Klaris Law is a boutique law firm that helps companies make money on content; helps clear, protect, enforce and monetize trademarks and logos; and advises on advertising, libel, privacy, the First Amendment, fair use, technology, and digital media issues. We handle all matters relating to:
Backed by 25 years’ experience in media, entertainment, and copyright and trademark law, we guide our clients through a complex and changing IP and digital environment as partner, advisor, and resource.
What We Do
You may need an attorney to conduct due diligence. You may want a lawyer to negotiate a license, a sale or acquisition of content, or advise on fair use, digital distribution, or a mobile application. You may be a publisher, a production company, hotel company, or an individual. You may have a particular need or be looking for an outside general counsel. Klaris Law can fill any or all of these roles for you, and add highly qualified attorneys and paralegals as needed on matters that require different levels of skill.
What is the Klaris Law difference?
- Edward Klaris worked in-house for 17 years and in a firm for more than 8 years.
- We are not just lawyers. We are strategistic, entrepreneurial, and pragmatic.
- We treat people with kid gloves, until the gloves have to come off.
- We have talented attorneys in trademark, copyright and media law.
- Media, publishing and entertainment companies
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If you are looking for IP rights and royalty management services, go to Klaris IP.
Our Media and Entertainment Practice
Our Intellectual Property Practice
Media and Entertainment Law
- Content review and clearance services for documentaries, books, movies, TV, scripted and unscripted programming
- Libel, privacy, and pre-publication/broadcast vetting
- First amendment, commercial speech, rights of publicity
- Social and digital media, online privacy, and FTC
- Opinion letters for insurers for fair use, libel and privacy
Drafting and Negotiating Agreements
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Trademark and Lanham Act
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- International trademark practice, including contested proceedings around the world
- Support all M&A activities, on the buy and sell sides
- Evaluation of trademark and copyright portfolios
- Due diligence analysis, documentation and reporting
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Learn what Klaris IP is about.
How meeting Federico Fellini taught him how law enables creativity.
Interested in learning more? The documents below, by founder Ed Klaris, provide more detail about IP valuation and monetization strategies.
This document explains how investing in robust metadata creation, along with asset management and rights management systems, is crucial for companies to monetize their assets.
A concise roadmap to help corporate leaders to evaluate their intellectual assets and think through the development of meaningful new lines of business in the media and entertainment sector.
A methodology for assessing IP portfolios, identifying gaps, and providing solutions for content companies to better monetize their assets across broader channels and territories, and thus to reach more subscribers, viewers, and members.
Copyright in small bites.
Ed Klaris moderated a panel discussion at a public meeting on Developing the Digital Marketplace for Copyrighted Works organized by The Department of Commerce’s Internet Policy Task Force.
An article reviewing U.S. and European law/recent developments in link liability in both the copyright and defamation contexts and providing a checklist of questions an attorney (or editor) ought to ask before deciding, prepublication, whether a proposed link may lead to liability in the U.S. and/or the EU.
- DEFAMATION: European Court of Human Rights, website editor not liable for publishing sexual…March 17, 2017
DEFAMATION: European Court of Human Rights, website editor not liable for publishing sexual allegations made against candidate in Constitutional Assembly elections — Ed Klaris & Alexia Bedat
The Icelandic courts were wrong to hold a website editor liable for publishing allegations made by two sisters that their relative, A, who was standing for election for the Constitutional Assembly had sexually abused them when they were children, the European Court of Human Rights (the Court) decided on March 16, 2017 in Olafsson v. Iceland (application no. 58493/13), available here.
In November 2010, Pressan, a web-based media site, published a series of articles about the sisters’ allegations against A. The articles were based on interviews with the sisters and a letter the sisters had previously sent to the police and posted on their website. A had been contacted, and his response, in which he denied the allegations, were reported in the articles.
In January 2011, Pressan published the fact that the sisters had received a letter from A’s lawyer offering to settle the matter, failing which A would bring defamation proceedings against them. Once again, the sisters were interviewed for the article and A’s rejection of the allegations was reported.
A brought defamation proceedings against the editor of Pressan in Reykjavik, where the Supreme Court ultimately found the statements in the articles to be defamatory. The editor, the Supreme Court held, had a supervisory obligation to conduct his editorial duties in such a way that the published material would not harm anyone by being defamatory. Pressan had reported allegations of criminal conduct, without any further information, for which A had never been found guilty nor been under investigation for. The fact that Pressan had asked A for comment did not change the Supreme Court’s reasoning.
The editor appealed to the Court, arguing that the domestic judgment violated his free speech rights under Article 10.
Reasoning — Pressan acted in good faith, the articles were written in compliance with ordinary journalistic obligations to verify factual allegations.
The Court began by noting that the story concerned the serious topic of sexual violence against children. The general public clearly had a legitimate interest in being informed about A’s running for general election and such serious matters. By running for office, the Court reminded, A must be considered to have inevitably and knowingly entered the public domain and laid himself open to closer scrutiny of his acts than a private individual would expect.
Turning to the way Pressan obtained information, the Court accepted that the journalist had tried to establish the sisters’ credibility and the truth of the allegations by interviewing several relevant individuals, namely, the sisters, A’s son, the police, one of the sisters’ employers, another alleged victim and people mentioned in the sisters’ letter. The journalist had also offered A the opportunity to comment, both for the initial and later articles. The Court reiterated that a general requirement for journalists to systematically and formally distance themselves from the content of a quotation that might damage someone’s reputation was not reconcilable with the press’s role of providing information on current events, opinions, and ideas. The Court noted that “punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so”.
The Court conceded that the allegations were of such nature and gravity as to be capable of causing harm to A’s honor and reputation. However, it was clear that the statements originated not from the editor or journalist but from the sisters. The quotations A complained of were a verbatim rendering of the sister’s statements in their letter, which had been published on their own website before the articles were published on Pressan.
Finally, the Court pointed out that while A had chosen to proceed against the editor only, A still had the possibility of bringing defamation proceedings against the sisters.
The interference with Article 10, the Court concluded, was not justified.
The Court’s decisions so far this year leave no room for doubt: domestic European court restrictions on political speech will be subject to strict scrutiny (see our previous posts on cases brought by a Ukrainian politician after being accused of destroying “all the work in Zolotarevka during his four years in office” and a Greek actress appointed to the subsidies advisory board of the Ministry of Culture’s Theater Department after being described as “completely unknown”). This strong defense of Article 10 is a welcome start to 2017, an important year for European national elections.
DEFAMATION: European Court of Human Rights, website editor not liable for publishing sexual… was originally published in Klaris Law on Medium, where people are continuing the conversation by highlighting and responding to this story.
- DEFAMATION: Eramo v.March 16, 2017
DEFAMATION: Eramo v. Rolling Stone, Amici Intervene, Is Correction Republication? — Ed Klaris & Alexia Bedat (Founding Partner and Associate at Klaris Law PLLC)
Eight media companies have intervened to raise the important issue of whether a correction constitutes republication for purposes of libel. A meaningful question for practitioners and journalists alike.
As previously reported, on November 4, 2016, a Charlottesville federal jury found Rolling Stone magazine liable for defaming Nicole Eramo, the former Associate Dean of the University of Virginia, in its now infamous article “A Rape on Campus.” Eramo sued Rolling Stone and the author of the story, Sabrine Erdely, for $7.5 million in reputational damages. The jury found that Eramo had established by clear and convincing evidence that Erdely acted with actual malice in making most of the allegedly defamatory statements and awarded Eramo $3 million.
