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  • 1. Biomatrix v. Costanza “cybersmear” By Seda SESGÖR C.Handan YILMAZ On Freedom of Speech in Cyberspace 17.12.2007
  • 2. Table of Contents
    • Case Definition
    • Laws and Legal Regulations applied to the Case in U.S
    • Counter Laws and Legal Regulations in Turkey and E.U
    • Evaluations of Case in the Light of Ethical Theories
    • Final Words…
  • 3. Biomatrix v. Costanza
    • Biomatrix Profile: Biomatrix is a medical company. Its primary business is to develop, manufacture, and globally market medical products
    • Synvisc, developed in the late 1990’s, was designed to help patients who suffer from osteoarthritis, a condition that produces pain and immobility in the knee
    • From April 1999 to August 2000, three individuals who called themselves as BMX Police posted over 16,000 messages critical of Biomatrix in a finance discussion forum provided by Internet Service Provider, Yahoo ! Inc .
    • Using 23 pseudonyms, they made four, unsubstantiated, critical claims:
    • 1. that Synvisc produces serious side effects,
    • 2. that competitors offered better products,
    • 3. that Biomatrix had covered up negative financial and product information,
    • 4. that sexual improprieties and barbarous cruelties had been committed by top level Biomatrix employees.
  • 4.
    • Some of the pseudonyms they used:
      • cd_438; cd_43eight; cd_43eightt; rvcrvcrvc_1964; allergictochickenbits; dr_stedman; meddra_2000; meddra_2k; voteREP; voteREPLCN; vote_republican_2000; jenti_is_pro-life
    • Examples of Defamatory Messages of BMX Police:
      • Insider Knowledge:
      • “ I am a former Biomatrix employee. I was employed there for over 6 years and reported DIRECTLY to the CEO, Dr. Balazs. While employed, I ran the AC Chemistry Lab which tested production batches of every product manufactured for a variety of CHEMICAL IMPURITITES and general conformance to established specifications. I had many other responsibilities as well…. When it comes to CREDIBILITY, consider the source.”
      • 2. Unscrupulous Corporate Intentions:
      • “ The BMX Police are here to warn investors that corrupt financial institutions, along with the CRIMINAL Biomatrix and Genzyme management, are trying to STEAL YOUR MONEY by misleading investors with FALSE PROMISES of a ‘merger’ that is not even scheduled to happen.”
  • 5.
    • 3. Personal Attacks on Biomatrix Officials:
    • “ Most of you that work there I’m sure already know how much [X] LOVES her women. Just don’t reject her offers or you’re out the door.”
    • [Y] “is rumored to have been a NAZI SS doctor during World War II…torturing people and experimenting on them like animals.”
    • 4. BMX Police as Whistle-Blowers:
    • It all depends which side of the fence you’re on. The “pusher” sees the negative information, factual as it may be, as “slander” because they feel that anything that might make stock go down is inherently wrong. Thus, they call it ”slander”.
    • The BMX Police know that the TRUTH, as unpleasant as it may be, is NEVER wrong. Indeed, it is our CIVIC DUTY to expose the TRUTH about Biomatrix, its products, and its stock. Thus, we call it “whistle blowing.” The readers of this board are free to evaluate both sides, and their motives for posting, and decide what they wish to do. Some will learn that this is a SCAM company peddling a SCAM product and run for the door. Others may not mind that it’s a SCAM company peddling a SCAM product as long as the stock price goes up. Certainly, there are enough unethical people out there that won’t mind investing in a SCAM that hurts people as long as they profit from it.
    Biomatrix v. Costanza cont’d…
  • 6.
    • Results of Defamatory Speeches of BMX Police
      • Biomatrix stock price dropped from $35 to $21 per share.
      • The merger between Biomatrix and Genzyme was postponed to future dates
      • Reputation of company and its top management negatively effected.
      • Disturbance occured in financial markets among investors and within the company among subordinates and employees.
    Biomatrix v. Costanza cont’d…
  • 7. Biomatrix v. Costanza cont’d…
    • Legal Trail:
      • Biomatrix, Balzas & Janet Denlinger (plaintiffs), initiated a John Doe lawsuit for defamation.
      • They subpoena Yahoo to reveal the identities of BMX Police
      • Yahoo! Inc. Revealed the identities as:
        • Raymond Costanzo
        • Ehpraim Morris
        • Richard Costanzo
      • Biomatrix brought a “ defamation ” law suit to these people and asked for 8 year imprisonment of them
      • The Court asked BMX Police to prove their claims
        • In defending their actions, the posters made two arguments:
          • (1) Biomatrix and the doctors couldn't prove that they were damaged in any way;
          • (2) None would take the postings seriously.
    Former Biomatrix Employees The court rejected the both arguments
  • 8.
