tag:theconversation.com,2011:/us/topics/lawsuit-25737/articleslawsuit – The Conversation2024-02-28T13:46:32Ztag:theconversation.com,2011:article/2240452024-02-28T13:46:32Z2024-02-28T13:46:32ZThree secrets to successful climate litigation<figure><img src="https://images.theconversation.com/files/577897/original/file-20240226-21-ys3jg7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The number of lawsuits related to climate justice is increasing</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/international-law-environment-green-world-gavel-2336992401">chayanuphol/Shutterstock</a></span></figcaption></figure><p>Courts around the world are handling an <a href="https://www.unep.org/news-and-stories/press-release/climate-litigation-more-doubles-five-years-now-key-tool-delivering">increasing number</a> of climate and environmental cases due to the urgent need to combat worsening warming and <a href="https://www.ipcc.ch/report/ar6/syr/downloads/report/IPCC_AR6_SYR_SPM.pdf">ecosystem destruction</a>. </p>
<p>As of December 2022, 2,180 climate-related cases had been filed in 65 jurisdictions, including international courts and tribunals, according to the UN’s 2023 <a href="https://www.unep.org/resources/report/global-climate-litigation-report-2023-status-review">global climate litigation report</a>. People and organisations – including communities, cities, environmental groups and young people concerned about their future – are bringing lawsuits against their governments. </p>
<p>Citizens want governments to take more effective climate action that protects their right to live in a clean, healthy and safe environment. Some lawsuits are successful, others fall by the wayside. </p>
<p>Flagship cases illustrate certain tactics which maximise the chance of a win. There are many community actions against governments currently being brought before the European Court of Human Rights. The outcomes are highly anticipated and three key aspects could inform how climate justice is approached from a legal perspective in the future.</p>
<h2>1. Make it personal</h2>
<p><a href="https://en.klimaseniorinnen.ch/">Senior Women for Climate Protection Switzerland</a> or <a href="https://climatecasechart.com/non-us-case/union-of-swiss-senior-women-for-climate-protection-v-swiss-federal-council-and-others/">KlimaSeniorinnen</a>, a group of women with an average age of 73, has taken the Swiss government to the <a href="https://www.reuters.com/world/europe/swiss-female-pensioners-vs-government-eu-courts-first-climate-case-2023-03-28/.">European Court of Human Rights</a>.</p>
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<iframe width="440" height="260" src="https://www.youtube.com/embed/yl9cnqUcy5k?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">From hot flushes to global heating, the Senior Women for Climate Protection Switzerland are serious about climate justice.</span></figcaption>
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<p>These women are longtime activists who have reduced greenhouse gas emissions in their daily lives. Filled with hope and determination, they aim to demonstrate that older people can be powerful and influential advocates for the climate, even if they may not be physically present in the future.</p>
<p>The women claim that Switzerland is not meeting its <a href="https://unfccc.int/process-and-meetings/the-paris-agreement">Paris agreement climate treaty</a> obligations to prevent global temperature rising above 1.5°C and has failed to <a href="https://www.euronews.com/green/2023/03/28/swiss-pensioners-vs-the-government-top-european-human-rights-court-to-hear-historic-climat">protect them</a> from the resulting severe health risks and <a href="https://magazine.hms.harvard.edu/articles/effects-heat-older-adults">increased mortality</a>. </p>
<p>The creation of harmonious laws that protect people from the effects of climate change is still a <a href="https://theconversation.com/international-law-doesnt-protect-people-fleeing-environmental-disaster-heres-how-it-could-198847">legal impasse</a>.
Nevertheless, the European Court of Human Rights will <a href="https://ennhri.org/wp-content/uploads/2021/09/Third-Party-Intervention-Klimaseniorinnen-_-website.pdf">review and analyse</a> the protection and recognition of the legal <a href="https://www.ohchr.org/en/instruments-mechanisms/instruments/declaration-basic-principles-justice-victims-crime-and-abuse#:%7E:text=%22Victims%22%20means%20persons%20who%2C,within%20Member%20States%2C%20including%20those">status of victimhood</a> (with this status, people can assert their legal rights for protection from the effects of climate change).</p>
<p>Once the court decides whether a violation has been made later in 2024, this case could help inform the development of a comprehensive international framework for safeguarding and protecting people from the effects of climate change.</p>
<h2>2. Amplify young voices</h2>
<p>Led by young people aged between 11 and 24, initiated by Claudia Duarte Agostinho, six Portuguese young people have argued that 32 governments have made insufficient climate targets. They say that this inaction at home and abroad is directly contributing to more frequent and severe <a href="https://www.politico.eu/article/five-countries-suffering-from-the-heat-wave-in-europe/">heatwaves in Portugal</a> and rapidly degrading the quality of life for <a href="https://climatecasechart.com/non-us-case/youth-for-climate-justice-v-austria-et-al/">younger generations</a>. They argue this violates their <a href="https://www.irishtimes.com/environment/climate-crisis/2023/09/27/climate-change-six-young-portuguese-people-take-32-european-countries-to-rights-court/">human rights</a>.</p>
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Read more:
<a href="https://theconversation.com/a-peruvian-farmer-is-trying-to-hold-energy-giant-rwe-responsible-for-climate-change-the-inside-story-of-his-groundbreaking-court-case-218408">A Peruvian farmer is trying to hold energy giant RWE responsible for climate change – the inside story of his groundbreaking court case</a>
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<p>Children are not typically viewed as capable or <a href="https://www.theguardian.com/environment/2023/oct/26/stop-locking-young-people-out-of-legal-process-in-climate-cases-say-experts">influential figures</a> in politics. But the recent surge in <a href="https://www.theguardian.com/environment/2022/oct/02/climate-crisis-young-people-activism-around-world">youth activism</a> proves that young people can push the limits of what has been traditionally considered to be within the scope of international human rights law. </p>
<h2>3. Face the future</h2>
<p>In 2021, Damien Careme, the former mayor of Grande-Synthe, a suburb of Dunkirk, France, filed a legal case against the <a href="https://climatecasechart.com/non-us-case/careme-v-france/">French government</a>. He alleges that the central government failed to fulfil its obligation to protect life by taking insufficient steps to prevent climate change. </p>
<p>Careme argues that he is directly affected by the government’s lack of action because this failure increases the risk that his home could be affected in years to come. This French case could mark an important development in climate litigation. </p>
<p>In 2015, Ioane Teitiota, a resident of the <a href="https://climatecasechart.com/non-us-case/ioane-teitiota-v-the-chief-executive-of-the-ministry-of-business-innovation-and-employment/">Pacific island Kiribati</a>, failed to demonstrate that the consequences of climate change were an imminent threat to his life and presented an individual concern. Other Pacific communities facing drastic sea level rise and extreme weather events have been calling for world leaders to take <a href="https://news.un.org/en/story/2023/09/1141267">urgent climate action</a>.</p>
<p>Careme hopes that the European Court will acknowledge that the failure to address climate change and its consequences violates peoples’ fundamental rights – this case is pivotal because it specifically highlights how he is being individually affected by the breach of these fundamental rights. If successful, this ruling will act as a precedent, not only in all member states of the council, but also globally.</p>
<h2>What’s next?</h2>
<p>A lack of trust is underlying all three of these cases. Canadians report low trust in government regarding climate change with less than 50% of people trusting their government on <a href="https://www.sciencedirect.com/science/article/pii/S0921800921000161#:%7E:text=Fewer%20than%2050%25%20of%20respondents,to%20each%20type%20of%20trust.">climate change issues</a>. Citizens don’t trust that their governments are taking enough action to <a href="https://www.eib.org/en/stories/climate-change-government-trust#:%7E:text=Our%20survey%2C%20however%2C%20shows%20a,country%20to%20hit%20its%20targets.">fight climate change</a>, according to European Investment Bank, whose annual climate survey shows 75% of EU citizens and 69% of UK citizens are more concerned about the climate crisis than they think <a href="https://www.eib.org/en/stories/climate-change-government-trust">their government is</a>. </p>
<p>Climate litigation can help to fill gaps in current legislation. Laws don’t cover whether a country’s inaction to take sufficient measures against climate change should be recognised as a violation of human rights or not. </p>