On December 5, 2016, Rolling Stone filed a motion asking the judge to overrule the jury verdict. The magazine also argues that the jury was wrong to find, as a matter of law, that “republication” of the underlying facts of the article occurred when Rolling Stone published a correction acknowledging the weaknesses of the original article. The verdict has been stayed until the Court decides the motion.
The decision sent a chilling message to newsrooms, where the actual malice defense — clear and convincing evidence of subjective knowledge of falsity or reckless disregard of the truth — is often viewed as an impenetrable shield.
The media has not, however, been frozen to the point of inaction. On December 8, 2016, the Reporters Committee for Freedom of the Press and eight media companies (American Society of News Editors, The Associated Press, Gannett Co., Inc., Landmark Media Enterprises, LLC, Online News Association, Radio Television News Association, Society of Professional Journalists, and The Washington Post) submitted an amici curia brief (“the Brief”) in support of Rolling Stone’s December 5th motion.
The Brief exclusively addresses the question of republication and does not raise the other issues that will be on appeal, namely, whether there was adequate evidence that Erdely acted with actual malice. The Brief urges the Court to conclude publishers should not be penalized for informing the public of developing information and explaining their newsgathering decisions when inaccuracies are discovered (Brief at iv). Instead, the Court should encourage appending letters from the editors and notes to readers that set the record straight and avoid chilling debate on matters of public concern (Brief at iv).
The Brief makes a number of arguments:
· Public policy concerns favor corrections and clarifications to news stories: It is a fundamental principle of First Amendment jurisprudence that debate on public issues should be uninhibited, robust and wide-open. See N.Y. Times Co. v. Sullivan, 376 U.S. 254 270 (1964). Journalists are held accountable in this uninhibited debate by correcting their errors, especially in the era of digital publishing where journalists can “pull back the curtain” more easily to enable readers to understand what has happened.
· The pragmatic prism of social reality. People increasingly (if not exclusively) rely on online publications for news. Links to the original article are distributed across social media platforms. To be accurate and relevant, journalists must be able to make modifications promptly to the original URL.
· Benefit to defamed individuals. The Brief rightly points out that corrections and clarifications actually enable defamed individuals to vindicate their reputation in a speedy, cost effective manner and far less chilling way than litigation. Interestingly, this notion was recognized in legislation drafted by the National Conference of Commissioners on Uniform State Laws in 1994: the Uniform Correction or Clarification of Defamation Act (“UCCDA”). The UCCDA was adopted only in three states.
· Rebutting allegations of actual malice. The Brief cites to a number of courts that have accepted evidence of a publisher’s willingness to retract challenged information as a way of rebutting allegations of actual malice (Brief at 8–10). A correction supports the assumption that the author of the article did not act with awareness of probable falsity of his or her statements or with utter disregard of whether they were false or not. See e.g. Hoffman v. The Washington Post Co., 433 F. Supp 600, 605 (D.D.C. 1977).
What happens if Rolling Stone fails in its appeal?
An obvious consequence is that publishers will undoubtedly think twice before correcting an article. Accuracy, as a result, may suffer. Or, as the Brief points out, publishers might choose to completely remove a story when issues of credibility are raised, harming archive integrity in the process.
Practically, the consequence of the Rolling Stone decision will be that the one-year statute of limitations that applies to defamation claims will be triggered anew upon publication of a correction. Republication by way of correction would thereby become an exception to the single publication rule, under which an entire edition of a newspaper, magazine or book is treated as only one publication, and the plaintiff is permitted to plead and prove merely a general distribution of the libel and show the extent of the circulation as evidence bearing on the damages — see e.g. Rinaldi v. Viking Penguin, Inc., 101 Misc. 2d 928, 929 (N.Y. Sup. Ct. 1979) (the bringing out of paperbacks by publisher constituted a republication sufficient to start the applicable one-year statute of limitations running anew).
Plaintiffs would get one year to sue a publisher not from the date of the original publication but from the date of the correction. Defendant media companies seeking to do the right thing and correct inaccurate information may, therefore, be less inclined to do so post Rolling Stone.
Publishers concerned with the effect of the Rolling Stone decision should issue corrections as soon as possible, so that the limitations clock does not reset more than a short amount of time beyond the initial publication date. Speedy corrections will also increase the chance of publishers being able to successfully rebut allegations of actual malice.
- FAKE NEWS: With the Threat of Fake News, Will Social Media Platforms Become More Media Companies…March 16, 2017
FAKE NEWS: With the Threat of Fake News, Will Social Media Platforms Become More Media Companies and Foresake Legal Protections? Ed Klaris & Alexia Bedat
In the wake of the fake news scandals of the 2016 U.S. presidential election, social media platforms such as Facebook and SnapChat are increasingly being held to standards expected of media, rather than tech, companies. Fact-checkers and editors are entering the scene, raising the question whether social media platforms will continue to be passive Internet service providers, or content providers, or perhaps more of a hybrid.
The U.S. election catapulted fake news to the center stage of public debate. Which social media engines perpetrated the most fake news? Who believed the most fake news? How did fake news contribute to Donald Trump becoming President-elect?
The more pressing question at this point is how Social Media is going to correct the fake news problem.
Facebook reiterated its commitment to giving people a voice and its belief that it cannot become an arbiter of truth itself. Instead, Facebook has announced that it will partner with third-party fact-checking organizations. As a precondition to partnering with Facebook, the fact-checking organization must be a signatory of Poynter’s International Fact Checking Code of Principles. This Code is the result of international consultations among fact-checkers and sets out principles for fact-checkers to aspire to in their everyday work. Signatories must produce a public report indicating how they have lived up to each of the five principles within a year from signature, and once a year thereafter.
If a fact-checker identifies a story as fake, it will get flagged as “Disputed by 3rd Party Fact-Checkers”, with a link to an article explaining why. Although it will still be possible to share flagged stories, a warning that the story has been disputed will be displayed upon sharing.
Facebook is also tackling the financial incentives inherent in fake news. Hoaxers posing as news organizations are able to drive people to their websites that are usually advertisements. Facebook is eliminating the ability to spoof domain names and will analyze publisher sites to detect where policy enforcement action is necessary. The platform will also ensure that once a story is flagged, it is no longer be possible to make it into an ad or promote it.
Is this approach the correct one? The answer turns on how one perceives Facebook. Mark Zuckerberg has consistently described his platform as a “tech company”, not a “media company”, maintaining that it is up to users to decide who to follow. In an update posted after the election, Zuckerberg reiterated “We believe in giving people a voice, which means erring on the side of letting people share what they want whenever possible. We need to be careful not to discourage sharing of opinions or to mistakenly restrict accurate content.”
On the one hand, Facebook is primarily a social platform, not a news organization. Its users should be expected to exercise a minimum amount of good judgment when assessing the content that appears in their News Feed. We cannot, as an ever-growing online community, completely absolve ourselves from responsibility either.
On the other hand, with its 1.79bn users, Facebook wields incredible power. Until now, Facebook has relied mostly on algorithms, keeping human editorial judgment to a minimum — an approach that has not always worked for Zuckerberg’s data empire. The platform has been repeatedly criticized for taking down socially important content (e.g. its removal in October 2016 of a Swedish breast cancer awareness video or recent censoring of the Dakota Access pipeline protest livestream) and for the lack of transparency in its take-down process. Speaking at the Future Today Summit on December 6, 2016 in NYC, Judith Miller, an American journalist and commentator, shared her frustration at Facebook’s censorship of one of her articles on the war in Iraq. Miller questioned whether Facebook would “become our censors”, a status quo people should be “outraged” about as it is “not even possible to get someone on the phone to explain to you why your article was removed”. Meredith Broussard, an assistant professor at NYU’s Arthur L. Carter Journalism Institute, also called for greater editorial control, criticizing Facebook’s algorithm for optimizing what is “popular”, not what is “good”. Broussard also expressed skepticism that an algorithm is more neutral than editorial control as algorithms are made by people who have biases that can be replicated in the algorithm.
