregnant mothers consider their options. Many people are pointed to these crisis centers instead, when searching for potential abortion providers. The centers pretend to be a neutral advocate to help them consider their options, while in reality they are designed to steer expectant mothers away from abortion.

Yelp, quite reasonably, decided to use its own First Amendment rights to provide some more info about those crisis pregnancy centers to better inform potential visitors. It posted notices on crisis pregnancy centers saying: “This is a Crisis Pregnancy Center. Crisis Pregnancy Centers typically provide limited medical services and may not have licensed medical professionals onsite.”

Ken Paxton, who cosplays as a “free speech” supporter on the internet, wrote a letter to Yelp threatening to sue them for this speech. In response, Yelp changed the message to be even more accurate, but Paxton was still upset with their speech, which now said “This is a Crisis Pregnancy Center. Crisis Pregnancy Centers do not offer abortions or referrals to abortion providers.” This is accurate speech, which even Paxton admits is accurate. He just doesn’t like it.

After Texas threatened to sue Yelp once again, Yelp went to court first in a California federal court to get Paxton to shut up and to stop interfering with the company’s free speech rights. Paxton responded by suing Yelp in a Texas state court. Unfortunately, the court in California “reluctantly” rejected the lawsuit due to “Younger abstention,” which basically says a federal court doesn’t have jurisdiction over a case while a state court is considering the same matter. Yelp has appealed to the 9th Circuit.

In the meantime, though, last week, the Texas state court tossed out Paxton’s lawsuit. There’s not much to go on in the order, as it basically just says “we agree with Yelp’s special appearance” in this case.

Having considered Defendant Yelp Inc.’s (“Yelp”) Verified Special Appearance (“Special Appearance”), the responses, and the replies, if any, the Court finds that the Special Appearance should be GRANTED.

You can look at the “Special Appearance” by Yelp which lays out the main reasons the case should be dismissed, with the big one being the court’s lack of personal jurisdiction over Yelp:

This case involves a misguided lawsuit by the State of Texas (“State”) against Yelp, a California-based website operator with no offices in Texas, for allegedly violating the Texas Deceptive Trade Practices Act (“DTPA”) by posting a truthful consumer notice about crisis pregnancy centers on its nationwide website. In the Petition, the State does not allege that Yelp is “at home” in Texas, that the consumer notice was purposely directed at Texas, or that the DTPA claim arises from or relates to Yelp’s contacts with Texas. Instead, the State admits that Yelp is located in San Francisco, California, alleges that Yelp “targeted pregnancy resources centers nationwide,” and concedes that the DTPA claim arises out of a notice posted, from California, on the Yelp business pages of “every pregnancy resource center across the nation,” not merely those in Texas.

Yelp files this Special Appearance because the Petition should be dismissed for lack of personal jurisdiction for many reasons. Yelp, a nonresident of Texas, lacks sufficient minimum contacts with Texas to demonstrate purposeful availment, the DTPA claim does not arise from or relate to Yelp’s contacts with Texas, and the exercise of jurisdiction over Yelp would offend traditional notions of fair play and substantial justice. Yelp should not be haled across the country into a foreign jurisdiction to respond to a baseless claim premised on conduct that occurred exclusively in California.

So, it sure sounds like the Texas court tossed the case out on jurisdictional grounds, without even needing to get to the ridiculousness of Texas trying to sue a company over its accurate speech. The case in front of the 9th Circuit remains in play, though I’m not sure how this latest situation will play into that. If the Texas case is now dead (though, I guess Texas could appeal), then the Younger abstention issue should be moot?

Either way, it’s yet another example (one of so many) of Texas showing off its unconstitutional, censorial tendencies — in a state with leadership who claims to be supportive of free speech.

Filed Under: crisis pregnancy centers, free speech, jurisdiction, ken paxton, texas
Companies: yelp

Media Matters’ Very Strong Response To Elon Musk’s Very Dumb Lawsuit

from the wrong-place,-wrong-argument,-wrong-everything dept

Last fall, we detailed the many, many, many, many problems of Elon Musk’s absolutely bullshit ridiculous lawsuit against Media Matters. Again, if you don’t recall, Media Matters found some examples of neo-Nazi content on ExTwitter appearing next to ads from big name brands. Elon got extra mad about this because it also happened a day after he endorsed an anti-Semitic conspiracy theory trope. Either way, it led to many advertisers pulling their ads.

Rather than being a “free speech absolutist” like he pretends he is, Musk decided to sue Media Matters for its free speech. In that lawsuit, ExTwitter admits that what Media Matters saw actually happened (which basically torpedoes the lawsuit). Their complaint was (1) that Media Matters had to take some steps to see those ads, (2) most users would not take those steps, and (3) that people read Media Matters’ article to imply that most users would also experience the same thing (even though Media Matters never actually said that).

That defense would have actually been a useful thing for ExTwitter to just publicly say. A perfectly reasonable and smart response to the Media Matters report would have been, “Hey, so, Media Matters followed a bunch of Nazis and kept reloading until they saw some ads, and that’s something we’re constantly working on and trying to improve for our advertising partners, but it’s an impossible task to make sure that never happens. It’s extremely rare and is unlikely to happen for most people, and we’re continuing to work on improving.”

