Freedom of Expression – Law Street https://legacy.lawstreetmedia.com Law and Policy for Our Generation Wed, 13 Nov 2019 21:46:22 +0000 en-US hourly 1 https://wordpress.org/?v=4.9.8 100397344 Germany Passes Law to Fine Social Media Companies that Fail to Remove Hate Speech https://legacy.lawstreetmedia.com/blogs/technology-blog/germany-law-social-media-hate-speech/ https://legacy.lawstreetmedia.com/blogs/technology-blog/germany-law-social-media-hate-speech/#respond Thu, 06 Jul 2017 20:49:20 +0000 https://lawstreetmedia.com/?p=61939

The controversial law is the toughest of its kind in Europe.

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"Bundestag" Courtesy of Herman; License CC BY-SA 2.0

The parliament in Germany passed a controversial bill last Friday that would give social media companies such as Google, Facebook, and Twitter 24 hours to remove explicitly hateful speech and “obviously illegal” content before facing a fine of up to 50 million euros ($57 million).

Holocaust denial, dissemination of Nazi symbols, racist agitation, and antisemitic language are considered illegal under Germany’s criminal code and would qualify for prompt removal under the Network Enforcement Act, or “Facebook law,” as some are calling it.

The law, which will take effect in October after Germany’s elections, is the toughest of its kind. It also states that social media companies will have seven days to remove other, less offensive posts, and will have to submit a public report on the complaints they have received every six months and explain how they dealt with each instance.

German Justice Minister Heiko Maas has said he wants to treat Facebook as a media company, thereby making it legally liable for hate speech on its platform.

“Freedom of opinion ends where criminal law begins,” Maas said, adding that hate crimes in Germany have increased by 300 percent in the last two years.

“These [posts] are not examples of freedom of speech. They’re attacks on freedom of speech. The worst danger to freedom of speech is a situation where threats go unpunished,” Maas said while addressing the need for the legislation.

Germany already has some of the world’s strictest regulations regarding libel, defamation, and hate speech. However, in light of recent attacks and instances of homegrown terrorism across the continent, German and European lawmakers are facing pressure to further limit radicalization and offensive speech online.

In 2015, the European Commission created a voluntary code of conduct that called for web companies to remove videos that incite terrorism or hatred.

After the attacks in London, both British Prime Minister Theresa May and French President Emmanuel Macron said they are considering laws similar to Germany’s to fine companies that “fail to take action” against terrorist propaganda and violent content.

Facebook said in a statement, “This law as it stands now will not improve efforts to tackle this important societal problem.” And in another statement from May, the company said that the measure “provides an incentive to delete content that is not clearly illegal when social networks face such a disproportionate threat of fines. It would have the effect of transferring responsibility for complex legal decisions from public authorities to private companies.”

Because of its war-torn past, Europe has been more willing to place restrictions on freedom of speech in favor of limiting propaganda and hate speech than the United States. However, critics and human rights groups say this law may be going too far.

“Many of the violations covered by the bill are highly dependent on context, context which platforms are in no position to assess,” said David Kaye, the U.N. Special Rapporteur to the High Commissioner for Human Rights. “The obligations placed upon private companies to regulate and take down content raises concern with respect to freedom of expression.”

Joe McNamee, the executive director of the digital rights group EDRi, said that the law could establish a precedent for “wholesale privatization of freedom of expression,” with “large internet companies deciding what they want the public discourse to be.”

Celia Heudebourg
Celia Heudebourg is an editorial intern for Law Street Media. She is from Paris, France and is entering her senior year at Macalester College in Minnesota where she studies international relations and political science. When she’s not reading or watching the news, she can be found planning a trip abroad or binge-watching a good Netflix show. Contact Celia at Staff@LawStreetMedia.com.

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European Court Rules Russia’s “Gay Propaganda” Ban Violates International Law https://legacy.lawstreetmedia.com/blogs/world-blogs/russias-gay-propaganda-ban/ https://legacy.lawstreetmedia.com/blogs/world-blogs/russias-gay-propaganda-ban/#respond Thu, 22 Jun 2017 13:00:08 +0000 https://lawstreetmedia.com/?p=61565

Three LGBTQ rights activists challenged the legislation in court after being convicted for protesting the ban.

