Tuesday, April 30, 2013

The Shrivernator Returns: Award-Winning Journo Rejoins NBC News

English: NBC News
(Photo credit: Wikipedia)
Both Today.com and MariaShriver.com announced today that the 57-year-old award-winning broadcast journalist, author of six books and former First Lady of California has rejoined NBC News as a special anchor on women's issues.

NBC News will exclusively broadcast the multiplatform Shriver Reports on the status of American women and their role in national issues. Shriver, the niece of the late President John F. Kennedy, was an NBC News anchor and correspondent from 1986 (the year she married beefy thespian Arnold Schwarzenegger) to 2004, when she assumed First Lady duties after her buff spouse became Governor of California. The couple separated in 2011.

Shriver won a Peabody Award for a Dateline story on single mothers on welfare, and first rose to prominence anchoring the Today Show.
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UPDATE: Hawaii Solons' Revised Shield Law Turn Back on New Media

The Hawaii State Capitol.Picture taken from at...
 (Photo credit: Wikipedia)
Hawaii, the last state to join the Union 54 years ago, has taken a step backward, both technologically and as regards press freedom.

The Media Council of Hawaii ("MCH") has written to state legislators, urging them to reject H.B. 622, the revised, but weakened, proposed shield law that would supplant Hawaii Rev. Stat. sec. 621 that expires in June. With Sen. Cynthia Thielen the lone dissenting vote, lawmakers on the Senate Judiciary & Labor Committee last Friday approved a compromise bill that would make the shield law permanent, but would no longer protect "nontraditional journalists," according to an Associated Press article.

The present law protecting against compelled disclosure of confidential information and sources to authorities shields both traditional print journalists and new media, including bloggers. H.B. 622, backed by Judiciary & Labor Committee Chair Clayton Hee and Hawaii Atty. Gen. David Louie, however, would not cover digital media or free newspapers and magazines.

Critics of the shield law enacted in 2008 say the statute was too vaguely worded and impeded law enforcement, despite its inapplicability in felony and defamation cases (see "TUOL" post 4/4/13). H.B. 622, in contrast, would further be subject to exceptions in civil cases and potential felonies and serious crimes in which someone sustains unlawful injury, according to the AP article. Sen. Thielen, MCH and other media groups wanted to make the current shield law permanent, but otherwise leave its protections unaltered.

HB 622 awaits a vote by the full House & Senate.
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Monday, April 29, 2013

NYT Endures Forgettable First Quarter

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The New York Times last week released gloomy First Quarter results that reflected an 11.2 percent decline in ad revenues and plunging net income.

Net income was $3.1 million, or 2 cents a share in FQ 2013, compared to $42.1 million or 28 cents a share during the comparable period a year ago. Overall ad revenues dropped 11.2 percent, but the Times' print properties, which include the Boston Globe, Worcester Telegram & Gazette and the International Herald Tribune, suffered a 13.3 percent decline in ad revenues. Digital advertising sank 4 percent compared to year-ago FQ results.

In response to the grim figures, Times management plans to unveil reduced cost subscription models, along with a premium subscription rate that would include access to Times-sponsored events.  As previously reported, the Times also is focusing on its own brand and attempting to unload its New England newspapers (see "TUOL" post 4/16/13).

On a bright note, digital subscriptions of the Times and Intl. Trib jumped 49 percent in the First Quarter compared to 2012 figures, reaching 676,000. 
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UPDATE: U.K. Measure Cuts into 'Libel Tourism' Industry

An enlargeable basic map of the United Kingdom
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Parliament last week enacted legislation that may make the United Kingdom a less desirable destination for would-be plaintiffs pursuing defamation claims against media defendants, the New York Times reported.

The new law, which encompasses England and Wales, but not Scotland or Northern Ireland, unlike defamation law in the U.S. involving high-profile public officials and public figures, still imposes the burden of proof on the media defendant to prove the truth of allegedly libelous statements. However, Parliament's first revision to plaintiff-friendly defamation laws since 1996 does ramp up the causation standard, requiring individuals to show the offending speech caused or is likely to cause them harm, and corporations to prove serious financial loss, or likely serious financial loss, because of allegedly defamatory statements.