Or something like that. Instead, Elon decided to sue. In Texas (despite none of the parties being there), while admitting that everything Media Matters wrote was accurate, but they just didn’t like the way that Media Matters went about getting that info and how people interpreted it. But the way that Media Matters got the info (following Nazis and then reloading) is very much allowed by the system. If ExTwitter doesn’t like that, it (1) shouldn’t platform Nazis or (2) shouldn’t allow you to follow Nazis or (3) shouldn’t allow you to reload. But it does all three, so it really can’t complain.

Anyway, Media Matters has now filed its motion to dismiss. I had been a little nervous when Media Matters hired the Elias law firm to handle this, as they’re mostly focused on election law, not these kinds of free speech cases. But they also brought on some excellent free speech lawyers, including Ted Boutrous from Gibson Dunn. It’s a very strong filing.

The biggest and most obvious thing: what the fuck is this doing in Texas:

This Court lacks personal jurisdiction over Defendants Media Matters for America (“Media Matters”), a Washington, DC-based media organization, and its Maryland-based investigative reporter Eric Hananoki. Plaintiff X Corp. (“X”) sues for statements made by Mr. Hananoki in an article published on the Media Matters website. But it is blackletter law that a statement made on a passive website—one that just posts information that people can see—cannot support specific jurisdiction in Texas simply because readers in Texas could access the statement as easily as readers in other states. And this is all X alleges—that it has lost favor with some unspecified number of advertisers and individuals, some unspecified number of which are located in Texas, because of statements Defendants made on the internet.

X does not and cannot allege a single fact supporting jurisdiction over either Defendant. X does not allege that Media Matters or Hananoki are “at home” in Texas. It does not allege that Media Matters or Hananoki performed any act in Texas. It does not allege that Media Matters or Hananoki specifically directed any statement toward a Texas audience, used Texas sources in drafting any statement, or even mentioned Texas in any statement. X has thus failed to carry its burden to show personal jurisdiction over Defendants.

For these same reasons, venue is also improper in this Court. Plaintiffs may sue defendants only in courts where the basic constitutional requirements for personal jurisdiction and the limitations imposed by the federal venue statutes are met. These include, at a bare minimum, adequate contacts with the forum for the defendant to reasonably anticipate being haled into court there. This case does not come close to clearing that threshold. Neither party is based in Texas and the allegations at issue in this case have zero connection to Texas. X has thus failed to provide any convincing justification for litigating this dispute in Texas. On this basis alone, this Court should dismiss the complaint under Federal Rule of Civil Procedure 12(b)(3).

In all reality, the court should dismiss it on this point alone. It’s obvious that the case has no business being in Texas and that the court has no jurisdiction over the defendants’ actions.

But, if the court decides to ignore all that, the underlying case is also bullshit. The claims of contract interference? That’s not how this works:

X’s complaint wholly fails to plead—never mind plausibly allege—basic elements of its claim for interference with contract. See Compl. ¶¶ 42–44 (First Cause of Action). Under Texas law, “[t]he elements of tortious interference with existing contractual relations are ‘(1) an existing contract subject to interference, (2) a willful and intentional act of interference with the contract, (3) that proximately caused the plaintiff’s injury, and (4) caused actual damages or loss.’” Nix v. Major League Baseball, 62 F.4th 920, 934 (5th Cir. 2023) (quoting Prudential Ins. Co. of Am. v. Fin. Rev. Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000)), cert. denied, 144 S. Ct. 165 (2023). X fails to adequately plead at least the first three elements.

Off the bat, X fails to allege “an existing contract subject to interference”—the very first element. Nix, 62 F.4th at 934. Indeed, the complaint does not even use the word “contract” until it makes its legal allegations in the First Cause of Action, see Compl. ¶¶ 42–44, and nowhere alleges that any advertisers had any obligation to place advertisements on X for a specified term or up to a minimum spend. Because X has simply “not identified a written or an enforceable oral contract with” any advertiser, there is no basis to infer that X’s advertisers “had a contractual obligation to continue using [X’s] services.” Rimkus Consulting Grp., Inc. v. Cammarata, 688 F. Supp. 2d 598, 675 (S.D. Tex. 2010). X cannot sustain its first claim without alleging the existence of such a contract. Id. at 674 (“A cause of action for tortious interference with a contract will not lie in the absence of a contract.” (collecting cases))

Merely claiming that certain advertisers purchased advertising space on X in the past—and anticipating they would continue to do so in the future—is not enough to plead an interference with contract claim under Texas law. See Amey v. Barrera, No. 13-01-00130-CV, 2004 WL 63588, at *10 (Tex. App.—Corpus Christi Jan. 15, 2004, no pet.) (concluding “there were no contracts subject to interference” where third parties could “continue buying” products from a vendor so long as they wished but “could change vendors at any time”). X has made no allegation that it had “a legal right to future performance” from its advertisers under a contractual obligation, and instead “just [had] a hope” that advertisers “will continue” to purchase from it in the future. Restatement (Third) of Torts: Liab. for Econ. Harm § 17 (2020). X cannot state an interference with contract claim for “benefits that [X] hoped to receive but on which [X] had no right to insist.”