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"LGBT" Courtesy of Evgeniy Isaev License: (CC BY 2.0)

Russia’s ban on “gay propaganda” violates international law, Europe’s top human rights court ruled on Tuesday. The European Court of Human Rights (ECHR) held that the ban was discriminatory and violated freedom of expression.

“Above all, by adopting such laws the Court found that the authorities had reinforced stigma and prejudice and encouraged homophobia, which was incompatible with the values — of equality, pluralism and tolerance — of a democratic society,” the ECHR wrote.

Life in Russia has long been unwelcoming–and at times, perilous–for LGBTQ people. According to Russian news outlet Novaya Gazeta, more than 100 gay men in Chechnya, a Russian territory in Eastern Europe, have been detained in Chechan prisons. Some have been tortured and killed due to their sexual orientations. In an interview with VICE News, Ayub Kataev, a Chechan prison warden and head of the ministry of internal affairs, not only denied the reports of the imprisonment and abuse of gay men, but denied the existence of gay people altogether.

“My officers would not even want to touch such people, if they exist, let alone beating or torturing them,” Kataev told VICE News.

Since 2003, regional governments in Russia have passed variations of the “gay propaganda” ban, and in 2013, the ban was adopted nationwide. Three Russian LGBTQ rights activists, Nikolay Bayev, Aleksey Kiselev, and Nikolay Alekseyev, protested the ban between 2009 and 2012 at a school in Ryazan, a children’s library in Arkhangelsk, and an administrative building in St. Petersburg–some of the cities that had instituted a ban at the time. The activists were found guilty of administrative offenses and fined. After the activists unsuccessfully appealed the convictions to Russia’s Constitutional Court, the ECHR agreed to hear their case.

According to the ECHR, Russia’s Code of Administrative Offences was amended in 2013 with the ban that prohibited “the promoting of non-traditional sexual relationships among minors, … creating a distorted image of the social equivalence of traditional and non-traditional sexual relationships.”

The ECHR held that the Russian government had failed to demonstrate how LGBT expression would negatively impact so-called “traditional families,” and minors, who the government claimed needed to be protected from non-heterosexual orientations. To the contrary, the ECHR asserted that the ban “embodied a predisposed bias on the part of a heterosexual majority against a homosexual minority.”

The decision was handed down by a seven judge chamber comprised of judges from seven different European countries. The chamber’s judge from Russia, Dmitry Dedov, was the lone dissenter, claiming that “a positive image of homosexuality adversely affects the development of children and puts them at risk of sexual violence.”

The ECHR ordered Russia to pay a total of 43,000 euros to the three activists who brought the lawsuit. However, whether that ruling will be followed has yet to be seen as Russia approved a law in 2015 allowing the country to ignore ECHR rulings if they conflict with the Russian constitution.

Marcus Dieterle
Marcus is an editorial intern at Law Street. He is a rising senior at Towson University where he is double majoring in mass communication (with a concentration in journalism and new media) and political science. When he isn’t in the newsroom, you can probably find him reading on the train, practicing his Portuguese, or eating too much pasta. Contact Marcus at Staff@LawStreetMedia.com.

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World Press Freedom Day: Worst Outlook for Freedom of the Press in 13 Years https://legacy.lawstreetmedia.com/blogs/world-blogs/press-freedom-day-free-press/ https://legacy.lawstreetmedia.com/blogs/world-blogs/press-freedom-day-free-press/#respond Wed, 03 May 2017 21:23:34 +0000 https://lawstreetmedia.com/?p=60554

Not really a happy day.

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Image courtesy of Nicolas Alejandro; license: (CC BY 2.0)

Wednesday is World Press Freedom Day. A free press is vital for a functioning democracy, and how free the press is often indicates the freedom of a country’s citizens. But new numbers from Freedom House show that 2016 was the worst year for press freedom in 13 years, both in the U.S. and internationally.

Freedom House, an independent democracy watchdog, conducts its analysis based on the political, economic, and legal climate for journalists in each country. The countries are then rated from 0-100–the closer to zero, the better. This year, the U.S. went up two points to 23, which is its worst score in a decade. Reporters Without Borders also makes an annual ranking, and on its list the U.S. ended up in 43rd, in between Burkina Faso and Comoros.