The revised law also focuses on the party who uttered the allegedly libelous speech, shifting responsibility away from Internet Service Providers, for example, that convey the offensive statements. Also receiving a boost is the so-called "public interest" defense that permits media defendants, irrespective of the truth or falsity of the alleged defamatory speech at issue, to claim they published the remarks in good faith and in the public interest.

Free speech advocates are hopeful the new measure will cut down on the practice of libel tourism under which prominent individuals forum-shopped defamation claims into the more favorable setting of  U.K. courts, despite sometimes dubious jurisdictional connections to the U.K. (see "TUOL" post 5/24/10). Lord Lester has championed revising libel laws in England for several years.  In response to libel tourism, President Obama signed into law in August 2010, the SPEECH Act (Securing the Protection of our Enduring & Established Constitutional Heritage) that would not enforce foreign defamation judgments in the U.S. that ran counter to the tenets of the First Amendment (see "TUOL" post 8/11/10).
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Friday, April 26, 2013

Google Makes Nice to European Union

European Union
 (Photo credit: Wikipedia)
Mountain View, Calif.-based Internet search engine behemoth Google, Inc., this week extended an olive branch to the European Union, offering a proposal to allay antitrust concerns, the Associated Press reported.

According to the AP article, Google proposed clearly labeling search results so that European users could differentiate between Google-sponsored search results and natural search results. The 27-nation EU Commission said Google also would display competitors' links alongside its own YouTube and Google Maps services.

The EU has been a thorn in Google's side for more than three years, investigating the company's potential abuse of its dominant market position in the Internet search field (see "TUOL" post 7/7/10).
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Advance Publications Still in Retreat

English: Skyline of Easton, PA from Lafayette ...
(Photo credit: Wikipedia)
After slashing 20 jobs last January, the Advance Publications-owned (Easton, Pa.) Express-Times has eliminated another dozen full-time slots, the Associated Press reports.

The daily's Publisher and President, Lou Stancampiano, relayed the discouraging news comes as the paper eliminates its production department, shifting the printing duties to the Staten Island Advance, which will truck the daily to the Express-Times facility. The paper will continue to publish daily for now, Stancampiano confirmed.

The Newhouse family-owned Advance Publications newspapers, including the (Newark, N.J.) Star-Ledger, went through a round of massive layoffs in January in the face of withering circulation and shrinking ad revenues (see "TUOL" post 1/18/13).

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Wednesday, April 24, 2013

UPDATE: Opera-Singing Dentist Flounders in Copyright Aria

Teeth of a model.
 (Photo credit: Wikipedia)
In his pun-filled, 10-page decision in Lee v. Makhnevich (Case No. 1:11-cv-08665, 2013 WL1234829 (March 27, 2013)), United States District Court for the Southern District of New York Judge Paul Crotty recently denied defendant dentist Stacy Makhnevich's motion to dismiss a potential class action suit challenging a Mutual Agreement to Maintain Privacy ("MAMP") form she forced patients to sign as a precondition to treatment that barred online criticism of her work.

As previously reported here (see "TUOL" post 2/2/11), consumer advocacy group Public Citizen filed suit in 2011 on behalf of Huntingtown, Maryland's Robert Lee and his confederates (sorry) claiming patients were entitled to post negative reviews on Web sites such as Yelp! and DoctorBase, as Lee did, pursuant to the fair use exception under the Copyright Law [17 U.S.C. sec. 107].

Dr. Makhnevich, whose Web site notes her skills as a dentist and opera singer, treated Lee in 2010, draining and filling a tooth that caused him discomfort. She insisted that he sign the MAMP form contract sold by North Carolina-based Medical Justice, which required patients to waive public comment about dental services and assigned to the dentist the copyright of any online comments. Lee defied the agreement and criticized the defendant's office over the amount of the bill and for allegedly not submitting reimbursement forms to his insurance carrier.

