By Julian Sanchez
| Published: December 05, 2008 – 10:01AM CT

Stacy Snyder, a federal court has ruled, won’t be teaching kids the three Arrrrs
any time soon: They’ve rejected Snyder’s claim that her First Amendment
rights were violated when a MySpace photo showing her engaged in a bit
of boozy buccaneering, as well as posts complaining about her
relationship with a supervisor, cost the former Millersville University
student a teaching degree.

In 2006, Snyder had been a student teacher at Conestoga Valley High
School in Pennsylvania, as required by both Millersville’s teaching
curriculum and the state’s teacher certification guidelines. Her
performance reviews often complained of Snyder’s lack of
professionalism—and her shaky grasp of the subject matter she had been
assigned to teach.

But the final straw for the school came when they saw that Snyder’s
MySpace account—which she had mentioned to students on several
occasions—contained a photo of the grog-swilling Snyder in a pirate
hat, captioned “drunken pirate,” as well as posts alluding to her
fraught relationship with her supervisor. They called Snyder at home
and told her to walk the plank out of their student teaching program.
Since she’d failed to complete her student teaching practicum,
Millersville denied Snyder a teaching degree, instead shuffling some
credits around to award her a BA in English.

Snyder took the school to court, and while judge Paul Diamond of the
District Court for the Eastern District of Pennsylvania promptly
dismissed her due process claims, as well as several statutory claims,
he allowed her to press the argument that the denial had violated her
First Amendment right to free expression.

On Wednesday, however, the judge tossed that claim as well. Snyder,
Diamond found, “was an apprentice more akin to a public
employee/teacher than a student” during her time at CV High. As such,
the First Amendment protects her speech about matters of “public
concern”—she couldn’t be barred from the student-teaching program for
expressing an unpopular political opinion—but not personal MySpace
postings the school found to be unprofessional. Moreover, once the
school had declined to certify her completion of the program,
Millersville administrators had no authority to override the degree
requirements to award Snyder a teaching diploma.

A warning to prospective public employees, then: it may be that on the
Internet, nobody knows you’re a dog. But they are apt to find out if
you’re a drunken pirate.

By Nate Anderson | Published: December 07, 2008 – 03:10PM CT

If you think it’s tough to be a blogger because your Google AdWords revenue has been in the toilet lately, the Committee to Protect Journalists wants to remind you that Internet journalist—including bloggers—can and do suffer much more around the world. According to the group’s new report, Internet journalists now make up the largest single group of imprisoned journalists.

Of the 125 journalists imprisoned around the world for doing their jobs, 45 percent are “bloggers, Web-based reporters, or online editors.” China continues its ten-year winning streak when it comes to tossing writers into jail, with Cuba, Burma, Eritrea, and Uzbekistan next in line.

The numbers are down slightly from December 2007, but CPJ notes that the arrests are hitting freelancers the hardest. Without the resources of a major media company behind them, lone bloggers and freelance writers often lack the resources to mount a vigorous defense when they are detained.

Data source: CPJ

“The image of the solitary blogger working at home in pajamas may be appealing, but when the knock comes on the door they are alone and vulnerable,” said CPJ Executive Director Joel Simon. “All of us must stand up for their rights—from Internet companies to journalists and press freedom groups. The future of journalism is online and we are now in a battle with the enemies of press freedom who are using imprisonment to define the limits of public discourse.”

The results of angering a regime can be severe; CPJ’s complete capsule summaries of the detained journalists contain story after story of lives utterly changed by publishing information or opinion that displeased the government. In Burma, Nay Phone Latt wrote a blog of his own and ran several Internet cafes, but he irritated the Burmese ruling junta by publishing online caricatures of various generals. He was hauled away on January 29, tossed in jail, charged with “causing a public offense,” and sentenced to 20 years and six months in jail during a closed trial.

The US makes the list, too, for its treatment of journalists in Iraq. According to CPJ, “US military authorities have jailed dozens of journalists in Iraq—some for days, others for months at a time—without charge or due process. No charges have ever been substantiated in these cases.” This is the fifth straight year that America has made the list.

Published: November 27, 2008

Is lying about one’s identity on the Internet now a crime?The verdict Wednesday in the MySpace cyberbullying case raised a variety of questions about the terms that users agree to when they log on to Web sites.

The defendant in the case, a Missouri woman, was convicted by a federal jury in Los Angeles on three misdemeanor counts of computer fraud for having misrepresented herself on the popular social network MySpace. The woman, Lori Drew, posed as a teenage boy in using the account to send first friendly and then menacing messages to Megan Meier, 13, who killed herself shortly after receiving a message in October 2006 that said in part, “The world would be a better place without you.”