Only 13 percent of countries have a completely free press. The criteria for ranking as free are, according to Freedom House, a media environment with extensive political coverage, guaranteed safety for journalists, minimal state intrusion in the media, and no legal or economic pressures on reporters.

President Donald Trump is mentioned as a partial cause of the decline in U.S. press freedom. He has frequently criticized the media for its coverage and often calls mainstream media “fake news.” Back in March, he tweeted that he might push to change the libel laws. And on April 30, White House Chief of Staff Reince Priebus said the administration had “looked at” changing them. Priebus added that the media needs “to be more responsible with how they report the news.”

Who’s at the Bottom of the List?

Around the world there are countless examples of journalists who are detained because of what they report. The lowest-ranking countries are dictatorships in Africa, the Middle East, and Asia. But due to violence from drug cartels and organized crime, Mexico is also deemed one of the worst countries to be a journalist. Independent nonprofit organization Committee to Protect Journalists has documented more than 50 killings of journalists in Mexico since 2010.

The CPJ’s report on Mexico shows that convictions for murders of journalists are very rare, and when they do happen, authorities often fail to prove a clear link to journalism. Instead they often frame it as a regular crime, making it hard to keep data accurate and confront the actual problem. Corruption in the government and police force is also a huge problem.

What’s Happening in the U.S.?

But even in the U.S., reporters are sometimes detained for doing their jobs. In February, freelance reporter Jenni Monet was arrested for covering the protests at the Dakota Access Pipeline near Standing Rock. Despite following police instructions to stay behind police lines, she was detained for 30 hours. She was later charged with rioting and trespassing.

“It didn’t matter that I was complying with their instructions and it didn’t matter that they knew I was a member of the press. I was handcuffed and held in a chain link enclosure with 18 other women for hours,” she said. Amnesty International is calling for the charges to be dropped, citing the critical role of reporters in holding governments accountable for human rights abuses.

A Spotlight on Turkey

In Turkey, at least 156 media outlets have been shut down and at least 2,500 journalists have been fired since last summer’s failed coup. More than 120 journalists have been jailed, facing terrorism-related charges, because of what they have written or drawn. One newspaper editor and his brother who appeared on a TV panel discussion about the coup were accused of ‘sending subliminal messages’ to the people behind the coup. Both were arrested, as was the TV show’s presenter.

Since the coup, President Erdogan has cracked down on all kinds of dissent. Last weekend, almost 4,000 people were fired from public offices and the government blocked Wikipedia. Now more than 250,000 people have signed an online petition urging the Turkish government to release all the jailed journalists. Many have tweeted photos of themselves using the hashtag #FreeTurkeyMedia, including Chinese artist Ai Weiwei and the Al Jazeera journalists who were imprisoned in Egypt for more than 400 days in 2013.

Emma Von Zeipel
Emma Von Zeipel is a staff writer at Law Street Media. She is originally from one of the islands of Stockholm, Sweden. After working for Democratic Voice of Burma in Thailand, she ended up in New York City. She has a BA in journalism from Stockholm University and is passionate about human rights, good books, horses, and European chocolate. Contact Emma at EVonZeipel@LawStreetMedia.com.

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Who is Responsible for Anti-Media Violence in Mexico? https://legacy.lawstreetmedia.com/blogs/world-blogs/responsible-anti-media-violence-mexico/ https://legacy.lawstreetmedia.com/blogs/world-blogs/responsible-anti-media-violence-mexico/#respond Mon, 17 Apr 2017 20:39:31 +0000 https://lawstreetmedia.com/?p=60283

Government officials have been involved in an alarming number of attacks.

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"Journalists Protest against rising violence during march in Mexico" Courtesy of Knight Foundation : License (CC BY-SA 2.0)

On March 2, Cecilio Pineda Brito, a nationally known crime reporter, was shot dead by two men on a motorcycle. On March 19, Ricardo Monlui Cabrera, the editorial director of the Córdoba’s Él Politico newspaper and president of his local journalism association, fell victim to similar motorcycle drive-by. Miroslava Breach Velducea, a correspondent for the national newspaper La Jornada, was shot and killed four days later. Last Friday, reporter Maximino Rodriguez Palacio was shot dead in La Paz, Mexico, marking the fourth fatal attack on a journalist in only six weeks.

