Billy Mitchell Survives Anti-SLAPP Motion From Twin Galaxies A Second Time
The Billy Mitchell and Twin Galaxies saga rolls on, it seems. Mitchell has made it onto our pages several times in the past, most recently over a lawsuit filed against gaming record keepers Twin Galaxies over its decision to un-award his high score record for Donkey Kong on allegations he achieved it on an emulator instead of an official cabinet. The suit is for defamation and Twin Galaxies initially tried to get the case tossed on anti-SLAPP grounds, but the court denied that request under the notion that Mitchell only has to show "minimal merit" in the overall case to defeat the anti-SLAPP motion.And now, on appeal, California's Second Appellate court has affirmed that ruling, again on "minimal merit" grounds. You can read the entire ruling embedded below, though I warn you that there are many pages dedicated to the back and forth between Mitchell and Twin Galaxies over a video game record, so you may come away with sore eyebrows from rolling your eyes so hard at all of this. There is also a metric ton of context as to how the court is supposed to apply the anti-SLAPP statute. Go nerd out if you like, but the whole ruling boils down to this:
The parties agree, as do we, that Mitchell’s claims for defamation and false light arise from protected activity and meet the first prong of the anti-SLAPP analysis. We therefore focus on the second prong: whether Mitchell has shown a probability of prevailing on his claims. Twin Galaxies contends Mitchell has not provided sufficient evidence to show the challenged statement was false or it made the statement with actual malice. We are compelled by the standard of review, however, to conclude Mitchell has demonstrated the requisite “minimal merit” to his claims to defeat Twin Galaxies’ anti-SLAPP motion.It's incredibly important in a case like this to keep that standard in mind. And, though some folks, including some at Techdirt, don't necessarily agree with me, I think I agree with the court's ruling on this. Given the minimal merit standard, it seems the court is simply reluctant to not let this proceed to trial.And, as I stated in the last post, to discovery. And it's going to be in discovery where all of this gets far more interesting. Because at trial, there will be no minimal merit standard for the claim of defamation. Instead, Mitchell is going to have to prove two things: that the accusation of cheating is false and that Twin Galaxies made that claim not out of error, but out of "actual malice".And that is going to be an extremely tall hurdle over which Mitchell needs to jump.
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posted at: 12:00am on 15-Oct-2021
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Content Moderation Case Study: Tumblr's Approach To Adult Content (2013)
Summary: There are unique challenges in handling adult content on a website, whether it’s an outright ban, selectively allowed, cordoned off under content warnings, or (in some cases) actively encouraged.Tumblr’s early approaches to dealing with adult content on its site is an interesting illustration in the interaction between user tagging and how a site’s own tools interact with such tags.Tumblr was launched in 2007 as a simple “blogging” platform that was quick and easy to setup, but would allow users to customize it however they wanted, and use their own domain names. One key feature of Tumblr that was different from other blogs was an early version of social networking features — such as the ability to “follow” other users and to then see a feed of those users you followed. While some of this was possible via early RSS readers, it was both technologically clunky and didn’t really have the social aspect of knowing who was following you or being able to see both followers and followees of accounts you liked. Tumblr was also an early pioneer in reblogging — allowing another user to repost your content with additional commentary.Because of this more social nature, Tumblr grew quickly among certain communities. This included communities focused on adult content. In 2013, it was reported that 11.4% of Tumblr’s top domains were for adult content. In May of 2013, Yahoo bought Tumblr for $1.1 billion, with an explicit promise not to “screw it up.” Many people raised concerns about how Yahoo would handle the amount of adult content on the site, but the company’s founder, David Karp, insisted that they had no intention of limiting such content.
“We've taken a pretty hard line on freedom of speech, supporting our users' creation, whatever that looks like, and it's just not something we want to police.... I don't want to have to go in there to draw the line between this photo and this behind-the-scenes photo of Lady Gaga and, like, her nip.” -- David KarpYahoo CEO Marissa Mayer noted that the content on the site might prove more challenging for advertisers, but promised that they would employ “good tools for targeting” to help advertisers avoid having their brands appear next to adult content. However, she still supported allowing Tumblr to continue hosting such content.
