Ala. High Court Says Daily Can See Health Agency Records

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In Tennessee Valley Printing Co., Inc. & Michelle Rupe Eubanks v. Health Care Authority of Lauderdale County & City of Florence d/b/a Coffee Health Group (Case No.1090945), the Alabama Supreme Court last week unanimously ruled that the Open Records Act of Alabama [Code of Ala. 1975 sec. 36-12-40] entitled the Florence, Ala.-based TimesDaily access to health care agency records involving the possible sale of assets of Eliza Coffee Memorial Hospital and Shoals Hospital.


In an opinion by Justice Mike Bolin, the high court reversed the trial court decision and held "the sale of the assets of the Health Care Authority, a public corporation, is subject to the Open Records Act."  The TimesDaily, which is owned by Tennessee Valley Printing Co., Inc., sought records from the Health Care Authority, but the agency promised bidders for the hospitals' assets that their submissions would be confidential, according to an Associated Press story.

The Open Records Act provides: "Every citizen has a right to inspect and take a copy of any public writing of this state, except as otherwise expressly provided by statute."

Ill. Appeals Court Slam Dunks Ex-Hoops Coach's Libel Suit

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The Appellate Court of Illinois Second District this week in Sandholm v. Kuecker et al. (Case No. 08-L-19) affirmed the trial court's dismissal of a defamation and false light suit by a former high school basketball coach against a group of parents critical of his coaching style.


In a 49-page opinion, the appellate court upheld the lower court's rejection of the plaintiff's constitutional challenge of the state's anti-SLAPP (Strategic Lawsuits Against Public Participation) measure, the Illinois Citizen Participation Act ("ICPA") [735 Ill. Comp. Stat. 110], which the trial judge cited in throwing out the suit on the basis that it chilled free speech.  Writing for the court, Justice John J. Bowman said the ICPA "provides a qualified privilege, granting more protection for speech than the common law provides, when the speech occurs in the exercise of the right to participate in government."


Sandholm coached the Dixon High School boys basketball team until the school board unanimously voted not to renew his contract in April 2008, in response to criticisms concerning his coaching style, which purportedly involved verbally abusing, discouraging and bullying team members.

Canada High Court Fails to Create Shield Law; Gives Nod to Reporter's Privilege

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In Globe and Mail v. Attorney General of Canada, the Supreme Court of Canada this week fell short of creating a shield law for journalists, but conceded "some form of legal protection for the confidential relationship between journalists and their anonymous sources is required."


According to an account in The Globe and Mail, the High Court recognized a reporter's right to conceal the identity of a source if protection of the confidential source advances the public interest.  A Quebec Superior Court Judge two years ago ordered Globe and Mail reporter Daniel Leblanc to divulge the identity of  his anonymous source, dubbed MaChouette, to Le Groupe Polygone Editeurs, Inc., a Montreal media firm embroiled in a $35 million federal lawsuit seeking recovery of monies paid by a former Liberal government.


The Supreme Court of Canada upheld that reporter's privilege matters be evaluated on a case-by-case basis and declined to accord a constitutional shield to journalists to protect confidential sources. Nevertheless, the High Court did frown on subpoenaing reporters to gather information that may be available elsewhere, and suggested disclosure of confidential sources should be confined to situations in which the source's identity is vital to the administration of justice.

'You Get A Lawsuit...Everyone Gets A Lawsuit...'

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In Charles Harris & Unique Products and Services v. Oprah Winfrey et al. (Case No. 2:2010cv05655), filed this week in the United States District Court for the Eastern District of Pennsylvania, the author of a booklet entitled How America Elects Her Presidents has sued the talk show queen for copyright infringement, conversion, quantum meruit, and unjust enrichment.


In a 21-page complaint, Harris alleges that he sent 10 copies of his booklet to Winfrey in 2008 seeking publicity, but received no response.  According to the complaint, Harris claims Winfrey read questions verbatim from the booklet on her February 16, 2009, program without crediting the plaintiff, which he contends constitutes plagiarism and copyright infringement [17 U.S.C. sec. 101 et seq.].

Winfrey has yet to respond to the allegations of the plaintiff, who is seeking maximum statutory damages. As Texas Cattlemen can attest, Winfrey is not averse to mixing it up in a courtroom.

DOR Request for Amazon Sales Data Violates First Amendment

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The U.S. District Court for the Western District of Washington this week ruled in Amazon.com v. Lay (Case No. C10-664-MJP) that efforts by former North Carolina Dept. of Revenue Secretary Ken Lay to obtain information from Amazon, Inc. regarding sales to North Carolina residents for tax purposes violated the First Amendment.


