21 April 2011

Your iPhone Disrespects Your iPrivacy

iPhone Desktopphoto © 2007 Terry Johnston | more info (via: Wylio)

No, doubt iPhone is a hip communication tool with a great design. Who would not like to have one?

But will you still want to have one if you knew that

iPhone Records Every Step You Make

Will you really? Hmm, well maybe not.

Guardian has the story and in the next few lines I will provide you with a very concise

Legal Analysis

What Apple’s iPhone seems to do is usually referred to as location data processing. In the European Union the latter is governed by Directive 2009/136/EC – the so called ePrivacy Directive.

Apple acts as a provider of a value added service in the sense of the ePrivacy Directive since it processes location data beyond what is necessary for the transmission of a communication or the billing thereof.
Apple is generally allowed to do so, however, under the condition that it fully informs its users of its data collection and processing

Prior To Obtaining Their Consent

From what I read, no users have been informed and their consent has not yet been obtained.
Besides the fact that it disrespects the privacy of its users, Apple is in a clear breach of applicable data protection and telecommunications legislation.

iPhone or iPrivacy, what will be your choice?

Information v Defamation: ECtHR Rules Against Bulgaria

Europe zone, Strasbourgphoto © 2008 Stephen Colebourne | more info (via: Wylio)

As early as 1992 Bulgaria acceded to the Council of Europe.  The accession meant not only the acceptance of the European Convention on Human Rights (ECHR), but also Bulgaria’s submission to the jurisdiction of the European Court on Human Rights (ECtHR), the authority serving as the last resort against violations of the rights protected by the ECHR.
Since its accession, Bulgaria has been found liable for violating human rights in a large number of cases. As of yesterday the number of cases rose by two more (courtesy to Dr Lehofer for sharing this information).

In its very recent judgments in Kasabova v Bulgaria (application no. 22385/03) and Bozhkov v Bulgaria (application no. 3316/04) the ECtHR found that Bulgaria had violated Article 10 (freedom of expression and information) of the ECHR.

The Facts

The cases concerned the complaints of two journalists. They had reported on alleged bribes in the admission procedure to specialised secondary schools in the city of Burgas. As a consequence, the journalists were found liable for defamation and were made to pay huge sums in compensation for their statements made in articles published in the Bulgarian press and directed against four administrative experts involved in said admissions.

As you can see, the cases are driven by the conflict between two fundamental human rights: the  right to freedom of expression (and to inform the public) of the journalists literally clashes with the  right to privacy and reputation of the four  experts.
In its


the ECtHR had to strike a (fair) balance between these fundamental human rights.

While the ECtHR acknowledged that the allegations made by Kasabova and Bozhkov had been difficult, if not impossible to prove and that, their journalistic research had shown some flaws, it nevertheless held that the sanctions imposed on the journalists had been excessive, disproportionate when compared to the damaged reputation of the four experts and had thus had huge potential chilling effect. Consequently, there has been a violation of Article 10 ECHR.

In the outcome, the Court found that

Freedom Of Expression Outweighed Privacy

A shock to the system for the Bulgarian media sector. Why?

Well, the majority of the Bulgarian media is considered largely tabloidized and owned by anonymous proprietors. This often results in publications that are clearly false and even defamatory.

Even though the Criminal Code penalizes defamation, so far only very few authors of defamatory materials or owners of publicizing media have been successfully charged, convicted and sentenced.
Kasabova and Bozhkov seem to be among those few.
Should this ruling of the ECtHR be interpreted as a carte blanche to journalists writing defamatory materials? I hope not!

On the other hand, it is an open secret that many Bulgarian journalists work under threat or undue influence. For instance, Freedom House designates Bulgaria as merely partly free in terms of press and media in their 2010 report (select country).

No doubt, threatened journalists would clearly benefit from above judgments.

All in all I would agree with the ECtHR since it does not say that journalists should not be punished, if they write defamatory materials. It says that the punishment should not be excessive and disproportionate to the damage the defamation has caused.

