24 May 2011

Of Superinjunctions, Free Speech And Privacy Protection


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Image by Sara Simmons on Flickr
5746811723_c6ee3aa242_oYou will most probably recognise his face if you are a football fan.
This guy must have had a harsh time during the last couple of weeks.
Actually, he must have gone through hell.
What he has reportedly done may be controversial and stay at odds with morality, but this is not the subject of the article you are reading.
It is about his right to private life.

My point is that since the man on the image has not committed any wrong, no public interest should qualify to deprive him of a right provided for by Article 8 of the European Convention on Human Rights.
The forgoing is not to be understood as the advocacy towards a single individual. It is the advocacy towards the right of private life par excellence.

Want to read more? Good,

Let’s Kick It!

Allegedly, the man on the image has had an affair with a model and ex BigBrother contestant. However, after the model had contemplated to disclose their relationship, he managed to obtain a

Superinjunction

(aka gagging order) to prevent potentially embarrassing details about his private life being published.
What you have to know about superinjunctions is that they prevent anyone from publishing information which is said to be confidential or private about the applicant. That not enough, superinjunctions prevent anyone from reporting that they even exist.

The English High Court granted the order.

Nevertheless, the Scottish Sunday Herald

Dared To Publish

footballer’s image claiming that it has no obligations under an English injunction and if anyone wants to prevent the whole of the British media from reporting on a story, then they will need to get separate injunctions in all jurisdictions.

The interesting thing preceding the publication in Scotland is that, as soon as Twitter users had started to tattle about the alleged affair of the footballer, he managed to obtain a gagging order also against Twitter.
Despite any deliberations as to whether Twitter is subject to the jurisdiction of English courts, the superinjunction flopped in meeting its purpose. It not only failed in preventing the spread of information on the microblogging platform, it bestowed Twitter an unprecedented increase in traffic instead. Every user interested in the matter was tweeting said footballer’s name.

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Undoubtedly, this teaches us that

Superinjunctions Have Only Limited Effect

when it comes to Web 2.0 and social media.

The reactions could not come quickly enough.
Lord Chief Justice Judge lamented that “modern technology is totally out of control”. David Cameron added “It’s not fair on the newspapers if all the social media can report this and the newspapers can’t” and announced that “the government considers to legislate on privacy issues in order to catch up with the advent of social media”.

Would you support such legislation efforts?
I would.
I could accept minor limitations and would easily survive the lack of knowledge about whom a celebrity allegedly slept with. Because I know that such a minor concession of the society as a whole, would end up saving said celebrity’s private life.

Filtering Twitter?

I spent a couple of hours on Twitter this Sunday and read as many messages marked with a #Superinjunction hashtag as possible.
My impression was not that the users celebrated the victory of free speechover gagging and censorship. No, their overall message to the footballer sort of read “You think you can hide behind a superinjunction? You cannot, it simply does not work on Twitter”. They seemed happy to have tracked him down. That had nothing to do with free speech, that was hate speech.

Besides, it was in a clear breach with the superinjunction, of which everybody on Twitter already knew.

I delayed the publication of this article, because today I had a little chat with Jane Lambert on Twitter. There she expressed her concern as to whether a foreign social network should be allowed to operate in the jurisdiction of England and Wales if it is in breach of a fundamental right granted by the European Convention On Human Rights and cannot prevent flouting of an English court order.

She opined that networks should develop filtering technologies, but should deploy them only sparingly in democratic societies.

What do you think?

13 May 2011

Why You Cannot Trademark Free Speech


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Image by opensource.com on FLickr

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In the free speech context, the function of trade marks can be quite complicated. In recent time, trade marks have become a general purpose device for private parties to use when they want to suppress speech they do not like. And they are trying to suppress the speech of others not merely to protect their legitimate economic interests but because of aesthetic and political disagreements.

Anyway, to understand how intertwined trade marks and free speech are, you need first to

Understand Trade Marks

in general.

You should think of consumer protection in order to best understand trade mark law: trade marks are instruments that help consumers orient in an ocean of goods and services and, help them make respective choices. Therefore, trademarks are protectible; albeit to the extent they represent the quality or reputation associated with a product or service. The proprietorship over a trade mark allows trade mark owners to claim damages, when their trade marks are infringed.

But what is a

Trade Mark Infringement

in the first place?

Usually, this is one trader’s act of unauthorised use of a sign that is similar or identical to another trader’s trade mark. First trader’s  unauthorised use must be with respect to products or services identical or similar to those of the second trader, it must further occur in the course of commerce and be likely to create confusion among the consumers as to the origin of first trader’s goods. Why will the consumers be confused? Because they will think the first trader is the source of the products or services and not the second one.

Indeed, this is all legitimate in a commercial context, but should it apply to

Non-Commercial Expressions

of political views?

This question has already been the subject of judicial review, for instance, in Lucasfilm Ltd. v. High Frontier, 622 F. Supp. 933, 934 (D.D.C. 1985) and MasterCard International, Inc. v. Nader 2000 Primary Committee, Inc. 70 U.S.P.Q.2d (BNA) 1046 (S.D.N.Y. 2004).
The judicature’s answer has steadily been a clear “no”.

Likewise, the US District Court for the District of Utah has recently delivered a ruling dismissing the claims of Koch Industries, a billion dollar company, against Youth For Climate Truth, a group concerned about climate change.
In particular, the honourable Justice Dale A. Kimball held

“On its Lanham Act claims, Koch lacks any evidence or plausible theory as to how Defendants could have profited commercially from an anonymous spoof website that sold no products and solicited no donations, that was disclosed only to reporters, and that was only online for a matter of hours. Defendants’ speech proposed no commercial transaction. Instead, it sought to draw public attention to Koch’s controversial stance on a political issue. Koch’s trademark and unfair-competition claims, therefore, fall outside the scope of the Lanham Act and are foreclosed by the act’s commercial-use requirement.”

You can check EFF’s website for further details on the case or read Eileen Rumfelt’s brilliant analysis on trade marks and the First Amendment for further deliberations.

In this respect it appears also worth referring to some French and hence

European Jurisprudence

on political/social uses of a trade mark.
In Greenpeace v. Esso the Paris Tribunal de Grande Instance held that

“the constitutional principle of the freedom of expression implies that the Greenpeace Association…can, in its writings or on its internet site, denounce, in whatever form it feels appropriate to the objective pursued, the environmental damage and the risks caused to human health by certain industrial activities. Although this freedom is not absolute, it can nevertheless only be subjected to the restrictions necessary for the protection of the rights of others …the Greenpeace Association through the modifications… clearly shows its intention…without misleading the public as to the identity of the author of communication…the E$$O symbol… even if it refers to the trademarks held by the respondent company, it is clearly not intended to promote the marketing of products or services…it is of a polemical character that is alien to business life.”

In Greenpeace v. AREVA the same court followed the Esso principles.

What are then the

Consequences

of this all?

It seems that both, legislature and judicature in western-type democracies have provided for the specific purpose of trade marks law: to be a shield against infringement in a commercial context. By the same token, legislature and judicature have well restrained trade mark owners from using the rights conferred by trade marks law as sharp-edged weaponry to pierce the right to political and hence non-commercial speech.

Still asking why no one can trademark free speech? It is simple: trade marks and free speech are fundamentally at odds.

Thoughts?