How about the “business disparagement” claim that some people pretended was a defamation claim. In the complaint, we noted that before the claims, the complaint made it out like this was a “defamation” case, but never actually made a defamation claim. Some people argued that because there’s a “business disparagement” claim that’s the same thing. The two are similar, but they are not the same. And, either way, nothing in the complaint supports a business disparagement claim (which has a very high bar):

X’s business disparagement claim cannot survive because X cannot plausibly allege that Defendants’ statements are false. Broughton, 2010 WL 3056862, at *11. X never claims in the complaint that Defendants fabricated the images reproduced in their articles. Far from it: X expressly acknowledges (as it must) that it is possible for the platform to display advertisements next to extremist content, even as it claims these pairings are “rare.” See Compl. ¶¶ 7, 13, 35; see also ¶ 6 (indicating that one percent “of X’s measured ad placement in 2023 [] appeared adjacent to content [not] scoring above the Global Alliance for Responsible Media’s brand safety floor”).

X’s only quarrel appears to focus on how often these pairings occurred and whether they are “organic,” but nothing in the complaint—let alone the disputed articles—suggests that Media Matters or Mr. Hananoki opined on the overall quantity of pairings. Furthermore, if X’s supposed safeguards worked, id. ¶ 25, it would have been impossible for Defendants to “exploit[] . . . X’s user features” to bring about the pairings, id., since Defendants have no authority or control over X, its algorithm, or its advertisement placement. X’s allegation, therefore, that Defendants “created” the pairings, id. ¶ 26, is simply not plausible.

Also, the whole actual malice thing:

Actual malice requires proof that the defendant made a statement “with knowledge that it was false or with reckless disregard of whether it was true or not.” New York Times, 376 U.S. 254 at 279–80). Even where statements are “not strictly true,” if they are “substantially so and not made with reckless disregard of the truth,” there is no actual malice. BDO Seidman LLP v. Alliantgroup, L.P., No. H-08-905, 2009 WL 1322555, at *12 (S.D. Tex. May 11, 2009).

Given that X does not plausibly allege that Defendants’ statements were false, it necessarily follows that X cannot plausibly allege that Defendants “knew [their] statements were false.” Rimkus Consulting Grp., 688 F. Supp. 2d 598 at 671. But even beyond that truism, X fails to allege any facts that could plausibly support a finding that Defendants acted with actual malice; instead, X relies on nothing more than conclusory statements, contending, for example, that Defendants’ statements were “not true and, Media Matters knew it.” Compl. ¶ 25. But this recitation does “not allow the court to infer more than the mere possibility of wrongdoing” and is not enough to state a proper claim. Moser v. Omnitrition Int’l Inc., 2018 WL 1368789, at *2 (N.D. Tex. Mar. 16, 2018) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

There’s more, but you get the point. The case was garbage from the start, and the motion to dismiss explains why. I’m guessing the most likely move is to dismiss over the jurisdiction issue, followed by Musk appealing to the 5th Circuit, where Calvinball takes over and the court will probably make a mockery of every precedent applicable here, because that’s just how the 5th Circuit works.

Filed Under: 1st amendment, business disparagement, defamation, elon musk, eric hananoki, free speech, jurisdiction, venue
Companies: media matters, twitter, x

The Weird Legal Posture Of Bounty Laws Strikes Again: Porn Age Verification Lawsuit In Louisiana Dismissed

from the bounty-laws-suck dept

A federal district judge in Louisiana dismissed a lawsuit challenging the state’s mandatory age verification statute in order to access adult content on the internet. The lawsuit was brought by the Free Speech Coalition and stakeholders in and adjacent to the adult entertainment industry.

Plaintiffs intended to block the age verification statute passed by the state legislature last year and entered into force on January 1, 2023. Due to technical grounds, U.S. District Judge Susie Morgan sided with the defendants – state officials, including Attorney General Jeff Landry – in a motion to dismiss because of a lack of jurisdiction. The age verification law was structured as a so-called ‘bounty’ law, meaning that state officials are barred from enforcing it, but anyone else in the state can bring suit against a website for failing to implement the age verification. State courts are the responsible venues to hear private causes of action brought against adult platforms that don’t follow the age verification law. This means that the only “enforcement” comes in the format of a private civil enforcement action entitling the private party resolution in the format of damages, and not by a government official.

We’ve seen this before. A similar age verification law targeting adult content was implemented in Utah. The Free Speech Coalition and many of the same plaintiffs sued in a federal district court, but the case was dismissed on technical grounds, with that judge citing existing case law.

The U.S. Supreme Court ruled in Whole Woman’s Health v. Jackson (2021)that federal lawsuits against government officials that are meant to challenge laws that are designed to only be enforced by private individuals, or ‘bounty hunters,’ cannot advance. Mike Masnick wrote an insightful analysis on this in August.

Whole Woman’s Health v. Jackson challenged a controversial Texas law passed by legislators in 2021, Senate Bill 8 or the Texas Heartbeat Act, that questioned whether abortion activists were able to enjoin state officials with an injunction blocking enforcement of the law that essentially compels private parties to sue people who are suspected of “aiding and abetting” an abortion.

The conservative high court ceded to the states’ rights crowd and ruled that Texas state officials are protected by sovereign immunity. This is the standard the Free Speech Coalition and other plaintiffs failed to meet in both the Utah and Louisiana lawsuits, according to both judges. The coalition appealed the Utah ruling to the Tenth Circuit Court of Appeals in Denver. It appears they will do the same in response to this ruling in Louisiana. Mike Stabile, director of public affairs for the Free Speech Coalition, said that “while we disagree and will appeal, it’s not at all a ruling on the merits of the law, which are still clearly unconstitutional.”