MySpace’s terms of service require users to submit “truthful and accurate” registration information. Ms. Drew’s creation of a phony profile amounted to “unauthorized access” to the site, prosecutors said, a violation of the Computer Fraud and Abuse Act of 1986, which until now has been used almost exclusively to prosecute hacker crimes.

While the Internet’s anonymity was used in this case as a cloak to bully Megan, other users say they have perfectly good reasons to construct false identities online, if only to help protect against the theft of personal information, for example.

“It will be interesting to see if issues of safety and security will eventually trump the hallmark ideology of free, largely anonymous or pseudonymous participation in cyberspace,” said Sameer Hinduja, a professor of criminology and criminal justice at Florida Atlantic University.

Andrew M. Grossman, senior legal policy analyst for the Heritage Foundation, said the possibility of being prosecuted for online misrepresentation, while remote, should worry users nonetheless.

“If this verdict stands,” Mr. Grossman said, “it means that every site on the Internet gets to define the criminal law. That’s a radical change. What used to be small-stakes contracts become high-stakes criminal prohibitions.”

The judge in the Los Angeles case, George H. Wu, is to hear motions next month for its dismissal. Ms. Drew’s defense asserts among other things, as it did at trial, that she never read MySpace’s terms of service in detail.

“The reality, recognized by almost everyone, is that the vast majority of Internet users do not read Web site terms of service carefully or at all,” said Phil Malone, director of the Cyberlaw Clinic at Harvard Law School.

Representatives of MySpace declined to make any executives available for interviews about the case. In a statement, the site said that it did not tolerate cyberbullying and would continue to work with industry experts to raise awareness of the “harm it can potentially cause.”

Mr. Hinduja, who writes for the research site CyberBullying.us, said there had been a handful of cases involving teenagers who were “driven to suicide in part because of cyberbullying by peers.” What drew the greatest attention to Megan’s death, he said, was that it involved the actions of an adult, Ms. Drew, now 49, whose daughter’s friendship with Megan had soured.

It remains easy to create a fraudulent account on social networking sites like MySpace and Facebook, though a witness at Ms. Drew’s trial, Jae Sung, a MySpace vice president for customer care, said “impostor profiles” were deleted when they were flagged by users or discovered by the Web site’s employees.

A number of corporations are competing to develop age verification software for Web sites. But relying on technology to confirm a user’s identity is not without drawbacks. There are legitimate reasons to hide one’s name and other information online, be it concern about identity theft or a need for comfort when asking for advice or help.

“We’ve been telling our kids to lie about ID information for a long time now,” said Danah Boyd, a fellow at the Berkman Center for Internet and Society, at Harvard.

Ms. Boyd said forms of digital street outreach were needed.

“There are lots of kids hurting badly online,” she said. “And guess what? They’re hurting badly offline, too. Because it’s more visible online, people are blaming technology rather than trying to solve the underlying problems of the kids that are hurting.”

A SMALL computer file appeared on the Internet last week, purporting to list the 13,000 members of the racist, far-right British National Party. The text file contained not just the names of the party’s supporters, but their home addresses, home phone numbers and, in some cases, hobbies (including a fair sampling of model airplane and train collectors) and professions (including a few lawyers, doctors and teachers).

And all the queen’s horses and all the queen’s men haven’t managed to make that list disappear.

Make no mistake, the Web sites of the large newspapers, frequent victims of strict libel laws in Britain, have done their part. Reporting on what cannot be reported is something in which the British have much more experience.

“In the U.S., the starting point is that you have the right of freedom of expression,” said James Edelman, a law professor at Oxford. “There are ways it can be curtailed, but that is the starting point. It is almost the opposite in the U.K.”

•

Raising the stakes, on Friday there was a suspected firebomb attack on a car parked outside the home of one of the people named on the list (but unnamed in the papers), though the police stressed that the connection to the party was only one line of investigation.

But so far, the only people mentioned by name in news accounts are the few controversial discoveries from the rolls — a sports-talk D.J. and a police officer; both are in danger of losing their jobs over their affiliation.

Instead, the papers have to play coy. At the Web site of The Guardian, for example, there is an interactive map showing the distribution of the membership across Britain, itemized locality by locality, but, not, say, block by block, under a note: “A court injunction prevents the distribution of the names on the B.N.P. membership leaked online.”