Attorneys for the dentist threatened to sue Lee for $100k for defamation, breach of contract and copyright infringement, subsequently sending him invoices assessing copyright infringement damages of $100 a day. Public Citizen not only attacked MAMP as violative of patients' First Amendment rights and the fair use exception, but questioned the validity of the contract overall, claiming the dentist's promise not to sell its patients' names to marketers in exchange for the patients' promise not to post online comments was illusory because dentists already are barred from selling patients' names to marketers without the patients' consent under HIPAA (Health Insurance Portability & Accountability Act).

Judge Crotty did not hide his disdain for defense counsel's argument that the suit should be dismissed because it stated no legal claim because no actual controversy existed. "Defendants created the controversy with Lee by attempting to enforce the agreement, which they extracted as a condition for getting dental treatment," Judge Crotty wrote. "[U]nder the totality of circumstances, the controversy is sufficiently 'real' and 'immediate.' Defendants cannot pretend now that their notices to Lee were 'just kidding,' or that Lee lacked any reasonably apprehension of liability."

Judge Crotty further anesthesized Dr. Makhnevich's position, writing: "This lawsuit about a toothache and a dentist's attempt to insulate herself from criticism by patients has turned into a headache. After appealing to his dentist for pain relief, Plaintiff Robert Allen Lee, ironically, is appealing to the court for relief from his dentist."

Soon after Public Citizen filed suit, Medical Justice stopped using the MAMP at issue, according to the  Forbes article.  To its credit, Yelp resisted defendant's demand that Lee's negative comments be taken down. The denial of the motion to dismiss is not dispositive of the outcome of the case, but based on Judge Crotty's acid-laced remarks, defense counsel may need a shot of Novocaine to get through this case.

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Court Strikes Down Portion of Argentine Media Law on Divestiture

English: President of the United States Barack...
 (Photo credit: Wikipedia)
Argentina's President, Cristina Fernandez, 60, suffered a setback last week in her five-year battle with the South American nation's largest media conglomerate, Grupo Clarin SA, after a federal appeals court struck down a portion of a media law concerning divestiture as unconstitutional.

According to reports by the Buenos Aires Herald, Associated Press and Telegeography.com blog, the government plans to appeal to the Supreme Court the ruling that Articles 45 and 48 of the media law were unconstitutional. The former limits cable network ownership and the latter limits "unlawful concentration practices."

Grupo Clarin's media holdings include four tv stations, 10 radio stations, 240 cable tv operators and ISPs, and Argentina's largest daily newspaper, Clarin (see "TUOL" posts 12/10/12 & 10/6/10). President Fernandez has long railed against what she perceives to be the monopoly power of  Grupo Clarin, which, not surprisingly, has been critical of her regime. But, according to the Buenos Aires Herald article, the Civil and Commercial Chamber found portions of the country's media law arbitrarily limited the media company's right to hold multiple broadcast and cable tv licenses.

Fernandez is pressing Argentina's Congress to enact legislation that would make it harder to obtain judicial injunctions.
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Tuesday, April 23, 2013

Journalist Edges Out Lumberjack as Worst Job in U.S.

Image representing Adicio as depicted in Crunc...
Image via CrunchBase
A survey released today of  200 occupations by career Web site Careercast.com found reporters have the dubious honor of holding the worst job in the United States, according to a post by a Wall St. Journal blog (Blogs.wsj.com).

Careercast.com, which is owned by Carlsbad, Calif.-based Adicio, Inc., uses data from government agencies, including the Bureau of Labor Statistics, and bases its rankings on five criteria:
  • work environment
  • physical demands
  • stress
  • income
  • hiring outlook.
Given bleak job prospects, long work days and paltry pay, it's not too surprising that journalists would find themselves 200th among the survey of 200 careers. Reporters edged out enlisted military personnel and lumberjacks to capture the basement spot. At least lumberjacks get to wield an axe, though "TUOL" has seen newspaper newspapers lethally wield a blue pen.

At the top of the Careercast.com list are actuaries, followed by biomedical engineers and software engineers, all of whom any self-respecting journalist could drink under the table. "TUOL" found little solace in the survey, in that attorneys ranked a meager 117.

Actuaries assign a financial value to risk, so journalism students may want to consult with one before it's too late.
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Monday, April 22, 2013

Bloomberg News Plays Matchmaker; Wonders if CBS & Time Warner Will Hook-Up

Time Warner
 (Photo credit: Wikipedia)
It's spring and romance is in the air, which has Bloomberg News all atwitter in an article contemplating a union between thriving media giants Time Warner and CBS.