What do you think?

18 April 2011

Another One Bites The Dust: Czech Constitutional Court Shoots Data Retention With Five Bullets

Autumn Morningphoto © 2007 Jeff | more info (via: Wylio)

The judicial development on data retention across Europe will not cease! Following the meanwhile numerous decisions in, just to mention some, Bulgaria, Romania and Germany, some two weeks ago

The Czech Constitutional Court Abrogated Data Retention

Yes, on a sitting held on 22 March 2011 it delivered a ruling abrogating Section 97, subsections 3 and 4 of the Czech Electronic Communications Act as well as the related Decree 485/2005 on the storage of traffic and location (altogether “the contested provisions”).

Court’s ruling grounded on the following


1. The language of the contested provisions is too vague and thus fails to fulfill the constitutional requirement on certainty and clarity.
2. The contested provisions have failed to clearly and precisely define the purpose to retain data and particularly to rectify the vague serious crimes language of Directive 2006/24/EC. Such failure contradicts the requirements laid down in the Charter of Fundamental Rights and Basic Freedoms (the Charter).
3. The absence of clear legal determinations is likely to result in an abuse, i.e. in that the law enforcement agencies use retained data to combat less serious crimes. The latter view appears fortified by the following quotation from the 2008 Report on the security situation in the Czech Republic: a total number of 343 799 comitted criminal offenses resulted in the total number of 131 560 applications to access retained data.
4. The contested provisions have failed to safeguard the integrity and confidentiality of the retained data and to prevent access through (non-state) third parties. The Court opines that such safeguards are mandated by the enormous development and emergence of new and more complex information technologies and communications systems that inevitably blur the boundaries between private and public space.
5. The contested provisions have failed to provide for the destruction of the data following the retention period. The contested provisions have further failed to provide for responsibilities of and sanctions against the public authorities in case of abuse of the retained data as well as for the possibility of individuals to seek for effective relief against such abuse.

In light of the above, the Court found the contested provisions violating constitutional limits and hence unconstitutional. Besides, the Court expressed also some doubts as to the constitutionality of s. 88a of the Czech Criminal Code and urged the lawmakers to either derogate said section or provide for its constitutional compliance.

So, three cheers to the Czechs and their Constitutional Court!

Skydiver with Czech flag

photo © 2010 Ivan Pik | more info (via: Wylio)



The decision of the Czech Constitutional Court goes in a clear confrontation with the legislature.
It is the first decision in a EU member state to criticise the lack of responsibilities in dealings with retained data and to demand sanctions for negligence and misuse.
Unlike the decisions in Romania and Germany, it does not deliver  guidance as to how lawmakers should repair the contested provisions in order to achieve constitutional compliance.
In other words, the courts in Romania and Germany made really precise shots that aimed to merely injure their national data retention provisions. The Czech decision is quite the opposite: the justices shot to kill.
A righteous kill?
I would say yes.

What would you say?

16 April 2011

Scarlet vs SABAM: Gone With The Wind?

Interiorsphoto © 2009 jaci Lopes dos Santos | more info (via: Wylio)

In Margaret Mitchell’s novel Gone with the Wind, the novel’s protagonist, Scarlett O’Hara wonders to herself if her home on a plantation called “Tara” symbolising the pre-civil war South is still standing, or if it was “also gone with the wind”.

I must say that I had similar thoughts when I read the opinion of Advocate general Cruz Villalón in the case Scarlet vs SABAM.
I bet you want to know why?

Good, before I share them with you, however, I will present you with the


In 2004 the Société belge des auteurs compositeurs et éditeurs (SABAM) applied for interim relief against the Belgian ISP Scarlet on the ground that Scarlet’s users had shared musical works contained in SABAM’s repertoire without SABAM’s permission, thereby infringing the copyright in the works.
In 2007 the Brussels Tribunal of First Instance ruled that Scarlet was under an obligation both to block the accounts of its users and to implement a mechanism to filter out infringing content. According to this decision, Scarlet was obliged to make it impossible for its customers to send or receive a P2P file that would include works from SABAM, and faced fines of €2,500 a day if it failed to comply within six months.