Snapchat, by way of comparison, exercises greater editorial control over news. Its news section, Discover, was introduced in 2015. Unlike social media companies that present users with content that is recent or popular, Discover counts on editors and artists, not clicks and shares, to determine what is important. Snapchat’s intention to rely on human editing and curation was made clear with its hiring in 2015 of Peter Hamby, a national political reporter for CNN, to head its news division. The benefits of these developments have not gone unnoticed, and are elegantly summarized by the title of Farhad Manjoo’s New York Times November 2016 article “While We Weren’t Looking, Snapchat Revolutionized Social Media”.
Facebook certainly has been looking, and appears to be drawing back its algorithm “shield”. Its new feature, Collections, will highlight news stories submitted by “handpicked media partners”, according to Business Insider. Unlike news stories that appear in the News Feed at present based on likes or as paid content, publishers will see their content inserted into the News Feed, as well as on Collections.
The combination of Collections and Facebook’s partnership with third party fact-checkers should herald an improvement in the quality and accuracy of the news on the platform. Whether one views Facebook as a tech giant or a media company, the move away from pure algorithms is a positive development. Hiding behind algorithms has, correctly, been described as increasingly untenable. After all, “algorithms are made by humans; choosing which story appears in your Facebook feed is the responsibility of Facebook whether they choose it explicitly or implicitly via an algorithm.”
This increased editorial control also raises the issue of Section 230 of the Communications Decency Act 1996, which provides immunity for providers and users of interactive computers services for user generated content (“UGC”) (“no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another content provider”). Notwithstanding this immunity, traditional media companies initially continued to check-facts and took responsibility for UGC to preserve integrity of information in their publications. Now, 20 years after the enactment of Section 230, we are witnessing the intended beneficiaries of Section 230 immunity do the very same thing.
It is open to question whether curation and human editing will be sufficient to be deemed a waiver of immunity under Section 230. A service provider does not lose Section 230 immunity for exercising a publisher’s traditional editorial functions, such as deciding whether to publish, withdraw, postpone or alter content. See Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir. Va. 1997). But where a service provider materially contributes to the alleged illegality of the conduct — as in Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. Cal. 2008) where Roomates.com’s connection to the discriminatory filtering process was direct and palpable — immunity is lost.
Courts are yet to address Section 230 and fake news on social media. This September, however, the Second Circuit denied Section 230 immunity to LeadClick, the now defunct operator of an affiliate marketing network, for using fake news sites. Federal Trade Commission v. LeadClick Media, LLC, — — F.3d — — (2d Cir. Sept. 27, 2016). The Federal Trade Commission was entitled to hold LeadClick liable not as the publisher of third-party content but for “its own deceptive acts or practices — for directly participating in the deceptive scheme by providing edits to affiliate webpages, for purchasing media space on real news sites with the intent to resell that space to its affiliates using fake news sites, and because it had the authority to control those affiliates and allowed them to publish deceptive statements.” As applied to social media platforms, it would run counter to the purpose of Section 230 — to encourage voluntary monitoring for offensive or obscene material — to hold them liable in their effort to combat fake news.
For now, one thing is certain: being “reliable” is just as pressing issue on the Internet as being “liable”.
FAKE NEWS: With the Threat of Fake News, Will Social Media Platforms Become More Media Companies… was originally published in Klaris Law on Medium, where people are continuing the conversation by highlighting and responding to this story.
- DEFAMATION: European Court of Human Rights Emphasizes Importance of Free Speech Against Elected…March 16, 2017
DEFAMATION: European Court of Human Rights Emphasizes Importance of Free Speech Against Elected Officials — Ed Klaris & Alexia Bedat
The European Court of Human Rights (“the ECtHR”) issued on January 12, 2017 a timely reminder: freedom of political expression under Article 10 trumps reputation in Lykin v. Ukraine (application no. 19382/08).
On January 28, 2007, the defendant, president of a local branch of the Party of Regions — a Ukrainian political party — read out a letter at a meeting attended by over forty other local party members, including the plaintiff, Mr G. Sh, the Deputy President of the town’s District Executive Committee. The letter contained a number of statements highly critical of the plaintiff, describing him as a “gabber and a petty tyrant”; accusing of destroying “all the work in Zolotarevka [their town] during his four years in office”; accepting a salary, but doing no work, and getting away with misspending funds. The letter demanded G. Sh’s resignation. The plaintiff was then immediately given the floor, where he claimed the allegations lacked any evidentiary basis.
The Ukrainian courts upheld G. Sh’s defamation claim, reasoning that the defendant had made the allegations public without verifying the serious accusations contained therein.
Reasoning — Ukrainian courts’ holding was not necessary in a democratic society
Having exhausted all local remedies, the defendant applied to the European Court of Human Rights, claiming that the defamation judgment violated his Article 10 free speech rights.
To be justified under Article 10(2), the defamation proceedings had to be “necessary in a democratic society”. In this case, the ECtHR held, they were not.
The Court reiterated its well-established case law that while freedom of expression is important for everybody, it is especially so for elected representatives of the people, who represent the electorate, draw attention to their preoccupations and defend their interests. A politician is entitled to have his reputation protected, but the requirements of that protection have to be weighed against the interests of open discussion of political issues.
The statements in this case concerned the official performance of a local politician elected to a post of responsibility within the district council. Having regard to the subject matter of the letter, the public status of the speaker, the chosen forum (a gathering of party members and politically active voters), the defendant’s discourse represented political speech in the strict sense, the restriction of which called for the closest scrutiny by the Court. Yet, the Court held, the Ukrainian courts had failed to give consideration to such factors.
The Court distinguished between statements that, seen in the context of the manner and scope of their dissemination, could be viewed as fair comment on matters of public interest, and those that amounted to gratuitous personal attack. The Court issued the reminder that political invective often spills into the personal sphere — “such are the hazards of politics and the free debate of ideas, which are the guarantees of a democratic society”.
While the letter included severely critical comments and accused G.Sh of very serious misconduct, evidence and submissions made by the parties before the national courts indicated that the accusations were based on certain true facts and events that had generated public discussion. The authors of the letter were frustrated and enraged by G.Sh’s conduct, as perceived by them based on available factual information. There was no reason to doubt that they had voiced their indignation in good faith. Moreover, the letter had been read before an audience that should have been reasonably well informed of the underlying facts and in G.Sh’s presence, who was then given the floor to respond.
As such, the Court concluded, confining the legal analysis to whether the defendant had verified the truthfulness of the negative allegations against G.Sh before making the letter public did not meet the high threshold necessary under Article 10 to restrict political speech.
The court’s reasoning is a reminder that where political speech is concerned, context, not just verification of facts, is key.
DEFAMATION: European Court of Human Rights Emphasizes Importance of Free Speech Against Elected… was originally published in Klaris Law on Medium, where people are continuing the conversation by highlighting and responding to this story.
- LEGISLATION: Congress to Weaken Section 230 of the Communications Decency Act?March 16, 2017
LEGISLATION: Congress to Weaken Section 230 of the Communications Decency Act? — Ed Klaris & Alexia Bedat
The protections that courts have given to online publishers under Section 230 of the Communications Decency Act 1996 (the “CDA”) just may have gone too far.
On Monday 9 January 2017, the Supreme Court denied to hear the appeal from three victims of trafficking, accusing Backpage.com — the world’s second-largest classified advertising website — of enabling their exploitation. Backpage.com defended itself on the basis of Section 230, claiming immunity as a mere host of the content created by others.