The recent spate of attacks is shocking but not surprising. Human rights and freedom of the press advocates, both domestic and international, have long been calling for a response to anti-media violence in Mexico.

Freedom House’s 2016 Freedom of the Press Index named Mexico “one of the world’s most dangerous places for journalists and media workers,” citing numerous violent attacks in 2015. Conditions have only been intensifying.

According to a report by Article 19–a non-profit devoted to protecting freedom of expression–suppressive and/or violent attacks on journalists have been on the rise since 2010. The report found 426 acts of aggression against journalists and 11 homicides in 2016. While 2016 was the bloodiest year for journalists under President Enrique Peña Nieto and the worst since 2000, 2017 may surpass it.

Despite these statistics, Peña Nieto’s government seems unconcerned with attacks on journalists. Article 19 reports that the Mexican Special Prosecutor’s Office on Crimes Against Freedom of Expression–known in Mexico as FEADLE, its Spanish acronym–only investigated 118 cases of the 426 acts of aggression against journalists and that 99.75 percent of attacks go unresolved.

Although criminal organizations often take most of the blame for any kind of violence in Mexico, there is a slew of evidence implicating the government in the anti-media violence. In 2016, “State agents” supposedly perpetrated 53 percent of the 426 acts of aggression identified by Article 19–criminal organizations are believed to have perpetrated 4 percent of the attacks.

Last month, Gilberto Israel Navarro Basaldúa, a journalist from the city of Guanajuato, reported that an employee of the municipal government’s economic council had swerved his car and hit Navarro off his motorcycle. Although employees of state and municipal governments are believed to have carried out the majority acts of aggression, Article 19 found 56 examples in which federal officials allegedly attacked the press.

It is clear that the Mexican government is unwilling to protect its media. Peña Nieto has blamed local governments for obstructing investigations but Article 19 found that his government had consistently refused to use its authority to take control of the process. The fact that state workers from all levels of government are believed to be responsible for the majority of acts of aggression against the media perhaps explains why the government is unwilling to investigate and prosecute anti-media crimes.

Historically victimized by criminal organizations and now increasingly victimized by government officials, the Mexican journalists have no place to turn. Freedom of the press has long been under threat in Mexico, but it appears the government is intent on undermining the expressive freedom in its entirety.

Callum Cleary
Callum is an editorial intern at Law Street. He is from Portland OR by way of the United Kingdom. He is a senior at American University double majoring in International Studies and Philosophy with a focus on social justice in Latin America. Contact Callum at Staff@LawStreetMedia.com.

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Oxford University Press Bans the Mention of Pork and Pigs https://legacy.lawstreetmedia.com/schools/oxford-university-press-bans-pork-and-pigs/ https://legacy.lawstreetmedia.com/schools/oxford-university-press-bans-pork-and-pigs/#comments Mon, 26 Jan 2015 11:30:15 +0000 http://lawstreetmedia.wpengine.com/?p=32607

Oxford University Press bans its authors from mention pork, pigs, and the like to avoid offending Jews and Muslims.

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Image courtesy of [Duncan Hall via Flickr]

In the aftermath of the terrorist attacks in Paris, various governments have come together in support of the freedom of expression. Most notably, world leaders attended a rally in Paris on January 11, and various members of Congress raised number two pencils into the air during President Obama’s State of the Union address last week.

Global media has also supported freedom of speech. In particular, in the United States, Publishers Weekly published a tribute to freedom of expression in its most recent issue that ran on January 19, seen here. Moreover, Publishers Weekly started a Je Suis Charlie campaign in which media companies could purchase full-length and half-age tributes that display the company’s name and logo. One hundred percent of the contributions for this campaign are donated to international nonprofits dedicated to freedom of expression, such as the American Booksellers for Free Expression, International Federation of Library Associations, International PEN, International Publishers Association, and the National Coalition Against Censorship.

With that said, some media companies have taken a step back. Last week, Oxford University Press announced that its authors should not mention the words “pork,” “sausage,” or “anything else which could be perceived as pork,” according to the International Business Times, to avoid offending Jews and Muslims. OUP claims that it made its decision to hopefully sell more books by taking global cultures into consideration.