Jon Henley, in his first-person account on The Guardian Web site, reports: “Colleagues have pored in amazement over the records for their home towns.” And he adds that, “A university friend said she had discovered to her not-altogether-immense surprise that her parents’ next-door neighbors in Windsor were members. ‘Crusty,’ she said. ‘And very cheap sherry at Christmas.’ ”

This stance seems almost quaint in a world where the database is widely and easily available online, as the newspapers have pointed out. A host for the list is Wikileaks, a site that has become a home for orphaned material, including the e-mail messages of the former vice-presidential candidate Sarah Palin that were stolen by a hacker who obtained the password to her Yahoo account. (Both Ms. Palin and the British National Party confirmed that the material was genuine, though the party points out that its list, stolen by a disgruntled ex-member, is more than a year old and documents interaction with the party, not necessarily membership.)

Last week, when the interest in the British National Party membership list was most frenetic, Wikileaks’s servers were overrun and inaccessible, despite 10 or so mirror sites worldwide replicating the material to lessen the traffic burden.

Wikileaks encouraged visitors to become supporters ($25 minimum for an individual and $1,280 for an organization) with the added benefit of being able “to access our subscriber priority servers for 12 months.” (After much debate, the online encyclopedia Wikipedia, which is unrelated to Wikileaks, has not linked to the material.)

The party list was easily obtained at another site that revels in publishing secrets online, cryptome.org. The man who operates cryptome.org, John Young, wrote that as of Thursday, he had 2,000 to 3,000 downloads of the party list file. Asked if he had any limits on what personal material he would publish, Mr. Young wrote that his site focused on addresses, e-mail addresses and phone numbers “of public, mostly government, figures, and spies especially” — but usually not Social Security numbers.

Mr. Young argued that organizations like the British National Party often leak such material to get sympathy and show that their membership is full of regular people.

“I would guess the B.N.P. leak at 80 percent orchestrated,” he wrote. “The Brits are experts at this, perhaps the best.”

And true to that theory, the leader of the party, Nick Griffin, was quoted as saying that one good thing from the list’s being leaked was that it proved that the stereotype of his supporter as “a skinhead oik” was not true.

•

The list included some 45 names of people living in America, some described as British, some not. One of those Americans, in a telephone interview, said that he had learned about the spread of the party list through an e-mail message from Wikileaks. He said he knew the list had been stolen and was resigned to the situation on the Web: “Once the cow is out of the barn, you can’t shut the door.”

“It’s like identity theft in that I feel violated. My name and address and phone number are probably already on the Internet. But having my name associated with what could be considered a controversial organization is a different story. There is no other reason you would be calling me at this time.”

But he stressed that the list was misleading. He was not a member, he said, but a one-time contributor two years ago. “I had donated money to them because they were fighting a legal battle,” he said, noting that he only spent three hours in Britain in his life, when he was switching flights in July. “Two years ago some of their members were arrested on a freedom of speech issue. They don’t have the United States kind of freedom of speech. I don’t think it is right for someone to go to prison for expressing their political views.”

“I think I will feel better as time goes on,” he said. “I am not losing sleep over it. I am just one of 12,000 people.”

by Lucie Morillon, November 14, 2008

In many countries, you have to commit a serious crime to be sentenced to 20 years in jail, but in Burma this can happen just for using the Internet.

There are almost 69 cyber-dissidents in jail worldwide, yet Burma’s Nay Phone Latt has become the first blogger to receive such a lengthy prison term. His crime? To have informed the outside world about the military junta’s brutal crackdown during pro-democracy protests in September 2007.

Nay Phone Latt

A Rangoon court judge sentenced Nay Phone Latt to two years for violating Article 505 (b) of the Criminal Code (which criminalizes defamation of the state), three years and six months for violating Article 32 (b) of the Video Act, and 15 years for violating Article 33 (a) of the Electronic Act. In total, Latt was sentenced to over 20 years in prison.

Nay Phone Latt is the pen name of Nay Myo Kyaw, 28, the owner of two Rangoon Internet cafés. Latt also kept a blog describing the hardships of daily life in Rangoon and the obstacles faced by young Burmese people in criticizing the government since the September 2007 protests. Latt is also a youth member of the National League for Democracy (NLD), the opposition party led by the detained Nobel Peace Prize Winner, Aung San Suu Kyi. Aung San Suu was elected prime minister in 1990, but Burmese generals have yet to acknowledge her victory; the military government has kept Aung San Suu under house arrest since 2003.

Latt was arrested in Rangoon last January while in possession of a video banned by the military government. Charged in July, Nay Phone Latt has since been detained at the infamous Insein Prison, where he has been denied basic medical care.