Section 230 grants broad immunity to interactive websites that host content provided by third parties. The immunity is only lost where a website operator edits the content in a manner that contributes to the alleged illegality. Fair Hous. Council of San Fernando Valley v. Roommates.com, 521 F.3d 1157 (2008).
That same day, the Senate Homeland Security and Governmental Affairs Permanent Subcommittee on Investigations (“the Senate Subcommittee”) released a damning report, accusing, among other things, Backpage.com of consistently and automatically deleting incriminating words from sex ads prior to their publication and knowingly facilitating prostitution and child sex trafficking. The report argues that the newly uncovered evidence makes it clear that Backpage.com went beyond passive publication of third-party content to editing content to conceal illegality. A few hours later, Backpage.com shut the adult services section of its website, along with the statement “The government has unconstitutionally censored this content” and the hashtag “#FREESPEECH”.
On Tuesday 10 January 2017, the Senate Subcommittee held an Investigations hearing on the matter, where Backpage.com executives that had been compelled to appear refused to testify, invoking the First and Fifth Amendments. Democrat Sen. Claire McCaskill, described Backpage’s practices as “the definition of evil”. Republican Sen. Rob Portman rejected Backpage’s censorship claims, calling Backpage’s closure of its adult services section the “validation of [the report’s] findings” instead.
Speaking to reporters following the hearing, Sen. Claire McCaskill called for an amendment of the CDA “in a changing world”. This is not the first time such calls have been issued. In July 2013, 47 state attorneys signed a letter to Congress, asking it to amend the CDA, pointing to the irony that the CDA, intended to protect children from indecent material on the internet, was now being “used as a shield by those who intentionally profit from prostitution and crimes against children”. The 47 AGs specifically requested that Section 230 be amended to enable not only (as it currently does) Federal but also State prosecutions.
For supporters of Section 230, the First Amendment implications of such a change are deemed too great and would undermine the “collective commitment” to free speech online. Judges are also reluctant to jeopardize this commitment by applying a narrow interpretation of Section 230. In Jane Doe №1 v. Backpage.com, LLC, 817 F.3d 12 (2016), the First Circuit upheld the applicability of Section 230 to Backpages.com, finding that the websites features did not make it a content-creator. The Court was clear: “[i]f the evils that the appellants have identified are deemed to outweigh the First Amendment values that drive the CDA, the remedy is though legislation, not through litigation”.
Whether recent comments following the Backpage.com scandal will translate into such legislation remains to be seen.
LEGISLATION: Congress to Weaken Section 230 of the Communications Decency Act? was originally published in Klaris Law on Medium, where people are continuing the conversation by highlighting and responding to this story.
- DEFAMATION: European Court of Human Rights, Calling an Actress “Completely Unknown” is Not…March 16, 2017
DEFAMATION: European Court of Human Rights, Calling an Actress “Completely Unknown” is Not Defamatory — Ed Klaris & Alexia Bedat
The Greek courts were wrong to hold the director of a Greek newspaper and one of its journalists liable for describing an actress recently appointed to an advisory board as “completely unknown”. The European Court of Human Rights’ (the Court) decided on January 19, 2017 in Kapsis and Danikas v. Greece (application no. 52137/12), available only in French.
In December 2004, the Greek daily newspaper Ta Nea published an article on the appointment of an actress (referred to in the judgment as “P.M.”) to the subsidies advisory board of the Ministry of Culture’s Theater Department, stating:
“Treating today’s politics like a board game, the government had awarded a number of positions on its Theatre Department committees to its mates. The very well known K.V., the safe right wing bet G.S., and the completely unknown P.M. […] But do not judge in haste. […] Lack of interest and ignorance are a thousand times better than the half-wit of elitist friends. ”
P.M. brought an action for damages, claiming to have been the “victim of insults” and a violation of her “personality rights”. The Greek courts found in P.M.’s favor, holding that the words “completely unknown” went beyond legitimate criticism and that the journalist could have expressed his opinion on her appointment without them. By using such terms, the journalist had sought to damage P.M.’s reputation, cast doubts on the actress’s “moral and social status” and revealed his disdain for her. The Greek courts praised P.M. for her contributions to the theater and foreign cultural perceptions of their country and ordered the paper to pay P.M. 30,000 EUR in damages.
The defendants appealed to the Court, arguing that the domestic judgment violated their free speech rights under Article 10.
Reasoning — the Greek courts failed to place the comment in its context when assessing the paper’s intention
To be justified under Article 10(2), the interference with the right to freedom of expression must be “proportionate to the legitimate aim pursued”, meet a “pressing social need”, be “necessary in a democratic society”. The Greek defamation judgment, the Court held, was none of the above.
The Court began by reminding the role of the press as a “watchdog” in a democratic society. Journalistic freedom, as such, must allow for a degree of exaggeration, and even provocation.
First, the statement “completely unknown”, read in its context, was not a fact, but a value judgment not subject to proof. Nor was it completely devoid of factual basis since P.M. had never assumed a public function. In any event, the Court held, the article was more of a “column on back-room politics” than a news story, characterized by the caustic tone typical of such columns.
Second, the domestic courts had failed to read the statement in its context to determine the journalist’s intent. The Court noted the words “completely unknown” had actually been followed by quite favorable comments. Had the Greek courts considered the statement in its full context, they might have reached a different conclusion. Instead, they addressed the statement as a stand-alone assertion that M.P. was “not known by a wide circle”. The role of domestic courts is not, the Court reminded, to impose on journalists a particular style in which to exercise their right to criticize, however sarcastic or harsh the criticism may be. Their role, rather, is to examine whether the context of the case, the public interest and the journalist’s intent justified the use of such language (the Court cited to its own decision in I Avgi Publishing and Press Agency S.A. et Karis c. Grèce (application no. 15909/06)).
Third, P.M. had been appointed as a member of an advisory board of a government department and would thus serve a quasi-political function, making her more than just a “mere private individual”. As such, the Court reasoned, the article contributed to a debate of general interest and only referred to P.M. in this “public” function. P.M. should have expected her nomination to be closely examined by the press, even criticized. Political invective, the Court held, often spills into the personal sphere: “such are the hazards of politics and the free debate of ideas, which are the guarantees of a democratic society”. Consequently, the words used by the journalists could not be described as “gratuitous offenses”.
Finally, in assessing damages, the Greek courts had failed to consider the defendants’ financial situation and had imposed a sanction that would inevitably discourage journalists from joining the discussion on current affairs.
The judgment marks the Court’s second decision this month upholding the importance of political speech. On January 12, 2017, the Court reminded that freedom of political expression under Article 10 trumps reputation in Lykin v. Ukraine (application no. 19382/08) (see previous post). Here, the Court has left no doubt: sanctions imposed on journalists for expressing criticism of appointed public officials will be submitted to strict scrutiny.
Timely reminders for those of us watching from across the pond.
DEFAMATION: European Court of Human Rights, Calling an Actress “Completely Unknown” is Not… was originally published in Klaris Law on Medium, where people are continuing the conversation by highlighting and responding to this story.
- LINK LIABILITY: An EU/US Comparison and Guide — Ed Klaris & Alexia BedatMarch 16, 2017
An article reviewing U.S. and European law/recent developments in link liability in both the copyright and defamation contexts and providing a checklist of questions an attorney (or editor) ought to ask before deciding, prepublication, whether a proposed link may lead to liability in the U.S. and/or the EU.
