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March 2019
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Appeals Court Upholds Dismissal Of Defamation Lawsuit Against Actor James Woods

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James Woods -- saved from a defamation lawsuit by a question mark -- has just had his dismissal affirmed by the Sixth Circuit Court of Appeals. Whatever schadenfreude there was to be enjoyed by seeing Woods hoisted on his own litigious petard was swiftly dispelled by the ridiculousness of the lawsuit, which posited that Woods' careless question tying the plaintiff to [gasp!] Bernie Sanders' presidential campaign rose to the level of actual defamation. All we can hope is Woods handles this victory with a bit of grace, rather than gloating over his opponent's death, should she unfortunately precede him to the Great Beyond.The lower court did take a couple of shots at Woods during its dismissal of the suit, pointing out he was as uncooperative as possible when the plaintiff, Portia Boulger, tried to serve him. Boulger was offended by Woods' tweet that portrayed her as a Bernie plant trying to sabotage Trump's impeccable reputation by flinging Nazi salutes during one of his rallies. Here's a quick summary of the supposed defamation, taken from the appeals court decision [PDF]:

On March 12, 2016, Twitter user @voxday posted the Nazi salute photograph, together with a photograph of Portia Boulger and a caption identifying Boulger as an “Organizer (Women for Bernie).” (Def. Mot. for J. on the Pleadings, R. 7, PageID 61.) The two photographs and caption were accompanied by the (false) statement, “The ‘Trump Nazi’ is Portia Boulger, who runs the Women for Bernie Sanders Twitter account. It’s another media plant.” (Id.) Shortly thereafter, Woods tweeted the same two pictures, along with a short biography of Boulger, and added: “So-called #Trump ‘Nazi’ is a #BernieSanders agitator/operative?” (Comp., R. 1, PageID 3.) At the time, Woods had more than 350,000 followers on Twitter.
After being notified by Boulger's lawyer that she was seeking to sue him, Woods issued a retraction and an apology. Boulger argued the damage had already been done. She had been the recipient of several unpleasant communications from Woods' followers, which apparently included death threats.The Appeals Court also takes a shot at Woods for dodging service from Boulger, pointing out the ridiculousness of him attempting to dismiss a lawsuit he claimed he hadn't been properly served with yet.
As the district court noted, although Woods raised the defenses of insufficient service of process and lack of personal jurisdiction in his answer, he immediately filed a motion for judgment on the pleadings in which the defenses were not included. The motion for judgment on the pleadings was filed several months early—because Woods had not yet been served—and necessarily sought a decision on the merits. Woods’s motion was thus “inconsistent with the idea that the district court lacked personal jurisdiction over the defendant[].”[...]The filing of the motion for judgment on the pleadings therefore created a reasonable expectation that Woods would defend the suit on the merits. Any other holding would create a perverse outcome. One can imagine a litigant asking the court to proceed on the merits, and then, only if the court’s decision is unfavorable, seeking to re-assert jurisdictional defenses.
The decision then spends several pages diving into the thick weeds of Ohio defamation law. There's a four-prong test applied at the state level to determine whether or not a question is a "statement of fact." After a lot of discussion, the court finally gets to the point: the question mark -- coupled with the actor's opinionated Twitter feed -- makes it clear Woods was asking followers to make that call themselves, rather than directing them to arrive at a foregone conclusion. That many of them skipped the whole "decide for yourself" stage isn't Woods' fault, nor does it turn a question into a libelous statement of fact.
Here, the tweet at issue is reasonably susceptible to both a defamatory meaning—that Woods was asserting Boulger was the woman giving the Nazi salute—and an innocent meaning—that Woods was merely asking his followers a question. Because Woods’s tweet could reasonably be read to have an innocent meaning, under the innocent construction rule the tweet, as a matter of law, is not actionable.
There's also the matter of context. As the court sees it, the opinionated Woods could get away with posing a question like this. The New York Times perhaps not so much.
A review of Wood’s Twitter feed from March 12, 2016, shows that although he posted news articles, his tweets were frequently accompanied by his own colorful commentary. [...] These tweets illustrate that a reasonable reader of Woods’s tweets on March 12, 2016, likely knew that he made frequent use of sarcasm, exaggeration, and hyperbole—characteristics more likely seen in an opinion, rather than a statement of fact. See Scott, 496 N.E.2d at 708. Thus, the general context could lead a reasonable reader to believe the tweet at issue was not a statement of fact.[...]Twitter is a medium for users to express both opinions and disseminate news. For example, a Twitter user who tweets his or her thoughts on various celebrities is an account that is more analogous to an editorial section of a newspaper. Cf. Vail, 649 N.E.2d at 185–86 (finding that a column that appeared on the Forum page of the newspaper and titled “Commentary” gave a reader the message that the column would convey the personal opinion of the writer, as distinguished from a news story). But the Twitter account of an online news source, such as the New York Times, is not meaningfully distinguishable from a hard copy news story. Consequently, it is clear that Twitter can be used to disseminate both factual accounts and assertions, as well as commentary and opinion.
This breakdown of Twitter seems elementary and even a bit unnecessary, but the court is reminding readers (and plaintiffs) that context matters. It always does. Unfortunately, many plaintiffs in defamation lawsuits want the court to strip commentary of its context to make it easier for them to secure a victory. Fortunately, our courts have generally been very protective of speech and extremely hesitant to hand down rulings that could restrict the free exchange of commentary and opinion. It's unfortunate Woods' followers decided his somewhat disingenuous question granted them permission to harass and threaten Boulger. But those disgusting responses are the responsibility of the disgusting people making them. The court made the right call, ensuring Twitter in all its greatness and awfulness remains a freewheeling, often-horrifying marketplace of ideas.