In 2008 the Tribunal of First Instance in Brussels decided, on an application for “absolute impossibility of compliance” filed by Scarlet against its decision of 2007, that the Tribunal had been badly informed when it decided that appropriate filtering technologies were available on the market. Scarlet had argued that it was technically impossible or unreasonably expensive to block the P2P traffic and that the solution developed by Audible Magic, a filter mechanism, did not work. Additional technical options were considered and implemented but none of them led to a satisfactory solution.
The Tribunal declared itself not competent to deal with the question as to whether filtering can be made compulsory for ISP and referred the case to the Brussels Court of Appeals.

The Court of Appeals sought a ruling from the Court of Justice of the European Union on whether EU law and, in particular, the fundamental rights guaranteed by the Charter of Fundamental Rights, permit a national court to order an ISP to install a system for filtering and blocking electronic communications.

Advocate General’s opinion

Advocate General Cruz Villalón considers that a court order to install a system to

1. filter all data communications passing via Scarlet’s network, in order to detect data which involve a copyright infringement and
2. block communications which actually involve copyright infringement, either at the point at which they are requested or at the point at which they are sent

constitutes a general preventive obligation that would apply in abstracto without determining whether there had been an actual infringement of an intellectual property right or even that an imminent infringement was likely.

This obligation, says the Advocate General, would also delegate the legal and economic responsibility for combating illegal downloading of pirated works to the ISP.

In the light of the above, Cruz Villalón considers that the installation of that filtering and blocking system is a restriction on the right to privacy of communications and the right to protection of personal data, both of which are rights protected under the Charter of Fundamental Rights. Equally important, the deployment of such a system would restrict freedom of information, which is also protected by the Charter of Fundamental Rights.

To say it with Cruz Villalón’s own words: “As far as we can tell, no system of filtering and blocking seems to guarantee, in a manner that is consistent with the requirements of Articles 11 and 52, paragraph 1, of the Charter, that it will block only content specifically identifiable as illicit”.

Consequently, the Advocate General proposes that the Court of Justice should declare that EU law precludes a national court from making an order that an ISP installs such a filtering system.

This is not just a wind, no, it is a real bomb blast!

Nuclear Blast 1945photo © 2005 Thomas Williams | more info (via: Wylio)



As you might know, the Court of the European Union follows Advocate General’s opinion in about 80 percent of its decisions.
This means there is more than just a fair chance that the Court rules against the requested filtering system.

In fact it is not a simple ruling that we need.
We need the Court to sweep the adversaries of fundamental human rights away and make them “gone with the wind”!


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12 April 2011

Bulgaria: Freedom Of Information Or Purposive Opaqueness?

This is a screenshot of Bulgaria’s commercial register’s website.
The interesting thing about it is that anyone (to the extent he or she can navigate in Bulgarian) may access it and search for company related information.
No other restrictions.
Well, not exactly as soon there will be some.
Owing to a current legislative initiative the register is very likely to compete with below info column in terms of free and transparent information access.

Freedom of Information?photo © 2006 Ian Parkes | more info (via: Wylio)

Believe it or not, but this initiative is driven by a political party holding the name

Citizens for European Development of Bulgaria (link)

Whether in an attempt to create an association with their party’s name or not, but said party’s representatives reason and defend the planned restrictions with “well-proven and tested European practices”. As one may expect, they still owe a detailed explanation as to what practices they have meant.

Mrs Iskra Fidosova (MP), chair of the justice committee and advocate of the restricted access.

It’s the data protection, stupid

This move would halt the more and more frequent cases of abuse of personal data, explained the guy below.

Mr Emil Radev (MP), proposer of the initiative.