For full article, please visit: http://klarislaw.com/wp-content/uploads/klarislaw-link-liability-eu-us-comparison.pdf
LINK LIABILITY: An EU/US Comparison and Guide — Ed Klaris & Alexia Bedat was originally published in Klaris Law on Medium, where people are continuing the conversation by highlighting and responding to this story.
- RIGHT OF PUBLICITY: Porco v Lifetime Entertainment — Axe Murderers Have Name & Image Rights Too !March 12, 2017
RIGHT OF PUBLICITY: Porco v Lifetime Entertainment — Axe Murderers Have Name & Image Rights Too ! Ed Klaris & Alexia Bedat
Christopher Porco, the man convicted in 2006 of killing his father and attempting to kill his mother with an ax while they slept in their home, has a claim under New York’s Civil Rights Law § 50 and 51, the New York Supreme Court Appellate Division decided yesterday.
In 2013, Lifetime Entertainment broadcast the film “Romeo Killer: The Christopher Porco Story”, based on Christopher Porco.
Upon learning that Lifetime Entertainment planned to broadcast the movie, Porco sued under New York’s Civil Rights Law § 50 and 51 (“50/51”), the only of the four traditional Prosser torts recognized by the state of New York.
In 2015, the New York Supreme Court granted Lifetime Entertainment’s motion to dismiss the complaint for failure to state a cause of action.
Porco, acting pro se, appealed.
The limited statutory right of privacy in 50/51 makes it a misdemeanor for a firm or corporation to use the name, portrait or picture of a person for the purpose of advertising or trade without their written consent. A successful plaintiff is entitled to both an injunction and damages.
The statute does not apply to “newsworthy events or matters of public interest”, which are protected by the First Amendment. (Messenger ex rel. Messenger v. Gruner + Jahr Printing & Pub., 94 N.Y.2d 436 (2000)).
Appellate Division Decision
On Thursday 23, February 2017, the Appellate Division of Albany County held the lower court had erred in granting Lifetime Entertainment’s motion to dismiss for failure to state a cause of action.
The Appellate Division considered the “newsworthiness” exception alongside Court of Appeals precedent on the application of 50/51 to biographies.
Where a work is “so infected with fiction, dramatization or embellishment that it cannot be said to fulfill the purpose of the newsworthiness exception”, the exception will not apply (Messenger v. Gruner, 94 N.Y.2d 436 at 446). In such cases, the biography is nothing more than an “attempt to trade on the persona of the plaintiff” (Id.) and the fact that the work revolves around a “true occurrence” is not enough to bring it within the exception (Binns v. Vitagraph Co. of Am., 210 N.Y. 51, 58, 103 N.E. 1108 (1913)). Extending liability in such cases, the Court of Appeals has held, does not violate the constitutional protections of freedom of speech (Spahn v. Julian Messner, Inc., 21 N.Y.2d 124 (1976)).
To determine the merit of Porco’s claim, the Appellate Division focused on one fact (only): the film’s producer had written a letter to the plaintiff’s mother indicating that she was involved in the production of a documentary intended to accompany the film that she “hope[d]…[would] provide the platform for [the mother’s] family to state their position in a non-fictional program after the [film] airs”.
Viewing the letter in the light most favorable to the plaintiff — the standard of review in a motion to dismiss — the Appellate Division found it reasonable to infer that the producer’s letter indicated that the film was considered to be a fictitious program. Accordingly, the court concluded, it could not be said that the plaintiff had failed to sufficiently allege the same degree of fictionalization as that which had been found to violate the statutory right to privacy without running afoul of constitutional protections of speech in Spahn and Binns.
Consequently, the Appellate Division held, the defendant’s motion to dismiss should have been denied.
(i) The Appellate Division’s decision (barely 5 pages) gives unduly short shrift to the newsworthiness exception.
First, the producer’s letter, of itself, cannot constitute sufficient evidence to hold that the film was so infected by fiction, dramatization or embellishment that it could not be said to fulfill the purpose of the newsworthiness exception. The making of a “non-fictional program” in parallel to a film does not, without more, strip that film of its non-fictional elements.
Second, the degrees of fictionalization that have been found to violate 50/51 without running afoul of the protection of free speech differed significantly from the case at hand.
In Binns, the plaintiff had obtained wide notoriety for the heroism he had displayed rescuing passengers during a ship collision. He sued the defendant for using his picture in a “moving picture” purporting to show the ship wreck and exhibiting him in a “ridiculous posture”. The moving picture, the Court of Appeals held, was not representative of the shipwreck and merely used the picture “to amuse those who paid to be entertained”. In Spahn, the defendant published a fictionalized biography of a well-known baseball pitcher, in which the author used invented dialogue, imaginary incidents and attributed thoughts and feelings.
The Appellate Division did not explain how Lifetime Entertainment’s film contained similar degrees of fictionalization to the “moving pictures” in Binns or the fictional biography in Spahn. Contrary to those works, Lifetime Entertainment’s movie is based on Christopher Porco’s life, is entitled “Rome Killer: The Christopher Porco Story” and followed not only local, but extensive national coverage by the media. There is nothing in the Appellate Division’s decision that suggests Lifetime Entertainment invented a biography of Porco’s life, or imagined the events at issue.
Finally, Binns (1913) and Spahn (1967) are now dated decisions. A closer reading of both cases makes it clear that these decisions were heavily shaped by the profit making motives of the defendants. Since then, a number of Court of Appeal decisions have emphasized that the newsworthiness exception applies irrespective of the defendant’s profit motives. See e.g. Arrington v. N.Y. Times Co., 55 N.Y.2d 433, 440, 434 N.E.2d 1319, 1322 (1982); Stephano v. News Grp. Publications, Inc., 64 N.Y.2d 174, 184–85, 474 N.E.2d 580, 585 (1984); Messenger ex rel. Messenger v. Gruner + Jahr Printing & Pub., 94 N.Y.2d 436, 442, 727 N.E.2d 549, 552 (2000). This subsequent line of cases, which provides important context to the newsworthiness exception, does not feature in the Appellate Division’s opinion.
(ii) Missing the bigger picture — “expressive” vs purely “commercial” works
Lifetime Entertainment’s film was undoubtedly an “expressive” work, deserving of the highest First Amendment protection: a consideration which does not appear anywhere in the Appellate Division’s decision.
This lack of discussion re the “expressive” nature of a challenged work is not new. In Nieves v. HBO, Inc., 30 A.D.3d 1143 (2006), a woman sued under 50/51 after she had been filmed and appeared in a reality TV show where her sexual allure had been commented on. The New York Supreme Court merely concluded HBO had failed to demonstrate that the use of the plaintiff’s image had a “real relationship” to the subject matter of the show. The words “First Amendment” did not appear in the decision.
And yet, as early as 1965, that same Supreme Court was persuaded by the argument that 50/51 “was mainly designed to operate in connection with the sale of goods and services” and its application to works involving literary and artistic expression protected by the First Amendment “remote from the Legislature’s contemplation”. Univ. of Notre Dame Du Lac v. Twentieth Century-Fox Film Corp., 22 A.D.2d 452, 456, 256 N.Y.S.2d 301, aff’d, 15 N.Y.2d 940, 207 N.E.2d 508 (1965), cited recently by Justice Tom, concurring in Nussenzweig v. diCorcia, 38 A.D.3d 339, 346, 832 N.Y.S.2d 510, certified question answered, order aff’d, 9 N.Y.3d 184, 878 N.E.2d 589 (2007).