Extremely Harsh Punishment

Nay Phone Latt’s mother, who was not allowed to attend the trial inside the prison, said: “I was expecting him to get 10 to 12 years in prison at the most. I never imagined he would get this much. The authorities have been excessively cruel with him.” According to Reporters Without Borders and the Burma Media Association, the blogger’s lawyer himself was jailed for criticizing the special court’s procedures.

Free Nay Phone Latt

Burmese bloggers regard Nay Phone Latt as an inspirational figure — a person who contributed greatly to the 2007 “Saffron Revolution” by showing the world digital photos of the massive anti-government demonstrations and the brutal crackdown that followed. According to the BBC World Service, his blog provided invaluable information about events within the locked-down country during the uprising.

This extremely harsh punishment is seen as an attempt by the military junta to set an example and intimidate those who use new technologies to circulate information not currently controlled by the Burmese Censorship Bureau. According to Global Voices:

A year after thousands of monks took to the streets of Burma’s towns and cities to protest against the tyrannical rule of the military junta [and photos of them] were broadcast across the world via the Internet, the junta has shown that it will not tolerate any semblance of critical opinion being voiced over the World Wide Web.”

Irrawaddy magazine, a Burmese news organization operating in exile, said the current crackdown is also intended to silence legal efforts to ensure fair trials for dissidents now appearing before judges in closed court sessions.

Internet Under Control

Burma, which is on Reporters Without Borders’ list of Internet enemies, is described as “one of the world’s least-connected countries” with a rate of Internet penetration that does not even amount to 1% of the population, according to the International Telecommunication Union. The network is regulated by the state military’s Censorship Bureau, which controls the only two available ISPs in the country. It blocks access to large numbers of news websites as well as international messaging services, including Hotmail and Yahoo. Connection speeds remain the biggest obstacle to Internet access — downloading a single article can take an hour. To help Burmese Internet users get around official state censorship, overseas Internet users often send proxy lists to small networks of trusted local bloggers.

From the end of August to mid-October 2007, Burma experienced its biggest uprising since the 1988 student demonstrations, in which 3,000 died. Thousands of Buddhist monks, joined by students and activists, took to the streets to protest against deteriorating living conditions.

In response to this so-called “Saffron Revolution,” the government shut down all Internet connections in a deliberate attempt to isolate the country and prevent any witness accounts from reaching the outside world. During these two weeks of blackout, the Internet was only accessible a few hours a day and all cyber cafés were closed. The only news source available to Burmese citizens during this time was satellite TV or foreign radio stations.

According to an Open Net Initiative December 2007 report on Burma:

The shutdown of Internet connectivity was precipitated by its use by citizens to send photographs, updates and videos that documented the violent suppression of protests in Burma, information that contributed to widespread international condemnation of the Burmese military rulers’ gross violations of human rights.

Far From the World’s Eyes

One year ago, thanks to the information sent out by Burmese bloggers, news of the crackdown circled the globe. Since then, the world’s attention has shifted, and the regime has resumed its crackdown on dissidents.

Internet Blackholes

Philip Robertson, director of Asia Human Rights Labour Advocates, told Al Jazeera that “post [Cyclone] Nargis, the international community’s attention has moved elsewhere so we’re seeing a larger crackdown all over Myanmar, with student leaders, monks, and even senior lawyers working for the NLD being thrown in jail.”

Strong condemnations worldwide

However, Nay Phone Latt’s extremely harsh sentence, as well as the arrest of other dissidents and lawyers, has again sparked outraged reactions worldwide. The U.S. State Department recently called for the release of four detained defense lawyers. U.S. President George W. Bush has nominated Michael Green, a former top adviser on Asian affairs, as special envoy and policy chief for Myanmar to increase pressure on the country’s military government.

The foreign ministers of the 27 European Union countries have deplored the lack of progress in Burma since the violent repression of peaceful protests last year, and the European Union stated on Monday that it would consider Burmese elections scheduled for 2010 to be illegitimate unless the ruling military junta first frees all political prisoners — particularly Aung San Suu Kyi.

Reporters Without Borders and the Burma Media Association have launched a campaign calling for the release of Nay Phone Latt. In a press release, they have asked “for bloggers all over the world to demonstrate their solidarity with Nay Phone Latt by posting his photo on their blogs and writing to Burmese embassies worldwide to demand his release.”