However, according to the Access to Information Programme (AIP), an NGO, there is no actual proof that such abuses have increased after the introduction of the register in early 2008.
Not only this, but AIP stresses on the importance of the register for the purposes of journalistic investigations. The latter is of a particular relevance since the vast capital invested in Bulgaria during the last decade is considered of unclear provenance.

Whose data privacy

do the Bulgarian politicians care for?

Maybe for that of the mysterious 26-year-old entrepreneur whose one-month-old company allegedly enabled him to spend some 162 Million Euro on the bankrupt steel plant Kremikovtzi?


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1 April 2011

Austria’s Data Protection Council On Data Retention – A Déjà Vu

Who remembers the cat scene in The Matrix?
The scene depicted Neo, Morpheus & the other good guys convinced that they had already witnessed or experienced a certain situation. What do we usually call this experience or state of mind?
Déjà vu, right?
Unlike the most cases of a déjà vu where no determination can be made as to whether the circumstances of the previous encounter were imagined or true, in that particular scene from The Matrix the cat indeed passed the door twice.
The good guys instinctively felt that something was wrong. And their feelings did not betray them: something was wrong indeed!

Data retention is The Matrix in real life

In a previous blog post I did already compared the laws on data retention with the bad guys’ attempt to maintain total control in The Matrix.
When I recently read that the Austrian data protection council had again disfavoured the then current bill on data retention in a critical statement, it felt like a déjà vu to me.

What does the council criticise?

1. The council has some very serious doubts as to data retention bill’s compatibility with Art 8 of both, the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union.

2. While the council acknowledges that law enforcement authorities should be equipped by sufficient powers in order to fight organized crime and that access to communication data might be helpful in such context, it opines that such powers must be applied only to concrete occasions and be subject to specific controls.

Data stormphoto © 2006 Dave Herholz | more info (via: Wylio)

3. The council further urges the European Commission to eventually conduct the evaluation owing to Article 14 of the Directive 2006/24/EC.

4. In the event that Commission’s evaluation results in a review of the data retention Directive which recommends the implementation of lesser onerous measures, the council suggests that the legislature opt for the so-called quick-freeze procedure. The latter recently gained a measure of popularity because of its submission to public debate in Germany.

5. Last but not least and given the “informative value” of retained data, the council calls upon the legislature to maintain the highest possible data security standards when transposing the Directive.

Will this statement halt the transposition of data retention in Austria?

Unfortunately, it will not, because the data protection council has advisory and, hence limited, powers.
Its statement is nevertheless significant – it once again makes it very clear that data retention is at odds with fundamental human rights, and that the politicians are very well aware of this fact.

What can a single individual do?

First of all inform yourself and inform others who are not yet familiar with data retention. And since data retention is considered avoidable – learn how to either avoid it or make it appear obsolete.


Did I miss an important point? What else would you suggest?


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28 March 2011

My Top 5 Open Source Software Tools & Applications

Very recently I came across the fact that I use primarily open source software tools and applications on my computer. In fact, the main proprietary software I am still running, is the operating system that originates from Redmond, Washington.
Today I am going to give you an overview of what I use. I am also going to discuss some weaknesses I could detect as well as make a couple of recommendations.
You should know that I am not a technologist, but rather a random user, albeit an experienced one. Hence, you will need no technical background in order to read and comprehend this blog article.

Let me start with the

1. Office Suite

being the most important software tool in the course of my daily work.

Open Officephoto © 2008 Shannon Clark | more info (via: Wylio)

I first downloaded OpenOffice.org somewhere back in 2004 but did not find it as convenient as Microsoft Office. Nevertheless, the free office suite has made giant leaps since then. It has even drastically improved its interoperability with MS Office and, allegedly, such interoperability would work even better, provided the guys from Redmond did not obstruct it by all means.