But this is the fucked up part: if you know your federal judicial districts, the U.S. District Court for the Eastern District of Louisiana is covered by the Fifth Circuit Court of Appeals (the appeals court equivalent to the short bus).

The Fifth Circuit is currently hearing oral arguments in the Free Speech Coalition’s case brought against Texas for its age verification law that requires public health labeling. A panel of judges for the circuit issued an administrative stay on a preliminary injunction issued by a Texas federal district judge indicating that the law violates the First Amendment rights of adult users and the sites. The stay essentially allowed the age verification law to go into effect despite the litigation.

Hopefully, the Fifth Circuit doesn’t keep “Fifth Circuit-ing.” I will spare you the rant on why age verification laws in their current format are violations of the First and Fourteenth Amendments. I will leave you with this, though: Porn is a human right, and blocking it in this format is wrong.

*mic drop*

Michael McGrady covers the tech side of the online porn business. He is the contributing editor for AVN.com

Filed Under: 5th circuit, adult content, age verification, bounty laws, jurisdiction, louisiana, private right of action, sovereign immunity, standing
Companies: free speech coalition

Canadian Serial Defamer Has Her Defamation Lawsuit Tossed By A US Federal Court

from the I've-been-besmirched,-exclaimed-the-besmircher dept

This kind of hubris can only be explained by massive self-delusion. It’s not pretty but at least the denouement is wholly justified.

Last January, Kashmir Hill published an investigation that uncovered the source of serial, widespread online defamation. The perpetrator was Toronto resident Nadire Atas, who engaged in a one-woman war against everyone she felt had ever slighted her.

The inflection point appeared to be the firing of Atas from a realty agency owned by UK resident Guy Babcock’s family. She had been fired in 1993. This was followed by a wave of online defamation and harassment that targeted multiple members of Babcock’s immediate and extended family, accusing them of pedophilia, child molestation, fraud, and theft.

Atas had also waged on online smear campaign against a Canadian lawyer who worked for a bank that had foreclosed on two properties owned by Atas. For whatever reason, Atas also targeted a Nova Scotia historian, branding him as a pedophile and “pervert freak,” making it difficult for him to obtain a research position.

Atas also allegedly harassed Toronto residents who had the misfortune of sharing a building with her. This included a reported assault as well as reports of extremely erratic behavior. The New York Times investigation culminated in Atas’s arrest on charges of harassment, defamatory libel, and spreading false information with the intent to alarm. Most of the charges were ultimately dropped but Atas was ordered to cease her online harassment of her many victims.

Atas responded as only someone who has decided the internet is an instrument for (extremely misguided) retribution can: she sued the New York Times over both articles, focusing on the one that reported her arrest.

That lawsuit has been dismissed, as the Volokh Conspiracy reports. Unsurprisingly, the shotgun litigation (there are 72 other defendants beyond the New York Times) has been found meritless. And, as the opinion shows, Atas did very little to help her case survive both its jurisdictional challenges (her being Canadian and the entities she sued being from all over the world) and her own litigation history. A footnote appended to the third page of the opinion [PDF] shows how Atas’ Canadian litigation history works against her pretty much anywhere else she files a lawsuit.

Plaintiff attaches to the complaint a January 3, 2018, order issued by Justice David L. Corbett of the Ontario Supreme Court of Justice. The order declares that Plaintiff is a “vexatious litigant,” who has “persistently and without reasonable grounds instituted vexatious proceedings and conducted proceedings in a vexatious manner in the Courts of Ontario,” and prohibits Plaintiff from instituting or continuing any action or proceeding in Ontario without first obtaining leave. The order also directs Plaintiff to provide a copy of the order to any court, regulatory body, or tribunal where she seeks to commence any type of action or proceeding.

Definitely not helpful, especially when suing over the contents of a well-researched investigation and factual reporting about your arrest.

This also isn’t helpful.

She seeks to hold 73 named defendants and several Jane and John Does liable for the alleged defamation, including (1) the Times and entities and individuals associated with the Times − such as The Daily and its host; the Times’s executive and business editors; and [Kashmir] Hill and her husband; (2) the alleged victims mentioned in the two articles; (3) individuals, entities, lawyers, and law firms who were involved in the defamation cases and other litigation in the Canadian courts to which Plaintiff was a party; (4) the relatives, colleagues, employers, and other entities associated with those whom Plaintiff perceives as enemies.

The court says that, first of all, it does not have jurisdiction. Atas is Canadian. The 73 defendants hail from the US, UK, and Canada. Most importantly, there are no US plaintiffs, which makes it all but impossible for the court to consider the case.

That being said, the court says there’s no case to be considered. What’s alleged here is nowhere near actionable under US law.

Even if Plaintiff is able to establish that the Court has diversity jurisdiction to consider this action, however, her factual allegations do not suggest that she would have viable claims against any defendant named in the amended complaint.

That refers to the Times articles, which are factual and offer factual basis for allegations made in them. The second article, in particular, covers nothing but the indisputable facts surrounding Atas’s arrest.

The rest of the defendants, however, are shielded from this lawsuit because the court has difficulty believing they ever defamed Atas, especially some of those on the outer reaches of the exceedingly long list of alleged defamers.

