Daily Archives: February 20, 2017

There is an increasing amount of noise surrounding freedom of speech, fake news, and everyones right to be heard. This has particular bearing on the gaming community, where the term freedom of speech is often used incorrectly.

On the other hand, online personalities are often playing a role in game marketing, and issues with GamerGate and other hate groups latching onto gaming means that games, studios and publishers are confronted with the task of moderating community and forum posts and interactions while being told they are censoring others. Hence, depriving someone of their right to free speech.

As an entertainment attorney with over seven years of experience in a practice dedicated exclusively to gaming culture and industry, this has been an ongoing cause for concern. Its an issue my clients face daily.

Legally, theres no argument to be had. Let me explain why.

Felix Kjellberg, aka PewDiePie, blamed the press immediately after apologizing for his bad judgement, which brings up some interesting legal points about his situation.

He seemed to be operating under the assumption that the Wall Street Journal and mainstream media intentionally destroyed his business relationships. However, based on his own explanation, its more than likely he broke his contract under any number of contract theories, as well examine below.

This was my first notice of PewDiePie, so Im not bringing any baggage into this debate. I dont like him or dislike him. I just know hes being widely discussed, and Im familiar with the legal aspects of these situations.

His departure from Google and Disney seems like a no-brainer to anyone with a basic understanding of entertainment contracts. His first mistake likely came from his presumption that either Google or Disney have a sense of humor, or value him for his comedic chops.

Companies typically wont support you when doing so will harm their brand or otherwise expose them to liability

The contracts he signed with Google (through YouTube) and Disney (through Maker Studios) should have made it apparent that they do not. Any tolerance on their part would be based on financial interest, not out of any respect for his freedom of expression or his budding career as a rookie comedian. That is not the business they are in, as evidenced by how quickly they dropped him when his humor became a liability.

Companies typically wont support you when doing so will harm their brand or otherwise expose them to liability. Thats why YouTube has a code of conduct, and why most contracts for endorsement include rather robust non-disparagement/no disparaging effect clauses. Disney includes this in its terms of use:

You may not submit or upload User Generated Content that is defamatory, harassing, threatening, bigoted, hateful, violent, vulgar, obscene, pornographic, or otherwise offensive or that harms or can reasonably be expected to harm any person or entity, whether or not such material is protected by law.

Or, if youd like a more direct example from one of my own agreements:

Influencer may not: [.] engage in conduct or a pattern of behavior that may: (i) diminish Influencers reputation as a personality in the gaming community; or (ii) as a result of [Companys] association with Influencer, harm [Companys] reputation.

Typically a non-disparagement clause wont act alone to limit influencer conduct in an agreement. Some agreements will include strong moral clauses, broad warranties and representations, and at will termination as additional means of controlling the influencer or providing backers a buffer if the Influencers conduct creates a problem.

For example, a moral provision may prohibit an influencer from engaging in behavior in his or her private life that may amount to a scandal, while almost any reps and warranties provision will include a proviso prohibiting content that is defamatory or otherwise subject to legal action. The goal is to make sure, if you get into a scandal, you can be cast off quickly and with little legal repercussion.

In the interest of fairness, it is possible that the relevance of such provisions werent made clear to Kjellberg. In an effort to court lucrative talent, backers may treat such verbiage as boilerplate until and unless something triggers it. Ive heard they said we dont need to worry about that part, from more than a few clients.

This doesnt absolve responsibility on the part of the talent. You should read and treat as enforceable anything you want to sign. If youre not sure, consult an attorney and save yourself trouble down the road. However, its generally common sense that companies like Google and Disney are in this for two main reasons: it helps their bottom line, and its good for brand building.

When an influencer under contract does something that harms that brand, that influencer is materially breaching their contract. That means termination.

Its possible that the relationship can still be repaired. However, he broke the rule any competent attorney would advise in a matter concerning an open dispute: the less you say, the better. An eight minute diatribe placing blame on third parties and treating your business partners as complicit in the conspiracy against you probably isnt going to help smooth this out.