Time Warner may still be on the rebound from its painful 2009 break-up with AOL, with which it exchanged vows in 2001 to the tune of $124 billion. Both Time Warner and CBS already have dipped their toes in relationship waters as partners in the CW Network.

Bloomberg News reported that both merger candidates are attractive New Yorkers, with CBS presently the broadcast television ratings champ and Time Warner, owner of cable outlets CNN and TNT along with one of Hollywood's busiest movie studios. Whether the match made in broadcast heaven occurs depends largely on the whims of 89-year-old mogul Sumner Redstone, who holds more than three-quarters of CBS's voting rights.

The Bloomberg article speculates that CBS could come with a $35 billion price tag, not including the cost of catering,a band and the honeymoon. Neither of the would-be lovebirds commented for the story.
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Judge Says University Must Keep (Pink) Slimy Secrets to Itself

Iowa State University
 (Photo credit: Wikipedia)
Story County (Iowa) District Court Judge Dale Ruigh last week ruled in Beef Products Inc. et al. v. Iowa State University of Science & Technology (Case No. EQCV045745) that the college may not release research data concerning the controversial beef filler dubbed "pink slime" under the state's Open Records Act [Iowa Code Chapter 22] because the meat packaging company's processing practices constitute trade secrets.

In his nine-page decision, Judge Ruigh relied on the trade secret exemption to Iowa's Freedom of Information Act to prohibit the university from producing documents requested both by The New York Times and a Seattle attorney who four years ago sought to obtain a 2002 ISU study of BPI's meat production practices to support a lawsuit involving allegedly contaminated hamburgers. The university was prepared to comply with the records request when BPI filed suit to prevent disclosure.

Under Sec. 22.1(3)(a) of the Iowa Open Records law, a public record "includes all records,documents, tape or other information, stored or preserved in any medium, of or belonging to this state, or any county, city, township, school corporation, public subdivision...or any branch department board, bureau. commission, council, or committee of any of the foregoing." The Court concluded that any knowledgeable person employed by a BPI competitor could review the targeted information and thereby acquire confidential data about the company's food processing methods and any new methods in development to BPI's detriment.

The controversy arose before BPI filed its $1.2 billion defamation suit against ABC News in September 2012, over a news story the plaintiff claimed portrayed "pink slime," a lean finely textured beef filler product made from ammonia-sprayed fatty trimmings, as harmful to the public that was not meat (See "TUOL" post 1/21/13).

Tip of the hat to the Reporters Committee for Freedom of the Press (www.rcfp.org) for tracking the case.

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Thursday, April 18, 2013

N.J. Blogger Protected by Shield Law, Judge Rules

Census Bureau map of Union Township, Union Cou...
 (Photo credit: Wikipedia)
Union County (N.J.) Superior Court Judge Karen Cassidy last week extended the Garden State's shield law [N.J. Stat. sec. 2A: 84A-21 to 21.8] to protect a 51-year-old Cranford blogger who alleged county employees misused portable generators during Hurricane Sandy, the Star-Ledger reported.

Judge Cassidy said Tina Renna, whom prosecutors had subpoenaed to reveal the names of the 16 county workers she alleged improperly used the generators, should be shielded by the statute from having to disclose the information, according to the Star-Ledger article. Renna "obtained material in the course of professional newsgathering activities," Judge Cassidy wrote, to disseminate the information over the Internet.

Renna, the gadfly spouse of a former independent candidate for county freeholder, often targets Union County elected officials in blog posts, the quality and tone of which didn't necessarily sit well with the Court. Nevertheless, the trial court decision seemingly expands shield law protection to electronic media denizens.

The Union County prosecutor's office is weighing whether to appeal Judge Cassidy's ruling, the Star-Ledger reported.
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Wednesday, April 17, 2013

Actress' Suit Against IMDb One for the Ages

Internet Movie Database
Internet Movie Database (Photo credit: Wikipedia)

Hollywood's obsession with youthful screen stars is best reflected by the probably apocryphal tale of the journalist who once wired legendary actor Cary Grant: "How old Cary Grant?" to which he replied: "Old Cary Grant fine. How you?"