Plaintiff seeks to bring libel claims against a large number of individuals, lawyers, law firms, and other entities that have no apparent connection to the Times’ articles from which her claims stemmed. She names these defendants and asserts where they are domiciled, but fails to allege any facts against them, much less sufficient facts, as required by Rule 8, to allow the Court to reasonably infer that each defendant is liable to her for libel. For example, she names as defendants the Myers-Briggs Company, which she describes as “the world’s largest business psychology providers” based in California, and IBM, which she identifies as a “multinational technology corporation” headquartered in New York. Plaintiff provides no facts in the complaint that would show how these two defendants − or most of the other defendants − are liable for the alleged libel stemming from the publication of the two articles by the Times.

Yikes. Well, the court has far more patience than anyone should have for someone who is attempting to play the victim after victimizing others for years. Atas has a chance to amend the lawsuit. Given what’s seen here, any amendment is likely to increase the number of baseless claims and completely unrelated defendants, rather than bring Atas any closer to the vindication she somehow believes she deserves.

Filed Under: defamation, jurisdiction, kashmir hill, lawfare, nadire atas
Companies: ny times

Canada Strikes Again: Allows Lawsuit Against Twitter To Proceed Over Speech Of Twitter Users

from the not-this-again dept

Canada, despite being our friendly neighbor to the north, has been known to have some not great laws regarding speech. Over the years, we’ve covered a few too many distressing lawsuits that attack speech, including by going after intermediaries rather than the speakers themselves. While sometimes (but not always), Canadian courts eventually get to the right decision, it’s often many years later, and after a whole lot of censorial nonsense.

It’s happening yet again. A Canadian businessman, Frank Giustra, is mad at Twitter. He’s really mad at some idiots on Twitter who claimed he was somehow tied into Pizzagate because he’s done some philanthropic work with the Clinton Foundation, but it’s turned into a lawsuit against Twitter itself — because silly people continually want to go after the intermediary, rather than the speaker. Obviously, in the US, any such case would be dead in the water, because common sense, the 1st Amendment, and Section 230 would all protect Twitter. Unfortunately, Canadian courts have none of those three to rely on. So, back in 2019, Giustra sued Twitter in Canada, and not the silly people who may have actually defamed him. Because why go after the actual speakers, when you can go after the tools they use?

Twitter had argued that Canada has no jurisdiction over the case, and it should be filed in California (where it would be tossed out immediately). Unfortunately, earlier this year, a court sided with Giustra over Twitter and now the appeals court has now ruled that Giustra’s lawsuit against Twitter can move forward, upholding the original decision. The full ruling is difficult to read without repeatedly wanting to scream about how dumb it is, but that’s what happens when you have no real intermediary liability protections, and people want to go after websites instead of actual speakers.

What happened in this case was that a bunch of stupid, ignorant people said ridiculously stupid stuff about Giustra online as part of the Pizzagate nonsense, a precursor to today’s metastasized Q-anon conspiracy theory. Giustra was (understandably!) upset about this and alerted Twitter about how people were spewing nonsense about him. Twitter then actually took down the vast majority of the tweets in question, and made most of the rest unviewable in Canada. But then Giustra, who lives in both California and Canada decided to engage in some libel tourism, seeking out the friendliest jurisdiction to go after Twitter: and that’s Canada. As the ruling itself notes:

In this case, Twitter submits, a careful examination demonstrates that the presumptive factor here does not point to any real relationship between the subject matter of the litigation and British Columbia as the forum. Whatever connection there may be between British Columbia and the subject matter of the complaint, Twitter asserts, it is anything but substantial.

In this regard, it points out that Mr. Giustra has a residence not only in West Vancouver, BC, but also one in Beverly Hills, California, and the tweets of which he complains were overwhelmingly posted by Americans about United States topics, particularly in reference to the 2016 US election and the connections between Mr. Giustra and the Clintons. Twitter says that Mr. Giustra?s pleadings did not single out British Columbia as a place of harm, and he filed no evidence that located any particular harm in British Columbia. In Twitter?s submission, the Sikhs for Justice case establishes that a plaintiff is obliged to lead evidence of harm to reputation in his chosen forum if he wishes to meet the case of a defendant who is seeking to rebut the presumption, and the judge erred in distinguishing that case as he did.

Twitter further asserts that, unlike the defendants in Haaretz (where jurisdiction was found not to have been rebutted), it did not choose to create content about the plaintiff. Twitter merely provided the platform and cannot reasonably be expected to be aware of the reputation and location of any given person mentioned on its platform. Moreover, contrary to the judge?s finding, Twitter maintains, the correspondence directed to Twitter on his behalf did not alert Twitter to concern about reputational harm in BC.

Giustra’s response to this seems incredibly silly. He argues that because Twitter made the content available in Canada, that’s enough to say it proactively was subjecting itself to Canadian libel laws. That’s a completely nonsensical argument on a (mostly) borderless internet:

As to Twitter?s submission that it could not reasonably have been expected to be aware of the reputation or location of any particular person mentioned in tweets because it did not create the content, Mr. Giustra points out that Twitter chose to make the content of its platform available worldwide?including Canada?and must be taken to have understood that defamation law may expose it to jeopardy in jurisdictions other than California. Moreover, Twitter continued to publish defamatory tweets after Mr. Giustra and his lawyers brought them to its attention. From that point on, Twitter had actual knowledge of Mr. Giustra?s connection to British Columbia and Canada.

The court, playing to the home crowd, accepts Giustra’s argument.