<p>It is expected that the ruling of these cases to trigger debate about state responsibility, human rights and climate change. Any judgements made by the European Court of Human Rights are binding on the countries concerned and could influence other cases. Hopefully, these results have the potential to pave the way for more courts to take into consideration the effects of climate change on people’ lives in the future. </p>
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<img alt="Imagine weekly climate newsletter" src="https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<p><strong><em>Don’t have time to read about climate change as much as you’d like?</em></strong>
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<p class="fine-print"><em><span>Morgiane Noel does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>As new climate-related cases are brought to court, our expert outlines key aspects that could change the legal landscape.Morgiane Noel, PhD Candidate, Migration, Climate Change, Human Rights, European Law and International Law, Trinity College DublinLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2154132023-10-12T15:42:16Z2023-10-12T15:42:16ZDetangling the roots and health risks of hair relaxers<figure><img src="https://images.theconversation.com/files/553298/original/file-20231011-17-pt1c1a.jpg?ixlib=rb-1.1.0&rect=4%2C16%2C1573%2C1029&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Sinclair Daniel plays Nella in 'The Other Black Girl', a horror-satire about the dangers of Black women's hair care products — something this week's podcast guest knows a lot about</span> <span class="attribution"><span class="source">(Wilfred Harwood/Hulu)</span></span></figcaption></figure><iframe height="200px" width="100%" frameborder="no" scrolling="no" seamless="" src="https://player.simplecast.com/e1cedb4b-f913-4e16-99f9-79aaed19a961?dark=true"></iframe>
<p>In this reflective and personal episode of <a href="https://dont-call-me-resilient.simplecast.com/episodes/detangling-the-roots-and-health-risks-of-hair-relaxers"><em>Don’t Call Me Resilient</em></a>, Prof. Cheryl Thompson of Toronto Metropolitan University and author of <a href="https://www.wlupress.wlu.ca/Books/B/Beauty-in-a-Box"><em>Beauty in a Box</em></a> untangles the wending history of hair relaxers for Black women — and the health risks now linked to them.</p>
<p>For decades, Black women have been using hair relaxers to help them “fit into” global mainstream workplaces and the European standards of beauty that <a href="https://www.glamour.com/story/the-crown-act-september-2020-cover-story">continue to dominate them</a>. More recently, research has <a href="https://doi.org/10.1093/jnci/djac165">linked these relaxers to cancer</a> and reproductive health issues — and a spate of <a href="https://www.thecut.com/article/hair-straightener-relaxers-cancer.html">lawsuits across the United States</a>, and at least <a href="https://www.cbc.ca/news/canada/british-columbia/black-hair-class-action-lawsuit-loreal-1.6721662">one in Canada</a>, have been brought by Black women against the makers of these relaxants.</p>
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<a href="https://images.theconversation.com/files/553319/original/file-20231011-27-nefrq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="The ad shows a Black woman in a red suit jacket, holding a phone: 'Was it her resume or Raveen.'" src="https://images.theconversation.com/files/553319/original/file-20231011-27-nefrq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/553319/original/file-20231011-27-nefrq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=864&fit=crop&dpr=1 600w, https://images.theconversation.com/files/553319/original/file-20231011-27-nefrq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=864&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/553319/original/file-20231011-27-nefrq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=864&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/553319/original/file-20231011-27-nefrq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1086&fit=crop&dpr=1 754w, https://images.theconversation.com/files/553319/original/file-20231011-27-nefrq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1086&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/553319/original/file-20231011-27-nefrq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1086&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">A vintage magazine ad for the ‘Raveen hair relaxer system,’ circa 1990.</span>
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<p>Prof. Thompson and I get into it: including her own relationship to using relaxers as a Black woman, the lawsuits and the wending history and relationship between these relaxants and Black women. We also — for obvious reasons — dip into <em>The Other Black Girl</em>, the novel that is also now a horror-satire streaming series about mind-controlling hair products. </p>
<h2>Read more in The Conversation</h2>
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Read more:
<a href="https://theconversation.com/black-canadian-women-artists-detangle-the-roots-of-black-beauty-109560">Black Canadian women artists detangle the roots of Black beauty</a>
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Read more:
<a href="https://theconversation.com/kinky-curly-hair-a-tool-of-resistance-across-the-african-diaspora-65692">Kinky, curly hair: a tool of resistance across the African diaspora</a>
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Read more:
<a href="https://theconversation.com/jada-pinkett-smith-and-black-womens-hair-history-of-disrespect-leads-to-the-crown-act-180631">Jada Pinkett Smith and Black women's hair: History of disrespect leads to the CROWN Act</a>
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Read more:
<a href="https://theconversation.com/whats-in-a-word-how-to-confront-150-years-of-racial-stereotypes-dont-call-me-resilient-153790">What's in a word? How to confront 150 years of racial stereotypes: Don't Call Me Resilient</a>
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<h2>Resources</h2>
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<img alt="" src="https://images.theconversation.com/files/553325/original/file-20231011-25-arojsy.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/553325/original/file-20231011-25-arojsy.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=770&fit=crop&dpr=1 600w, https://images.theconversation.com/files/553325/original/file-20231011-25-arojsy.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=770&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/553325/original/file-20231011-25-arojsy.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=770&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/553325/original/file-20231011-25-arojsy.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=968&fit=crop&dpr=1 754w, https://images.theconversation.com/files/553325/original/file-20231011-25-arojsy.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=968&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/553325/original/file-20231011-25-arojsy.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=968&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">A vintage magazine ad for Ultra Sheen, a hair product made by the Black-owned Johnson Products to cater to Black consumers, circa 1963.</span>
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<p><a href="https://doi.org/10.1093/jnci/djac165">Use of Straighteners and Other Hair Products and Incident Uterine Cancer</a> (<em>Journal of the National Cancer Institute</em>)</p>
<p><a href="https://www.washingtonpost.com/nation/2022/10/27/loreal-lawsuit-hair-straightener-relaxer/">“She was diagnosed with cancer at 28. Her lawsuit blames hair relaxers”</a> (<em>Washington Post</em>)</p>
<p><a href="https://www.wlupress.wlu.ca/Books/B/Beauty-in-a-Box"><em>Beauty in a Box: Detangling the Roots of Canada’s Black Beauty Culture</em></a> by Cheryl Thompson</p>
<p><a href="https://www.washingtonpost.com/world/the_americas/black-brazilians-are-ditching-hair-straighteners-and-white-standards-of-beauty/2018/06/18/25499a0e-6d8c-11e8-b4d8-eaf78d4c544c_story.html">“Black Brazilians are ditching hair straighteners and white standards of beauty”</a> (<em>Washington Post</em>)</p>
<h2>Listen and follow</h2>
<p>You can listen to or follow <em>Don’t Call Me Resilient</em> on <a href="https://podcasts.apple.com/ca/podcast/dont-call-me-resilient/id1549798876">Apple Podcasts</a>, <a href="https://open.spotify.com/show/37tK4zmjWvq2Sh6jLIpzp7">Spotify</a>, <a href="https://www.youtube.com/playlist?list=PL_mJBLBznANz6ID9rBCUk7gv_ZRC4Og9-">YouTube</a> or wherever you listen to your favourite podcasts. </p>
<p><a href="mailto:DCMR@theconversation.com">We’d love to hear from you</a>, including any ideas for future episodes. Join The Conversation on <a href="https://twitter.com/ConversationCA">Twitter</a>, <a href="https://www.instagram.com/dontcallmeresilientpodcast/">Instagram</a> and <a href="https://www.tiktok.com/@theconversation">TikTok</a> and use #DontCallMeResilient.</p>
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<figcaption><span class="caption">The trailer for ‘The Other Black Girl’ (Hulu/Disney)</span></figcaption>
</figure><img src="https://counter.theconversation.com/content/215413/count.gif" alt="The Conversation" width="1" height="1" />