As regards me – it is the text editor “Writer”, the presentation tool “Impress” and the graphics programme “Draw” I use most of the time.
Since redlining and commenting documents is a big chunk of my work, I heavily rely on a good commenting and merging & comparing function in a text editor.
What I personally do not like in Writer is that, unlike Microsoft Word, upon writing a comment the commented text passage does not remain marked and this is not very convenient for the next person reading the comments. Likewise, the merge and compare documents function took me a while to get used to.

Next in my order of preferences comes

2. Browsing and Email

Did you already download Firefox 4?

Mozilla Firefox 4 is here!photo © 2011 Jennifer Boriss | more info (via: Wylio)

I personally started browsing with the Mozilla browser (at that point in time it was not yet called “Firefox” and its version reference had a pre-decimal 0) since my IE has been steadily and severely hit by browser hijackers.
That never happened to Mozilla/Firefox!

Besides, it first introduced the many-tabs-in-a-single-window feature and offers tons of add-ons thereby allowing its user to customize and personalize their web browser!

Almost the same is true with respect to Mozilla Thunderbird – the email client of the Mozilla family.

The issue I have with Thunderbird relates to the signature: you first need to generate a separate signature file and then attach it to the client so it is displayed in a message as plain text. While there is also a HTML based feature, it simply does not produce satisfactory results.

By contrast, the available extensions such as Lightning are just fantastic and make Thunderbird appear almost as good as Microsoft Outlook.

When it comes to blogging, however, everybody needs a good plan. By the same token, a good plan is easily developed with a good tool.

3. Mind Mapping

According to Wikipedia, mind maps are used to generate, visualize, structure, and classify ideas, and as an aid to studying and organizing information, solving problems, making decisions, and, the most important for me – writing.

I discovered Freeplane by coincidence on a YouTube tutorial. Actually I was searching for information about another open source mind mapping software – Freemind, but learned that Freeplane was considered superior.

It helps me order my mind when I need to to write about more complex facts and circumstances.

Mind mapping is related to

4. Workflow design

I remember the first time I had to develop a process. I had heard that Microsoft’s Visio was the usual suspect to look for, but was reluctant to obtain a costly license for it. I sought for open source alternatives on Google and it delivered the answer:  Dia.

The tool is easy to operate and supports the export of your diagrams in a .jpeg or .png format. I have not discovered any flaws yet.

At the end, which

5. Media Player

do you use in order to play music or watch films?

VLCphoto © 2007 Pittaya Sroilong | more info (via: Wylio)

It was probably five years ago when I heard of the Video Lan Player (VLC Player) during a presentation dedicated to open source software. I downloaded it once I got back home and must say: I do not want to let go of it.
It displays practically any file formats and is kept well updated.

Why open source?

Why not? Not only are all the products I mentioned above royalty-free, they are also reliable tools to work with. Adding the possibility to customize them (or have them customized) at your discretion makes them in some instances even superior to commercially licensed products.

My personal decision was cost-driven: I did not want to pay the license fees commercial providers required for their products. Equally important, I needed a reasonable and lawful alternative that I found in the realm of open source software.

What is your experience with open source software?
Do you have a story to tell too?


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25 March 2011

Europe’s Last Stand Against Data Retention?

The Matrix has you...photo © 2008 Roman Pinzon-Soto | more info (via: Wylio)

Do you remember Morpheus saying “Wake up Neo… The Matrix has you!”?
Do you remember Agent Smith implanting an electronic tracking bug in Neo’s body?
I bet you do, because the image transported by this film does not appear that fictional anymore.
It may be just an arm’s length away.
Yes, I am talking about the retention of your communication traffic data. By “you” I mean all of you who live under the jurisdiction of a member state of the European Union. Any member state? Hmm, well, possibly not, but let me first explain

What is data retention and its purpose?

Data retention in the sense of the Directive 2006/24/EC provides for the storage data arising out of telephone calls made and received, emails sent and received and websites visited. Since location data counts to traffic data, it is collected too.