Thus my surprise when Kjellberg admitted that his content was offensive and he crossed the line, that he exhibited poor judgment and that his amateurish attempt at comedy was a failure. He effectively admitted to breaching his contracts with Disney and Google, and then immediately sought to blame the press.

The context for his joke, and whether mainstream media took it out of context, never really had anything to do with it. Its reasonable for companies like Disney and Google to consider mainstream media as the litmus test for what is considered offensive; their respective brands cater to a far broader demographic than PewDiePies followers, after all.

Welcome to the wonderful world of entertainment, Felix. Youve joined an elite club of performers, comedians and artists who crossed the line. No one is entitled to a platform, and your platform is a privilege that you will lose if you breach the terms under which that platform operates. In all likelihood you broke your contract. You even explained how you broke that contract in a video. Its irrational to conclude that a third party is responsible for the failure of your contract.

More alarming is the response by supporters, or rather, the response against detractors. The idea that companies or institutions are infringing on someones freedom of speech is commonly expressed, often in very strong language. When Twitter banned Milo Yiannopolous, we heard the same refrain. Kjellberg himself has already confirmed that a subset of his fan base consists of white supremacists. As many of us have witnessed, that particular subset is known to be more vocal about a perceived injustice than your average netizen.

Let me go ahead and get this out of the way:

A private individuals right to tell you to shut up, and a companys right to censor your offensive content, are both protected by the first amendment.

If a client of mine terminates a players subscription because they violated a games code of conduct by spamming a chat channel with anti-Semitic rhetoric, they are well within their contractual rights to terminate that subscription. Your participation on a platform like Twitter, YouTube or one of the excellent games offered by my clients, however, is not. That is strictly governed by the Terms of Service or EULA you agree to when you sign up.

If you are an Influencer, your continued support from your backers is contingent on your compliance with whatever non-disparagement language youve agreed to. Almost every platform available to you is offered by a private entity. Surprise! Welcome to Capitalism!

The first amendment isnt prohibitive against society at large; it protects society from government action. This typically shouldnt be a point of confusion, as the text itself is clear and unequivocal:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The context of free speech, in roughly every territory where free speech exists, is uniformly a limitation on government power to suppress that right. Your personal feelings about censorship notwithstanding (or mine, for that matter), your only recourse against censorship on a platform provided by a private company is to not use that platform. There is no legal recourse. In fact, if there were, that really would violate the First Amendment. Clearly no one wants that.

When someone decries censorship and claims free speech, they generally are not talking about the right to say what they want. They are talking about the right to say what they want wherever they want to share it, and that is a distinction that crosses the line between fundamental human right and moral rationalization.

No one is morally obligated to listen to another persons opinion. No one should feel morally obligated to offer a platform for someones message when they consider that message offensive. Freedom of speech does not place one persons rights above another persons right, simply because the other provides the platform. That rationale subverts the fundamental right to freedom of speech generally.

We like to see the Internet as an open platform for the free exchange of ideas. Many of the companies who make the Internet possible, and they are each and every one private corporations, do their best to make that a reality.

But as we begin to recognize the risks associated with that free exchange, companies must take measures to safeguard the privacy and happiness of their consumers. This necessarily means censoring the content shared online. We are comfortable with censorship intended to protect us (e.g., prohibitions against sharing your personally identifiable information, passwords, etc. online), but we are less comfortable with censorship designed to protect others (e.g., codes of conduct).

The bottom line is that when you engage in free speech online, you typically do so as a consumer of the platform you are using. Normally you wont have the opportunity to negotiate the contracts you are bound to (whether it be a ToS or EULA) when you use those services.

Even the most successful influencers, Kjellberg included, are bound by provisions that limit their behavior. Ironically, they are often subject to greater restrictions because of their influence on the brand. The reality is that your right to free speech may directly conflict with the agreement youve entered, and engaging in some kinds of speech will almost certainly cost you a contract.