Age was no laughing matter to actress Huong Hoang, whose stage name, Junie Hoang, can be found in the credits of celluloid classics, including Gingerdead Man 3: Saturday Night Cleaver (2011) and Hoodrats 2: Hoodrat Warriors (2008). Last week, according to the Associated Press, a United States District Court for the Western District of Washington jury rejected her breach of contract claim in Hoang v. Amazon.com, Inc. & IMDb.com, Inc. (Case No. C11-1709(MJP)).

Before the trial began, the presiding judge granted the summary judgment motion of defendant Amazon, the parent company of  the Internet Movie Database(IMDb) Web site, allowing it to get out of the case. Hoang initially sought $1 million damages against IMDb in her complaint, which included counts of breach of contract and violation of Washington's Privacy Act [RCW 9.73 et seq.) and Consumer Protection Act [RCW 19.86.020], for publishing her actual age in her profile.

The 41-year-old Houston native originally listed her birthdate as 1978, instead of 1971, because she claimed she was always cast in younger roles, according to the AP story. IMDb refused her request not to list a birth year at all unless she could prove the original date listed was incorrect. The defendant ultimately performed a public records search using her birth name and listed the 1971 birthdate on her account profile, despite her protestations.

She alleged in her complaint that acting roles were few and far-between once her actual age appeared on the site, despite her obviously sterling resume. She sued for breach of contract, alleging the defendant violated its privacy terms by mining her account data. The defendant countered that it had a First Amendment right to publish the information and that she had failed to show any damages sustained as a result of the listing of her birth year as 1971. The jury apparently agreed.

IMDb lists more than 2 million pages of data about tv, movies and entertainment in its searchable database, according to the AP story. Hoang should not give up hope--maybe she can fill the void in mature roles left by Judi Dench's decision to curtail her movie appearances to concentrate on theater.

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A Yen for Autocomplete: Google Ordered to Pay Japanese Libel Plaintiff

English: Google Logo officially released on Ma...
 (Photo credit: Wikipedia)
Multinational Internet services giant Google, Inc. has been ordered to pay a Tokyo plaintiff 300,000 yen ($3,057) in damages arising from his defamation and invasion of privacy claims, Agence France Presse ("AFP") and Cnet.com reported this week.

The culprit, according to the plaintiff's suit, is the Mountain View, Calif.-based Google's autocomplete function, which he alleged would link him to crimes he did not commit when Google users would begin typing his name in a search. The plaintiff, who was not identified, alleged he lost his job and has been unable to obtain employment since because of the negative autocomplete output.

Although Judge Hisaki Kobayashi did not conclude Google's autocomplete was to blame for the plaintiff losing his job, the judge did find a "situation has been created by which illegally submitted documents can easily be viewed."

It's doubtful whether Google will have to face the music because, as the AFP article noted, Google has no Japan-based data center, as it does in Taiwan, Singapore and Hong Kong, so the Japanese Court's ability to exert influence is in doubt. For its part, Google argues autocomplete results are automatically generated and beyond its control.

The suggest function, which offers options when search terms are entered, has previously gotten Google into trouble in defamation cases in France (see "TUOL" post 9/27/10).
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Tuesday, April 16, 2013

Twitter Aiming High in Content Partnerships

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San Francisco-based social networker Twitter has blossomed from microblogging to serving as a multimedia platform, forging relationships with Weather Channel, LLC, ESPN and Turner Broadcasting Network, sharing ad revenues as it streams video content from those networks.

Now comes word from TechCrunch that Twitter has Viacom and Comcast's NBCUniversal in its sites, and may soon be a vehicle for sharing video clips from one or both of those media giants in return for a piece of the ad revenue action. TechCrunch reports that Twitter may have an agreement in place with one or both of Viacom and Comcast as early as next month.

Twitter continues to expand opportunities for its 140-character devotees to share content.
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Prospective Buyers of Boston Globe Will Submit Bids This Week

The old Globe headquarters on Washington Stree...
(Photo credit: Wikipedia)
With the looming April 18 deadline set by The New York Times and Evercore Partners investment bankers to receive initial bids to purchase the New England Media Group (NEMG), two groups of buyers have surfaced, according to a report by NEMG property The Boston Globe.