    • The Supreme Court ( No. BER-L-670-00 , NJ. ) found the three guilty in terms of :
    • 1. Content: The messages contained accusations that were "extremely offensive and malicious.“
    • 2. Verifiability. Under New Jersey law, the higher the "fact content" of a statement, the more likely that the statement will be actionable as libel. In this case, some of the messages contained statements that the postings were "100% accurate" and that the information came from "inside sources" - indicating that the posters meant to be taken seriously.
    • 3. Context. The statements were posted on a chat room in the business section of the Yahoo! web site. Their web site preference to post messages shows their malicious intent.
    • Court; ordered them to stop posting messages.
    Biomatrix v. Costanza cont’d…
  • 9. Laws and Legal Regulations in U.S related to Cybersmear Cases
    • Defamation: the legal doctrine that allows a person to sue in court and recover damages from someone making false statements that harm the plaintiff's reputation.
    • libelous statements made online are usually evaluated by the same standards as statements made offline
    • The plaintiff can initiate a John Doe law suit to the owner(s) of the defamatory speech or messages on the WWW.
    • John Doe law suits are applied when the real identities of the defendant parties are not known.
    • The plaintiff can demand from the ISP to reveal the identities of defendant(s). However, normally
      • Full First Amendment protection applies to communications on the Internet
      • Speakers have a First Amendment right to communicate anonymously
  • 10.
    • The plaintiff have to prove that s/he is seriously effected from libelious messages.
    • If court is convinced that the content of the messages had effected the plaintiff and malicious, then the judge give order to the related ISP to give identities.
    • Normally, ISPs do not have the right to reveal the identities of posters. To protect anonymity and to use the free speech right is one of the basic human rights in U.S constitution. But, in case of court order; the ISP has to define the real identities of message posters.
    To learn the identities of owners of defamatory speech….
  • 11.
    • The Responsibility of ISP;
      • Basic Roles of ISP:
        • Publisher: full responsibility from the content
        • Common Carrier: absolute immunity
        • Distributor: not subject to liability unless they have specific knowledge that they are transmitting defamatory material.
    • Legislation in U.S
      • In 1996, the US Congress adopted a rule virtually foreclosing the possibility of cyberlibel suits against ISPs. Section 230(c)(1) of the Communications Act offers broad immunity to ISPs, providing: No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
      • There is uniform agreement that the author of a statement is responsible for it.
        • Biomatrix Case: Yahoo is distributor: only ordered to give identities of posters
  • 12.
    • INTEREST OF AMICI CURIAE
      • Public Citizen is a public interest organization based in Washington, D.C., which has approximately 100,000 members, nearly 2000 of them in Arizona.
      • Public Citizen has urged citizens to speak out against abuses by a variety of large institutions, including corporations, government agencies, and unions, and it has advocated a variety of protections for the rights of consumers, citizens and employees to encourage them to do so
      • Public Citizen has represented Doe defendants or appeared as amicus curiae in several cases in which subpoenas have sought to identify anonymous posters on Internet bulletin boards or web sites
      • EFF (Ecomomic Frontier Foundation) and ACLU (American Civil Liberties Union) is particularly concerned with protecting the rights of individuals to speak anonymously, on the Internet or otherwise, and regularly advises and defends individuals around the country whose free speech rights are threatened
    ACLU roled as Amici Curiae in Biomatrix v. Costanza Case in order to balance the harm of Biomatirx and anonymity of BMX Police……..
  • 13. a court should
    • (1) provide notice to the potential defendant and an opportunity to defend his anonymity;
    • (2) require the plaintiff to specify the statements that allegedly violate its rights;
    • (3) review the complaint to ensure that it states a cause of action based on each statement and against each defendant;
    • (4) require the plaintiff to produce evidence supporting each element of its claims,
    • (5) balance the equities, weighing the potential harm to the plaintiff from being unable to proceed against the harm to the defendant from losing his right to remain anonymous, in light of the strength of the plaintiff’s evidence of wrongdoing.
  • 14. Other Laws on Freedom of Speech in Cyberspace
    • Global Online Freedom Act (2007)
      • Regulates the activities of e-businesses in terms of international rules and laws especially the considering “Internet Restricting Countries”
    • The Online Freedom of Speech Act (2005)
      • The Online Freedom of Speech Act is offered to amend federal election law to specifically exclude communications over the Internet from the definition of "public communication" for purposes of regulation in order to allow the growth and expansion of new voices in political process without interference.
    • Stored Communication Act
      • Title II of The Electronic Communications Privacy Act of 1986
      • communication held in electronic storage, most notably messages stored on computers
    • Computer Fraud and Abuse Act (1984)
      • intended to reduce "hacking" of computer systems
      • amended in 1994, 1996 and in 2001 by the USA PATRIOT Act
  • 15. Situation In EU
    • Supporters of Government Regulation
    • Declaration of Council of Europe Committee of Ministers a on freedom of communication on the Internet (28 MAY 2003)
        • Self-regulation or co-regulation: Member states should encourage self-regulation or co-regulation regarding content disseminated on the Internet.