Mona Ibrahim is a Senior Associate at Interactive Entertainment Law Group. She is an avid gamer and has dedicated her career to counseling the video game industry and indie development community.

Visit link:
The limits of free speech (when you have 50 million YouTube subscribers) - Polygon

[JURIST] A draft bill [text, PDF, in Maltese] proposed by the Maltese government [official website] that aims to regulate online news could inhibit freedom of speech, argued protesters Sunday. At the protest, which was organized by the opposition party, opposition leader Simon Busuttil said [EU Observer report] that the bill would be "the beginning of the end of freedom of expression on the internet." The bill would update Malta's defamation and libel laws requiring citizens to provide their name, age, home address and valid government identification to the nearest Maltese government authority before expressing political views online. In an editorial [Independent op-ed], a Maltese newspaper expressed concern about the number of people the bill would impact and commented that "many people out there will be forced to think twice before commenting on current affairs of any sort."

Malta currently holds the rotating six-month presidency of the EU until mid-2017 and will hold elections next year. Reporters without Borders [advocacy website] ranked Malta forty-sixth on its 2016 World Press Freedom Index [ranking]. The country also received a 96 percent score in the Freedom House [advocacy website] ranking and the press freedom status label "free."

Read more:
Malta protesters oppose draft bill that could limit freedom of speech - JURIST

It should come as no surprise that Stanford has followed the University at California, Berkeley (UCB), in suppressing free speech, and insulting a distinguished alumnus as well. Just as VDARE.coms conference was cancelled at Tenaya Lodge in Yosemite, (illegally, by the way as Tenaya Lodge is a Federal contractor and on Federal property) so did Stanford University, who once thought they were superior to UCB in academics and sports. But Stanford has been reduced to the also ran to UCBs virulent Cultural Marxism.

Stanford though thinks too much of itself. It is nothing but the obedient servant of radicals like Jesse Jackson who shut down Western Civilization studies at Stanford in 1996 and the puerile student body who recently voted not to bring back Western Civilization.

And this just inVDARE.com Editor Peter Brimelows alma mater, Stanfords Graduate School Of Business, just cancelled a debate between Brimelow and Tim Kane of the Hoover Institution to be held by the Stanford chapter of the Adam Smith Society, citing the destruction of Berkeley as the reason theyve been scared off. [VDARE.com Conference Cancellation Update: Two Rays Of Hope!, Lydia Brimelow, VDare, February 6, 2017]

This is an example of the hecklers veto, or more accurately the terrorists veto of freedom of speech. But just as the Terrorist Veto of the speech at UCB by Milo Yiannopoulos was not so much a Terrorist Veto, but a conspiracy between the terrorists and the UCB administration and the lesbian university police chief to use the threat of violence or violence that was allowed by inaction to occur to squash Milos speech, so the administrators at Stanford did the same.

But just as the UCB Police allowed the violence in Berkeley to happen, and had the resources to quash to violence quickly and effectively, so the Stanford Department of Public Safety(DPS), a private police department, an accredited and authorized law enforcement authority deputized as Santa Clara County Deputy Sheriffs, but could have easily quashed any violence or provided the necessary security, especially given the Departments bragging about their skill and abilities for presidential visits and major events at the 50,0000 capacity Stanford Stadium.

Braggart Chief Laura Wilson, Stanford DPS Suspiciously Like Another Chief of Police

So, if Stanford GSB Dean Jonathan Levin [Email him ] told the student group that Stanford could not provide security, he was lying. I know this because I worked with the Stanford DPS before, and they can get the job done. (And bring a world of hurt on rioters if necessary.) And Stanford could easily forestall any riots or violence by letting students know before hand that such activity would violate the Honor Code and result in expulsion.

Read the rest here:
Stanford Wages War On Alumnus Peter Brimelow And Free Speech - VDARE.com