Lucie Morillon is the Washington, DC, director of Reporters Without Borders, an international press freedom organization. She covers press freedom issues in the U.S. and abroad and is a spokesperson for the group. She also handles advocacy work with Congress and has appeared on CNN, ABC and has been quoted in the New York Times, Washington Post, and other publications. Reporters Without Borders strives to obtain the release of jailed journalists and cyber-dissidents and supports an independent media and the free flow of information online. Morillon is the free-speech correspondent for MediaShift.

by Jeffrey D. Neuburger, November 13, 2008

Linking to content is the essence of the online experience — it’s the “Web” in the World Wide Web. But there’s a lot of legal gray area around linking, and surprisingly few court rulings providing guidance as to the circumstances when linking could result in liability.

A court in Canada has now weighed in on the question of liability under Canadian law for linking to an article that contains statements alleged to be defamatory. On the facts of the case, the court ruled that linking to an article containing defamatory statements does not, by itself, constitute defamation. As in the case mentioned in my last post, the litigation arose out of an election-related controversy.

Crookes Versus the World

The individual plaintiff in Crookes v. Wikimedia Foundation, Inc. (B.C. Sup. Ct. Aug. 29, 2008) is Wayne Crookes, a Vancouver businessman who was involved with the Green Party of Canada in 2004. Crookes’s involvement in and supposed “takeover” of the party was the subject of three articles on the Canadian-based Open Politics website and another on the (apparently now defunct) usgovernetics website. Claiming that the articles were defamatory, Crookes filed a lawsuit against Michael Pilling, the Canadian editor of the Open Politics site.

Michael Geist

Some time later, Jon Newton, founder of digital news website p2pnet.com, wrote about the litigation on his website, including hyperlinks to the allegedly defamatory articles on the Open Politics and “usgovernetics” websites. Crookes responded by suing Newton as well. As will be discussed further below, Crookes also sued not only the Wikimedia Foundation but also Yahoo, Google and Domains by Proxy Inc., a domain name registrar, and numerous other parties for various actions (hosting, providing search results, etc.) relating to alleged defamatory articles and postings about Crookes.

Another Crookes target was widely respected Internet law authority Prof. Michael Geist. Crookes sued Prof. Geist for including a link to Newton’s p2pnet site on his own website.

No Publication, No Liability

Crookes’s underlying lawsuit against Pilling is awaiting trial, as are the cases against most of the other defendants mentioned above. However, in the case against Newton for linking to Pilling’s articles, the court conducted a “summary trial” (a proceeding without a jury,) and ruled in favor of Newton, finding that creating a hyperlink to a defamatory statement does not, by itself, constitute a “publication” of the defamation.

“Publication,” the communication of a defamatory statement to a third party, is a necessary element that must be shown to maintain a claim of defamation under Canadian law. (This is also the case under U.S. law.) In considering whether Newton’s links to the articles constituted a “publication,” the court drew an analogy to a footnote in a print publication, stating: “Where a footnote leads a reader to further material, that does not make the author who provided the footnote a publisher of what the reader finds when the footnote is followed.” The fact that a reader can access the source more easily via a hyperlink than via a footnote in a print publication makes no difference, the court concluded:

Although a hyperlink provides immediate access to material published on another website, this does not amount to republication of the content on the originating site. This is especially so as a reader may or may not follow the hyperlinks provided.

The court also considered the entire context of Newton’s links, noting that Newton had not published any defamatory content about Crookes on his p2pnet site nor did he reproduce any of the content from the articles Crookes claimed to be defamatory. Newton also made no comment on the nature of the articles to which he was linking. Consequently, merely providing links to defamatory content, the court concluded, did not make Newton liable for any defamation in the articles to which he linked.

Be Careful How You Link

Note well that the court did not say that there can never be any liability for linking to defamatory content:

I do not wish to be misunderstood. It is not my decision that hyperlinking can never make a person liable for the contents of the remote site. For example, if Mr. Newton had written ‘the truth about Wayne Crookes is found here’ and ‘here‘ is hyperlinked to the specific defamatory words, this might lead to a different conclusion.

So the ruling is fact-specific. Had Newton endorsed the statements in the linked articles, or added his own “color commentary” to them, the result might have been different.

By the way, the issue of whether the original statements in the articles to which Newton linked were, in fact, defamatory has not yet been decided; the trial in Crookes’s lawsuit against Pillings of Open Politics, originally scheduled for October, has been adjourned.

What Result Under U.S. Law?