“I think the richness and breadth of content available on Tumblr—even though it may not be as brand-safe as what’s on our site—is what’s really exciting and allows us to reach even more users.” — Marissa MayerA key part of how Tumblr managed this at the time was allowing its users to tag their content in a way that would indicate to others if there was adult content, while letting the users themselves set preferences regarding their own interest in avoiding such content. Tumbr’s terms of service at the time explained how this worked:
Tumblr is home to millions of readers and bloggers from a variety of locations, cultures, and backgrounds with different points of view concerning adult-oriented content. If you regularly post sexual or adult-oriented content, respect the choices of people in our community who would rather not see such content by flagging your blog (which you can do from the Settings page of each blog) as Not Suitable for Work ("NSFW"). This action does not prevent you and your readers from using any of Tumblr's social features, but rather allows Tumblr users who don't want to see NSFW content to avoid seeing it. — Tumblr’s 2012 Terms of ServiceNotably, those same terms did ban “sexually explicit videos” with a somewhat explicit reason for that ban: “We're not in the business of profiting from adult-oriented videos and hosting this stuff is fucking expensive.”Around the time of the Yahoo purchase, however, users began noticing a change. As shared in Tarleton Gillespie’s book “Custodians of the Internet”:
In May 2013, some Tumblr users noticed that blogs rated “adult” were no longer findable through the major search engines. A month later, Tumblr began using the ratings to selectively exclude posts from its own search tool. Posts from “NSFW” or “adult” blogs no longer appeared in Tumblr’s search results, even if the post itself was not explicit, and regardless of whether the search was explicit. Actually, it was even more complicated than that: if the searcher already followed the explicit blog, that blog’s posts would appear— if it was “NSFW.” If it was “adult,” the more explicit rating, those posts would not appear in the search results, even if the searcher already followed that blog. — Tarleton GillespieThe end result of this was widespread confusion among Tumblr’s users and fans:
“Clear? No? It was an intricate and confusing arrangement, one that users had a hard time following and the company had a hard time explaining. The principle behind this intricate policy is not an unreasonable one: let users continue to post explicit pornography, while using the self- rating to shield users who do not want to encounter it. But enacting this principle meant codifying it in a series of if/then conditions that could be automated in Tumblr’s search algorithm. And what the policy meant in practice was that while an explicit blog’s existing followers could more or less still get to it, it would now be much more difficult for anyone new ever to find it, given that its posts would not appear in any search results.In addition, there were other assumptions hiding in the new policy: that the rules should be different for mobile users than for users on their computers; that “logged-out” users (which includes users who have not yet signed up for Tumblr) should not encounter explicit blogs at all; and that explicit Tumblr blogs shouldn’t be appearing in search results on Google or Bing—or Yahoo. These represent somewhat different priorities, but get folded in with Tumblr’s apparent concern for balancing the right to share pornography and the right not to encounter it if you choose not to.” -- Tarleton GillespieCompany Considerations:
- How important to Tumblr is the culture and community that has built up around those who share adult content on the site? How does that play into product decisions regarding discovery of new content on the site?
- How practical is user tagging for dealing with adult content on the site? How will the site handle it if there is a significant disagreement, such as someone posting content they insist is not adult content, but others feel is?
- What sorts of technical/algorithmic rules should be put in place to deal with such adult content on the site? How effective is it to remove such results from search? What are the consequences of removing NSFW results from search?
Resolution: For many years after this, Tumblr continued to allow adult content. In 2017, the company made one major change, rolling out its safe mode option which would not just remove “NSFW” tagged content from search, but also from user feeds. So even if a user followed a certain blog, if they were in “safe mode” they would no longer see content tagged as NSFW.In 2017, Verizon purchased Yahoo, including Tumblr. A year later, it became apparent that Verizon did not take the same view as Yahoo had regarding allowing Tumblr to continue hosting adult content. In December of 2018, it was announced that Tumblr would be banning adult content on its servers.Many people worried about what this would do to the site and the communities that grew up around it. Others pointed out that the ban would negatively impact queer and sex-positive communities. The end result was that traffic to the site diminished noticeably in the following months. In August of 2019, Verizon sold Tumblr to blogging company Automattic for just a few million dollars, well below the $1.1 billion Yahoo had paid for it in 2013.Originally posted to the Trust & Safety Foundation website.
- Adult content raises different kinds of challenges for social media websites. What kinds of policies should sites consider regarding such content, and how will it impact their userbase and communities?
- Tumblr argued that photos including nudity were different than “sexually explicit videos.” Are these distinctions meaningful in a way that can be explained to a team of content moderators?
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posted at: 12:00am on 15-Oct-2021
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