In this episode, Cheryl Thompson, author of ‘Beauty in a Box,’ untangles the roots of hair relaxers for Black women and discusses their potential health dangers and resulting hundreds of lawsuits.Vinita Srivastava, Host + Producer, Don't Call Me ResilientDannielle Piper, Associate Producer, Don't Call Me Resilient, The ConversationLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2092272023-07-06T23:57:55Z2023-07-06T23:57:55ZTwo authors are suing OpenAI for training ChatGPT with their books. Could they win?<figure><img src="https://images.theconversation.com/files/536051/original/file-20230706-20-omw1kb.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C7360%2C4902&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>Imagine you read a book. You commit details of the book to memory and ruminate on the ideas contained in it. </p>
<p>Somebody then asks you a question about the book. You provide them with a written response. </p>
<p>Would you be surprised if the author of the book tried to sue you for copyright infringement?</p>
<p>OpenAI is facing exactly this situation.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/536054/original/file-20230706-16-j1jo6g.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/536054/original/file-20230706-16-j1jo6g.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/536054/original/file-20230706-16-j1jo6g.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=900&fit=crop&dpr=1 600w, https://images.theconversation.com/files/536054/original/file-20230706-16-j1jo6g.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=900&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/536054/original/file-20230706-16-j1jo6g.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=900&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/536054/original/file-20230706-16-j1jo6g.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1131&fit=crop&dpr=1 754w, https://images.theconversation.com/files/536054/original/file-20230706-16-j1jo6g.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1131&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/536054/original/file-20230706-16-j1jo6g.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1131&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Mona Awad is suing OpenAI.</span>
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<p>Authors Mona Awad (<a href="https://www.bloomsbury.com/au/bunny-9781788545440/">Bunny</a>, <a href="https://www.bloomsbury.com/au/13-ways-of-looking-at-a-fat-girl-9781788549684/">13 Ways of Looking at a Fat Girl</a>) and Paul Tremblay (<a href="https://www.goodreads.com/en/book/show/36381091">The Cabin at the End of the World</a>), <a href="https://www.cnbc.com/2023/07/05/authors-sue-openai-allege-chatgpt-was-trained-on-their-books.html">filed a lawsuit</a> against OpenAI last week, claiming the books were used to train ChatGPT, its artificial intelligence software, without their consent.</p>
<p>It is the first lawsuit against ChatGPT that concerns copyright, The Guardian <a href="https://www.theguardian.com/books/2023/jul/05/authors-file-a-lawsuit-against-openai-for-unlawfully-ingesting-their-books">reported</a>.</p>
<p>The only difference from the scenario I’ve outlined is that instead of a human reading a book, OpenAI is accused of allowing its AI program to copy a book to its internal database and train on it.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/chatgpt-is-confronting-but-humans-have-always-adapted-to-new-technology-ask-the-mesopotamians-who-invented-writing-199184">ChatGPT is confronting, but humans have always adapted to new technology – ask the Mesopotamians, who invented writing</a>
</strong>
</em>
</p>
<hr>
<h2>What’s the lawsuit’s chance of success?</h2>
<p>OpenAI is a large language model (LLM). These LLMs train on data in the form of written works in order to provide natural language responses to prompts. </p>
<p>The basis of the lawsuit is that OpenAI trained itself on their novels and produced accurate summaries of their works when prompted. </p>
<p>Notably, <a href="https://llmlitigation.com/pdf/03223/tremblay-openai-complaint.pdf">the lawsuit</a> does not specify which specific parts of Awad and Tremblay’s novels have been unlawfully copied and reproduced in the summaries.</p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/536055/original/file-20230706-23-ka0glf.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/536055/original/file-20230706-23-ka0glf.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/536055/original/file-20230706-23-ka0glf.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=912&fit=crop&dpr=1 600w, https://images.theconversation.com/files/536055/original/file-20230706-23-ka0glf.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=912&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/536055/original/file-20230706-23-ka0glf.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=912&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/536055/original/file-20230706-23-ka0glf.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1146&fit=crop&dpr=1 754w, https://images.theconversation.com/files/536055/original/file-20230706-23-ka0glf.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1146&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/536055/original/file-20230706-23-ka0glf.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1146&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
</figcaption>
</figure>
<p>The lawsuit <a href="https://news.bloomberglaw.com/ip-law/openai-facing-another-copyright-suit-over-ai-training-on-novels">alleges</a> OpenAI uses “shadow libraries” that illegally publish thousands of copyrighted works (using torrent systems). Their claim <a href="https://news.bloomberglaw.com/ip-law/openai-facing-another-copyright-suit-over-ai-training-on-novels">is based</a> on a 2020 paper by OpenAI that reveals 15% of their training dataset comes from “two internet-based books corpora.” </p>
<p>But the lawsuit faces some immediate hurdles.</p>
<p>The litigants will need to prove that OpenAI most likely copied their works. They will also need to demonstrate the likelihood of some economic loss. Crucially, copyright protection does not extend to ideas.</p>
<p>Copyright protection is limited to written expression. And though copying something to a database might be an act of infringement, that act alone is unlikely to cause significant harm to the economic interests of the authors.</p>
<p>The real danger is that OpenAI can do some of the things human authors can do.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/replacing-news-editors-with-ai-is-a-worry-for-misinformation-bias-and-accountability-208196">Replacing news editors with AI is a worry for misinformation, bias and accountability</a>
</strong>
</em>
</p>
<hr>
<h2>How does Australian law apply?</h2>
<p>OpenAI is just the first generation of what this technology looks like. No doubt, many authors (and other creative producers) are starting to wonder what will happen when OpenAI and similar technologies evolve. </p>
<p><a href="https://www.britannica.com/technology/Moores-law">Moore’s Law</a>, a calculation that estimates the capacity of digital technology doubles roughly every two years, suggests the rate of this development might be exponential.</p>
<p>What would happen if a similar claim was raised in Australia? Would <a href="https://theconversation.com/explainer-what-is-fair-dealing-and-when-can-you-copy-without-permission-80745">our fair dealing laws</a> step in and protect the development of technology – or would our law side with the authors?</p>
<p>The United States has the doctrine of fair use in its copyright laws. </p>
<p>In the past, fair use has been used to draw a balance between new technologies and established copyright interests. The Sony video cassette recorder case is a famous example. </p>
<p>In the Sony case, a majority of the US Supreme Court permitted homeowners to record their favourite television shows and watch them later, so long as they didn’t keep the recordings. (By comparison, Australia didn’t <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/num_act/caa2006213/sch6.html">legalise this</a> until 2006.)</p>
<p>Fair use also allowed the rap group 2-Live Crew to radically <a href="https://www.youtube.com/watch?v=65GQ70Rf_8Y">rework and parody</a> Roy Orbison’s song Pretty Woman. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/536057/original/file-20230706-21-6ho7f4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/536057/original/file-20230706-21-6ho7f4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/536057/original/file-20230706-21-6ho7f4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/536057/original/file-20230706-21-6ho7f4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/536057/original/file-20230706-21-6ho7f4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/536057/original/file-20230706-21-6ho7f4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/536057/original/file-20230706-21-6ho7f4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/536057/original/file-20230706-21-6ho7f4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Sony case, in which the US Supreme Court allowed homeowners to record shows from the television, is a famous example of fair use adapting to technology.</span>
<span class="attribution"><span class="source">Cottonbro Studio/Pexels</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>Australia has effectively put the essence of some fair use decisions into its <a href="https://www.legislation.gov.au/Details/C2019C00042">Copyright Act</a>. The Australian Copyright Act contains provisions on time-shifting and fair dealing for parody. </p>
<p>Yet, Australia has repeatedly declined to house fair use within its law. </p>
<p>Instead, we rely upon its unwieldy cousin, known as the doctrine of fair dealing.
