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bloggers and the law

A new round in the protracted Jenzabar-vs.-critics litigation [Ron Coleman, CL&P, earlier]

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Publishers sometimes send me books in hopes I’ll review or at least mention them. I occasionally attend free advance screenings of new movies (typically law-related documentaries) that filmmakers hope I’ll write about. This site has an Amazon affiliate store which has from time to time provided me with commissions after readers click links and proceed to purchase items, though it’s been almost entirely inactive for years. I get invited to attend the odd institutional banquet whose hosts sometimes give away a free book or paperweight along with the hotel meal. I’ve been sent “cause” T-shirts and law firm/support service provider promotional kits over the years, pretty much a waste of effort since I don’t much care for wearing such T-shirts and am not exactly famed for posts that sing the praises of law firms or their service providers.

Under new Federal Trade Commission guidelines in the works for some time, I could apparently get in trouble for not disclosing these and similarly exciting things. In addition, the commission’s scrutiny will extend to areas less relevant to this site, such as targeted Google advertising and results-not-typical testimonials.

Robert Ambrogi at Legal Blog Watch finds it hard to see why the blogosphere has raised such a big fuss about these rules. After all, the rules (to be precise, “guidelines” backed by government lawyers with relevant enforcement powers) make clear that nondisclosure of a single minor freebie will not in itself suffice to trigger liability but instead will be counted “among several factors to be weighed” in evaluating the continuum of behavior by individuals engaging in social media (it seems the rules also apply to Twitter, Facebook, and guest appearances on talk shows, to name a few). FTC enforcers will engage in their own fact-specific, and inevitably subjective, balancing before deciding whether to press for fines or other penalties: in other words, instead of knowing whether you’re legally vulnerable or not, you get to guess.
StackofBooks
Like most authors I know, I wind up donating most review copies I receive to local library sales or other charities. (As Ann Althouse and Cory Doctorow both hint, the accumulation of review copies for disposal quickly becomes more of a burden than otherwise, which is why I spend much more time trying politely to talk publishers out of sending me copies than trying to talk them into it.) But in an extraordinary interview that should be read in its entirety, the FTC’s point man on the rules, Richard Cleland, surreally suggests bloggers should instead return review copies to the publishers — who don’t want them back! — after taking a look.

Among interesting disclosure posts by well-known bloggers: Tyler Cowen/Marginal Revolution, Virginia Postrel/DeepGlamour, Martin Schwimmer/Trademark Blog. Other notable reactions: Jack Shafer, Slate (”The FTC’s mad power grab. … preposterous … The guidelines have to be read to be believed.” ); Patrick at Popehat (”Next on the FTC agenda: fines for hotlinking and failure to hat tip … Yes, I believe in the slippery slope.”); Jeff Jarvis, Amy Alkon, Dan Gillmor (”you get the sense of a government-gone-wild travesty…unworkable in practice”), HIPAA Blog (”unconstitutional”), Washington Examiner (editorial: “No self-respecting journalists should lend their endorsement to [the FTC's planned Dec. 1-2 workshop on journalism], and neither should any professional journalism organization.”)

Finally, for the last word, Ann Althouse:

The most absurd part of it is the way the FTC is trying to make it okay by assuring us that they will be selective in deciding which writers on the internet to pursue. That is, they’ve deliberately made a grotesquely overbroad rule, enough to sweep so many of us into technical violations, but we’re supposed to feel soothed by the knowledge that government agents will decide who among us gets fined. No, no, no. Overbreadth itself is a problem. And so is selective enforcement.

(& welcome readers from Instapundit, Ron Coleman (who points out that he was on this issue earlier than any of us), ShopFloor, Dave Zincavage, Jonathan Adler/Volokh, Megan MacArdle/The Atlantic, Darleen Click/Protein Wisdom, Declan McCullagh/CBS (with some very kind words), Mickey Kaus (scroll to P.S. “I’d link to…”)). And (10/21): Jason Kottke’s Kottke.org, K2/DaddyTypes.

[Followup posts here and here.]

