Copyright Law Libel Law The Law Libel Suit Against Poster undrtheradar PBWiki Response Law Enforcement Investigation Tactics Can Investigators Lie During an Interrogation?

 

Copyright Law

• "The photograph of a smiling JonBenet Ramsey in a pink sweater has become the iconic image for one of the most publicized murder cases in history. Now that photograph, along with other still and video images of the slain six year-old beauty queen, is at the center of a critical journalistic debate over the use of copyrighted work. Thousands of news organizations around the world have used the images for nearly a decade, and the director of a California-based photo agency, Zuma Press Inc.(see Q&A below), insists that much of that usage violates the copyrights held by photographers represented by Zuma." http://www.poynter.org/content/content_view.asp?id=106490

 

Libel Law

The Law

• Bloggers FAQ: Online Defamation Law. This document, from Electronic Frontier Forum, provides some basic information about libel (i.e., written defamation) and the circumstances under which this can be applied or not applied to on-line activities.
• Section 230. Section 230 says that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." This federal law preempts any state laws to the contrary: "no cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." The courts have repeatedly rejected attempts to limit the reach of Section 230 to "traditional" Internet service providers, instead treating many diverse entities as "interactive computer service providers."
• Case Law.

1. California Supreme Court Ruling (11/20/06). "Websites that publish inflammatory information written by other parties cannot be sued for libel, the California Supreme Court ruled Monday." Barrett v. Rosenthal, 40 Cal. 4th 33 can be found by searching at this California courts Website. The court ruled "section 230 exempts Internet intermediaries from defamation liability for republication. The statutory immunity serves to protect online freedom of expression and to encourage self-regulation, as Congress intended. Section 230 has been interpreted literally. It does not permit Internet service providers or users to be sued as "distributors," nor does it expose "active users" to liability."
2. OPG v. Diebold. "In a victory for free speech and transparency in electronic voting debates, Judge Jeremy Fogel has ruled that Diebold should pay damages and attorneys' fees for its knowing misuse of the DMCA's takedown provisions."
3. $11.3 Million Defamation Judgment. "A Florida woman has been awarded $11.3 million in a defamation lawsuit against a Louisiana woman who posted messages on the Internet accusing her of being a "crook," a "con artist" and a "fraud"...Sue Scheff of Weston, Fla., pursued the case even though she knew the defendant, Carey Bock of Mandeville, La., has no hope of paying such an award."
4. Libel Suit Against MySpace.com A recent case involves MySpace.com. "Boulder County sheriff's detectives demanded records from MySpace.com after a Superior woman reported finding pictures of herself on the Web site under a fake profile named "Dirty Whore." MySpace officials have provided the court-ordered records to sheriff's Detective Mike Wagner, who's investigating the criminal libel case."
5. Libel Suit Against MySpace.com Involving Jann Scott. On November 11, 2006, it was reported "The head of Boulder's public access television station has filed a criminal complaint alleging a former producer put up a MySpace page defaming him. Tony Perri took over Boulder's Channel 54 in January... Earlier this year, Perri suspended producer Jann Scott, saying Scott had begun a campaign of harassment after some of his shows didn't air at the times he preferred...Perri said he tried to get MySpace to take down the profile, to no avail....Scott denied making the MySpace page, and said he doesn't know who did." In the past, Jann Scott has been very critical of the Boulder DA's handling of the JBR case.

 

Libel Suit Against Poster undrtheradar

• Complaint. Poster undrtheradar is being sued for both libel and assault based on postings that began at Websleuths and eventually migrated to Topix.net. A copy has been posted at Starting Over-JonBenet and The Smoking Gun.
• Websleuths Response to Complaint. The following was posted on November 7, 2006 by Websleuths owner Tricia Griffith: "Last spring the hat "undrtheradar" posted inflammatory remarks on Websleuths directed at Rod Westmoreland. I, Tricia Griffith, owner of Websleuths, have directed that the thread be removed due to belief that the remarks involving Mr. Westmoreland were false. Any other inflammatory remarks involving Mr. Westmoreland will be removed as well and the poster banned from Websleuths."
• Who is "undrtheradar"? Lin Wood apparently does not know undrtheradar's identity, else he would not have made this claim in his suit. It appears that undrtheradar is from Minnesota (see July 16 post by Internet poster Medium). Internet poster Autumn (see post #17) believes "there's a good possibility" that undrtheradar and Dan Pride, creator of the kingsolomonsgate web site, are the same person.
• Selected Posts by "undrtheradar." Most posts by undrtheradar have been removed from Topix.Net, but the following thread gives a flavor of his posting style and how posters were responding to his claims. Here's other examples from Topix.net and Webbsleuths. The Complaint contains many more specific examples of undrtheradar's incendiary claims.
• undrtheradar's Full Theory. In the interests of full and fair public debate over the allegations by both sides in the lawsuit, undrtheradar's full theory has been posted on this wiki.
• Blog Commentary. An extensive commentary on this case, inclusive of further pieces of undrtheradar's postings, is at CrimeBlog.US.