Former Globe publisher Ben Taylor and cousin Steve Taylor have joined with a group fronted by former Time, Inc. CEO Jack Griffin and are expected to submit a bid, the Globe reported. So too is a group that includes former Globe president Rick Daniels and private equity mogul Heberden Ryan, according to the Globe article.

The Times announced a couple of months back that it was seeking a buyer for NEMG, which includes the Globe, the Worcester Telegram & Gazette and their respective Web sites, along with direct mail marketing co. GlobeDirect (see "TUOL" post 2/21/13).

Any offers received this week would not be binding, according to the Globe article.
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Friday, April 12, 2013

Costume Bawl: Times Sq. Furrry Panhandlers Pose 1st Amendment Problem

English: Times Square
 (Photo credit: Wikipedia)
Times Square street performers cloaked in familiar costumes and the First Amendment are upsetting tourists and unflappable New Yorkers with aggressive panhandling and antisocial behavior, the Associated Press reports.

Dora the Explorer, the Statue of Liberty, Super Mario, Mickey & Minnie Mouse, Elmo, Cookie Monster and Spider-Man are among the Times Square denizens who pose for photos in hopes of receiving payment. Unfortunately, according to the AP story, in recent months a Cookie-Monster costume-wearing 33-year-old Osvaldo Quiroz-Lopez was charged with assault, child endangerment and aggressive begging for allegedly pushing a two year old, while someone dressed as Elmo was not tickled when he was ordered to perform two days of community service for disorderly conduct that included an anti-Semitic rant. Who knew Sesame Street was such a tough neighborhood?

City councilors are hamstrung because they perceive folks merely walking around in a costume in Times Square as First Amendment protected activity. Indeed, court challenges halted police who were ticketing street performers who lacked proper tax documentation. Police can issue tickets carrying $60 fines if the furry posers block traffic, sell merchandise without a permit or demand money for being photographed, so there is some recourse if, for instance, Mickey & Minnie start acting Goofy. Still, any enforcement must be content-neutral to withstand a First Amendment challenge.

Neither Disney nor Sesame Street has given its blessings to the street performers for donning costumes that resemble the characters whose ownership rights belong to the companies, but as a practical matter,  mobilizing big-ticket law firms to round up the decidedly not deep-pocketed street performers for a trademark infringement suit isn't economically feasible.

The hard-working staff of "TUOL" grew up in the metropolitan New York area and has seen characters a lot scarier than Dora the Explorer roaming around in Times Square.  As the saying goes, freedom of speech comes at accost.

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Wednesday, April 10, 2013

Online Journalism takes a Tumblr--Storyboard Ends Badly

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After a splashy launch last May, Storyboard, which zeroed in on blogging platform users and organizations, is no more.

Tumblr pulled the plug on the editorial content aggregator of Tumblrs, laying off the four-member staff, Tumblr CEO David Karp announced this week. Pink-slipped were Editor-in-chief Chris Mohny, formerly of Gawker, Executive Editor and Daily Beast alumna Jessica Bennett, along with Editorial Director Christopher Price and Sky Dylan-Robbins, Storyboard's editorial producer, according to articles by Paidcontent.org and Techcrunch.com.

As Tumblr approaches its sixth birthday on the cusp of operating in the black, it decided to jettison the revenue-deprived Storyboard, which offered few tangible benefits to its sponsors.
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UPDATE: Mich. App. Ct. Delays Law School Unmasking of Anonymous Blogger

Thomas M. Cooley
Thomas M. Cooley (Photo credit: Political Graveyard)
In Thomas M. Cooley Law School v. John Doe 1 et al. (Case No. 30742628), the Michigan Court of Appeals for the Fourth District this week reversed and remanded a trial judge's refusal to grant a protective order to an anonymous poster critical of the independent law school's placement statistics.

The ABA Journal Law News Now blog reported about the appellate court's 28-page decision that concluded the trial court wrongly failed to address why it denied blogger Rockstar05's request for a protective order against the law school's subpoena seeking the blogger's identity. The appeals court ruling also found the trial court wrongly decided that the alleged per se defamatory statements regarding criminality were not subject to First Amendment protection.