As first reported by The Volokh Conspiracy blog, Judge Marsha J. Pechman cited the U.S. Supreme Court decision in McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) for the principle that anonymity "exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular."  The Court held that the government had no right to know what music, books and audiovisual materials North Carolinians were purchasing through Amazon.com.

In her 26-page opinion granting Amazon's request for summary judgment and denying DOR's motion to dismiss, Judge Pechman wrote: "[T]o the extent the March Information Request demands that Amazon disclose its customers' names, addresses or any other personal information, it violates the First Amendment and 18 U.S.C. sec. 2710 only as long as the DOR continues to have access to or possession of detailed purchase records obtained from Amazon."

Burnt LimeWire Shut Down by Court for Copyright Infringement

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Ruling that the defendant commercial P2P music downloading service "intentionally encouraged direct [copyright] infringement," U.S. District Court for the Southern District of New York Judge Kimba Wood has ordered LimeWire to cease distribution of its file-sharing software.


Although its owner claims the entity is still in business, LimeWire shut its Web site Wednesday, posting the following message:  "This is an official notice that LimeWire is under a court-ordered injunction to stop distributing and supporting its file-sharing software. Downloading or sharing copyrighted content without authorization is illegal."

The Recording Industry Association of America (RIAA) sued LimeWire in 2006 on behalf of a dozen plaintiffs, including Sony Music Entertainment, Capitol Records and Arista Records, alleging copyright infringement, unfair competition and inducing others to commit copyright infringement (Arista Records LLC et al. v. Lime Group, LLC, Case No. 1:06-cv-05936 ) [see "TUOL" post 5/13/10].

Judge Wood found that LimeWire affirmatively marketed itself to Napster users, whom she characterized as "known copyright infringers." Although the freeze on distributing its software essentially squeezes LimeWire, networks such as Bit Torrent and Gnutella are still up and running.

A trial is slated for January 2011, to determine the damages sustained by the RIAA.

Iowa High Court to Decide Breadth of State's Open Records Law

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Iowa's Open Records Law [Iowa Code Chapter 22] has butted heads with the Family Educational Rights and Privacy Act (FERPA), and it's up to the Hawkeye State's Supreme Court to decide whether FERPA is subordinate.


According to a story in the Des Moines Register, the Iowa Supreme Court last week heard arguments arising from a November 2007, request for records by the Iowa City Press-Citizen to the University of Iowa involving an alleged sexual assault in a university residence hall by two of the college's football players.  The Press-Citizen sued the university in 2008 under Chapter 22 after multiple requests to the school yielded only 18 nonresponsive documents.


Iowa District Court Judge Douglas Russell compelled the university to produce a log of withheld documents, which showed 3,200 documents that the school would not produce because of state and federal privacy statutes and attorney-client privilege.  Following the release of 900 documents from the list, Judge Russell ordered the school to produce more than 1,100 documents from the list, but the University of Iowa has balked at producing even redacted versions of the documents, relying on FERPA.

The university fears it could lose federal funding if it releases student records, but the newspaper argues that Iowa U. would be protected if the records were produced pursuant to court order.  The Iowa Supreme Court offered to indication when a decision could be expected, according to the Register story.

Amid Seawalls, Cape Cod Daily Adds a Paywall

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Beginning November 9, The Cape Cod Times will begin charging visitors to its online edition, owner Cape Cod Media Group, Inc. has announced.


Until their subscription renewal date arrives, current subscribers to the print edition of the Times will have free access to all online content. Beyond public safety information and destination content, which will remain free, online visitors who read more than 10 stories monthly will be charged a fee, beginning at $2.48 a week and rising to $5.52 a week for premium Internet subscribers who will have full access to galleries, videos and articles.


Presently, capecodonline.com attracts nearly 9 million page views monthly, according to the Times.

Gorilla Coffee Takes on 800 lb. Gorilla New York Times

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There's trouble brewing in The New York Supreme Court in Kings County, where Darleen Scherer and Carol McLaughlin, co-owners of Gorilla Coffee in Park Slope, Brooklyn, have filed a defamation suit against The New York Times, blogger Oliver Strand and several former employees over a blog item on April 11, 2010.


According to the 7-page complaint, during a labor dispute in which several baristas walked out of Gorilla Coffee, risking their urnings ("TUOL" apologizes for its pun addiction), Strand, a contributor to the Times' Dining section, blogged that store employees were subjected to a hostile and demeaning work environment. Subsequently, the staffers quit and the coffee oasis closed for two weeks as the owners hired new baristas. The Times wrote blog entries and a Metro feature on the store's re-opening.


