Protecting Journalists’ Sources Without a Shield: Four Proposals

Journalists’ right to protect the identities of their confidential sources relies on an inconsistent set of court decisions based on constitutional and common law interpretations and state statutes. Efforts to bring some consistency to federal law through the passage of a shield law have stalled while journalists face new threats because of the vulnerability of their communications to discovery and monitoring by third parties. Also, the entry of non-professional communicators into the news ecosystem is causing courts to reevaluate and redefine long-standing protections. This article proposes four ways that sources could be better protected from unmasking without the passage of a shield law: improving whistleblower laws to better protect people who report illegal or unethical actions to the media; vastly reducing the number of government secrets to make “leaking” less attractive or necessary; changing legal strategy to focus on protecting the anonymity of sources instead of the rights of journalists to keep secrets; and more widespread and intelligent use of encrypted applications and software could all improve the security of journalistic sources. Because of the complexity of amending multiple whistleblower protection laws and changing the government’s document classification system, the article argues that the best solutions may be to persuade news organizations to change legal tactics and to use better encryption technology.     

The Effects of Juror Anonymity on Jury Verdicts

This study examined the effects of anonymity on jurors' verdicts and on jurors' feelings of accountability for their jury's verdicts. Twenty four-person anonymous juries and 20 four-person nonanonymous juries rendered individual and group verdicts for three student defendants charged with selling drugs on a school campus. When unanimous guilty verdicts were reached, juries imposed one of five punishments. Finally, jurors completed postdeliberation opinion and accountability questionnaires. As predicted, anonymous juries showed a higher rate of conviction (70%) than did nonanonymous juries (40%) when the evidence against the defendant was strong, supporting the hypothesis that anonymity would have a greater effect for situations in which there was relatively strong evidence of the defendant's guilt. Anonymous juries imposed the harshest punishment (expulsion) significantly more often than did nonanonymous juries. Contrary to predictions from differential self-awareness theory, anonymous juries did not report feeling less accountable than did nonanonymous juries. However, anonymous juries did see the process as significantly more fair than did identifiable juries.     

Privacy,anonymity and liability: Will anonymous communicators have the last laugh?

In this paper, the author sets out the way in which the UK approach to privacy protection is able to extend its reach to anonymous postings. Whilst anonymity might sometimes be seen as one of the essential characteristics of communicating on-line, it does not provide an impenetrable veil of protection in respect of a privacy violation claim. Instead, there are avenues available to identify anonymous communicators, which have implications both for internet freedom and jurisdiction in cyberspace. In the UK, our common law has not denied bloggers, or other on-line contributors, anonymity per se. However, it will be argued that recent UK judgments represent a warning to anonymous communicators that they can be held liable for what they post on-line and that naivety is no defence at law. Whilst on-line platforms allow people to effectively become journalists; to become publishers, as familiar users, they should become more aware of the consequences of their on-line postings and appreciate that they will not be able to escape from the application of third party disclosure orders. However, as these are not without their problems, it is possible that anonymous communicators may have the last laugh.     

Copyright Ownership of Online News: Cultivating a Transformation Ethos in America's Emerging Statutory Attribution Right

Several federal district courts in 2009 and 2010 interpreted a relatively obscure provision of the Digital Millennium Copyright Act to grant a potentially broad right of attribution to owners of copyright in creative works. The statutory provision prohibits removal or alteration of copyright management information. The law gives reason for both hope and fear for news organizations. On one hand, an attribution requirement is seen by some in the news industry as relief from negative effects of technology, including online news aggregators. On the other hand, news organizations already have been sued under the copyright management provision for their conduct in newsgathering. This article examines the copyright management information provision and concludes that transformation will be a key consideration in balancing the interest in attribution with preservation of newsgathering's reliance on access to and fair use of copyright-protected works.     

论市场主体的基本经济权利及其行政法安排

在市场经济条件下 ,市场交换的本质是产权的自由让渡 ,因此 ,财产权和经济自由权是个人和组织作为市场主体参与市场活动必须具备的基本权利 ,这些基本权利不仅需要私法的规定和保护 ,更需要行政法的确认和安排 ,以使个人和组织作为市场主体在与作为行政主体的行政机关打交道时能够得到制度上的保障。另一方面 ,在现代社会 ,财产权和经济自由权又不是绝对的权利 ,为了社会的公共利益它们又常常受到法律上的限制 ,因此 ,如何在“个人的权利和自由与政府的权力这两个逆向的观念之间创制一种可行的平衡”也是行政法上必需解决的一个课题     

Price v. Time Revisited: The Need For Medium-Neutral Shield Laws In An Age Of Strict Construction

Journalists were alarmed when, in 2005, the United States Court of Appeals for the Eleventh Circuit denied shield-law protection to Don Yaeger, an investigative reporter for Sports Illustrated, in a libel suit by fired football coach Mike Price. Yaeger is a journalist, and Alabama's shield law offers absolute protection even when a journalist is a party to a case. The court's decision turned on the fact that Alabama's seventy-three-year-old statute does not include the word “magazine.” This article shows that this hole in the “covered medium” language of Alabama's statute is not uncommon among the nation's thirty-six shield laws and that the Eleventh Circuit's strict reading of the statute's text is not at odds with current trends in statutory interpretation. Those two facts, combined with the rise of the Internet as an important vehicle for journalism, suggest the time is ripe to scrutinize and modernize shield laws, some of which have been on the books for more than a century.     