A claim like the one Mona Awad and Paul Tremblay are making against OpenAI would likely fail in Australia. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/explainer-what-is-fair-dealing-and-when-can-you-copy-without-permission-80745">Explainer: what is 'fair dealing' and when can you copy without permission?</a>
</strong>
</em>
</p>
<hr>
<h2>Ideas are not protected</h2>
<p>Like the United States, Australian law protects tangible expression, but not ideas. People need to be free to use ideas in subsequent works.</p>
<p>Much the same logic should apply to large-language models such as OpenAI. </p>
<p>And a formidable barrier emerges in the bedrock ideas of copyright law. </p>
<p>Copyright was conceived and refined in an era when writing and copying were done by human beings. This means the fundamental concepts within the law relating to subsistence (proving a work’s continued existence), infringement and exceptions are human-centric.</p>
<p>This is quite a mountain to climb in any copyright litigation. If a human actor has not committed an act of infringement, it might be hard to find another human liable – even though an author might feel aggrieved.</p>
<p>Nevertheless, the base problem is that Australian law does not house an open-ended legal rule like fair use, which can draw a fine balance between technology and authors. </p>
<p>And we are yet to have the policy debate here about how we will manage the looming conflict between rapidly advancing technologies and authors who depend on their writing for their livelihoods. </p>
<p>The OpenAI litigation might well fail. But it is just the first salvo in a major AI-driven groundshift in copyright.</p><img src="https://counter.theconversation.com/content/209227/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dilan Thampapillai does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Mona Awad and Paul Tremblay’s lawsuit claims their books were used without their consent. But copyright protection doesn’t apply to ideas – they’ll need to demonstrate the likelihood of economic loss.Dilan Thampapillai, Associate Professor, University of New South Wales, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2059452023-05-19T04:09:49Z2023-05-19T04:09:49ZPenguin Random House, PEN America, authors and parents sue Florida county for removing books on race and LGBTQ themes<figure><img src="https://images.theconversation.com/files/527152/original/file-20230519-25-ufh7u8.jpg?ixlib=rb-1.1.0&rect=5%2C5%2C3948%2C2626&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A banned books display in a US bookshop</span> <span class="attribution"><span class="source">Ted Shaffrey/AP</span></span></figcaption></figure><p>A new <a href="https://pen.org/wp-content/uploads/2023/05/1-Complaint.pdf">lawsuit</a> against a Florida school board marks a “first-of-its-kind challenge to <a href="https://pen.org/press-release/pen-america-files-lawsuit-against-florida-school-district-over-unconstitutional-book-bans/">unlawful censorship</a>”. </p>
<p>On May 17, the world’s largest English-language publisher, <a href="https://www.penguinrandomhouse.com/">Penguin Random House</a>, free-speech organisation <a href="https://pen.org/">PEN America</a>, five authors (including bestselling queer YA author <a href="https://www.textpublishing.com.au/books/two-boys-kissing">David Levithan</a>) and two parents joined forces. </p>
<p>Their lawsuit claims Florida’s Escambia County School Board has “<a href="https://pen.org/press-release/pen-america-files-lawsuit-against-florida-school-district-over-unconstitutional-book-bans/">unlawfully</a>” removed or restricted books about “race, racism and LGBTQ identities”, and those by non-white and/or LGBTQ authors. </p>
<p>“The School District and the School Board have done so based on their disagreement with the ideas expressed in those books,” reads the lawsuit.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/527157/original/file-20230519-23-hgzees.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/527157/original/file-20230519-23-hgzees.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/527157/original/file-20230519-23-hgzees.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=928&fit=crop&dpr=1 600w, https://images.theconversation.com/files/527157/original/file-20230519-23-hgzees.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=928&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/527157/original/file-20230519-23-hgzees.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=928&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/527157/original/file-20230519-23-hgzees.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1166&fit=crop&dpr=1 754w, https://images.theconversation.com/files/527157/original/file-20230519-23-hgzees.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1166&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/527157/original/file-20230519-23-hgzees.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1166&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">David Levithan’s Two Boys Kissing is one of the impacted books.</span>
</figcaption>
</figure>
<p>It argues the book removals (and/or restricted access to books), against the recommendations of the district review committee charged with evaluating book challenges, violate the <a href="https://www.whitehouse.gov/about-the-white-house/our-government/the-constitution/#:%7E:text=The%20First%20Amendment%20provides%20that,for%20a%20redress%20of%20grievances.">First Amendment</a>, which protects freedom of speech. It also argues school officials violated the Equal Protection clause of the <a href="https://edition.cnn.com/2021/01/11/politics/14th-amendment-explainer/index.html">14th amendment</a>.</p>
<p>Nearly 200 books have been targeted in the district in the past year, according to <a href="https://docs.google.com/spreadsheets/d/1hv6Wtu55zY3t5bmbksY2ie7Q-L3zAQdjrtaFh4duLC4/edit#gid=0">publicly available information</a>. CNN <a href="https://edition.cnn.com/2023/05/17/us/florida-escambia-county-school-district-book-bans-lawsuit/index.html">reports</a> that more than half of those titles have been placed under restricted access and require parental permission during the review process, and 16 books have been either removed from all libraries or made only available for certain grades.</p>
<p>The lawsuit asks for books to be returned to school library shelves, “where they belong”.</p>
<p>PEN America CEO Suzanne Nossel says the book removals are “a deliberate attempt to suppress diverse voices”.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/guess-what-mem-foxs-childrens-book-was-banned-in-florida-over-nudity-but-bathing-is-not-a-sexual-act-205657">Guess What? Mem Fox’s children's book was banned in Florida over 'nudity' – but bathing is not a sexual act</a>
</strong>
</em>
</p>
<hr>
<h2>A history of underrepresentation</h2>
<p>Children’s books about people of colour have historically been disproportionately underrepresented across Western countries, including the UK and Australia. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/527155/original/file-20230519-27-24y32n.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/527155/original/file-20230519-27-24y32n.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/527155/original/file-20230519-27-24y32n.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=596&fit=crop&dpr=1 600w, https://images.theconversation.com/files/527155/original/file-20230519-27-24y32n.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=596&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/527155/original/file-20230519-27-24y32n.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=596&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/527155/original/file-20230519-27-24y32n.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=750&fit=crop&dpr=1 754w, https://images.theconversation.com/files/527155/original/file-20230519-27-24y32n.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=750&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/527155/original/file-20230519-27-24y32n.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=750&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
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</figure>
<p>A <a href="https://clpe.org.uk/research/clpe-reflecting-realities-survey-ethnic-representation-within-uk-childrens-literature-0">UK survey</a> found that only ten percent of children’s books feature Black, Asian or minority ethnic characters, and just five percent have such a protagonist. This percentage shows a clear underrepresentation of children from minority ethnic backgrounds, who account for <a href="https://explore-education-statistics.service.gov.uk/find-statistics/school-pupils-and-their-characteristics">34.5 percent</a> of UK school children. </p>