The plaintiffs allege the Times' post and printing of an Email from the disgruntled employees alleging an unhealthy work environment defamed them. The plaintiffs claim they are not public figures, which, if the court agrees, would require them only to prove that the defendants were negligent in publishing the alleged libelous statement, rather than the higher burden of proving that the defendants published the alleged defamatory statements with actual malice (knowledge that the statements were false or reckless disregard for the truth or falsity of the statements).

It remains to be seen whether the defamation claims are as strong as the coffee and whether the defendants have grounds for dismissing the suit (pun addictions are difficult to overcome).

ABC 'Good News' for Newspapers: You Circulation Losses Are Slowing Down

Image by fables98 via FlickrLooking for a kind word where it can find it, the newspaper industry has glommed onto the latest circulation figures from the Audit Bureau of Circulation (ABC) for the six-month period from April 2010, to September 2010, which show a 5 percent decline compared to the same period in 2009. The industry can take solace in the fact that last year, the drop-off in newspaper circulation was more than twice that rate.
From April to September this year, The Dallas Morning News and The Wall St. Journal were the only two major dailies that experienced a circulation boost.  The Wall St. Journal's circulation grew by 2 percent and reported the largest circulation overall of more than 2 million, which includes 450,000 electronic subscriptions. USA Today was second largest at 1.8 million, a 4 percent decrease compared to 2009 figures, followed by The New York Times, which sustained a 6 percent decline in circulation to 877,000.

Pocono Record Defeats Real Estate Developer's Libel Claim

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The Dow Jones Local Media Group, Inc.-owned Pocono Record today gleefully reported on the outcome of a two-week libel trial against the daily in Monroe County (Pa.) Superior Court brought by real estate developer Gene Percudani and his company, Raintree Homes, over the paper's 2001 investigative probe of  unsavory home sale tactics, including the use of inflated appraisals.


After reviewing hundreds of documents and listening to two weeks of testimony, the jury took two hours, less time than required to concoct a dubious home appraisal, to find Percudani failed to prove the allegations against him and his business in the Pocono Record's series, "A Price too High," were false.  The articles by former Record reporter Matt Birbeck, a defendant in the case, detailed the practice of inflating the value of homes in the Poconos sold to vacation-home minded New Yorkers, which resulted in a surge of foreclosures.


The Pocono Record account of the trial outcome cited the testimony of the author of a 2004 state-commissioned foreclosure study that found Monroe County was fifth in the nation in the number of residential foreclosures.

244k Germans Say 'Nein' to Google Street Maps

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According to an Associated Press story, nearly 3 percent of urban dwellers in Germany's 20 largest cities want no part of Mountain View, Calif.-based Google's Street View program.


Among the 23 nations where Street View is available, only Germany has enabled its populace to opt out of the Google program that pictures homes on the Internet. Citing individuals' privacy concerns, German authorities insisted  that Google accept requests from citizens who did not want to participate in the mapping program.


When Street View goes online, those who do not want to participate--roughly 244,000 people by Google's estimate--will be provided a tool by Google that will make their homes unrecognizable.

Germany apparently has misgivings about a virtual invasion, a position that Poland, France and Belgium may find ironic.

Maine Dailies: 'No Anonymous Posts Heah'

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Maine Today Media, Inc. dailies The Portland Press Herald, Kennebec Journal and Waterville Morning Standard have shuttered the comments section of their online editions.


Publisher Richard Connor attributed the move to numerous "hurtful and vulgar" anonymous postings following articles that appeared on PressHerald.com, the online edition of the daily newspaper. He left open the possibility of reinstating the comments section provided a way can be found effectively to hold posters accountable for their remarks.

NPR Down Juan Senior News Analyst

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NPR has cut lose senior news analyst Juan Williams, 56, following the commentators remarks about Muslims on Fox's The O'Reilly Factor.


Discussing the firestorm generated  by O'Reilly's comments on The View holding Muslims accountable for the 9/11 attacks, Williams said that when he boards a plane and sees passengers in Muslim garb, he gets "worried" and "nervous."  In terminating the contract of  Williams, who spent 24 years at The Washington Post, NPR said his remarks undermined his credibility as a news analyst and ran afoul of NPR's editorial standards and practices.  That Williams has also been a long-time commentator for Fox News has always been a sore spot with NPR.

Actor Asks Court: Who Made 'Crabs' Tweet?

Image via CrunchBaseBroadway singer/dancer and skating star Marty Thomas has asked a New York judge to order microblogger powerhouse Twitter to identify the creator of @bwayanonymous, the now inactive account that viciously tweeted Thomas contracted "crabs" from a fellow cast member of the play Avenue Q.