If Crooke’s lawsuit had been brought in the U.S. under U.S. law, it might have been resolved in Newton’s favor under the provisions of the Communications Decency Act of 1996. Section 230 of the Act says that providers and users of an “interactive service” cannot be held liable “as a publisher or speaker” for “information provided by another information content provider.” Although there does not appear to be any opinion in the U.S. presenting precisely the same facts as those in Crookes v. Wikimedia Foundation, Section 230 of the Communications Decency Act has been interpreted very broadly to protect both providers and users of interactive services from liability for defamation and other torts for “information” provided by third parties.

Canadian Court Used as Guidance in U.S.

One reason to care about the ruling of a Canadian court is that a U.S. court might look to a Canadian ruling for guidance on an issue where there is no binding rule under U.S. law. Canada is our close neighbor both geographically and legally — both legal systems have their origins in the English common law system — and it is not unusual to find courts in each system citing one another’s rulings in subjects, such as libel and slander, where there is a common legal heritage.

Wayne Crookes

An example of that can be found in the Crookes v. Wikimedia Foundation ruling itself, where the court quotes extensively from another Canadian court ruling that, in turn, references several rulings of U.S. courts on an issue of defamation liability. So, if a court ruled that a similar lawsuit was not governed by Section 230 of the Communications Decency Act, it might look to the reasoning in Crookes v. Wikimedia Foundation to decide on the issue of linking as publication.

In fact, the result in Crookes v. Wikimedia Foundation is generally consistent with the result a U.S. court might reach applying Section 230: An online service provider or user is liable for its own statements, but not for the statements of others.

Getting Sued in Canada

Another reason to care about a ruling by a Canadian court is that a U.S. website operator or other service provider might well get sued in Canada by a Canadian plaintiff for allegedly defamatory statements made online, and either be forced to respond in a Canadian court or risk an adverse judgment. In fact, that’s what happened here. Not only has Crookes sued the Wikimedia Foundation, it has also sued Google and Yahoo and other service providers on the grounds that they are responsible for various defamatory statements and articles about Crookes.

Canada does not have a law equivalent to Section 230 that provides a safe harbor from liability for these entities. In that respect, the results in the Crookes litigations against service providers may be critical to the development of Internet liability law in Canada.

Does a Canadian court have the power to hear a defamation lawsuit brought against the operator of a U.S.-based web service provider? In other words, does the Canadian court have jurisdiction in such a case? In Crookes v. Yahoo Inc., a Canadian appeals court upheld the dismissal of Crookes’s claims against Yahoo for lack of jurisdiction, finding that Yahoo has no physical presence in Canada and that Crookes failed to show that allegedly defamatory statements about him posted on the GPC-Members newsgroup hosted by Yahoo had been read by anyone in Canada.

But other rulings by Canadian courts, such as the 2005 ruling in Bangoura v. Washington Post involving a defamation lawsuit brought in Canada against the Washington Post, suggest that a Canadian court would be willing to exercise jurisdiction over a U.S. website operator or other service provider under the right circumstances. That has happened in Australia, in Dow Jones v. Gutnick, where the Australian High Court upheld the exercise of jurisdiction over the Dow Jones Corp. for an online article that allegedly defamed an Australian businessman. (It is unclear whether the other U.S.-based defendants sued by Crookes have, like Yahoo, moved to dismiss on jurisdictional grounds, although Google has an office in Canada which might preclude it from making a motion similar to Yahoo’s.)

One Final Note

Let us suppose that Crookes succeeded in obtaining a judgment against a U.S.-based service provider and sought to enforce that judgment in the U.S. Would a judgment rendered by a court in Canada be enforced by a U.S. court? A U.S. court might reject such a judgment on the basis that the First Amendment affords the speech of U.S. citizens greater protection than does the law of many other nations. To the extent that a judgment issued by a foreign court might violate the First Amendment rights of a U.S.-based defendant, a U.S. court might find that it is against public policy to enforce it. That important issue has been touched on in several U.S. cases but has not yet been answered.

Jeffrey D. Neuburger is a partner in the New York office of Proskauer Rose LLP, and co-chair of the Technology, Media and Communications Practice Group. His practice focuses on technology and media-related business transactions and counseling of clients in the utilization of new media. He is an adjunct professor at Fordham University School of Law teaching E-Commerce Law and the co-author of two books, “Doing Business on the Internet” and “Emerging Technologies and the Law.” He also co-writes the New Media & Technology Law Blog.

by Sokari Ekine, November 10, 2008

On October 19, U.S.-based Nigerian blogger and journalist Jonathan Elendu of Elendu Reports was arrested by the Nigerian State Security Services (SSS) upon his arrival at Abuja airport. It was some days before the SSS announced that Elendu had been charged, first with money laundering and then sedition.