<p>Similarly, <a href="https://theconversation.com/childrens-books-must-be-diverse-or-kids-will-grow-up-believing-white-is-superior-140736">Australian research</a> from 2020 shows “First Nations groups are commonly absent from children’s books.” As stated by researchers at Edith Cowan University:</p>
<blockquote>
<p>A world of children’s books dominated by white authors, white images and white male heroes, creates a sense of white superiority. This is harmful to the worldviews and identities of all children.</p>
</blockquote>
<p>This speaks to the idea of “windows and mirrors”, a term first coined by <a href="https://scenicregional.org/wp-content/uploads/2017/08/Mirrors-Windows-and-Sliding-Glass-Doors.pdf">Dr Rudine Sims Bishop</a> in 1990, in reference to the lack of people of colour in children’s literature. Bishop argues children need both windows (the ability to see others) and mirrors (the ability to see themselves) in their books. She writes:</p>
<blockquote>
<p>When children cannot find themselves reflected in the books they read […] they learn a powerful lesson about how they are devalued in the society of which they are a part.</p>
</blockquote>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/childrens-books-must-be-diverse-or-kids-will-grow-up-believing-white-is-superior-140736">Children's books must be diverse, or kids will grow up believing white is superior</a>
</strong>
</em>
</p>
<hr>
<h2>Censoring LGBTQ themes</h2>
<p>Books by LGBTQ authors or covering LGBTQ themes have a long history of censorship. One of the first picture books to show same-sex parents, <a href="https://www.penguinrandomhouse.com/books/249466/heather-has-two-mommies-by-leslea-newman/">Heather Has Two Mommies</a>, has faced many challenges since its original publication in 1989. <a href="https://edition.cnn.com/2015/03/24/living/feat-heather-has-two-mommies-leslea-newman/index.html">These include</a> protests, 42 attempts to remove the book from American schools and libraries, and even book burnings. </p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/527158/original/file-20230519-22-939te3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/527158/original/file-20230519-22-939te3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/527158/original/file-20230519-22-939te3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=463&fit=crop&dpr=1 600w, https://images.theconversation.com/files/527158/original/file-20230519-22-939te3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=463&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/527158/original/file-20230519-22-939te3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=463&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/527158/original/file-20230519-22-939te3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=582&fit=crop&dpr=1 754w, https://images.theconversation.com/files/527158/original/file-20230519-22-939te3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=582&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/527158/original/file-20230519-22-939te3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=582&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
</figcaption>
</figure>
<p>More recently, the picture book <a href="https://www.simonandschuster.com/books/And-Tango-Makes-Three/Justin-Richardson/9781481446952">And Tango Makes Three</a>, which tells the true story of two male penguins who raise a chick together at Central Park Zoo, has met similar challenges. The book featured on the American Library Association’s <a href="https://www.ala.org/advocacy/bbooks/frequentlychallengedbooks/top10/archive">Top Ten Most Challenged Book List</a> eight times from 2006 to 2017 for depicting same-sex parents, and is “one of the <a href="https://www.theguardian.com/books/2018/sep/23/from-pornography-to-winnie-the-pooh-juno-dawson-picks-books-that-were-banned">most challenged books</a> of all time”. </p>
<p>In Australia, the 2015 picture book <a href="https://captainhoney.com.au/portfolio_page/mummy-and-mumma-get-married/">Mummy and Mumma Get Married</a> was questioned over its “<a href="https://neoskosmos.com/en/2016/05/25/features/reactions-to-australias-first-childrens-picture-book-about-same-sex-marriage/">appropriateness</a>” for school libraries. Although seen by some as controversial, the book was largely positively received. However, some Catholic schools <a href="https://www.theguardian.com/books/2016/feb/17/this-is-australias-first-picture-book-about-same-sex-parenting-why-did-it-take-so-long">refused donations</a> of the book to their school libraries.</p>
<p>Queer Australian YA author Will Kostakis’s latest novel, <a href="https://www.allenandunwin.com/browse/book/Will-Kostakis-We-Could-Be-Something-9781761180170/">We Could Be Something</a>, is a “part coming-out story”. He <a href="https://twitter.com/willkostakis/status/1659334042469408769">recently shared</a> that when visiting religious schools as an author, he’s sometimes cautioned not to talk about his work if staff haven’t read (and presumably vetted) it first. He believes there’s a link to the current US culture wars.</p>
<p>“We can feel smug about the fact we don’t have politicised school books in Australia, but this move to ‘protect’ kids from queerness is bleeding into Australia,” he told me.</p>
<p>“We see it in the threats and intimidation that has seen drag storytime events be cancelled. We see it in schools, where teacher librarians who build collections that feature books that speak to current teen experiences, some of them queer, fear that one parent who might complain about content.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/527153/original/file-20230519-21-vpo3sl.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/527153/original/file-20230519-21-vpo3sl.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/527153/original/file-20230519-21-vpo3sl.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=360&fit=crop&dpr=1 600w, https://images.theconversation.com/files/527153/original/file-20230519-21-vpo3sl.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=360&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/527153/original/file-20230519-21-vpo3sl.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=360&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/527153/original/file-20230519-21-vpo3sl.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=452&fit=crop&dpr=1 754w, https://images.theconversation.com/files/527153/original/file-20230519-21-vpo3sl.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=452&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/527153/original/file-20230519-21-vpo3sl.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=452&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Australian queer YA author Will Kostakis says this move to ‘protect’ kids from queerness is ‘bleeding into Australia’.</span>
</figcaption>
</figure>
<p>A recurring theme in response to Mummy and Mumma, as well as other LGBTQ books, is the idea children needed to be “taught” about same-sex parented families at a specific, appropriate age. </p>
<p>Conversely, heteronormative relationships are not seen as something that needs teaching, or left for discussion until a child is “old enough to understand”. Rather, as the default “norm”, heteronormativity is something children are exposed to from birth <a href="https://textjournal.scholasticahq.com/article/23707-out-of-sight-the-censoring-of-family-diversity-in-picture-books">without explanation</a>. </p>
<p>This “<a href="https://www.academia.edu/42880288/Resisting_Gentle_Bias_A_Critical_Content_Analysis_of_Family_Diversity_in_Picturebooks">heterosexism</a>” can prevent children with heterosexual parents from acknowledging – or understanding – that same sex parented families are “real” families.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/5-books-for-kids-and-teens-that-positively-portray-trans-and-gender-diverse-lives-202832">5 books for kids and teens that positively portray trans and gender-diverse lives</a>
</strong>
</em>
</p>
<hr>
<h2>Left and right argue against ‘indoctrination’</h2>
<p>According to research by PEN America, there has been a significant rise in educational gag orders and book bans in America in the past two years. <a href="https://pen.org/report/americas-censored-classrooms/">Gag orders</a> refer to state legislature restrictions on topics like “race, gender, American history and LGBTQ identities” being taught in schools. </p>
<p>Such restrictions have become law in 16 states, though 306 gag order bills have (so far) been introduced across 45 states. Meanwhile, 32 states (5,049 schools) currently have some form of book banning in place in school libraries. PEN America argues such censorship “imposes ideological control over the freedom to read, learn, and think”.</p>