Here, Twitter submits, although the correspondence brought the existence of allegedly defamatory tweets to its attention, nothing in the communications suggested a connection with British Columbia. Consequently, in Twitter?s submission, it would not have known of Mr. Giustra?s connection to British Columbia, and would have no reason to expect to be sued in that jurisdiction.

In my view, there is no merit to this proposition. The correspondence in question comprised two letters from Mr. Giustra?s Toronto solicitors concerning ?abusive Twitter posts?, and one letter with attachments directly from Mr. Giustra on the letterhead of Fiore Financial Corporation in Vancouver.

So, apparently the letterhead is key to putting you on notice that you might be dragged into a Canadian court.

Twitter further argued that California is clearly the more appropriate forum, but again, the Canadian court says Canada wins, basically just saying that the lower court did enough under the law to say that Canada was the right jurisdiction.

Then there’s the important jurisdiction shopping point that Twitter raised. It highlighted to the court that such a case would clearly fail in the US, and thus it was only being brought in Canada to avoid that fate. The court here basically said that Twitter’s free speech protections in the US… are even more of a reason that Canada is the proper venue. That’s… eye-opening, but certainly fits with earlier rulings in which Canada has demanded US companies block content globally, with no concern to free speech considerations as applied to other countries.

A question arises as to whether the circumstance of Twitter?s immunity under US law is properly analysed as a question of applicable law, or of juridical advantage. The judge approached it primarily as a question of juridical advantage, and the parties argued it on that basis. But the judge also dealt with the effect of Twitter?s immunity in California as relevant to the factor of applicable law.

The court then says that because Canada has a much weaker and different intermediary liability protection law, it’s as if Canada has its own Section 230.

As Twitter was at pains to point out, should it be obliged to proceed to trial in British Columbia, it will raise the defence that, in law, it cannot properly be considered a publisher of tweets read in British Columbia (or anywhere else) that it did not author or create, and accordingly will need to bring a number of witnesses to British Columbia to assist it in that regard.

This is the same defence that is afforded to it in California by the Communications Decency Act of 1996. The difference is that in California, Twitter will be in a position to have Mr. Giustra?s claim summarily dismissed on the basis of that defence, while in British Columbia, it will have only the opportunity to persuade a court that the defence is available to it on the merits. Consequently, as a substantive matter, the defence is notionally available in both jurisdictions. Procedurally, however, it is a defence that is arguable in British Columbia, but is bound to succeed in California. In this sense, it can be properly considered under the factor of juridical advantage.

As I understand Twitter?s argument, it does not really matter under which circumstance the matter of Twitter?s immunity is analysed. Either way, the effect of US law should be given little weight in the forum non conveniens comparative analysis and the judge?s approach offended the underlying principle of comity. I agree with Twitter to this extent: whether the matter of its immunity under US law should be considered as a circumstance of applicable law or juridical advantage need not be resolved on this appeal. It is a relevant circumstance, and one that must be considered in the context of comity.

Except, the fact that under 230 such cases are “summarily dismissed” is the key point of Section 230, procedurally ending silly mis-targeted cases before they get ridiculously expensive for the defendant. So, the Canadian’s court’s dismissal of this point as if it’s only slightly different ignores the entire rationale for Section 230.

The court then flat out admits that under US law, courts would never enforce a ruling in Canada, but basically shrugs, and says that’s no reason not to try:

While courts in the United States are prohibited from respecting and enforcing any order made against Twitter in Canada, that is not so of Canadian courts in relation to any order pronounced in the United States. As the Equustek Solutions Inc v Google Inc litigation demonstrated, the courts in the United States are legislatively prohibited from respecting the different constitutional and legal approach in Canada, notwithstanding our shared values.

But that does not make proceeding in British Columbia a pointless exercise, for Mr. Giustra would at least have the opportunity to obtain a judgment vindicating his reputation (see Banro at para 45)?an opportunity denied from the outset in California.

The advantage-disadvantage balance that Twitter relies on is accordingly unequal between the jurisdictions and tilts in favour of British Columbia. In BC, Mr. Giustra would have the opportunity to establish his claim and vindicate his reputation; in California he would not. But Twitter would be in a position to raise the defence of lack of publication in either jurisdiction. In British Columbia, it would be a matter of argument; in California, its success would be a foregone conclusion.

And thus, this silly case moves forward. It’s possible that Twitter will still win in the end, but once again this ruling highlights just how important Section 230 is. It gets rid of these mistargeted, silly lawsuits upfront. Giustra remains free to sue the actual people who he claims defamed him. He has chosen not to do so, and instead focused on Twitter. That, alone, is silly, and it makes a mockery of common sense for Canadian courts to allow it to move forward.

Filed Under: canada, defamation, frank giustra, free speech, intermediary liability, jurisdiction, pizzagate, section 230, speech act
Companies: twitter

Appeals Court Rejects Clearview's Attempt To Dodge A State Lawsuit By Trying To Make It A Federal Case

from the yeah...-it's-a-little-weird dept

Clearview’s attempt to dodge a potential class-action lawsuit filed against it in Illinois has just been booted back to the Illinois court system by the Seventh Circuit Court of Appeals.

Clearview — facial recognition’s current supervillain — was sued in Illinois by Illinoisans alleging violation of Illinois law. Multiple times.

The plaintiffs claimed Clearview’s scraping of publicly available photos, location data, and other information from a variety of websites and social media platforms violated the state’s law, which requires companies to obtain permission from people before harvesting and selling access to this data.