The introduction of data retention has always been justified with combating terrorism and serious crimes, but it aims to fight file-sharing users instead.

Owing to its controversy, legislation produced by transposition of the data retention Directive has been contested in some EU member states. While Ireland challenged Directive’s compatibility with formalities under the then current EC Treaty,  the constitutional courts of Romania and Germany were asked to deal with data retention’s compatibility with fundamental human rights. As a consequence, the respective provisions got abrogated, but not annulled.

Data retention gains territory

Until recently, Austria managed to postpone the transposition of the Directive 2006/24/EC into its national law. Well, the ostensible resistance grounded on discrepancies between the two coalition forming parties rather than on human rights deliberations.

Doris Bures, Austria’s Minister of Transport, Innovation and Technology announces the upcoming enactment of data retention. Courtesy to APA (Archiv/Fohringer)

However, some weeks ago the farce went to an end and a bill amendment to the telecommunications act was nodded through the council of ministers prior to its submittal to the parliament. Reportedly, the bill is being heavily discussed among the members of the parliament justice committee. The result will be, despite all assurances, the total control of communication.

Now that Austria will no longer be a safe harbour in terms of privacy, are there any other member states that still have not implemented the data retention directive?
Let us have a look at the map of Europe…
Is someone missing?
Yes, there is!

The land of milk and honey

Flag countrysidephoto © 2009 Håkan Dahlström | more info (via: Wylio)


Can you imagine: the Swedes usually known for their discipline and law-abiding behaviour are now obstructing the implementation of Directive 2006/26/EC.
It seems that an arrangement among the Left Party, the Green Party and the Swedish Democrats managed to apply a procedural loophole in order to delay the transposition for at least a year.

What does it mean?

As I previously mentioned, the data retention directive has been referred to a judicial review a few times already. These reviews’ action items towards legislation always read the same: improve!
In this respect, it is likely that the Court of Justice of the European Union delivers a judgment dealing with data retention’s compatibility with fundamental human rights under the acquis.

The good news at the end

I still have hope that this madness will come to an end. Not only because hope springs eternal, but because anyone can make an effort and engage in lawfully fighting data retention.
At least anyone who cares about fundamental human rights.

And if Sweden should fail, then it could be us as individuals who form Europe’s last stand against data retention!


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22 March 2011

Thou Shalt Not Have Any Patent Courts Before Me!

European Court of Justice - Luxembourgphoto © 2006 Cédric Puisney | more info (via: Wylio)

What do the Bible and the Treaty on the Functioning of the European Union (TFEU) have in common?
Perhaps it’s that they both represent various collections of sacred scriptures that are exclusively interpreted by specifically established bodies. Yes, the Pope’s authority as the sole authentic and true interpreter of the Bible can be correlated with the rights of the Court of the European Union (“Court” ) with respect to the TFEU.

The Court’s currently published Opinion 1/09 on the creation of a unified patent litigation system and a European and Community Patents Court is a good example of this. Its holding reminds me of the First Commandment and evaporates any hope of moving the European patent system closer to the US American one.

In the beginning… was the European Patent Convention

The European Patent Convention (EPC) provides a legal framework for the granting of European patents via a single, harmonized procedure before the European Patent Office (EPO).

Nevertheless, subsequent to its granting, a European patent is not a unitary right, but a group of essentially independent, nationally enforceable and nationally revocable patents.
And this is where the problems start: a patent holder with a number of equivalent European patents might have to choose where, e.g. under which patent and legal system, to sue an infringer. Factors influencing this choice of forum would include, among other things, the likelihood of success, or the speed and cost of the proceedings.
However, if litigation in multiple jurisdictions proves to be necessary, it is possible that different courts will reach different decisions, even with patents granted by the EPO and containing identical claims…

As is known, this is not the case in the US where they have a unitary patent law, a single granting authority and a unitary patent jurisdiction.