The chilling effect of imposing liability under 50/51 on creators of expressive works like Lifetime Entertainment was surely not in the Legislature’s contemplation. Filmmakers need a degree of creative license when producing biographic works. While anchored in facts, biographic films will often trace a person’s life with a degree of dramatization — The Wolf of Wall Street, American Sniper, The Social Network, Spotlight and Sully, being but some recent examples. Were these movies too infected with dramatization and embellishment to be protected by the First Amendment? The Appellate Division’s decision would seem to suggest so.
Whether the case will be appealed remains to be seen. It certainly presents an interesting opportunity for a new Court of Appeals decision on 50/51 — the last one dates from 2007, Nussenzweig v. diCorcia, 9 N.Y.3d 184, 878 N.E.2d 589 (2007).
RIGHT OF PUBLICITY: Porco v Lifetime Entertainment — Axe Murderers Have Name & Image Rights Too ! was originally published in Klaris Law on Medium, where people are continuing the conversation by highlighting and responding to this story.
- Nicole Eramo v Rolling Stone, Magazine Found to Have Acted with Actual Malice — Alexia Bedat…November 25, 2016
Nicole Eramo v Rolling Stone, Magazine Found to Have Acted with Actual Malice — Alexia Bedat (Associate at Klaris Law PLLC)
On Friday afternoon (November 4, 2016), a Charlottesville federal jury found Rolling Stone magazine liable for defaming Nicole Eramo, the former Associate Dean of the University of Virginia (“UVA”), in its now infamous article “A Rape on Campus”. Eramo sued Rolling Stone and the author of the story, Sabrine Erdely, for $7.5 million in reputational damages. The jurors handed down their verdict after 16 days of testimony from 12 witnesses, 11 hours of video statements and more than 180 exhibits of evidence.
In November 2014, Rolling Stone published Erdely’s article, relaying the account of the alleged brutal gang rape of Jackie, a UVA student, by members of Phi Kapp Psi, a campus fraternity house.
Shortly after its publication, the article began to unravel. On December 5, 2014, the Washington Post and other news outlets reported a number of discrepancies in the article. The Post relayed the fraternity’s denial that any event took place on the night of the alleged attack. It also revealed that a photo Jackie had shared of her alleged attacker had actually been of someone Jackie knew from high school and who had never attended UVA.
The truth of the story became the subject of national controversy. That same day, Rolling Stone published a note to its readers, addressing the many discrepancies that were being reported. The article was officially retracted in April 2015, following a report on the article by the Columbia University School of Journalism. The report, commissioned by Rolling Stone, called the article an “avoidable” story of journalistic failure. It examined failures in reporting, editing, editorial supervision and fact-checking.
Eramo sued Rolling, citing in her complaint that the article defamed her by claiming that she had intentionally tried to coddle Jackie to persuade her not to report her rape; that she was indifferent to Jackie’s allegations; that she discouraged Jackie from sharing her story with others; that she did “nothing” in response to Jackie’s allegations and that she claimed UVA withheld its rape statistics because “nobody wants to send their daughter to the rape school”. Eramo categorically denied ever making such statements.
Being a resident of the State of Virginia, Eramo brought suit in federal court in Charlottsville, VA, where UVA is located. Virginia state law applied. Rolling Stone would have preferred to be in media-friendly New York with New York law applying.
Virginia defamation law applies two different standards depending on whether the claimant is a public or private figure. While private figures need only meet the standard of negligence, public figures must meet the higher standard of “actual malice”, i.e. show by clear and convincing evidence that the publisher either subjectively knew the allegations to be false or acted with reckless disregarded as to their falsity. Eramo was found by the judge to be a public figure. As such, she had the burden of proving that Rolling Stone had acted with actual malice.
The attorneys for Eramo argued Rolling Stone cast the former associate dean as a villain, portraying her as indifferent to rape victims. Relying on Erdely’s notes, Eramo’s laywers maintained Erdely had preconceived ideas about indifference to sexual assault on campus and recklessly ignored conflicting accounts and facts that did not fit her story. They also argued that Erdely had failed to give weight to Jackie’s changing account, failed to press Jackie to give the name of her alleged attackers and failed to verify Jackie’s account with her friends.
The attorneys for Rolling Stone recognized that a number of mistakes had been made but maintained that these fell short of meeting the exacting actual malice standard (see e.g. Jordan v. Kollman, 269 Va. 569, 581 (Va.2005) holding that actual malice was not established where defendant’s belief in the truth of the statements made was an honest conviction grounded in good faith). They argued Erdely had no reason to doubt Jackie’s account until December 2014, after the story had been published. Scott Sexton, an attorney for Rolling Stone, told the jurors in his closing statement: “This woman [Jackie] was very good at telling this story. Dean Eramo believed her… Yet we are the ones being tried, in a sense, for having believed her”.
The jury found that Eramo had established by clear and convincing evidence that Erdely acted with actual malice in making most of the allegedly defamatory statements. It found no actual malice however in Erdely’s reporting that the University’s policies in effect affirmed its internal choices not to report complaints to the police or her quoting Eramo as having said “Because nobody wants to send their daughter to the rape school”.
The actual damage award has not yet been determined. Rolling Stone still faces a $25 million lawsuit filed by the Phi Kappa Psi fraternity, set for trial next year.
One can expect an appeal by Rolling Stone of the jury verdict, arguing, among other things, that, as a matter of law, the actual malice standard had not been satisfied by clear and convincing evidence.
In its statement after the verdict, Rolling Stone admitted to having “overlooked reporting paths and made journalistic mistakes that we [Rolling Stone] are committed to never making again”. The magazine expressed its hope that its failings would not deflect from the pervasive issues discussed in the article and that reporting on sexual assault cases would ultimately result in better campus policies. Rolling Stone’s managing editor described the failed article as both an “individual” and “institutional failure” and concluded that “[e]very single person at every level of this thing had opportunities to pull the string a little harder, to question things a little more deeply”.
The verdict is a chilling message to newsrooms, where the actual malice defense is often viewed as an impenetrable shield. Journalists entrusted with the already difficult task of interviewing victims of alleged sexual assault are reminded of the fine line between respecting a source and exposing a publication to liability. The verdict, moreover, comes in the chilling wake of the Gawker privacy case, in which former pro wrestler Hulk Hogan won a $140 million verdict against Gawker, forcing the online media company to file for bankruptcy and close its doors this summer for good (the initial verdict was settled last week for $31 million).
For our European and British counterparts following these developments from their more claimant-friendly defamation and privacy jurisdictions, these decisions perhaps come as little surprise. They sit uneasily, however, in the land where the First Amendment is sovereign. It remains to be seen whether publishers will heed to the Columbia School of Journalism’s call for a revitalized consensus in newsrooms “old and new” about what best journalistic practices entail.
Nicole Eramo v Rolling Stone, Magazine Found to Have Acted with Actual Malice — Alexia Bedat… was originally published in Klaris Law on Medium, where people are continuing the conversation by highlighting and responding to this story.
- Augmented Reality: Watch This Space, the U.S.November 17, 2016
Augmented Reality: Watch This Space, the U.S. Congress Certainly Is — Alexia Bedat (Associate at Klaris Law PLLC)
Imagine never having to relive that awkward moment where the name of a person you’ve met many times before escapes you.
Consider looking at billboards that advertise services or products actually tailored to your interests.
Picture reading the news and becoming immersed in the dispute that you are reading about.
Augmented reality converts these hypotheticals into…reality. Just this summer, we witnessed children and adults alike running around cities across the world trying to capture virtual creatures appearing on their smart phone screens as if they were in the same real-world location as the player (aka Pokémon Go).