Rockstar05, a purported former Cooley student, criticized the school on his blog on the Calif.-based Weebly Internet Service Provider in July 2011 (see "TUOL" post 12/14/12). The unnamed poster allegedly characterized Cooley's job placement data as "criminal" and a "fraud," and allegedly branded the institution a "diploma mill" and one of the nation's three worst law schools, thereby dashing any hopes of ever receiving a school spirit award.

Weebly already has coughed up the information the law school was seeking, but a California judge presiding over the defamation case stayed the release of that data and the California proceedings pending the outcome of Rockstar05's interlocutory appeal in Michigan.  The appellate ruling this week returns the case to the Michigan trial court for a new ruling on whether the defendant blogger may retain his anonymity.

The defendant has pushed for Michigan to adopt a standard akin to one employed by a New Jersey Superior Court in Dendrite International Inc. v. Does 1-14, 2001 WL 770406 (N.J. Super. A.D.) (Case No. A-2774-00T3). Under the five-part Dendrite test, a party seeking to identify an unnamed Internet poster, must: (1) try to contact the poster and allow the person a reasonable amount of time to respond; (2) identify the poster's precise statement(s) at issue; (3) state a prima facie case in his or her complaint; (4) present sufficient evidence concerning each element of his or her claim; and (5) the court must balance the First Amendment interest in anonymous speech against the strength of the prima facie case and the necessity of disclosure of the anonymous individual's identity.

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Tuesday, April 9, 2013

Consumer Magazines' Ad Pages Continue Freefall in 1Q of 2013

February 16: Ladies Home Journal begins (photo...
 (Photo credit: Wikipedia)
Half of the 213 consumer magazines tracked by Publishers Information Bureau ("PIB") suffered declining ad pages during the First Quarter of 2013 compared to the same period a year ago, MediaPost.com reported today.

Although the painful drop-off in ad revenues was widespread, celebrity, lifestyle and women's interest periodicals were particularly hard hit, according to the MediaPost article. Ladies Home Journal experienced a 28 percent decrease to 122 ad pages, Maxim saw a 36 percent shrinkage of ad pages down to 53, Forbes dropped 19 percent to 266 ad pages and OK Weekly was not okay with  22 percent fewer ad pages at 263, compared to the periodicals' respective figures for the first three months of 2012.

The PIB survey found that 67 of the titles it tracked lost 10 percent of their ad pages in a 2013 to 2012 comparision, and 31 periodicals sustained more than a 20 percent decrease in First Quarter 2013 ad pages.

Only bad dogs were heartened by the latest financial news, because it won't hurt as much when owners rap them on the nose with ad-deprived, rolled-up magazines.
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Monday, April 8, 2013

Kuwait, Kuwait, Don't Tell Me: Journos Facing New Media Law

KUNA logo
 (Photo credit: Wikipedia)
The Kuwaiti National Assembly will vote on a proposed media law already approved by the Cabinet of the Arabian Peninsula nation today.

KUNA (Kuwait News Agency) reported that the proposed measure largely eliminates jail time for offending journalists (unless they denigrate Allah) and instead, imposes fines. Sheikh Salman, the constitutional emirate's Minister of Information, said: "The bill will regulate work of all press and media outlets, and it aims to strengthen press and media freedoms."
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Nashua Telegraph Changing Hands

Nashua Telegraph
 (Photo credit: StarrGazr)
After a 36-year tenure, Bryn Mawr, Penn.-based Independent Publications Inc. on April 22 will turn over the reins of The Nashua Telegraph to the Ogden Newspapers, Inc. chain, Telegraph Publisher Terrence L. Williams announced today.

The Telegraph, which has long been owned by the McLean family, will join the Ogden family stable, giving the media conglomerate, which began in West Virginia, a daily newspaper presence in 13 states. Terms of the acquisition were not disclosed, though besides the Telegraph, Ogden also will be taking on the Cabinet newspapers, which include the Bedford Journal and Milford Cabinet.