This same law netted a $550 million settlement from Facebook for its preemptive tagging of people in photos, something a court found to be a violation the law passed by the state in 2008. This settlement appeared to rattle Clearview, which filed documents with the court stating it would no longer do business in Illinois or knowingly collect biometric information from Illinois residents.

This lawsuit continues, however, thanks to the Seventh Circuit. In a somewhat novel move, the plaintiffs argued they do not have standing to pursue this lawsuit in federal court. Clearview argued otherwise, hoping to establish enough standing to take the lawsuit federal, at which point it would agree the plaintiffs did not have enough standing to move the case forward.

It’s not often plaintiffs argue against their own standing, but the plaintiffs want this case in a state court, where they can pursue Clearview for violation of state laws. The only federal hook is Clearview’s existence as a Delaware corporation headquartered in New York. State courts will normally allow lawsuits like these to be moved to federal court because the plaintiffs and defendant aren’t located in the same state.

The district court, however, agreed with the plaintiffs: they did not allege any federal harms or anything else that would make the case better served at the federal level. The opening of the Seventh Circuit’s opinion [PDF] highlights the bizarre nature of this appeal:

Oddly, [plaintiff Melissa] Thornley insists that she lacks standing, and it is the defendant, Clearview AI, Inc., that is championing her right to sue in federal court. That peculiar line-up exists for reasons that only a civil procedure buff could love: the case started out in an Illinois state court, but Clearview removed it to federal court. Thornley wants to return to state court to litigate the BIPA claims, but Clearview prefers a federal forum. The case may stay in federal court, however, only if the more stringent federal standards for standing can be satisfied; Illinois (as is its right) has a more liberal attitude toward the kinds of cases its courts are authorized to entertain. The district court held that Thornley has alleged only a bare statutory violation, not the kind of concrete and particularized harm that would support standing, and thus ordered the action remanded to the state court.

The court notes this reversal of roles has led to an equally unusual appeal. Normally, plaintiffs argue in favor of their standing to sue. In this case, the plaintiffs are arguing against this because it runs contrary to their interests and in favor of Clearview’s. After examining far more precedent than one would imagine would be on hand, the Appeals Court says the case must exit the federal court system and return to Illinois.

The Appeals Court says the plaintiffs are free to craft their allegations as narrowly as they’d like. And as much as Clearview would like to be accused of even greater violations to (briefly) take the case federal for an easier dismissal, it’s not up to the courts to tell plaintiffs how to craft their arguments or shuffle things from state to federal just because something a federal court could handle could plausibly be alleged.

[Thornley] does not contest either the existence of minimal diversity (she is a citizen of Illinois, and Clearview is a citizen of Delaware and New York) or the fact that more than $5,000,000 is at stake. Instead, she has simply offered a class definition that is narrower than it might have been. We have no reason to believe that the district court, acting on its own initiative, would certify a different and broader class; to that extent, the rule that the plaintiff controls her own case applies. And unlike the situation in Standard Fire, people who fall outside Thornley’s class definition are totally unaffected by this litigation. If they wish to sue Clearview, either alone or under a class definition that includes an allegation of injury, they are free to do so. Indeed, as we noted earlier, there are a number of class actions pending against Clearview, many of which appear to be broader than this one. We know of nothing that would prevent a putative class representative from taking a conservative approach to class definition. And if the plaintiffs change their tune in the state court, Clearview will be able to attempt to remove again to federal court, though we do not predict the outcome of such an effort.

Clearview’s counterintuitive attempt to make a federal mountain out of the plaintiff’s state molehill fails. The case remains in the state court system and limited to a specific violation of state law. Clearview will still have to defend itself against these claims.

Filed Under: facial recognition, illinois, jurisdiction, privacy, removal, standing
Companies: clearview

EU Court Backs Austrian Court, Says Local Libel Law Applies Everywhere In The World

from the WORLD-IS-YOURS... dept

Whole lot of people complaining about Section 230 at the moment. And it’s a whole lot of people who should know better. Do you want to become Europe? Because this is how you become Europe.

In 2019, the Court of Justice of the European Union picked up a libel lawsuit handed to it by an Austrian court. The case dealt with a politician’s thin skin and supposedly defamatory content… you know, the sort of kneejerk reaction we’ve come to expect from authoritarians and bullies running countries with horrendous track records on human rights. But this is Austria, which is generally considered to be part of the “free world,” rather than a despotic dictatorship whose top politicians are to be viewed as gods among men — at gunpoint, if necessary.

Even in the “free world,” politicians far too often seem unable to handle criticism responsibly. There’s really not much in this case that lends itself to any honest definition of the term “libel.” Political rhetoric is superheated stuff, so a lawsuit over being called a “lousy traitor” on Facebook — as Green Party politician Eva Glawischnig was — should be considered an unactionable overreaction to normal online discourse. She was also called a “corrupt tramp” and a member of a “fascist party,” which is a little more specific but well within the realm of opinion, rather than false statements portrayed as facts. Presumably even the person who posted the comments doesn’t truly believe the politician is a sex worker who engages in the illegal acquisition of goods and services and/or is an actual facist.

None of this matters in Austria. And none of this matters in the rest of the world either, according to the Court of Justice for the European Union (CJEU). Last summer, the CJEU discussed the Austrian lawsuit and opined that maybe Europe should control what content anyone gets to see anywhere else in the world. A few months later, it solidified its shaky thinking, opining that the worldwide reach of the internet justified extraterritorial censorship.