<p>Conversely, Florida Governor Ron DeSantis claims reports of book banning in Florida are a “<a href="https://www.flgov.com/2023/03/08/governor-ron-desantis-debunks-book-ban-hoax/#:%7E:text=%E2%80%94%20Today%2C%20Governor%20Ron%20DeSantis%20further,History%2C%20including%20topics%20like%20slavery">leftist hoax</a>”. He argues the “mainstream media, unions and leftist activists” are trying to indoctrinate students, and that books with “pornographic content and other types of violent and age-inappropriate content” have been identified in 23 school districts across Florida. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/527161/original/file-20230519-23-e904y9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/527161/original/file-20230519-23-e904y9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/527161/original/file-20230519-23-e904y9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/527161/original/file-20230519-23-e904y9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/527161/original/file-20230519-23-e904y9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/527161/original/file-20230519-23-e904y9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/527161/original/file-20230519-23-e904y9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/527161/original/file-20230519-23-e904y9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Ron De Santis has complained of book bannings as a ‘leftist hoax’.</span>
<span class="attribution"><span class="source">Douglas R Clifford/AP</span></span>
</figcaption>
</figure>
<p>In response to book banning allegations, he claims “harmful materials” are being removed from Florida schools to ensure students are provided with “a quality education free from sexualization”. </p>
<p>This is echoed by Florida Commissioner of Education, Manny Diaz Jr., <a href="https://www.flgov.com/2023/03/08/governor-ron-desantis-debunks-book-ban-hoax/">who said</a>:</p>
<blockquote>
<p>Education is about the pursuit of truth, not woke indoctrination […] Under Governor DeSantis, Florida is committed to rigorous academic content and high standards so that students learn how to think and receive the tools necessary to go forth and make great decisions.</p>
</blockquote>
<p>This directly contradicts the argument made by the lawsuit against Escambia County, which states:</p>
<blockquote>
<p>Ensuring that students have access to books on a wide range of topics and expressing a diversity of viewpoints supports a core function of public education, preparing students to be thoughtful and engaged citizens.</p>
</blockquote>
<p>It appears both sides are fighting against indoctrination – but fundamentally disagree on what it is.</p>
<h2>What the research tells us</h2>
<p>Representation is vital in children’s literature. Restricting diverse voices and stories is an issue with far-reaching consequences. Research shows that a child’s ability to “see themselves” in books has a wealth of educational and emotional benefits. </p>
<p>It helps <a href="https://scholarworks.wmich.edu/cgi/viewcontent.cgi?article=1929&context=reading_horizons">connect them</a> to the world, validates their <a href="https://www.proquest.com/docview/1437629608?pq-origsite=gscholar&fromopenview=true">personal experiences</a>, forges positive <a href="https://fisherpub.sjf.edu/cgi/viewcontent.cgi?article=1315&context=education_ETD_masters">social connections</a> – and even helps them do better in <a href="https://fisherpub.sjf.edu/cgi/viewcontent.cgi?article=1315&context=education_ETD_masters">school</a>. </p>
<p>As the World of Difference Institute <a href="https://www.proquest.com/docview/1437629608?pq-origsite=gscholar&fromopenview=true">explains</a>:</p>
<blockquote>
<p>Books are mirrors in which children can see themselves. When they are represented in the literature we read, they can see themselves as valuable and worthy of notice.</p>
</blockquote><img src="https://counter.theconversation.com/content/205945/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sarah Mokrzycki does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Differences over what counts as indoctrination lie behind a first-of-its-kind lawsuit in Florida. PEN America’s CEO deems book removals ‘a deliberate attempt to suppress diverse voices’.Sarah Mokrzycki, Lecturer, children's literature and creative writing, Victoria UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1911462022-09-21T23:58:48Z2022-09-21T23:58:48ZNew York’s $250 million lawsuit against Donald Trump is the beginning, not end, of this case – a tax lawyer explains what’s at stake<figure><img src="https://images.theconversation.com/files/485999/original/file-20220921-23-khyuk0.jpg?ixlib=rb-1.1.0&rect=231%2C378%2C6783%2C4196&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">New York Attorney General Letitia James announced a $250 million lawsuit against former president Donald Trump on Sept. 21, 2022 .</span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/attorney-general-letitia-james-speaks-during-a-press-conference-at-picture-id1425941143">Michael M. Santiago/Getty Images </a></span></figcaption></figure><p><em>New York Attorney General Letitia James hit former president Donald Trump with a <a href="https://www.nytimes.com/live/2022/09/21/nyregion/trump-fraud-lawsuit-ny-james">US$250 million lawsuit</a> on Sept. 21, 2022, citing “staggering” amounts of falsified business information and fraud.</em></p>
<p><em>The civil lawsuit alleges that Trump, his company – the <a href="https://www.trump.com">Trump Organization</a> – and three of his children lied to lenders and insurers about billions of dollars’ worth of assets. This follows a <a href="https://www.vanityfair.com/news/2022/08/letitia-jamess-trump-investigation-is-nearing-its-endgame">three-year investigation </a> into Trump’s New York-based real estate business.</em></p>
<p><em>The Conversation spoke with <a href="https://scholar.google.com/citations?user=iGSWDoAAAAAJ&hl=en&oi=ao">Bridget J. Crawford,</a> an expert on tax and property law at Pace University, to help navigate the various dimensions and the potentially broader, criminal implications of this lawsuit.</em></p>
<h2>What are Trump and his children accused of in the lawsuit?</h2>
<p>The complaint is over <a href="https://ag.ny.gov/press-release/2022/attorney-general-james-sues-donald-trump-years-financial-fraud">200 pages long</a> and contains many specific claims. But, at its heart, the complaint says the Trump Organization made false financial or business statements in order to get loans or to keep those loans on favorable terms, in a way that was dishonest or fraudulent. </p>
<figure class="align-center ">
<img alt="Vehicles pass the Trump Park Avenue building on a sunny day." src="https://images.theconversation.com/files/485984/original/file-20220921-24-c6n5wh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/485984/original/file-20220921-24-c6n5wh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/485984/original/file-20220921-24-c6n5wh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/485984/original/file-20220921-24-c6n5wh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/485984/original/file-20220921-24-c6n5wh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/485984/original/file-20220921-24-c6n5wh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/485984/original/file-20220921-24-c6n5wh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Trump Park Avenue – just how much is it worth?</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/TrumpLegalTroubles/a2f0eeeced6e4692ad28139ee0bfbf37/photo?Query=Trump%20Park%20Avenue&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=29&currentItemNo=0">AP Photo/Frank Franklin II</a></span>
</figcaption>
</figure>
<p>Trump didn’t allegedly overestimate the cost of buildings, which is a technical term, but rather he is accused of inflating the value of certain businesses and properties. </p>
<h2>How does overstating the value of properties help Trump?</h2>
<p>Banks want to make loans to people who are likely to be able to repay them. And how does the bank measure whether someone is likely to repay? It’s knowing the recipient of a loan has enough collateral to satisfy the bank’s concerns. Trump said he had collateral worth a certain amount. James is saying that the values are really wrong, and really wrong over a period of years, in multiple different filings. Moreover, the lawsuit says this is not just a mistake, or an, ‘Oops I got it wrong.’ Rather, the attorney general alleges a systematic pattern of fraud. </p>
<h2>What should we make of this being a civil, not criminal, action?</h2>