Robert M. Nutting, the CEO of Ogden, which owns more than 40 newspapers, is the incoming chair of the Newspaper Association of America.
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Friday, April 5, 2013

Burundi Cracks Down on Press Freedom

Coat of arms of the Republic of Burundi.
 (Photo credit: Wikipedia)
The landlocked Central African nation of  Burundi, recently emerged from a decade-long civil war, took a step backward this week when the National Assembly passed a media law that the country's journalism union condemned as an unconstitutional assault on press freedom.

Reuters news service reports the bill, which requires senate approval before President Pierre Nkunrunziza can sign it into law, subjects offending journalists to fines ranging from $2,000 to $6,000 and bars the media from reporting about public safety, national defense or the plunging national currency that lost 14 percent against the U.S. dollar last year. New York-based Human Rights Watch cautioned that the government has been attempting to stifle press criticism of violence perpetrated by the current regime.

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Atlantic City Concessions: Daily Slashes 15 Percent of Workforce

English: View of the boardwalk and the Blenhei...
(Photo credit: Wikipedia)

The daily Press of Atlantic City pink-slipped 26 staffers this week and will not fill 13 vacant slots, the paper announced.

The daily is reducing its workforce by 15 percent as it trolls for a buyer. Current owner Abarta, Inc. of Pittsburgh, The Press' owner for 60 years, plans to unload The Press Media Group. Publisher James W. Hopson said the terminated employees will receive severance, outplacement assistance and counseling.

The paper, New Jersey's fourth-largest daily, has a daily circulation of roughly 70,000.
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Thursday, April 4, 2013

Inmate's Defamation Suit May Proceed, Federal Judge Rules

Bureau of National Affairs
(Photo credit: Wikipedia)
Yorie Von Kahl, presently serving a life sentence in a Terre Haute (Ind.) prison for the 1983 fatal shooting of two U.S. Marshals in North Dakota, may pursue his libel claim against the Bureau of National Affairs ("BNA") Criminal Law Reporter ("CLR") concerning its alleged defamatory summary of his 2005 sentencing hearing, a federal judge ruled last week.

United States District Court for the District of Columbia Judge Richard W. Roberts, in  Yorie Von Kahl v. Bureau of National Affairs Inc. (Case No. 09-0635(RWR)), denied the pro se plaintiff 's libel per se claim, but also denied the defendant's motion for reconsideration, thereby upholding his September 2011, decision denying both parties' summary judgment motions.

At issue, according to a post by the Legal Times blog, is the CLR August 2005, account of Von Kahl's petition for writ of mandamus to the U.S. Supreme Court that discussed Von Kahl's sentencing hearing in 1983, writing "he showed not a hint of contrition" and indicating he justified the murders to the press based on his religious and philosophical tenets. Von Kahl claimed the CLR summary took statements actually made by a prosecutor and made it appear as if the judge at sentencing had made them in his ruling.

BNA ran a clarification in 2007 saying it was summarizing the judge's decision, but that hasn't prevented Von Kahl from filing suit that seeks a correction and damages of $10 million per count in his Complaint, which could buy a lot of cigarettes in the slammer.

"A trier of fact reasonably may conclude that such statements make plaintiff appear odious, infamous or ridiculous," Judge Roberts wrote in his decision allowing the suit to proceed. He did find Von Kahl to be a limited public figure, which means Von Kahl will have to satisfy the higher burden of proof of actual malice at his defamation trial.

Judge Roberts also said the media defendant may use the fair report privilege defense at trial, which shields media defendants who accurately report on information from public hearings or documents, but that the defense was inapplicable at the summary judgment stage. Judge Roberts specifically held that Von Kahl was not "libel proof." There are a smattering of cases that suggests individuals who engage in anti-social behavior such as committing multiple homicides are incapable of having their reputations besmirched, but Judge Roberts determined Von Kahl's criminal background didn't put him quite that low on the food chain.

When push comes to shove, "TUOL" suspects BNA will avoid liability both because of the fair report defense and because a comment about whether the criminal defendant did or didn't show contrition, regardless of who made it, constitutes non-actionable opinion. Cases such as these happen when inmates skip the weight room and thumb through law books in the prison library.

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