Given that a social network facilitates the swift flow of information stored by the host provider between its different users, there is a genuine risk that information which was held to be illegal is subsequently reproduced and shared by another user of that network.

In those circumstances, in order to ensure that the host provider at issue prevents any further impairment of the interests involved, it is legitimate for the court having jurisdiction to be able to require that host provider to block access to the information stored, the content of which is identical to the content previously declared to be illegal, or to remove that information, irrespective of who requested the storage of that information. In particular, in view of the identical content of the information concerned, the injunction granted for that purpose cannot be regarded as imposing on the host provider an obligation to monitor generally the information which it stores, or a general obligation actively to seek facts or circumstances indicating illegal activity, as provided for in Article 15(1) of Directive 2000/31.

Facebook complied with this ruling by geo-blocking the content in the offended country. But this wasn’t enough for the CJEU, which backed the Austrian court’s decision. The case has returned to Austria and what the court there has ruled apparently applies to everyone — including US social media platforms.

Under the Austrian court precedent, courts in any such jurisdiction would be more or less free to apply their local laws to compel not just local, but global takedowns of posts or comments that violate the vagaries (and often highly speech-restrictive) of local law. And they could also require that copycat and equivalent posts be kept off—also on a global scale. This creates a classic risk of a race to the bottom, with the most censor-prone nation setting global speech rules.

This isn’t the way the internet is supposed to work. It’s not supposed to be subject to a bunch of fiefdoms wielding bad laws and bad legal precedent to decide what internet users around the world get to see. If Austria says these comments are defamatory (and it definitely shouldn’t say that), then geo-blocking should be all that’s required. But that’s not how the CJEU sees it. And its backing of a bad Austrian court decision opens the door for more bad faith litigation from “leaders” who can’t handle criticism without getting a lawyer involved.

Filed Under: austria, cjeu, eu, eva glawischnig-piesczek, global takedowns, internet, jurisdiction
Companies: facebook

FLVTO.biz Petitions SCOTUS To Hear Jurisdiction Argument In Stream-Ripping Lawsuit

from the we-are-not-the-world dept

While the music industry’s war on stream-ripping sites — sites that have perfectly legitimate and legal uses — continues, it’s true that this is a war in which one side has almost universally surrendered. Facing legal opposition with well-funded industry groups, most stream-ripping sites simply close up shop when staring down litigation. But Russia-based FLVTO.biz has been an exception. We first wrote about the site’s decision to defend itself back in early 2019. At that point, the owner of the site, Tofig Kurbanov, had successfully argued in a Florida court that the United States legal system had no jurisdiction over his site, given that it operates in Russia and makes no effort to entice American patronage.

It was a sensible ruling. After all, why should anyone want websites in one nation to be subject to the laws of every other nation’s laws just because the internet is designed to be international? And, yet, the RIAA labels appealed the ruling and got it reversed. The case was sent back to the lower courts where it was supposed to once again proceed, except that Kurbanov’s team has asked the Supreme Court to consider its jurisdiction arguments once more.

Those plans were then confirmed last month back at the Virginia court where the lawsuit began, which is considering the case anew following the Fourth Circuit ruling. Kurbanov’s lawyers have asked the district court to pause the ongoing proceedings there pending their application to the Supreme Court.

That application was submitted earlier this week. It argues that the top court should consider the case, because some Supreme Court style consideration is required on the issue of whether or not “the ‘due process clause’ of the United States Constitution is violated when a foreign citizen is subjected to personal jurisdiction based entirely on: (1) his operation of a website that is popular both within the United States and worldwide, but which is not specifically aimed at the United States; and (2) minor internet-based and internet-initiated transactions entered into by the foreign citizen entirely from outside the United States”.

This is indeed just the sort of important due process argument in the age of the internet that a sober SCOTUS should be weighing in on. And, while we could get lost in the legality of it all, common sense really should rule the day here. Does American law have jurisdiction over foreign entities not making any real effort to do commerce on American soil or does it not? And, if so, what precedent does that set for every other nation out there in terms of how American-based businesses conduct business over the internet?

Shall legal pornography websites in America be subject to the more prudish laws of other nations? Should news organizations in America face litigation from countries with far fewer press and free speech protections? Hell, should American entities legitimately selling RIAA label music themselves face threats from countries with obscenity laws and the like?

Evan Fray-Witzer said: “If you operate a website that is popular, then you’re subject to jurisdiction anywhere – and everywhere – that people access the website. And that’s not a precedent that anyone should want to stand, because if Kurbanov can be dragged into court here from Russia, then any US citizen who creates a popular website can expect to be dragged into court anywhere in the world”.

The lawyer also told Torrentfreak that the major labels should support his client’s bid to get the Supreme Court to provide clarity on this issue.

“If the record companies are so certain that the Fourth Circuit got this question right, then they should be anxious for the Supreme Court to take up the case”, he added. “We invite them to join our petition and ask the Supreme Court to weigh in on these crucial jurisdictional questions. But I’m not holding my breath that they’ll do so”.

It can be hard for the labels to see past the ends of their own noses, but they should realize that they could truly be biting themselves in their own asses if SCOTUS refuses to hear this case and this precedent gets set. The internet is international, but American laws are not.

Filed Under: copyright, jurisdiction, russia, streaming, supreme court, us
Companies: flvto, flvto.biz