<p>James is bringing a lawsuit regarding the Trump Organization’s compliance with <a href="https://www.nysenate.gov/legislation/laws/CVP">New York’s civil laws</a>, meaning business and lending laws and the like – hence it is a civil suit. </p>
<p>That said, James made clear that she has also referred certain matters to both the IRS and to the federal prosecutors in the Southern District of New York for criminal investigation.</p>
<p>So this being a civil lawsuit does not mean we won’t potentially see criminal charges further down the line. Just, at this point, the New York attorney general is focused on the civil law violations. </p>
<p>In other words, this could be just the beginning of a longer story. </p>
<h2>What does the lawsuit demand in way of relief?</h2>
<p>This is where it gets interesting, I believe. James is calling for very dramatic relief, including permanently preventing Trump, along with three of his children – Donald Trump Jr., Eric Trump and Ivanka Trump – from serving as a director or officer of any corporation conducting business activities in New York. It could preclude them from having any formal business ties in New York. This would be a severe blow to the family’s business interests.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/485998/original/file-20220921-26-9jazmu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A group of people dressed in formal, dark clothing stand in front of white steps" src="https://images.theconversation.com/files/485998/original/file-20220921-26-9jazmu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/485998/original/file-20220921-26-9jazmu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=480&fit=crop&dpr=1 600w, https://images.theconversation.com/files/485998/original/file-20220921-26-9jazmu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=480&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/485998/original/file-20220921-26-9jazmu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=480&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/485998/original/file-20220921-26-9jazmu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=603&fit=crop&dpr=1 754w, https://images.theconversation.com/files/485998/original/file-20220921-26-9jazmu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=603&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/485998/original/file-20220921-26-9jazmu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=603&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Former president Donald Trump and four of his children are seen at Ivana Trump’s funeral in July 2022 in New York.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/donald-trump-melania-trump-barron-trump-jared-kushner-kimberly-picture-id1242030390">Jose Perez/Bauer-Griffin/GC Images</a></span>
</figcaption>
</figure>
<h2>How would an IRS investigation differ from the New York one?</h2>
<p>It would be about federal tax laws, in particular. <a href="https://www.irs.gov/compliance/criminal-investigation">The IRS will</a> be looking for an answer to this question: “Did Trump overstate the valuation of any property he gave to charity?” The New York attorney general is concerned that he did.</p>
<p>The possible overvaluation relates to two different properties in Westchester, a county outside of New York City, and in Florida. What is at issue for the IRS is whether Trump correctly claimed the proper deduction, or whether he overstated, in a fraudulent way, the value of what he gave to charity. An overstatement of what he gave away would mean that the former president took a bigger income tax deduction than the one he was entitled to. Again, this is not just a matter of, “Oops, I made a mistake.” The attorney general alleges a widespread and longstanding pattern of misrepresentation of business values.</p>
<p>By handing this part of the investigation over to the IRS, the New York attorney general is signaling that she intends to stay in her lane, so to speak. James is basically saying, “I am talking about fair business practices in New York. If there is a tax issue, I am referring it over to the IRS.”</p>
<p>But all of the issues grow out of the same core set of facts and practices – how is the Trump family valuing its businesses and properties, and is it being done in a way that is honest?</p>
<h2>Does the lawsuit increase the chances of criminal charges?</h2>
<p>It certainly increases the possibility there might be criminal charges in the future. It also fans the flames that Trump continues to stoke in claiming that he is being unfairly targeted, which appears to be part of his attempt to discredit the American legal system. In fact, he is being asked to play by the same rules that apply to everyone else.</p>
<p>I will be very interested to see whether and how the IRS responds – the IRS strives to be an apolitical organization, but unfortunately, anything involving this particular former president is treated by a vocal minority as inherently political. </p>
<h2>How common is it for this type of lawsuit to happen?</h2>
<p>It is very unusual. There would have had to be evidence of an egregious pattern of fraud for any attorney general, of any political party, to file a complaint of this sort. In fact, the whole investigation, from the length of time it has taken to the amount of money involved, makes this a very uncommon case.</p>
<h2>What happens next?</h2>
<p>The New York attorney general has asked for a variety of actions, including the removal of the current trustees of certain trusts holding Trump Organization assets.</p>
<p>Trump has already responded, calling it <a href="https://www.nydailynews.com/news/politics/us-elections-government/ny-trump-fraud-allegations-ag-letitia-james-lawsuit-gop-reactions-20220921-i6324ukflfei3bd5zhlnv5jdny-story.html">a witch hunt</a>, which is consistent with the way he has responded to lawsuits in the past. I expect he will employ any available procedural tactics to delay answering this suit as long as he can. Eventually, he will be called to respond, and he will have to answer the claims put to him.</p>
<p>If he refuses to respond, the attorney general can act to protect the public, and the Trump family businesses would not be authorized to operate in New York. Ultimately, the state can shut the businesses down, if need be.</p><img src="https://counter.theconversation.com/content/191146/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bridget J. Crawford does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>New York’s lawsuit against Trump could mean he and three of his kids are prevented from operating a business again in the state – but the IRS will determine whether federal tax crimes also took place.Bridget J. Crawford, Professor of Law, Pace University Licensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1828452022-05-29T14:43:58Z2022-05-29T14:43:58ZCigarette ads were banned decades ago. Let’s do the same for fossil fuels<figure><img src="https://images.theconversation.com/files/465770/original/file-20220527-23-41wpzm.jpg?ixlib=rb-1.1.0&rect=74%2C59%2C4910%2C3263&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Advertising encourages consumption, including products and activities that use large volumes of fossil fuels. </span> <span class="attribution"><span class="source">(Shutterstock)</span></span></figcaption></figure><iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" allow="clipboard-read; clipboard-write" src="https://narrations.ad-auris.com/widget/the-conversation-canada/cigarette-ads-were-banned-decades-ago--let-s-do-the-same-for-fossil-fuels" width="100%" height="400"></iframe>
<p>There is no reasonable disagreement that humanity <a href="https://www.ipcc.ch/report/ar6/wg3/figures/summary-for-policymakers/figure-spm-5/">needs to reduce greenhouse gas emissions</a>. People might argue over how large a reduction is necessary or about the best ways to achieve it, but almost everyone agrees it has to be done. </p>
<p>The <a href="https://doi.org/10.1088/1748-9326/ab8589">available science</a> suggests that technological fixes alone will not do the trick. We need to reduce the consumption of high-emission goods and services, those made from fossil fuels or that rely heavily on them.</p>
<p>And yet, advertising for such goods and services is everywhere, encouraging fossil-fuel consumption: flights to Rome, pickup trucks and SUVs, cruises to Alaska, steak from Argentina and so on.</p>
<p>Should such advertising for fossil-fuel-intensive goods and services be prohibited? This would only be consistent with how we deal with other products whose consumption causes serious harm, such as tobacco. For example, the <a href="https://news.cancerresearchuk.org/2017/05/19/this-is-the-end-of-tobacco-advertising/">United Kingdom banned TV advertising of cigarettes in 1965</a>, the <a href="https://www.history.com/this-day-in-history/nixon-signs-legislation-banning-cigarette-ads-on-tv-and-radio">United States banned cigarette ads on TV and radio in 1970</a>, and Canada has banned all forms of tobacco advertising since 1989.</p>