While being sensitive to other cultures is noble, Oxford University Press’ ban is by far the wrong thing to do. The publisher is tied to Oxford University, which is arguably the most prestigious university in the world. Universities–western universities in particular–are traditionally places that foster debate and open discussions, where professors and students are free to speak about controversial topics and words. So for the publishing arm of a university to prohibit the words “pork,” “sausage,” or any mention of pork in its books is ludicrous. Professors and authors constantly write about offensive words in scholarship. In particular, authors in the humanities may attempt to write books and articles that deconstruct distasteful words culturally and historically. These books and articles are keys to how we understand the world around us. Although words such as racial epithets, for example, may be unpleasant to read or write about, they do unfortunately exist, and authors who attempt to confront these words through scholarship make society better by helping readers become more empathetic and sensitive to others. The same goes for innocuous words like “pork” and “sausage.”

Moreover, the OUP ban is the decision that terrorists desire. Although the publisher’s decision is allegedly to sell more books around the world, its decision came just days after the Paris attacks. Thus, readers may not think of Oxford University Press’ gallant pursuit to curb offending cultures in its book, but may think that Oxford University Press surrendered to the terrorists who so vehemently oppose freedom of expression.

Oxford University Press should end its ban. There is too much at stake for freedom of expression globally. The terrorists cannot win.

Joseph Perry
Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

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Teens and Social Media: How do Schools Fit In? https://legacy.lawstreetmedia.com/issues/education/should-schools-have-jurisdiction-over-student-activity-on-social-media/ https://legacy.lawstreetmedia.com/issues/education/should-schools-have-jurisdiction-over-student-activity-on-social-media/#comments Wed, 10 Sep 2014 16:02:04 +0000 http://lawstreetmedia.wpengine.com/?p=12686

Social Media has exploded in recent years as the most popular way for young people to communicate. At the time of a Pew study created in 2012, 95 percent of teens aged 12-17 had access to the Internet. Thirty-seven percent owned some sort of smart phone, and 80 percent had a computer. Eighty-one percent reported regularly using some sort of social media platform. While the specific social media platforms that teens actually use has evolved over the years, it's clear that using these types of sites to communicate isn't going away any time soon. Given that students are moving away from the kind of social media that their parents are attracted to, the question is clear: is anyone monitoring what happens on social media sites between teenagers? Read on to learn about the debate, the perspective of schools, and where we currently stand.

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Social Media has exploded in recent years as the most popular way for young people to communicate. At the time of a Pew study created in 2012, 95 percent of teens aged 12-17 had access to the Internet. Thirty-seven percent owned some sort of smart phone, and 80 percent had a computer. Eighty-one percent reported regularly using some sort of social media platform. While the specific social media platforms that teens actually use has evolved over the years, it’s clear that using these types of sites to communicate isn’t going away any time soon. Given that students are moving away from the kind of social media that their parents are attracted to, the question is clear: is anyone monitoring what happens on social media sites between teenagers? Read on to learn about the debate, the perspective of schools, and where we currently stand.

Teens and Social Media


Why might schools get involved with student social media use?

The 1969 Supreme Court Case Tinker v. Des Moines established the precedent that public-school students retain their First Amendment rights to Freedom of Expression while in school. Since Tinker, however, other cases have gradually placed limits on students’ Freedom of Expression to ensure schools are able to maintain their goal of public education. The 1986 case Bethel v. Fraiser allowed schools to curtail free speech if the student’s speech could cause a major disruption within the school environment. Morse v. Frederick (2007) justified a school’s discipline of a student who held up a sign reading “bong hits 4 jesus” at a school-sponsored event, even though the incident technically occurred off school grounds.

There is general consent that student forfeit some of their First Amendment rights when in school; however, problems such as cyber bullying have prompted many to question whether schools can punish students for the content they post on social media websites. The Glendale School District in suburban Los Angeles recently signed a $40,500 contract with a tech firm to monitor their students on social media and report any questionable activity, prompting many to ask whether this sort of surveillance takes school security too far.


What are the arguments for getting schools involved in monitoring social media use?