    • European Commission: Illegal and harmful content on the Internet
    • “ The European Commission included the following statement in its recent report on the "harmful" content on the Internet”:
    • " Internet access providers and host service providers play a key role in giving users access to Internet content. The prime responsibility for content lies with authors and content providers.
    • It is therefore essential to identify accurately the chain of responsibilities in order to place the liability for illegal content on those who create it. "
    47 MEMBER STATES  
  • 16.
    • 47 MEMBER STATES  
    •   Albania (13.07.1995)
    • Andorra (10.11.1994)
    • Armenia (25.01.2001 )
    • Austria (16.04.1956)
    • Azerbaijan   (25.01.2001)
    • Belgium (05.05.1949)
    • Bosnia and Herzegovina (24.04.2002)
    • Bulgaria (07.05.1992)
    • Croatia (06.11.1996)
    • Cyprus (24.05.1961)
    • Czech Republic (30.06.1993)
    • Denmark (05.05.1949)
    • Estonia (14.05.1993)
    • Finland (05.05.1989)
    • France (05.05.1949)
    • Georgia (27.04.1999)
    • Germany (13.07.1950)
    • Greece (09.08.1949)
    • Hungary (06.11.1990)
    • Iceland (07.03.1950)
    • Ireland (05.05.1949)
    • Italy (05.05.1949)
    • Latvia (10.02.1995)
    • Liechtenstein (23.11.1978)
    • Lithuania (14.05.1993)
    • Luxembourg (05.05.1949)
    • Malta (29.04.1965)
    • Moldova (13.07.1995)
    • Monaco (05.10.2004)
    • Montenegro (11.05.2007)
    • Netherlands (05.05.1949)
    • Norway (05.05.1949)
    • Poland (26.11.1991)
    • Portugal (22.09.1976)
    • Romania (07.10.1993)
    • Russian Federation (28.02.1996)
    • San Marino (16.11.1988)
    • Serbia [*] (03.04.2003)
    • Slovakia (30.06.1993)
    • Slovenia (14.05.1993)
    • Spain (24.11.1977)
    • Sweden (05.05.1949)
    • Switzerland (06.05.1963) ”The former
    • Yugoslav Republic of Macedonia” (09.11.1995)
    • Turkey (09.08.1949)
    • Ukraine (09.11.1995)
    • United Kingdom (05.05.1949)
  • 17. Situation In EU
    • Service provider is not liable for the information transmitted, on condition that the provider:
    • does not initiate the transmission;
    • does not select the receiver of the transmission; and
    • does not select or modify the information contained in the transmission .
    • Service provider is not liable for the information stored at the request of a recipient of the service, on the condition that:
    • the provider does not have actual knowledge of the illegal activity or information
    • the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or disable access to the information.
  • 18. Situation in Turkey
    • Turkish Official Gazette on November 1, 2007
    • Compulsory for all commercial ISPs to take measures to prevent access to “illegal content”
    • Use government-approved filters to block users from visiting undesirable websites.
    • All commercial ISPs are now obliged to record details of all the websites visited by their subscribers and store the data for a period of at least one year.
    • Under the new ISP regulations, all subscribers to Internet services in Turkey
    • will have their Internet traffic monitored and recorded
    Freedom of Speech Privacy LAW (25) everyone is free in their thoughts in terms of freedom of speech . LAW (301) anyone who has a malicious saying about Turkish nationality, republic, Turkish National Assembly (TBMM), military or security is founded guilty and imprisoned between six months and three years. Monitoring Conflict between Madde 301 & Madde 25
  • 19. Ethical Theories In Society Than Anonymity Supporters Opponents It allows to hide those who have a malicious intend Gives support to freedom of speech Anonymity Free on Cyber Space
  • 20. Ethical Theories Ethical Distributive justice Deontology Teleology (Utilitarianism) Objectivism Unethical Ethical Guidelines
    • THE PROOF OF THEIR MALICIOUS INTEND
    • They exploited Yahoo`s registration procedures by registering several times under different names.
    • They crowd out from other participants by exploiting Yahoo`s procedure for posting messages.
    • Harm Principle:If the speech threatens to harm someone (the speaker not included) then society can suppress that speech in its own defense.(John S. Mill)
    Une thical
  • 21. Final Words:
    • Biomatrix V.Costanza is the first case in which the plaintiff won the case.
    • The former examples were won by the defendants and they continued to stay anonym in the cyberspace.
    • The decision is complex to figure out:
      • Whether the defendant is slanderer or s/he discharges a Civic Duty by informing the public
      • Whether the plaintiff is right or s/he wants to cover his/her harmful activities
      • These will be solved in accordance with the characteristics of specific cases.
      • What the general thing in which we agree with Mill is that:
    “… .best antidote to false speech is not censorship, that is less speech, but more speech out of which true speech will eventually emerge and prevail…” THANKS…