Thomas, who denies ever suffering from the sexually transmitted parasitic insects, claims he was defamed personally and as a professional actor by the unnamed Tweeter, who purportedly had 100 followers, and Martin is itching to know the blogger's true identity. The former star of Wicked and Xanadu and one-time  Broadway "Hottie of the Month" as voted by gaylifenyc.org,  has been fodder for the tabloids since word of the crabs accusation and his lawsuit leaked out.

What a lousy thing to do.

Google's Anthem: Oh, Canada, We Breached Your Privacy...

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Google Street View vehicles that accidentally captured individuals' personal information committed a serious violation of Canadians' privacy rights, the country's Privacy Commissioner, Jennifer Stoddart, said yesterday.


 User names and passwords, unredacted email addresses, and individuals' names, addresses and residential phone numbers were among the data scanned from unencrypted Wi-Fi networks by vehicles owned by the Mountain View, Calif.-based Google, according to a report by CNBC News.  Commissioner Stoddart has given Google until Feb. 1, 2011, to expunge the improperly compiled data.


Google has drawn international criticism for its alleged breach of privacy, including from the Czech Republic (see "TUOL" post 9/22/10), Australia (see "TUOL" post 7/9/10) and among Attorneys General in the U.S. (see "TUOL" post 6/16/10).

Rough Trade: Editor and Publisher Cleans House

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Editor & Publisher, the trade magazine that covers the beleaguered newspaper industry, found itself making news yesterday after its three top editors were fired via email.


Editor Mark Fitzgerald, a 26-year veteran of E & P, along with Managing Editor Shawn Moynihan and Senior Editor Jim Rosenberg were shown the door by E & P owner Duncan McIntosh, which purchased the magazine in January 2010.  The new owner wants to take the publication in a new direction, which may be downhill.

Jeff Fleming and Kristina Achermann, respectively,  will assume Fitzgerald's and Moynihan's positions.

Financial Columnist Quits Over Nondisclosure of Stock Ownership

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Thomson Reuters' Breakingviews financial columnist Neil Collins has resigned for failing to disclose that dating back to March 2009, he wrote articles commenting on 15 companies in which he held ownership shares, according to an article in The Guardian.


Thomson Reuters has refiled 53 online columns, mostly by Collins, as well as by Breakingviews reporters Margaret Doyle and Neil Unmack, to which disclaimers were added that noted the writer's personal investment in the company being profiled, according to The Guardian.  Among the entities that Collins wrote about, but failed to mention his stockholdings in were BP, Yell, Marks & Spencer and Diageo.


Collins resignation was accepted for violating Thomson Reuter's code of conduct, though Collins was not accused of exploiting his columnist position for personal gain.  Collins was city editor of the Daily Telegraph for 19 years and also worked for the London Evening Standard and the Sunday Times.  

Victory 'Lap': Westchester Weekly Scores $8m Verdict Against Mayor

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Trade journal Editor & Publisher reports that Yonkers (N.Y.) Mayor Philip Amicone this week was socked with an $8 million verdict in the U.S. District Court for the Southern District of New York in a civil rights lawsuit brought by Sam Zherka, publisher of the weekly Westchester Guardian.


Filed in October 2007, Zherka v. Amicone (Case No. 7:2007cv09618), alleged that Amicone had news racks confiscated and copies of the Guardian seized in Summer 2007 after the paper published negative articles about him. The Guardian claimed police were ticketing Guardian employees who distributed the weekly in the streets.


It was a not good week for Amicone overall, as he also lost his defamation suit against the Guardian that arose from a 2007 election eve Guardian story that alleged Amicone frequented gentlemen's clubs and had received a lap dance.


Zherka brought a civil rights claim against Amicone under 42 U.S.C. sec. 1983, which in relevant part states:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress..."

In the you can't make this stuff up category, Zherka apparently also owns the strip club where the celebrated mayoral lap dance allegedly occurred, according to The Journal News in White Plains (N.Y.).  Mayor Amicone isn't the only loser in this case as Zherka claims the lap dancer never received her $20 fee from the mayor for her efforts.

Canada to Craigslist: Drop the Adult Ads, Eh?

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Hopeful that online classified advertising giant Craigslist's decision last month to discontinue accepting adult services ads under pressure from several states' attorneys general might be replicated, three Ontario, Canada cabinet ministers sent a letter to Craigslist CEO Jim Buckmaster urging Craigslist to stop accepting ads for prostitutes in Ontario, according to a story in The Globe and Mail.


The ministers' September 14 letter praised Craigslist for its decision in the U.S. and said it was "a matter of fairness" that Craigslist stop running the adult services ads in Canadian cities.