Yet another report claimed he was charged with sponsoring a guerilla news agency. The charges relate to his supposed involvement with the online news site Sahara Reporters which, together with Elendu’s blog, is highly critical of both Nigerian President Yar’Adua and the government in general; both sites particularly criticize the government’s response to conflicts between foreign oil companies drilling in the Niger Delta and local ethnic minorities.

Sahara Reporters recently drew official scrutiny after publishing photos of Yar’Adua’s son holding a machine gun and playing with bundles of Nigerian money. Independent journalist Chidi Opara reported on his blog that the charges against Elendu were a ruse and that he was actually detained because he had discovered information that could be used against top politicians. In any case, we won’t know the truth until Elendu himself is able to speak.

Jonathan Elendu

However, Sahara Reporters has strongly denied any connection with Elendu. According to a report in the Daily Independent in Lagos, “Elendu was being kept in inhuman conditions and tortured to either disclose the sources of the several embarrassing news reports on prominent political leaders in Nigeria.” The Human Rights Writers Association (HURIWA) heard from Elendu’s lawyer that the online journalist “was also being reportedly pressured into framing up some others.”

Late on Thursday, October 29, reports began to appear that Elendu had been released and was receiving medical treatment. While this is excellent news for him and his family, the actions of the SSS and the Nigerian government are not what one would expect from a so-called democracy.

Governments Pressuring Bloggers

Jonathan Elendu is the first Nigerian blogger-journalist to be targeted by the government, but I doubt that he will be the last. He is, however, not the first African to be subjected to government pressure for his blogging — Egypt and Morocco have both taken oppressive steps towards bloggers and activists using social media like Facebook and Twitter. Egyptian blogger and activist Kareem Amer is now in his second year of imprisonment for criticizing Islam and the government on his blog.

As I wrote in a previous post, Nigeria has a vibrant and well established blogosphere, often highly critical of the government. However, it is noteworthy that most Nigerian bloggers write and comment anonymously; Elendu is one of the few, including myself, who write under their real names.

Given the history of media censorship in Nigeria, the government’s reaction is not surprising. I felt that such a response was just a matter of time and I wonder how other Nigerian bloggers will respond to the news that one of their own was kidnapped by the same government they had all criticized so vocally. The first blogging report of his arrest came from Nigerian Curiosity. In addition to providing an excellent analysis of the situation, Nigerian Curiosity has been instrumental in disseminating information — partly because Solomon Sydelle has access to a relative of Elendu. Sydelle wrote:

There is enough fear in Nigerians when it comes to politics and standing up for what is right. We have suffered from Persistent Psychological Paralysis for long enough that a democratic president, in this case Yar’Adua, should not be party to further destroying national participation in what rightly belongs to the citizenry — the freedom to express their concerns and ideas. After all, the Nigerian Constitution guarantees, as “Fundamental Rights” the freedom of expression, freedom of the press, freedom of thought and conscience, and freedom from discrimination.

Although there has been a lively discussion on Nigerian Curiosity and a few other blogs, by and large the blogosphere has been unusually silent about Elendu. After a week, Nigerian Curiosity and fellow blogger Mootbox created a Facebook group Free Nigerian Blogger, Jonathan Elendu. However, a Facebook group is only as good as its members. After 5 days, the group still only has 59 supporters. Although supporters left messages on various Nigeria-related Facebook groups and pages, there had been relatively little response.

Criticism of Elendu’s Reporting

The comments left on the Nigerian Forum, Nairaland (ranked in the top 10 Nigerian sites by Alexa) may explain the silence: Many see Elendu’s writing as being sensationalist and unreliable, and do not consider his detention a worthy cause. To quote just a few comments:

“I prefer to call it imaginative journalism, because the standards of that publication are so low!”

“Their stuffs sometimes reflect publicity stunts, they also churn out unsubstantiated facts, which is sometimes caused by Jonathan Elendu’s hallucination, what one of my role model Edgar Hoover calls mental halitosis.”

“I think these guys are just ‘sensational gangster-style’ journalists. I thought I was over critical of the quality of Elendu’s reportings until I read the views of other people. I can’t substantiate this fact, but I believe Elendu is making money from the sensationalism…If you read his story about the Sokoto State government before and after his visit to the state (God knows what transpired during the visit, I hear journalists too collect brown envelopes) you will wonder where his objectivity lies.”