While Augmented Reality (AR) is still in its infancy, multiple industries have already actually “augmented” peoples’ experience of reality. Magazines have used AR to bring their stories to life — e.g. the Washington Post’s visual retelling this May of the events leading to Freddie Gray’s arrest and death in Baltimore. Companies have leveraged AR’s potential to improve their business — e.g. clothing retailers have used it to enhance the shopping experience. The sport industry has caught on to benefits of AR as well — as seen by Google’s indoor maps of the golf course at the Rio Olympics or platforms like interactiveSquash and Shadow Shooter that enable their users to improve their squash game with a motion sensing screen or shoot virtual enemies with an AR enhanced bow and arrow.
By blending virtual digital information in a real-world environment, the potential applications of AR are endless, and to the U.S. Congress, its implications very real.
First Congressional Hearing on Augmented Reality
Yesterday (November 16, 2016), the Senate Committee on Commerce, Science, and Transportation held the first congressional hearing on augmented reality. I was among the few hundred people in attendance in Washington D.C., getting an early, first-hand perspective on the potential applications and policy considerations of the rapidly developing technology. A number of experts in the field were there to answer Senators’ questions, namely:
· Brian Blau, Research Vice President of Gartner (leading information technology market research company)
· Ryan Calo, Assistant Professor of Law at the University of Washington in Seattle (Faculty Director of UW’s Tech Policy Lab).
· John Hanke, CEO of Niantic, Inc (the software development company that brought us Pokémon Go)
· Brian Mullins, Co-Founder & CEO of DAQRI (tech company focused on empowering people in their everyday lives through AR)
· Stanley Pierre-Louis, General Counsel of the Entertainment Software Association (the U.S. association representing companies that publish computer and video games)
U.S. Sen. John Thune, chairman of the Senate Committee on Commerce, Science and Transportation opened the hearing. He cautioned that government should not jump in too soon to regulate new technologies with a heavy-handed approach. The witnesses then proceeded to give brief testimonies and answer questions.
Brian Blau made clear that for AR technology to flourish, innovation needs to be supported and accelerated without undue restrictions. While AR is mainly used by businesses today, Blau predicted that we are not far off from consumer AR becoming common. In answering Senator Thune’s question about barriers to broader consumer adoption, Blau explained that AR can come to consumers in many ways other than expensive headsets, such as mirrors in retail stores that show shoppers what clothes might look without having to try them on.
Brian Mullins discussed the application of AR to the workspace. He addressed Senator Wicker’s question whether AR would create or replace jobs in a state like his own (Mississippi). Mullins did not hesitate to answer positively. He described AR’s potential to reduce errors, increase efficiency on complex tasks and improve worker safety. Specifically, he discussed the use of “smart helmets” and their potential to empower workers with what they call “knowledge transfer” in the workplace.
Mullins gave the fascinating example of a worker transitioning to a new manufacturing facility in her community. On her first day, she can quickly gain new skills and knowledge through step-by-step augmented reality work instructions. She can thus look at the disassembled wing of an aircraft and see step-by-step instructions appear right on top of the components that she needs to put together.
Mullins also described the benefits of AR for road safety. Sensors in vehicles can provide drivers with critical information appearing on the windscreen. DAQRI’s own AR technology has already reduced distraction and helped drivers make decisions faster. In response to Senator Danes concern about accidents in rural areas, Mullins was confident that the AR technologies designed for urban areas could be adapted to rural driving as well.
Ryan Calo highlighted the positive applications of AR, from training tomorrow’s workforce to empowering people with disabilities. Calo also recognized that AR raises acute policy concerns that companies must address if AR is to become widely adopted by American society. Calo put forward a 5-point approach for the positive development of AR:
- No assumptions of fixed growth. Augmented reality is advancing rapidly but measures should be enacted flexibly.
- Threat modeling — anticipating what adversaries might do with AR — is essential to avoid compromised systems causing harm to individuals.
- Coordination between policy makers and AR designers. Accurate policies require accurate AR models or designs.
- Consulting with diverse stakeholders. People will experience AR differently (e.g. children or incarcerated people), with each experience creating its own opportunities and dangers.
- Acknowledgment by AR designers of the inherent trade-off between collecting more data for better performance and doing so at the cost of privacy.
John Hanke explained that Pokémon Go was created with three goals in mind: (1) encourage children and people to actually go outside, (2) enable people to explore, discover and develop a deeper connection with the places they live in and (3) encourage real social interaction between people.
Hanke also defended Pokémon Go against two common criticisms: data collection and safety. First, Hanke reiterated that Pokémon Go collects only the minimum amount of data necessary to operate the game, and not, as many have alleged, vast amounts of personally identifiable data to sell to third party advertisers. Second, in response to the safety criticisms in the New York Times article linking Pokémon Go to accidents caused by distraction, Hanke maintained that Niantic has been the only actor in the industry to disable its game when a user moves beyond a certain speed. He explained that eliminating the use of the app at any speed would not only be a step too far but also ignore the issue of personal responsibility.
In response to Senator Nelson’s question about AR designers protecting their devices from hackers, Hanke described the widespread and sophisticated nature of hacking attempts at the Pokémon Go software as “eye-opening”. He also shared that AR companies often find themselves in somewhat of a “wild west” situation, not always feeling like there is a sheriff out there to help them in the fight against adversaries.
Finally, Stanley Pierre-Louis suggested that many of the legal issues arising with AR technologies fit neatly within existing legal frameworks: AR is essentially just another advanced content delivery system. Pierre-Louis cited to the late Justice Antonin Scalia’s majority opinion in Brown v. Entertainment Merchants Association, 564 U.S. 786, 790 (2011) (the case that held that video games enjoy the same First Amendment protection as books, plays and movies) that “whatever the challenges of applying the Constitution to ever-advancing technology” ‘the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary’ when a new and different medium for communication appears”.
Legal Implications of Augment Reality
From a legal and regulatory perspective, AR has not yet attracted the widespread discussion one might expect. As lawyers in the ever-developing digital media space, we must advise our clients before the law settles and sometimes litigate issues that have not yet been tested.
In 2015, Brian D. Wassom published the first in-depth study of the legal implications of augmented reality (Augmented Reality Law, Privacy, and Ethics). In his book, Wassom considers AR through the prism of various established legal fields, such as privacy, advertising, intellectual property, real property, torts and criminal law.
Privacy and Augmented Reality
For example, the interaction between privacy and AR poses interesting legal questions. Consider wearable AR technology, such as facial recognition eyeglasses that enable the person wearing them to look at someone and instantly see displayed before them all of the available data on that person. To help recall forgotten details and prevent otherwise socially embarrassing situations, wearable AR technology relies on the collection of biometric data (e.g. facial recognition).
How is this regulated? At a federal level, the U.S has specifically avoided the issue. While privacy is regulated in areas such as medical records (Health Insurance Portability and Accountability Act 2000), consumer information (Fair Credit Reporting Act 1970), telemarketing (Telephone Consumer Protection Act 1991), electronic communications (Electronic Communications Privacy Act 1996) and children and the internet (Children’s Online Privacy Protection Act 1998), there is no federal law on the collection of biometric data.
Contrast this to the situation in Europe, where the Data Protection Directive 95/46/EC was specifically designed to protect the privacy and protection of all personal data collected on EU citizens.
This protection was recently strengthened by the coming into force on 25 May 2016 of the General Data Protection Regulation (the “GDPR”). Unlike a Directive, the GDPR is a Regulation and thus directly applicable in all Member States, without the need for implementation by national legislation. The GDPR strengthens the rights of individual data subjects, giving them a right to request information about data processed about them. It also imposes direct obligations on data processors to demonstrate compliance with the GDPR. This data protection regime has understandably made European companies hesitant to implement augmented reality technologies. This phenomena is clearly being felt within the industry, as reflected by John Hanke’s comment at yesterday’s hearing on the need for greater clarity with colleagues in Europe about the ambiguous interplay between AR and privacy there.