Giving Users A Plain Deal: Contract-Related Media Liability For Unmasking Anonymous Commenters

Could news organizations face civil liability for voluntarily unmasking their anonymous online commenters? This article examines that nascent legal question through a discussion of contract law applied to a study of seven news Web sites’ policies and practices. The study finds that although the news organizations claim that they zealously guard user privacy and will resist unmasking commenters under almost any circumstances, most of them have user agreements that would likely immunize them from civil liability for almost any reason. Are users getting a plain deal?     

试论网络作品著作权的侵权和保护

网络作品作权保护问题随着今年以来的的数起侵案的审理而现实地摆在我们面前。网络作品也属于《作权法》保护之列,应该依法加以保护。但网络这种新兴媒体有其特殊性,如果一律按现行《作权法》对有关侵权行为进行调整,将对正处于发展中的网络媒体产生消极影响。应该结合《作权法》和网络的特性,对网络作品作权加以保护。最关键的是要尽快制定相关法律。     

The Journalist's Privilege for Nonconfidential Information in States Without Shield Laws

Figures compiled by the Reporters Committee for Freedom of the Press show that most subpoenas to the news media seek nonconfidential information, opening the door for subpoenas and other legal actions that could seriously infringe First Amendment rights to a free flow of information and an independent press. While courts in most of the nineteen states without shield laws protect confidential sources, however, courts in only two states extend the privilege to nonconfidential information in both civil and criminal proceedings. Protection for nonconfidential information may require the passage of a shield law in Texas, where the courts are especially hostile to privileges for reporters. However, in other states a strong argument based on protecting press autonomy may help the press prevail.     

Field Theory,Cultural Capital,and the First Amendment: Two Paradoxes in the Legitimation of News

Does law influence the legitimation of news? I examine legitimations offered during ethics debates about news stories in which private people are thrust into the media spotlight. When navigating the space between what can be published lawfully and what should be published, journalism organizations offer legitimations that vary in ways that reflect the hierarchy of legal frameworks for decision. According to field theory, the cultural capital of the juridical field is constitutive of status hierarchies in the journalism field, even though the First Amendment leaves journalism to structure itself. This structuring leads to two paradoxes. First, in the performance of negative legitimation, news organizations justify ethics violations by converting the minimum standard of lawful speech into claimsmaking about laudable speech. Second, in acts of displacing legitimation, reporters suggest that more publicity is the remedy for invading privacy, translating the valorization of speech rights over privacy rights into a puzzling norm.     

Making the World Health Organization work: a legal framework for universal access to the conditions for health.

Improving global health conditions has been one of the most important and difficult challenges for the world community. Despite concerted efforts by international organizations, like the World Health Organization, great disparities in health conditions remain between developed and developing countries, as well as within those countries. The World Health Organization has achieved some successes through its Health for All strategy; however, it can and should encourage member nations to enact national and international laws to protect and promote the health status of their populations. A comparison to the lawmaking efforts in other areas by international organizations indicates that WHO may have the authority and the means to institutionalize efforts to improve global health conditions.     

隐私权的判定——“合理隐私期待标准”的确立与适用

隐私权存在与否的判定问题是隐私侵权责任承担的关键所在。而美国联邦最高法院在1967年Katz v.United States案中确立的"合理的隐私期待"标准,在世界多个国家的适用已被证明是比较可行的隐私权的判定方法。我国隐私权司法实践在吸收、借鉴"合理的隐私期待"标准时应明确"私人事实"、"法律规定"、"社会习俗"和"利益平衡"四种隐私期待的客观判断要素,实现判决结果的一致性,及对他人隐私利益最大程度的保护。     

电视节目版式版权保护之法律困境和进路探索

电视台为追求高额利润,对其他电视台深受欢迎的电视节目进行复制、借鉴的情况时有发生。为维护自己利益,某些电视组织开始诉求司法部门给予自己的电视节目版式以法律保护。面对这个问题,欧美国家的法院在保护与否的立场上曾一度持否定态度。但近几年的司法判例结果显示这种立场正在发生变化,认可电视节目版式的版权属性,支持给予保护的观点逐渐占据上风。但电视节目版式版权保护在理论基础上仍存在争议。从已发生之判决来看,对电视节目版式除以版权路径给予保护之外,还可以寻求反不正当竞争法和商标法等相关法律给予保护。     

Delfi AS v Estonia: The Liability of Secondary Internet Publishers for Violation of Reputational Rights under the European Convention on Human Rights

In October 2013, the European Court of Human Rights in Delfi AS v Estonia upheld a decision of the Estonian Supreme Court to impose liability on the owners of an internet news portal for defamatory comments which had been posted on their website by anonymous third parties. This note suggests that the decision is important in the context of publications with a ‘public interest’ element to them, because it appears to afford more protection to the right to reputation (deriving from the Article 8 right to privacy) and less to freedom of expression than was formerly the case. It is further argued that the Court's emphasis on the positive obligation of states to protect this right to reputation may mean that the existing English law in this area, including, potentially section 5 of the Defamation Act 2013, is inconsistent with the ECHR jurisprudence.     