“He also seems to be partisan in his views of the Nigerian politics. I suspect he might be on some politician’s payroll going by his write ups”

Whether the above accusations are true or not, the fact remains that a blogger-journalist was taken into custody by the State Security Services as he arrived at the airport, denied counsel, interrogated, possibly tortured, and finally released after 11 days. Even after his release, officials have refused to return Elendu’s passport, meaning that he cannot return to his home in Michigan.

Nigeria Turns Against the Media

His arrest is part of a culture of media censorship that has reigned for the past 30 years. Just last September, television station Channels TV was shut down by Presidential order after it mistakenly reported that he might resign due to ill health. This reaction was far too drastic; even if the station reported the details of the story wrong, surely a simple reprimand would have been a more appropriate response. In 2004 alone, there were 21 attacks against journalists in Nigeria. A commenter on Black Looks said:

Looking at the reasons behind the harassment and detention of journalists it is clear that their ‘crimes’ were reporting the truth such as election rigging, strikes, political disputes between the president and other members of government, or as in the case of Gbenga Faturoti of the Daily Independent, beaten almost unconscious for failing to turn off his mobile phone whilst in the Osun State Assembly. Altogether 21 journalists were victims of either the police or SSS in 2004 — arrested, beaten, threatened, detained. Most were tortured. All were released without charge after a period of 24 hours to 1 week. In addition two radio stations in Anambra State were vandalized and staff beaten up and the offices of Insider Weekly and Global Star were also vandalized and staff arrested.

In 2005, a friend and well known political activist had his weekly newspaper column suspended. He was sure that the regime had pressured the newspaper to drop him due to his repeated criticisms of then President Olusegun Obasanjo.

I asked one prominent online individual who wishes to remain anonymous what he felt about the Elendu matter. His response speaks to both the fear and intimidation under which all Nigerians live as well as the suspicions about Elendu and the perceived bias of his reporting:

I can’t really take a stand on the matter for two reasons:

(1) I live in Nigeria and I don’t want them to arrest me.

(2) I live in a country where people can be arrested for telling the truth. That makes it hard to leap to the defense of someone who was arrested for telling lies. He shouldn’t be detained without trial, but there are thousands of truly innocent people languishing in jail
and awaiting trial. Why support him and not them?

For Nigerian bloggers and online readers, the arrest of Elendu justifies their remaining anonymous — how else can they safely return home? For those who are “out,” the risk of returning is a heavy one. As for the Nigerian government, it will have to wake up to the fact that online media sites and citizen journalists — many of whom live abroad — cannot be intimidated and controlled in the same way as traditional media. As more Nigerians gain access to the Internet, more people will be in a position to challenge the repressive mindset of the military-influenced civilian leadership of the the last two presidents.

Sokari Ekine is an activist with a background in human rights in Africa. She presently works with The Global Women’s Strike and Kabissa: Space for Change in Africa. Sokari blogs at Black Looks, Lovinsky Pierre-Antoine and Niger Delta Solidarity Campaign, and is the African correspondent for MediaShift.

BANGKOK — In what lawyers described as a landmark ruling, a court in Malaysia on Friday ordered the release of one of the country’s best known bloggers, ruling that the government acted beyond its authority in invoking a threat to national security.

The blogger, Raja Petra Kamarudin, who was arrested Sept. 12 and detained without trial, was expected to be released later Friday.

Lawyers have long complained that Malaysia’s mildly authoritarian government uses the Internal Security Act as a tool against the opposition. The act allows for indefinite detention without trial.

Mr. Raja Petra, one of the most vocal critics of the current government, was detained for comments posted on his Web site that the government said insulted Muslims and the Prophet Muhammad. He was also accused of posting articles that defamed the country’s leaders and incited hatred against the government.

The court ruled that these were not sufficient grounds for detention under the Internal Security Act. The government can appeal the decision but the judge, Syed Ahmad Helmy Syed Ahmad, ordered that Mr. Raja Petra be released without delay.

Mr. Raja Petra, 58, has been critical of Najib Razak, the deputy prime minister who is to become prime minister early next year. Among other accusations, Mr. Raja Petra issued a sworn statement that Mr. Najib’s wife was present at the killing of a Mongolian woman who was the mistress of one of Mr. Najib’s aides.

The Internal Security Act is one of more than a dozen laws that opposition politicians and lawyers in the country describe as draconian and anachronistic. When it was introduced in 1960, the government said it would be used to protect people “from communist subversion.”

Tommy Thomas, a prominent Malaysian human rights lawyer, estimates that more than 20,000 people have been detained under the act “for diverse reasons which have nothing to do with communist subversion.”