 

PBWiki Response

The following is a response provided by PBWiki to a lawyer's request to dismantle the entire JonBenet Ramsey Case Encyclopedia on grounds it included allegedly libelous links to a poster's theory at Topix.net. Topix.net removed these allegedly libelous posts and I removed the pointers to them from this site. As a site owner, I am most grateful for PBWiki's strong defense of free amendment rights. Signed, Miss Marple

 

I am posting the response in hopes that it will enlighten others regarding the boundaries of this emerging area of cyber-law:

 

Dear ?????

We have received your message concerning your request to have us: remove an entire wiki hosted by us, bar the wiki’s creator from further activity on PBwiki, and to return to you personally identifiable information concerning the wiki’s users and creator, per your claim that the wiki contained a hyperlink to material you allege to be libelious.

 

The Communications Decency Act of 1996 added as federal law Title 47 Part 230(c)(1), which provides:

 

“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

 

This federal provision protects online content providers from libel and defamation lawsuits concerning content posted by their members and has been rigorously upheld by the courts, per Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003), Carafano v. Metrosplash.com, 339 F.3d 1119 (9th Cir. 2003), Blumenthal v. Drudge, 992 F. Supp. 44, 49-53 (D.D.C. 1998), and Doe v. America Online, 783 So.2d 1010, 1013-1017 (Fl. 2001), cert. denied, 122 S.Ct. 208 (2000).

 

230(c)(1) would be sufficient to protect Coceve, Inc. from claims of libel or defamation for simply hosting content published by its members, and there exists no legal requirement under which we are bound for us to comply with a request for content removal on the grounds that it could potentially be libelious. Indeed, such a mechanism could be used to easily suppress free speech, since we – as a service provider and not a publisher – do not have the capacity to evaluate the correctness of the hundreds of thousands of pages of content posted by our users. While there exist mechanisms for requiring takedown of material on a copyright basis per the Digital Millenium Copyright Act, no equivalent mechanism exists for claims of libel.

 

Likewise, no law under which we are bound compels us to disclose our users’ personally identifiable information by simple request or to restrict users’ use of our service, short of an order by a court of law, such as a subpoena from an applicable jurisdiction. PBwiki is proud to protect the privacy of its users to encourage free speech and open content collaboration.

 

Therefore, we find the claims against our company to have no grounds in California or Federal law. As such, we will not be taking any action.

 

Furthermore, you should be aware that these actions represent to us an attempt to stifle free and open discussion of issues by our members and, more broadly, by the Internet community as a whole. If online service providers had to worry about what their users linked to, it’s unlikely that the rich, hyperlinked environment of the Internet could have come to fruition. This is exactly why online providers like PBwiki were granted protection by Congress from suits like this in the form of the Communications Decency Act. If you continue along your current course, we may explore other options available to us, e.g., OPG v Diebold.

 

Sincerely,

 

 

___________________

David E. Weekly

CEO of Coceve, Inc.

 

 

Law Enforcement Investigation Tactics

Can Investigators Lie During an Interrogation?

• General Principles. "The courts recognized that deception by law enforcement is often required to solve crimes but also prohibits the police from making false statements to a suspect under certain circumstances."

1. Shocking the Conscience of the Court or Community Impermissible. "Such impermissible conduct includes an investigator lying about his identity and introducing himself as the suspect’s court appointed attorney. Similarly, an investigator who poses as a clergyman in an effort to obtain a confession under that guise would constitute behavior that shocks the conscience of the court or community. Over the last 35 years courts have upheld countless confessions even though the investigator lied to the suspect during an interview or interrogation. In most of these cases the investigator made false statements about being in possession of evidence that implicated the suspect in the crime e.g., eye-witness, fingerprint, DNA, etc."
2. Intrinsic vs. Extrinsic Lies. The courts have drawn "a clear distinction between intrinsic lies (dealing with the current investigation) and extrinsic lies (relating to legal issues or the court system)." "telling extrinsic lies to a suspect constitutes inherent coercion and, consequently, renders a confession inadmissible, per se." "courts have consistently prohibited investigators from lying to suspects about the possible consequences the suspect faces if he is guilty of committing a crime. An example of this would be if an investigator falsely tells a suspect that recent legislation allows the suspect to receive probation if he expresses remorse for his crime."
3. False Assertions vs. Manufactured Evidence. "In the Cayward case police created a fictitious crime lab report which indicated that Cayward’s DNA was found on the victim. After reading the report, Cayward confessed. At trial his confession was suppressed because of the court’s concern that such manufactured evidence may find its way into a court room and undermine the integrity of the evidential system. The significant language from Cayward is that a distinction must be made between, "Making false assertions and manufacturing evidence". The implication is that Cayward’s confession would have been upheld had the investigator only made the false statement, "We have a crime lab report and your DNA was found on the victim.""

• John Douglas Account. John Douglas has described the actual misleading tactics used by investigators to secure a voluntary confession from a murder suspect. None of what was done in this case was illegal.

 

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