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New Research from Return Path Demonstrates Link Between Subscriber Engagement and Reduced Spam Placement

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Fourth annual report reveals industry benchmarks for key metrics that impact deliverability Here are some of the key points and trends from the report, The 2019 Hidden Metrics of Deliverability. This study looked at mail from the top webmail providers: Gmail, Microsoft (Hotmail, Outlook.com, etc.) and Verizon (Yahoo, AOL), and the deliverability and engagement metrics […]The post New Research from Return Path Demonstrates Link Between Subscriber Engagement and Reduced Spam Placement appeared first on Adotas.

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How to Use AI to Improve your Digital Marketing Strategy?

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By Elaine Bennett Source: Pixabay A few years ago, businesses were still reluctant to integrate artificial intelligence into their marketing strategies. However, it seems that they're starting to familiarize themselves with the implementation of AI and recognize its benefits. According to the ISG study, even though only 16% of business leaders use AI to boost […]The post How to Use AI to Improve your Digital Marketing Strategy? appeared first on Adotas.

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German Football League To Try Novel Antipiracy Strategy Of Actually Having Legal Alternatives For Its Content

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Of all the antipiracy strategies on offer for the content industries, we've always promoted the having affordable, legal, and convenient alternatives as the best of them. As study after study after study has shown, one of the primary motivators for copyright infringement is a lack of reasonable access to the content legally. Why this is such a hard lesson to learn is anyone's guess.The popular German football league, Bundesliga, recently, and finally, came to the conclusion that the first step in competing with piracy of its games is to, you know, actually compete with it. The post starts off by mentioning how many of the larger football/soccer leagues are looking at site-blocking as the best tool for combating piracy. Bundesliga, however, apparently only recently realized that no legal alternative for many fans exists.

While several big leagues in Europe would also like to have these kinds of blocking tools at their disposal, it’s blatantly obvious that they can’t compete with piracy if they aren’t offering customers what they want legally. It’s a sentiment shared by Arne Rees, executive vice president of strategy for Germany’s powerful Bundesliga.“One of the best defenses against [piracy] is certainly having legal product everywhere,” Rees said, as cited by SportsVideo.org. “If a fan simply can’t get you, their mind-set is, I want to watch it, and, if only a pirated stream is available, they will justify that. At the very least. we have to create an environment where legal product competes with the illegal product. The legal product will always be the better product,” Rees added.
The legal ways for fans to get Bundesliga games today is through a complicated series of streaming services across 200 countries that are rife with blackout restrictions, blackouts of the most important matches, or in some cases full restrictions for accessing any games at all. None of this is convenient or done with ease, making the simple matter of finding an infringing stream of a game the superior option. In cases where literally no option is available for a game, the league isn't competing with piracy at all. It's not even attempting to.It's resulting in sympathy even from some unlikely sources.
A report by Aftenposten last month detailed how fans were shut out of the key match between Everton and Manchester City so turned to pirate streams instead. Sarah Willand, Communications Director at TV 2, said the company understands the dilemma faced by fans.“We would be happy to broadcast all the matches so that people see everything from the Premier League,” Willand said. “I therefore understand people’s frustration, it’s annoying not to be able to watch their favorite team on TV when you have a subscription.”
It should go without saying that sports leagues and their broadcast partners are in the business of serving their customers, not annoying them. All the scare tactics about how dangerous pirate streams are in terms of malware, or pleas centering around their illegality, aren't doing much to deter their use. What certainly would do the trick is making sure fans have affordable and convenient ways to access all the content they want, rather than playing some insane game of streaming russian roulette.
This, of course, is completely illegal and to some extent probably hurts the earning potential of the various leagues around Europe and their broadcasting partners. However, it’s clear that the companies involved have the power – if they so choose – to solve this problem by offering all content, to all people, wherever they are, at a fair price.Given the tangle of licensing agreements across dozens of regions, this is much – much – more easily said than done, few people will argue with that. But the cold, hard truth is that most fans don’t care. If they can’t get matches legally (and particularly if they already have an underperforming subscription service), many will feel justified turning to the high seas.
It's true: fans don't want to hear that offering real alternatives is hard because the tangled web of licensing deals struck with broadcasters makes it so. It's time for leagues like Bundesliga to start serving fans what they want. And it's nice to see they're finally realizing it.

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