Those in favor of school jurisdiction over social media argue that this type of surveillance could help reduce incidents caused by cyber bullying as well as students who exhibit signs of depression or suicidal thoughts. Cyber bullying has increased among middle school and high school students, often having disastrous effects upon both the victims and bullies involved. Many school administrators and parents feel that one of the best ways to combat this problem is for schools to be able to monitor and punish students for their activity on social media, allowing them to catch cyber bullying as it is occurring.

Schools could also become aware of students with serious emotional distress. At Glendale High School, school administrators were able to report and find help for a student talking about “ending his life” on social media. “We were able to save a life,” said Richard Sheehan, the Glendale Superintendent. Others argue from a legal perspective that the monitoring of social media falls under a school’s jurisdiction. Some argue that social media is a public domain, and so anything that is posted there is public and can be used by schools as evidence of wrongdoing. Additionally, citing Bethel v. Fraiser, others argue that inflammatory remarks and vicious cyber bullying can often have just as much effect in school as out of school, and so if social media activity disrupts the school’s learning environment, then it is well within the school’s right to limit that free speech.


What are the arguments against schools having jurisdiction over students’ social media?

Opponents argue that school authority over social media would be a violation of the First Amendment rights of students and would set a dangerous precedent for the authority of public schools. In some cases, students have been required by their school to download spying software onto their phones so that the school could monitor their internet activity, while in another case a student’s phone was taken and used to see the private profiles of his friends in order to find evidence of wrongdoing. Many critics see this as schools overstepping their disciplinary boundaries and going to unreasonable lengths to censor student speech.

The Griffith School District in Indiana is currently involved in a lawsuit concerning three girls who were suspended for joking on Facebook about which classmates they would like to “kill” (despite their obvious sarcasm, and the fact that the school received a letter from a boy referred to as one of the students to be “killed” who said he was in no way offended by the posts and saw them as a joke).

Afraid of public schools becoming an authoritarian “Big Brother” that watch students not only in school but out as well, critics feel this sort of surveillance will lead to unprecedented restriction of the First Amendment rights of public school students. Opponents also believe schools should adhere to the current boundaries of their jurisdiction, defined as school property or at school-sanctioned events. Because social media falls into neither of these two categories, students should retain their freedom of expression on these sites.


Conclusion

Social media use among teens is rampant — and it’s not all as cut and dry as some of the schools make it seem. While schools may be able to monitor some aspects of social media, others are harder to control, such as Yik Yak, a social media platform that revolves around anonymity. Because it is anonymous, the schools have no good way to police it. There are other apps that allow anonymity — “Whisper” and “Secret” are two other popular ones, but Yik Yak has proven to be the most popular.

It is important that schools discourage cyber bullying; however, how far they can go to stop it is still uncertain. The actions schools can take will have to evolve concurrently with social media trends.


Resources

Primary

NYC Department of Education: Social Media Guidelines

Griffith (Indiana) Middle School: Handbook

Additional

Wake Forest Law Review: How Public Schools Can Constitutionally Halt Cyberbullying

The New York Times: Online Bullies Pull Schools Into the Fray

BetaBeat: New Jersey High School Students Forgot the First Rule of ‘Fight Club’

Here and Now: Bullies Beware: Schools Hire Social Media Monitors

ASCD: Can Social Media and School Policies Be Friends?

ABC: School Official Accused of Accessing Student’s Facebook Page

ABA Journal: Site Unseen: Schools, Bosses Barred From Eyeing Students’, Workers’ Social Media

Atlantic: What Right Do Schools Have to Discipline Students For What They Say Off Campus?

Student Press Law Center: Profiles Cause Crackdown

Wasom.com: Social Media and Student Discipline in Public Schools

Center for Digital Education: Student Social Media Monitoring Stirs Up Debate

California Casualty Leadership: Cyber Misconduct, Discipline and the Law

Joseph Palmisano
Joseph Palmisano is a graduate of The College of New Jersey with a degree in History and Education. He has a background in historical preservation, public education, freelance writing, and business. While currently employed as an insurance underwriter, he maintains an interest in environmental and educational reform. Contact Joseph at staff@LawStreetMedia.com.

