MLRC Bulletin Examines 2007 Media Law Developments

Articles on Keyword Advertising Libel in Fiction English Libel Law Developments

Published this month, MLRC’s Bulletin 2007:4 contains MLRC’s annual year-end review of media libel and privacy law developments – together with three articles by leading media law practitioners on some of the most interesting media law issues of the year.

Keyword Advertising: To Buy or Not to Buy? by Mitchell H. Stabbe, head of the trademark group at Dow Lohnes in Washington, D.C., provides a detailed review of the law that is developing around keyword advertising – the leading revenue source for online search engines. Courts have split on whether the purchase of trademarks to generate advertising – such as sponsored links – can violate trademark rights. Stabbe’s article looks at how keyword advertising currently operates and discusses the court cases addressing the sale of trademarks as keywords.

When is a Fictional Character Defamatory? by Jonathan Bloom, counsel at Weil Gotschal & Manges, looks at a fascinating area of libel law – claims against works of fiction. When is a fictional character "of and concerning" the plaintiff? What is a false statement of fact in a work of fiction? What is the applicable standard of care for authors and publishers? And how should courts balance libel claims against authors’ rights to creative expression?

And in Reynolds Privilege: Where Are We Now? by Kevin Bays, head of the contentious rights and dispute resolution department at Davenport Lyons in London, and Paul Chamberlain, a lawyer at the firm, examine the emerging defense of "responsible journalism" under English libel law. In a series of landmark decisions, English courts have begun to fashion a significant new defense for publications on matters of public interest that are presented in a balanced and responsible manner.

Part II of Bulletin 2007:4 contains MLRC’s annual review of the significant developments of the year in media libel, privacy and related law. And Part III contains an update on recent developments in criminal libel in the United States.

2007 was marked by several interesting decisions on the libel and privacy fronts – from issues of actual malice, liability for disclosure of information – to the scope of Section 230's protection for statements in cyberspace. The year saw two high profile libel actions filed by sitting judges against the press end in victories for the plaintiffs. In Murphy v. Boston Herald, the Massachusetts Supreme Judicial Court affirmed a $2 million jury verdict against the Boston Herald, finding clear and convincing evidence of actual malice. And the Chief Justice of the Illinois Supreme Court was also a successful libel plaintiff this year – settling his claim against a suburban Chicago newspaper for a reported $3 million.

On the privacy law front, the D.C. Circuit Court of Appeals in an en banc decision resolved the long-running Boehner v McDermott wiretap case without damaging the First Amendment.

A Georgia appellate court affirmed a jury verdict in Milum v. Banks, which appears to be the first fully contested judgment against a blogger. Also in cyberspace, the Ninth Circuit granted rehearing en banc in Fair Housing Council v. Roommate.com, a very interesting Section 230 case to determine whether a roommate matching website is entitled to immunity in a Fair Housing Act claim for user profiles created through online questions and prompts.

Finally, in Carpenter v. Alaska the Alaska Supreme Court delivered a powerful reminder that talk radio can still generate tort liability. A radio host’s declaration that he would make a listener’s life "a living hell" could constitute intentional infliction of emotional distress – and a jury could find that this "call-to-arms" exceeded the bounds of protected speech.

The Media Law Resource Center was founded in 1980 by leading media groups to monitor developments and promote First Amendment rights in libel, privacy and related fields. MLRC has monitored and reported on trends in media libel and privacy trials and appeals since 1980, and its empirical data have been widely cited and reported in the media, in scholarly publications and in judicial opinions, playing a central role in the ongoing debate over the effect of libel claims on freedom of the press.

MLRC’s members include leading publishers and broadcasters, media and professional trade associations representing newspaper, magazine, newsletter and book publishers, broadcasters, journalists, authors, news directors and newspaper editors, and also media insurance carriers. MLRC’s law firm wing, the MLRC Defense Counsel Section, consists of over 200 member firms around the country and abroad with specialities in media and libel defense representation.

The MLRC Bulletin is available free to the press from MLRC by calling (212) 337-0200. It is available to others for $35. More information from the MLRC Report can be found at www.medialaw.org.