The Problem of Obscenity, Defamation, Freedom of Expression, Privacy, and Copyright Today - Term Paper Example

 Law and the Media Introduction: In an era of technology, the availability of the Internet gives rise to legal issues that are related to the free propagation of material over the electronic waves. In particular, some of the issues that arise are obscenity, defamation, freedom of expression, privacy and copyright. These issues are discussed further below. Law in the media: The States News Service reports that a man from Irmo, South Carolina was arrested on obscenity charges in an undercover sting operation (States News Service, 2009). This operation was carried out by the Internet Crimes against Children division of the Attorney General’s office. The man was arrested because he solicited sex over the Internet from a person he believed to be a minor girl but who was in reality, an undercover investigator. The crime in this instance was obscenity, because the man was attempting to engage a minor person in a sexual act. In its 1973 decision rendered in the case of Miller v California, the Supreme Court offered a definition for obscenity on the basis of three criteria, which, if fulfilled, could constitute grounds for subjecting material to State regulation. These criteria were: (a) "(a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, . . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."1 (www.law.ukmc.edu). Applying this definition, it may be noted that the Irmo’s man actions could fall under categories (a) and (b) and therefore constitute obscenity. As Stephanie Paul (no Date) has pointed out, obscenity laws are also being applied to the Internet, with a federal ban imposed on Internet obscenity just being declared to be constitutional in the case of Nitke v Gonzales2. The same community standards that were applied in the Miller case were also challenged in this case, by Barbara Nitke and NCSF, the National Coalition for Sexual Freedom. The Plaintiffs stated that the same definition of obscenity may not be applicable to Internet material, because in effect it would mean that any material could be found objectionable by applying the restrictive standards of the most restrictive communities in the country. Morgan has argued that restricting the transmission of Internet materials could constitute an untenable violation of the First Amendment right to freedom of speech. (Morgan, 2000). The major objection raised by the plaintiffs in Nitke v Gonzales was that the definition of obscenity was too broad and created a “chilling effect” on all Internet providers(www.out-law.com). The Supreme Court however, overruled this objection and upheld the constitutionality of the obscenity standard set out in Miller on the basis that the Plaintiffs had not established that the standard was “substantially too broad”.(www.out-law.com). It may also be noted that the Internet poses a problem where obscenity is concerned, because the Miller case defines obscenity on the basis of what a particular community may find objectionable, while the Internet transcends geographical boundaries. In the case of United States v Thomas, a couple were convicted on obscenity charges for sending computer generated sexually explicit images over the Internet.3 In the case of the Irmo man who was convicted, the communication in question involved specific one on one contact where a young person under eighteen was exposed to objectionable material. Under Ohio State Law for example, the Supreme Court has clarified that obscenity laws over the Internet are not intend to restrict transmission of such materials to adults and thereby impinge on First Amendment rights; rather they are intended to be applied in the case of one on one direct transmissions to under-18s.(Nash, 2009) As noted above, the issue of obscenity also raises the question of freedom of expression and the protection afforded by the First Amendment for freedom of expression. The First Amendment to the Constitution of the United States clearly states that Congress is not to pass any laws that could constitute “abridging the freedom of speech or of the Press”. (Gray, 1990:463). The justification that is offered for free speech is based upon three major arguments (Tribe,1999). The first is that allowing free and open discussion without censorship creates an arena where ideas can be openly expressed in the pursuit of truth, even if such a truth is not necessarily palatable or acceptable. Secondly, in a free and democratic society, it is essential to allow free speech so that citizens have the options to freely debate and discuss matters that are of public concern. Thirdly, it is only by allowing people to express themselves freely that they can work towards autonomy; as a result free expression is necessary as a means to an end in itself. The right to freedom of expression is also one of the defences that may be offered when defamation or an attack on character or reputation occurs. This is especially so in the case of newspaper reporters who, in the interest of pursuing truth and reporting on it, may also inadvertently cause some damage to the reputation and standing in society of some individuals. The legal definition of defamation applied in the United States is derived from UK law, as set out for example, by in the case of Villers v Mosley4, i.e., when any person “deliberately or maliciously publishes anything in writing concerning another which renders him ridiculous, or tends to hinder mankind from associating or having intercourse with him, an action will lie against such publisher.” Hence, defamation would occur when one person sets out to deliberately injure the reputation of another. In a recent case, a Florida woman was awarded $11.3 million in a defamation suit, in which a Louisiana woman had posted messages on the Internet that accused the woman of being a crook and a con artist (Parker, 2006). This case is significant in that the Plaintiff relentlessly pursued the case and the judgment of the Court sends a clear message that the Internet cannot be used as a forum to criticize others. Defamation cannot be easily established in every case. For example, if an action, communication or publication falls under the category of merely being annoying or irksome, it will not qualify as a defamation. Rather, in order to be actionable, there must be a clear intent to deliberately damage another person’s reputation. (Sack, 1999). It would be unreasonable and untenable to make every negative comment or expression actionable under the law; rather it is only when