Those who live in the European Union writhe in pain, waiting for relief

A number of reform proposals have been made to ease the difficulties I outlined above, such as: the creation of a unitary Community patent, the establishment of a Community Patent Court, or the replacement of the EPC with a Community patent system.
And, recently, it seems things have started to heat up a bit: the newly authorised Enhanced Cooperation On Creation Of Unitary Patent Protection may smooth the way to a unitary patent, granted as an EU designation within the EPO framework.
But, owing to Court’s Opinion 1/09, an EU patent will still need to be enforced country by country.
It’s still not the whole nine yards.
Besides, I do not understand why the Court behaves just like the jealous God and shows itself anxious in tolerating a parallel (patent) jurisdiction it cannot control.
By the same token, the specialists at the EPO insist on an own court, serving as the ultimate authority in patent cases . Their reasoning is that the court Court would not have the sufficiently skilled personnel and thus the capability to properly deal with patent matters.
Looks like a dead-end to me.

Revelations for holders of European and future Community patents

Given the problem with the Enhanced Cooperation, it will take years to evaluate its overall effect on the European patent system.
Moreover, without unitary jurisdiction and enforceability, its main objective appears limited to merely language -related cost savings.

So pray, my brothers and sisters! Pray that the Court in Luxembourg shall be manned with skilful judges to rule on our patent cases!


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19 March 2011

Are Bloggers Immune Against Damages If They Say The Truth?

bloggers for free speachphoto © 2006 Hanan Cohen | more info (via: Wylio)

It all started this Tuesday while I was reading my daily Slashdot newsletter. I was about to close the tab displaying the headlines, when a single textline caught my attention.
It read : Blogger Fined $60K For Telling the Truth .
What I initially thought was an absurd story turned out to be a verdict delivered by a jury at the Hennepin County District Court!
But let me first present you with

The Facts

John Hoff, a blogger who maintains The Adventures of Johnny Northside, came across a mortgage fraud in which the former community council director Jerry Moore was involved.
Hoff wrote on his weblog that he had  discovered that, Moore whose malpractice had already cost him his job at the community council, had once again been fired by his then current employer. As a consequence, Moore sued Hoff  claiming damages for lost wages and emotional distress. Albeit that the jury found that Hoff’s blog post was true, it held  that Hoff intentionally interfered with Moore’ employment contract thereby causing Moore emotional distress and was thus making him liable to pay 60.000 USD (see Sheila Regan’s court notes and the Hennepin County District Court Jury Verdict that John Hoff emailed me upon my request).

Why the jury erred

No doubt, this jury verdict is just outrageous.

I guess that Moore chose to pursue the course of interference with an employment contract and emotional distress, because he would have failed to produce evidence of Hoff’s actual malice had he opted to sue for libel.

But even if Hoff was trying to get Moore fired, people are constitutionally entitled to speak the truth about others, even with such an objective (The Volokh Conspiracy delivers a profound explanation why). Provided that the jury was instructed of this, its judgment is simply wrong.

As regards emotional distress, the US Supreme Court held in Hustler v. Falwell that the elements usually required to demonstrate that tort has occurred, are not sufficient in cases involving public figures.
In Snyder v. Phelps the Supreme Court went even further, holding that the obvious and hatred-motivated disturbance of a military funeral did not qualify to inflict emotional distress among the mourners, since it dealt with issues of public concern and was hence protected by the First Amendment.

In light of the quoted decisions, the judgment of the Hennepin’s jury is not only wrong; it is pathetic.
From what I read, John Hoff is going to appeal the decision against him and I believe he has a fair chance of getting it overturned.

Why I blog on this

I blog on this simply because the freedom of expression and the freedom to access information represent our fundamental rights and we must protect them by all means.
What would be the alternative? Any wrongdoer discovered by bloggers or journalists would then be able to muzzle and gag them by suing them for, say, emotional distress? Perish the thought!

Therefore, I expect the higher judicial instances in the US to provide for bloggers’ immunity against damages, provided, of course, they tell the truth.


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