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October 8 roundup

by Walter Olson on October 8, 2009

  • Judge rules Segways not necessary to accommodation at Disney World, throws out settlement negotiated by disabled rights group [Bloomberg, WSJ Law Blog; background here and here] More: OnPoint News (disputing claims of Disney victory).
  • “Too Many Lawyers or Too Many Laws?” [Somin, Volokh, on Scalia; earlier]
  • More on the $500K award to woman who escaped first WTC bombing and broke ankle ten days later [John Hochfelder in comments]
  • $3 million race bias suit against Martha Stewart Living magazine seems to have followed protest over home furnishing item often described as “coolie-hat” lampshade [NY Post]
  • Skyboxes for the mayor and city councilors who approved the stadium — and this is ethically OK? [Coyote]
  • Getting kind of meta: “Lawyer Says Lawyer Defamed Him in Press Release About Defamation Suit” [NLJ]
  • “Free credit score” firm backs off legal effort to identify critical blogger — but who’s this they’ve identified as their foe? [Paul Levy, Consumer Law & Policy, Felix Salmon, earlier]
  • EEOC says Catholic college “discriminated against women by removing coverage for prescription contraceptives from [its] health insurance plan” [Gaston, N.C. Gazette via LaborProf]

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Be careful what you say about the New York-based media giant and parent of Long Island’s Newsday. It has a lot of money to spend on lawyers. [Gawker] More: Citizen Media Law (stronger anti-SLAPP laws needed).

As the East Texas jury was set to begin deliberations. Per Joe Mullin’s must-read coverage at IP Law and Business, Rick Frenkel’s lawyer-critical blog is now entirely closed down even to private readers except as an archive for the use of lawyers in the related litigation. More: Mullin, Sept. 18 (Frenkel “wouldn’t have the financial resources to defend himself” had his employer Cisco not covered his legal costs), Sept. 21 (”You don’t wrestle with a snake, you cut its head off,” said plaintiff T. John (”Johnny”) Ward, Jr. “We shut the blog down, is what we did.”)

September 21 roundup

by Walter Olson on September 21, 2009

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Paul Levy at Consumer Law & Policy reports that a firm called Adaptive Marketing has brought a pre-litigation discovery proceeding seeking to unmask the identity of a pseudonymous blogger who accused the firm and its parent, Vertrue, of improper business practices. The company “ran into controversy a few months ago for using former New York Times columnist Ben Stein in its TV ads for ‘free credit scores.’” More: Felix Salmon, and an update from Levy. Related: new AP story on rash of lawsuits seeking to reveal identity of anonymous bloggers and commenters.

Watch what you say about lawyers dept.: a jury will consider the claim of East Texas intellectual property litigator Eric Albritton that he was defamed by Richard Frenkel at his lawyer-critical Patent Troll Tracker blog. The suit also names Frenkel’s employer, Cisco. The blog has “gone private” and is now for invited readers only. [Brenda Sapino Jeffreys, Texas Lawyer] More: AmLaw Daily. Sept. 18: Joe Mullin, IP Law and Business (reporting blog now entirely defunct except as archive for use in defending case).

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The South Carolina blog-libel case we covered in April, which resulted in a $1.8 million verdict, has now concluded in a settlement between the parties, per Citizen Media Law.

August 3 roundup

by Walter Olson on August 3, 2009

  • On the medicalization of nearly everything: “Bitterness, Compulsive Shopping, and Internet Addiction” [Christopher Lane, Slate]
  • Lawyer representing Sarah Palin to blogger: do you want to be served with our defamation suit at the kindergarten where you help out? [Alaska Report via Rachel Weiner, HuffPo]
  • “The 7 Most Baffling Criminal Defenses (That Sort of Worked)” [Cracked via Popehat]
  • Canada: crash victim gets C$2M, sues deceased lawyer for omitting a defendant who’d have chipped in another C$1.3 million [Calgary Sun]
  • Privacy breach notifications mostly a costly waste of time but do keep lawyers busy [Lee Gomes, Forbes]
  • “News Websites in Texas and Kentucky Invoke Shield Laws for Online Commenters” [Citizen Media Law]
  • North Carolina suit against TVA “a sweet gig for the state’s attorneys” [Wood, Point of Law]
  • Blawg Review #223 is at Scott Greenfield’s [Simple Justice] with another part hosted at the Blawg Review home site itself.