such negative expression or criticism has been carried out with the deliberate intent to cause harm to another that it can stand. Privacy is an important issue associated with defamation and freedom of expression, because unlimited freedom of expression by the Press may also violate the privacy of other individuals. The rights granted by the First Amendment specifically in relation to the freedom of speech and expression are for the benefit of the Press in order to ensure that they are able to freely report news and similar aspects, without fear of threat or retribution. But it does raise the issue of violation of individual privacy, especially after the emergence of the Internet, where it is possible to transmit information over a wide range network easily and inexpensively accessible to numerous individuals. An article from the Boston Globe reports that the social networking website Facebook is also improving upon its privacy settings by providing users with more control over who is able to view the information posted on their personal profiles (Boston Globe, 2009). The issue of privacy arises especially in the case of celebrities, who are often the subjects of invasive photography and reporting by newspapers. In a ruling, the Court of Appeal held that the celebrity couple, Michael Douglas and Catherine Zeta Jones had the right to sue the magazine Hello! which published unauthorized pictures of their wedding (www.bbc.co.uk). The couple had already entered into an agreement with a rival magazine OK! For the sum of 1 million pounds and this magazine was therefore authorized to publish photographs. The magazine Hello however, having published photos that were not authorized by or approved by the celebrity couple, was held to have violated their rights to privacy. On the issue of copyright, every creator of an original work has a moral right to benefit from his work, because he/she has invested time effort and labor, including conceptual and material inputs which he/she has the right to profit from (Holyoak and Torremans, 2005:20). Petersen J set out a rough test for remedy to be provided for infringement of copyright as follows: “What is worth copying is prima facie worth protecting.”5 The general trend that emerges from Court decisions is that even in instances where copying of original works has been found, remedy will lie only when infringement is substantial and this has been conditional on the criterion of quality rather than quantity in determining the value of material so infringed. The recording industry in Canada has recently faced allegations of infringement of copyright of various artists in a class action lawsuit, including jazz musician Chet Baker as the lead plaintiff (The Star, 2009). The infringement has arisen due to violations in terms of royalties not having been paid over the period that the copyright of the artists is operational, i.e, 70 years. The evolution of the Internet and the electronic medium has created further problems in terms of protection of copyright. Before the advent of the Internet and technology, it was physically a tedious job to reproduce and distribute plagiarized copied of copyrighted works in a physical environment and making of such copies was also a relatively expensive process. However, as Lawrence Lessig points out, the online environment is so structured that a page can be copied without leaving a trace, so that the footprints of the pirate are difficult to track. (Lessig, 1999). Hannabuss has highlighted the ethical issues that arise in the realm of intellectual property because through the facility of the Internet, infringement has become increasingly easy, and it is a simple matter to “pass off” someone else’s creation as one’s own”.(Hannabus, 1998:185). The case involving the musician Chet Baker illustrates how copyright can subsist in a work for a long time period that may extend beyond the life span of the creator and the collective rights assigned by a creator of an artistic work may also include the rights to publication and use overt the Internet. Conclusions: In conclusion therefore, it may be noted that the Internet has given rise to unprecedented issues related to copyright, defamation and privacy as opposed to the freedom of expression. The cornerstone of American law is the fundamental right to freedom of speech and expression, which is enshrined in the First Amendment. But with the emergence of the Internet, it has now become possible to transmit information quickly and inexpensively to a vast number of people, which in turn gives rise to violations of individual privacy and leaves more scope for defamation and copyright infringement. References: Boston Globe, 2009. “Facebook changes its privacy controls”, The Boston Globe, December 10, 2009. Geist, Michael, 2009. “Geist: Record Industry faces liability over infringement”, The Star (Toronto), December 11, 2009. Gray, O.S., 1990. “Constitutional protection of freedom in the United States as it affects defamation law”, American Society of Comparative Law Hannabuss, Stuart, 1998. Issues of Intellectual Property New Library World, 1998: 99(1143), p 185 “Internet Obscenity law upheld in U.S.”, Retrieved December 11, 2009 from: http://www.out-law.com/page-5952 Lawrence Lessig (1999). “Code and other Laws of Cyberspace”, Basic Books Locke, John “The Second Treatise” Sec 27 in “the Two treatises of Government” (Peter Laslett, edn) 1970. Cambridge University Press, IN Holyoak and Torremans, 2005. “International Property Law” (4th edn). Morgan, James, 2000. “Obscenity and the Internet: a challenge to intellectual freedom in the United States”, Libri, 50: 48-56 Nash, James, 2009. “Group: Online obscenity law too vague”, The Columbus Dispatch, October 21, 2009; Retrieved December 11, 2009 from: http://www.dispatchpolitics.com/live/content/local_news/stories/2009/10/21/copy/OBSCENE.ART_ART_10-21-09_B3_ETFEBHG.html?sid=101 Parker, Laura, 2006. “Jury awards $11.3 million over defamatory Internet posts”, USA Today, 11/10/2006; retrieved December 11, 2009 from: http://www.usatoday.com/news/nation/2006-10-10-internet-defamation-case_x.htm Sack, Robert, D, 1999. “Sack on defamation: Libel, slander and related problems”, Practising Law Institute States News Service, 2009. “Irmo Man arrested in internet predator sting”, States News Service, Columbia, South Carolina. Tribe, Laurence H, 1999. “American Constitutional law”, West Publishing Company. “Zeta Jones can sue Hello!”, BBC News, 21 December, 2000, Retrieved December 11, 2009 from: http://news.bbc.co.uk/1/hi/entertainment/1081690.stm Read More