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Feeling Extorted by Yelp’s Business Practices? Help May be on the Way https://legacy.lawstreetmedia.com/blogs/technology-blog/burned-by-negative-yelp-reviews-help-is-on-the-way/ https://legacy.lawstreetmedia.com/blogs/technology-blog/burned-by-negative-yelp-reviews-help-is-on-the-way/#comments Thu, 20 Feb 2014 11:30:37 +0000 http://lawstreetmedia.wpengine.com/?p=12325

Yelp suffered a crucial loss in a recent Virginia Court decision. Hadeed Carpet Cleaning, a small business in Virginia, noticed a few negative Yelp reviews and did some investigation. The business claims that after studying their records, the Yelp complaints did not match any actual customer experiences in their books. Hadeed Carpet sent a subpoena […]

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Yelp suffered a crucial loss in a recent Virginia Court decision.

Hadeed Carpet Cleaning, a small business in Virginia, noticed a few negative Yelp reviews and did some investigation. The business claims that after studying their records, the Yelp complaints did not match any actual customer experiences in their books. Hadeed Carpet sent a subpoena to Yelp requesting the identities of the Yelp users who wrote the allegedly unfounded posts, but Yelp refused to comply with the subpoena and the case went to trial.

The Virginia Court of Appeals has sided with the small business and ordered Yelp to reveal the identities of the users. The court reasons that if the users who wrote the unfavorable comments were never actually customers of Hadeed Carpet Cleaning, then those negative reviews amount to defamation not worthy of any First Amendment protection.

Most commentators deride the decision for curtailing freedom of speech; yet, a longer look at Yelp’s litigation history illuminates why this ruling may help those harmed by Yelp.

Yelp has long heard the complaints of small-business owners who claim the company effectively extorts them for money. The common story often begins with a small business noticing a particularly negative comment on their Yelp page. Then the business discovers Yelp’s algorithm filtering out positive comments and thus making negative comments more prominent. Finally comes a sales pitch from a Yelp employee suggesting that the small business advertise on Yelp. Often, the sales pitch includes statements that advertising with Yelp will result in a better filtration process and the removal of negative reviews. Since an alluring Yelp page has a weighty impact on a business’ bottom, many business owners feel threatened by these solicitations.

Yelp has had to squash legal attempts to expose this allegedly coercive practice. In 2011, a class-action lawsuit was filed on behalf of all businesses who declined to advertise with Yelp or who advertised with Yelp in the last four years. The lawsuit claimed that Yelp “unlawfully manipulated the content” of a business’ Yelp page in order to push the business to pay for advertising. In that case, the Plaintiff, Levitt, alleges this story in their Brief:

Two days after Levitt’s conversation with Yelp’s employees – during which he declined to purchase advertising — six out of the seven 5-star reviews were removed from his business page leaving Levitt with an overall star rating of 3.5 stars. As a result, during the month of August, Levitt’s business Yelp page received only 158 page views as opposed to the 261 page views Levitt’s business experienced in July of 2009. Since then, Levitt’s business revenues experienced a decline that corresponded almost directly to the decline in page views.

The Brief outlines other stories with other businesses voicing a narrative that echoed Levitt’s tale about Yelp’s knavish advertising schemes. While Yelp managed to dismiss the lawsuit, that cessation did not help distance Yelp from their alleged aggressive sales practices. Their victory was more technical than substantive. In the lawsuit, the Plaintiffs recounted two exploitative tactics they claim Yelp engaged in: 1.) fabricating negative reviews; and 2.) manipulating a business’ Yelp page to highlight negative reviews and filter positive reviews.

On the first practice, the court dismissed the charge due to lack of proof, not lack of guilt. The court reasoned that businesses could not prove beyond speculation that Yelp actually authored any of the negative reviews that businesses claimed Yelp fabricated. This conclusion had undoubted truth because, up until recently, courts had not allowed businesses to subpoena Yelp about the actual sources behind reviews. Yelp had successfully been able to argue that anonymous users had privacy and freedom of speech rights that prevented access to their identity. If the allegations alleged against Yelp had any merit, Yelp crookedly used freedom of speech and privacy rights as a shield preventing any discovery about their practice of self-composing negative reviews.

The recent ruling in favor of Hadeed Carpet Cleaning has special importance for marking a change in this tolerance. Instead of bending to freedom of speech concerns, the court focused more on the right to protect one’s reputation. Thus, this ruling in Hadeed Carpet might facilitate a proper exploration of the complaints of small-business owners since the court has finally allowed a Plaintiff to learn the identity of dubious anonymous users – and, perhaps, that these users were Yelp employees. While businesses previously had no method to prove their allegations that Yelp penned negative reviews, the court’s ruling in Hadeed Carpet might finally give businesses some recourse.