In the United States, only two states, Illinois and Texas, have enacted laws regulating the collection and use of biometric information: the Illinois Biometric Information Privacy Act (2008) and Section 503.001 of the Texas Business and Commercial Code (2009). As AR devices become more widespread, other States may be compelled to consider similar legislation as well. The issue has, for one, been on the Federal Trade Commission’s radar since 2012, when the FTC released its report “Facing Facts: Best Practices for Common Uses of Facial Recognition Technologies”. The FTC’s Report was criticized internally (see Commissioner Rosch’s Dissenting Statement) and may change under the incoming Trump administration. A thorough understanding of the current biometric legislation and tracking of new developments is crucial for any lawyer advising AR companies using facial recognition technology in the U.S.
It is also worth considering whether the prevalence of AR technology will alter our conception of what constitutes a “reasonable expectation of privacy”. As Wassom points out, thirty years ago, shoppers in retail stores would not have expected to be filmed during their shopping sprees. Today, even if we take for granted that everyone has a recording device in his or her pocket, do we expect a retailer or the people we meet at cocktails to be recording us via AR devices?
The legal answer to this question varies from state to state. To date, California has ventured the furthest, holding that, in certain circumstances, individuals benefit from a zone of privacy even outside the confines of their home or hospital, see e.g. Shulman v. Grp. W Prods., Inc., 59 Cal. Rptr. 2d 434, 457 (1996) (victim had a reasonable expectation of privacy in helicopter to hospital) and Hernandez v. Hillsides, Inc., 47 Cal. 4th 272, 277, 211 P.3d 1063, 1066 (2009) (plaintiffs had reasonable expectation of privacy in work space that their employer would not install video equipment capable of monitoring their activities behind closed doors).
Why does this matter to AR designers? While devices or apps are rolled out on a national level, state statutes cannot be avoided. A plaintiff claiming a breach of privacy by an AR product will bring a claim in the state where he or she was at the time of the alleged infringement. As such, lawyers will be required to advise both on procedural choice of law and substantive law issues.
Watch This Space
Ultimately, the list of legal implications raised by AR extends as far as its creators’ imaginations. As AR technologies continue to transition from hypothetical TED talks to actual consumers’ pockets (Bloomberg has just confirmed Apple’s development of an AR headset to be used in conjunction with the iPhone), these issues will become increasingly pressing.
Advising in this space requires not only knowledge of the current domestic and international laws governing a number of adjacent legal fields, but also a deep understanding of what AR technology is capturing, storing, converting and distributing.
Alexia Bedat is an Associate at Klaris Law PLLC
The Dubai municipality has “taken the Dubai Frame as its own without paying or crediting the person who created it,” said Edward Klaris, a New York-based lawyer representing the architect. “This is an egregious infringement of international copyright and a sad case of sovereign bullying that deserves to be corrected.”
As Dubai’s Skyline Adds a Trophy, the Architect Calls It Stolen
The New York Times
March 8, 2017
January 5, 2017
Can Tech’s Tattle Tycoon Trump Thiel?
August 17, 2016
August 19, 2016
Rights.tech interview with Ed Klaris
August 10, 2016
Ed Klaris, Managing Partner
With his 25 years in the media and entertainment sector, Ed is a recognized expert on intellectual property, privacy, and media law and has extensive experience building revenue from content and other IP. His clients turn to him to be outside general counsel, for specific matters, and to handle issues through settlement or litigation. Ed started Klaris Law in 2014 when he saw a need for a true boutique firm, with flexible pricing, providing deep knowledge in a complicated sector.
Before Klaris Law, Ed was Senior Vice President, Intellectual Property Assets & Rights, at Condé Nast for more than eight years, where he transformed print magazines, photos, and articles into vibrant digital archives, film and TV projects, international branded franchises, and licensed product lines that have produced millions in net profit. Ed conducted business in 28 countries worldwide and was responsible for vetting potential partners, negotiating joint venture and license agreements, and launching and overseeing diverse branded businesses. Ed also led business affairs for all 18 Condé Nast brands and the company’s entertainment division, including movie and TV deals, rights-in and rights-out agreements, and all contracts related to production, talent, partnerships, advertising, and joint marketing.
Prior to this, Ed served as General Counsel for The New Yorker from 2000-2006; he was media counsel at ABC, Inc. from 1997-2000, and a litigator at Davis Wright Tremaine LLP from 1992-1997.
Ed is currently an Adjunct Professor at Columbia Law School where he has taught a seminar on media law, commercial speech, privacy and intellectual property since 2005. He is on the Communications Law committee at the New York City Bar and a member of the MLRC. He speaks at events around the country and periodically publishes articles. Ed is a former chair of the New York State Bar Committee on Communications Law, and was Chairman of the Board of Pilobolus Dance Theater for 13 years.
Ed graduated from Vassar College in 1988 with Honors in English and Italian and where he was selected for Phi Beta Kappa. He has his J.D. from Cardozo School of Law in New York, where he was the Editor-in- Chief of the Arts & Entertainment Law Journal. He lives in New York City with his wife and two children.
Susan Jacobson, Counsel
Susan Jacobson focuses her practice on all areas of trademark, copyright, trade dress and internet law. She has significant experience in advising clients on selection, clearance, registration and enforcement of trademarks in the United States and internationally. She has managed world-wide trademark portfolios of billion-dollar retailers. Susan also has supervised oppositions, cancellation proceedings, litigation in federal courts nationwide and in many foreign jurisdictions.
Susan has worked with companies ranging from start-ups to those in the Fortune 500, spanning retail, hospitality and restaurants, beauty, pharmaceutical, financial services, lifestyle/consumer products and luxury goods.
Susan has created a curriculum that she has presented to designers, graphic artists and executives covering guidelines for trademark and copyright issues.
Susan conducts IP Audits and has extensive experience in handling due diligence for the sale or acquisition of a business.
Susan resides with her husband in New York City where she is the president of her coop board.
Alexia Bedat, Associate
Alexia focuses her practice on content review; media law; privacy; Internet law; advertising; fair use, and virtual and augmented reality technologies.
Prior to joining Klaris Law, Alexia worked as a law clerk at BuzzFeed, where she supported the news team. She has also worked with law firms specializing in media law in both London and Paris.
Having obtained her law degree from the University of Cambridge in the UK, Alexia moved to New York to pursue her career in the United States and completed an LL.M. at Columbia Law School. There, she focused on First Amendment litigation, advertising, copyright and the right of publicity. At Columbia, Alexia worked as a teaching assistant at both the Law School and Journalism School and did pro bono work at Volunteer Lawyers for the Arts.
Alexia is a naturalized American, having spent most of her life in Geneva where she spoke French at home. She is a member of several Media Law Resource Center Committees, including the Internet Law, Pre-Publication/Pre- Broadcast and International Media Law committees.
Georgann M. Callaghan, Paralegal
Georgann focuses on intellectual property portfolios for fashion, retail and the consumer goods industry and has counseled clients on branding as well as trademark development and protection. She has worked extensively with foreign associates to identify issues and implement anti-counterfeiting protocols. Georgann monitors industry developments and current trends to advise clients on best practices.
Georgann began her legal career working at a boutique medical misconduct law firm. She was instrumental in strategic and organizational planning in building the firm. She created business development and client relationship models and implemented all aspects of law office practices and procedures.
Georgann is the Chairperson of the Judicial Advisory Qualifications Committee for the Village of Scarsdale and volunteers as judge/mediator for the Pace University Law School First Year Moot Court Competitions.
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