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July 19 roundup

by Walter Olson on July 19, 2009

  • Federal court rules “shy bladder syndrome” an ADA-protected disability [World of Work via Hyman]
  • “Goldman Sachs Backs Down in Long Legal Battle With Blogger” [American Lawyer, WSJ Law Blog, Coleman, earlier]
  • San Diego: unforeseen consequences of “anti-blight” lender regulation [Outside the Box]
  • 1,000 lose jobs as environmental litigation halts Northern California refinery project [Wood, ShopFloor, update]
  • City of Detroit lawyers on ethical hot seat after former mayor’s texting coverup scandal [ABA Journal, earlier]
  • What happens when IP law firms breed homegrown patent trolls? [Ron Coleman]
  • “It’s kind of like the practice of law, except that the clients are more likely to leave happy.” [Glenn Reynolds being naughty on Instapundit]
  • U.K.: Owner of copyright to John Cage’s avant-garde “four minutes and thirty-three seconds of silence” work sues later impresario whose album track includes one minute of silence [seven years ago on Overlawyered; New Yorker treatment]

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  • Transportation Security Administration detained comic book artist based on art he was carrying with him [Popehat]
  • More unease over Federal Trade Commission move to regulate bloggers’ freebies [Citizen Media Law, CEI "Open Market", earlier] “I could care less that Milly the Yarn Spinner at millysworldofyarn.com is getting free samples of yarn to review on her blog.” [John Dvorak, PC Mag]
  • “Judge Calls Frivolous Suits Against Attorneys a ‘Disturbing Trend’” [NYLJ; Staten Island, N.Y.]
  • Sad news: Excellent online music service Pandora, unable to negotiate rights affordably, shuts down for customers outside the U.S. [Prefixmag, earlier]
  • Joseph Stiglitz says the UN has a key role to play in “reforming the global financial and economic system”, which “is a bad idea. It is a very bad idea.” [Tyler Cowen]
  • All assemble for trial: more installments in White Coat’s saga of his malpractice case [Emergency Physicians Monthly, parts seven and eight]
  • Netherlands: site gets sued because of the way Google indexed it [TheNextWeb.com]
  • Phone company faces grievance after disallowing workers’ metal facial jewelry as electricity-conducting risk [eight years ago on Overlawyered]

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The Federal Trade Commission seems particularly interested in checking up after blogs that participate in affiliate programs like Amazon’s while making favorable mention of books and other products sold there. [Morrissey, "Hot Air"; Elizabeth Jacobson, CEI "Open Market"] “Do we seriously expect people to hire lawyers before launching a mommy blog? Apparently so.” [James Joyner via Instapundit; Ron Coleman] Earlier here and here.

More: Patrick at Popehat is feeling commercial.

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A house for sale in Greenwich, Ct. for about $7.5 million is decorated in a eye-grabbing way that might intrigue some home-hunters while putting off others. Real estate bloggers start to notice, the tone of discussion turns snarky (especially in comments), and the nastygrams duly follow.

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I think the more correct word would be safer with an r. [Electronic Frontier Foundation via BoingBoing]

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May 22 roundup

by Walter Olson on May 22, 2009

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The WSJ notes that online comments, bulletin boards and chatrooms, and social media of all kinds present a risk, not to mention blogging: “Though the likelihood of a plaintiff winning a lawsuit is not high, ‘you could go bankrupt’ just from defending against them, says Miriam Wugmeister, a partner at Morrison & Foerster LLP and a privacy and data-security law expert.”

“The British Chiropractic Association is using the libel laws to try and silence Simon Singh’s discussion of some of the more, uh, unusual claims they make for Chiropractic treatments (such as curing Colic and Asthma).” [Boing Boing, Orac first and second posts, Jack of Kent] And Dave Gorman writes really carefully about the case.

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