This seems all the more important, since the second complaint against Yelp – that they filter their messages in a duplicitous manner – has little prospect of victory. In the 2011 class action lawsuit, this claim failed due to the Communications Decency Act (CDA), a Congressional statute that lets “interactive computer services” – like Yelp – edit and manipulate content posted on their website without any risk of liability.

The CDA emerged out of a desire to promote internet freedom and growth. Congress wanted to facilitate the success of websites like Twitter, Facebook, and Yelp by immunizing these sites from lawsuits brought because of the actions of a user on the website. Basically, if a Twitter user says something defamatory on Twitter – like when Courtney Love tweeted that her fashion designer was a former prostitute — the CDA posits that the defamed party can sue the Twitter user, but not Twitter. This allows websites like Twitter, Facebook, and Yelp to function without having the legal burden of monitoring everything that’s said.

Even if these websites have no legal burden to monitor, the CDA still wants to encourage some sort of filtration process to monitor and remove hate speech. Courts have interpreted the CDA to let websites like Yelp filter messages without any risk of liability if they fail to succeed in catching and removing any invective prose. Websites like Facebook have an incredible volume of information, and the CDA hopes to encourage some editing and filtering process even if it sometimes inevitably fails. Consequently, a website faces no liability for their choices to edit or filter content. If the allegations against Yelp have any merit, Yelp again contorts the intention of this policy for its own economic self-interest. Instead of merely filtering hate speech, the allegations contend that Yelp filters innocent, positive messages to induce companies to buy Yelp advertisements.

Importantly, the CDA immunizes Yelp from this practice and courts have said as much. For example, in the Dismissal of the 2011 Class Action, the Judge wrote: “Yelp’s alleged manipulation of their review pages – by removing certain reviews and publishing others or changing their order of appearance – falls within the conduct immunized by § 230(c)(1)” of the CDA. The court even says that the statute currently allows filtering and deleting of comments done with a “wrongful motive.” Even if businesses can prove Yelp filters comments with a wrongful motive, courts have held that the CDA allows websites like Yelp that privilege.

Thus, the ruling in Hadeed Carpet Cleaning has importance to businesses hoping to prove their allegations against Yelp. The CDA literally allows Yelp to manipulate a business’ Yelp page without any risk of liability. The only recourse available to businesses hoping to expose that Yelp extorted them is to prove that Yelp fabricates negative reviews. Such a practice would be a crime, and the best – and perhaps only — way to prove that is through learning the identities of users who post dubious negative reviews.

Importantly, Yelp has officially and repeatedly denied that they engage in this practice. It could just be that these businesses had the misfortune of encountering rogue Yelp sales associates who employ overzealous tactics to earn their commissions. Or, the story could have no truth at all. For now, the CDA and freedom of speech rights have prevented us from knowing.

The main takeaway, however, focuses on how we balance rights. In Hadeed Carpet the court determined that Hadeed’s right to protect its reputation trumped a Yelp user’s right to remain anonymous. These allegations against Yelp highlight how rights always have tradeoffs: if you allow absolute freedom of speech and privacy rights, you disallow any discovery about whether Yelp effectively blackmails businesses. Additionally, sometimes rights tradeoffs occur due to external factors. Might the court in Hadeed have known about the intractable immunity granted to Yelp by the CDA and consequently softened the freedom of speech and privacy rights its users enjoy?

No one actually knows if Yelp engaged in the practice of extorting businesses into buying advertisements. We do know, however, that the law would have allowed them to legally do it…at least before the recent ruling in Hadeed Carpet Cleaners.

Imran Ahmed is a writer living in New York City whose blog explores the legal implications of social media and the internet. Contact him via email here.

Featured image courtesy of [Steven & Courtney Johnson & Horowitz via Flickr]

Imran Ahmed
Imran Ahmed is a writer living in New York. Contact Imran at staff@LawStreetMedia.com.

The post Feeling Extorted by Yelp’s Business Practices? Help May be on the Way appeared first on Law Street.

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