The journalist's privilege for nonconfidential information in states with shield laws

Most scholarship on journalistic privilege has been devoted to the issues affecting the right of journalists to refuse to reveal the identities of sources to whom confidentiality has been promised. The only United States Supreme Court case and almost all activity in lower courts and legislatures on the question are aimed at resolving the problem of whether or under what circumstances journalists should be compelled to identify confidential sources. Almost all of the increasing numbers of subpoenas issued to journalists, however, are aimed at journalists' nonconfidential information. This article analyzes state shield laws and their adjudication, concluding that the state of the law is divided on whether and to what extent journalists attempting to protect nonconfidential information should enjoy a constitutional, common‐law or statutory privilege.     

Cybercrimes v. Cyberliberties

The broad topic of 'crime and cyberliberties' encompasses two major subtopics: firstly, the extent to which online expression may be punished under new criminal laws, even if it would be lawful in the traditional print media; and secondly, the extent to which online privacy may be restricted to facilitate enforcement of existing criminal laws. In both contexts, many law enforcement officials argue that we have to make trade-offs between, on the one hand, individual rights and, on the other hand, public safety. In fact, though, the alleged dichotomy is oversimplified and misleading. Claims about the alleged unique dangers of online expression are exaggerated, and the types of criminal laws and law enforcement strategies that have worked effectively in other media are also effective in cyberspace. For example, children should be protected from exploitation in the production of child pornography through the same measures, regardless of whether the material is distributed through postal mail or e-mail. Indeed, individuals and organizations who are devoted to protecting children from exploitation and abuse-whether for the production of child pornography or any other purpose-have expressed frustration that resources that should be used to enforce existing laws are being diverted toward efforts to create new cyberspeech crimes, such as the two US laws criminalizing online material that is 'indecent,' 'patently offensive', or 'harmful to minors'. The many judges who have ruled on these laws-including the entire US Supreme Court-have agreed that they violate free expression rights and are not necessary for their stated purpose of protecting children. The battle to preserve online privacy has not been as successful in the US, where the government restricts strong encryption despite the vigorous objections of not only cyberlibertarians, but also the business community. Moreover, even some law enforcement and other government officials have concluded that, on balance, security concerns are aided, not undermined, by strong encryption, since it protects innocent individuals and legitimate businesses from cybercriminals, and it also protects governments and vital infrastructures from cyberterrorism. Most governments apparently recognize these facts since they have not joined the US in restricting encryption technology.     

新闻自由权在新闻立法中的地位及其保障

对新闻自由权的保障包括对其合理边界的确定和对边界内权利的切实保护。新闻自由权的合理保障是我国新闻立法中的核心问题。我国对新闻自由权的保障应当加强。我们应在新闻法律体系的完善过程中,尤其是在新闻立法中更好地保障新闻自由权。     

我国个人信息匿名化的法律标准与规则重塑

大数据时代,匿名化规范既是个人信息保护中风险预防的手段,也是我国数据经济发展中数字流通的法律基础,但匿名化的法律标准在我国法律中还有待明确。欧盟已通过《一般数据保护条例》提出明确的匿名化标准,但该条例基于流程设置的标准适用于欧盟境内尚可,适用于我国或显得过于严苛,有碍数字经济的发展。我国个人信息匿名化法律标准与规则的重塑应当考虑环境、再识别风险,建议进行功能性匿名化。将比例原则应用到我国匿名化法律标准和规则的重塑之中,并将其引入到评估匿名信息接收者的风险等级,有助于降低个人信息被再识别的风险亦有利于匿名化的法律标准制定和规则构建。     

加强对新闻舆论监督的司法保护

舆论监督在民主政治生活和市场经济中具有巨大的作用,但由于有关舆论监督的立法薄弱,新闻媒体合法正当的舆论监督权得不到法律的应有保障,记者被推上被告席的现象逐年增多.因此,对舆论监督必须立法予以保护,并在司法实践中为舆论监督留下足够的法律空间,以疏畅舆论监督的渠道.     

我国政府采购进口法律规制:法律宗旨与评价

政府采购不同于一般贸易行为,其经济学意义决定它要求独特的制度安排。政府采购进口法律规制主要表明对外来或有外国因素的政府采购控制及本域化保护,诸多国家已对本国政府采购进口的规制实现了规范化保护,我国政府采购进口也应以法律规制实现保护为宗旨的有条件的均衡的政府采购。