<h2>The harm principle</h2>
<p>A core principle of liberalism holds that individuals should not be constrained in their actions, unless these actions <a href="https://plato.stanford.edu/entries/law-limits/#HarmPrin">cause harm</a> to others. For instance, you are not allowed to drive through a residential neighbourhood at 100 kilometres per hour, because this would put the lives of others at risk.</p>
<p>Now, you might rightly point out that when you take a flight to a sunny beach in Mexico, you are not putting the lives of others at risk, at least not in the same, direct way. However, there is a collective action problem here: If everyone takes a flight to a sunny beach in Mexico, the aggregate emissions from all the flights will lead to a warmer planet, extreme weather events and will not only harm others but put lives at risk.</p>
<figure class="align-center ">
<img alt="Billboards for motorcycles and pickup trucks line a freeway." src="https://images.theconversation.com/files/465771/original/file-20220527-21-izd9v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/465771/original/file-20220527-21-izd9v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/465771/original/file-20220527-21-izd9v.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/465771/original/file-20220527-21-izd9v.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/465771/original/file-20220527-21-izd9v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/465771/original/file-20220527-21-izd9v.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/465771/original/file-20220527-21-izd9v.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The emissions from cars, trucks and other gasoline-burning vehicles put lives at risk.</span>
<span class="attribution"><span class="source">(Shutterstock)</span></span>
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</figure>
<p>It is controversial whether this mediated harm from your flight to Mexico is enough to justify stopping you from going to Mexico. Instead, I propose to apply a weaker and less controversial version of the harm principle: When the actions of individuals cause significant harm to others, even indirectly and mediated through aggregate effects, then as a society we should abstain from encouraging these actions.</p>
<p>We know that the emissions from fossil-fuel intensive goods and services put lives at risk. We also know that, overall, <a href="https://us.sagepub.com/en-us/nam/effective-advertising/book11407">advertising encourages their consumption</a>. Therefore, on this version of the harm principle, we should ban advertising for fossil-fuel intensive activities.</p>
<h2>An important precedent</h2>
<p>As the World Health Organization points out, “<a href="https://www.euro.who.int/en/health-topics/disease-prevention/tobacco/publications/key-policy-documents/who-framework-convention-on-tobacco-control-who-fctc/key-areas-of-tobacco-control-policy/banning-advertising,-sponsorship-and-promotion">tobacco kills nearly six million of its users each year</a>.” Because of the harm smoking causes, its proven link to several forms of cancer in particular, states have taken measures to discourage it. </p>
<p>These measures include a comprehensive ban on all advertising for tobacco products under the <a href="https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IX-4&chapter=9&clang=_en">WHO Framework Convention on Tobacco Control</a>. They are further justified because of the second-hand effects of smoke, that is, the health risks for people other than the smoker themselves.</p>
<figure class="align-right ">
<img alt="A 1950s ad for cigarettes, showing a dentist recommending them." src="https://images.theconversation.com/files/465772/original/file-20220527-17-wlp7s2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/465772/original/file-20220527-17-wlp7s2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=411&fit=crop&dpr=1 600w, https://images.theconversation.com/files/465772/original/file-20220527-17-wlp7s2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=411&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/465772/original/file-20220527-17-wlp7s2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=411&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/465772/original/file-20220527-17-wlp7s2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=516&fit=crop&dpr=1 754w, https://images.theconversation.com/files/465772/original/file-20220527-17-wlp7s2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=516&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/465772/original/file-20220527-17-wlp7s2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=516&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Tobacco kills nearly six million smokers annually.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/clotho98/4459851435">(clotho/flickr)</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-sa/4.0/">CC BY-NC-SA</a></span>
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<p>The number of people dying from climate change is already comparable to smoking-related deaths. <a href="https://doi.org/10.1016/S2542-5196(21)00081-4">One study estimates that between 2000 and 2019, more than five million people a year died due to the effects of climate change</a>. With the frequency of heat waves, severe storms, floods and other extreme weather events set to increase due to climate change, this number will only grow in the coming years.</p>
<p>Given what societies have done on tobacco, it would only be consistent to ban advertising for fossil-fuel-intensive activities. In addition, the status quo is also inconsistent with the alleged commitment of governments to lower greenhouse gas emissions. </p>
<p><a href="https://www.cfr.org/in-brief/cop26-heres-what-countries-have-pledged">Governments around the world have pledged to reduce their greenhouse gas emissions by 2030</a>, in an effort to meet the Paris Agreement goal to limit warming to 1.5 C. Yet, they tolerate advertising for activities that are clearly counterproductive to achieving this ambitious goal. This is akin to a drug rehabilitation centre putting up posters everywhere telling its patients how great it feels to take drugs.</p>
<h2>Where to start?</h2>
<p>Coming up with a definition of a fossil-fuel intensive activity is a bit more complex than providing a definition of smoking, but it can be done. Here is a plausible starting point: Define a certain threshold of emission-intensity that qualifies the good or service for the ban. </p>
<p>For example, given that an <a href="https://www.epa.gov/greenvehicles/greenhouse-gas-emissions-typical-passenger-vehicle">average passenger vehicle emits about 2.3 grams of carbon dioxide per litre of gasoline</a>, one might ban advertising for any vehicle that emits more than that, and subsequently lower the threshold to further encourage innovation. That same standard would then be applied to other means of transport such as flights, leisure boats, cruises. Similar thresholds for other categories of goods and services such as red meat or construction could also be defined.</p>
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Read more:
<a href="https://theconversation.com/the-fossil-fuel-era-is-coming-to-an-end-but-the-lawsuits-are-just-beginning-107512">The fossil fuel era is coming to an end, but the lawsuits are just beginning</a>
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<p>Politically, the proposal faces two significant challenges: industry pushback and political reluctance to ask voters to rein in their lifestyle. Once again, valuable lessons can be learned from tobacco. </p>
<p>The trigger for change might lie in legal action that gives voice to the fundamental interests of members of future generations — those who are being harmed by fossil-fuel advertising today. We owe it to them not to encourage activities that will kill them.</p><img src="https://counter.theconversation.com/content/182845/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Peter Dietsch receives funding from Social Sciences and Humanities Research Council of Canada (SSHRC) and from the Humboldt Foundation. He is a member of the College of the Royal Society of Canada.</span></em></p>The number of people who die from climate change each year is roughly the same as the number of people who die from tobacco use.Peter Dietsch, Professor, Philosophy, University of VictoriaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1672492021-09-24T11:49:42Z2021-09-24T11:49:42ZNevermind at 30: why the Nirvana baby lawsuit is a warning for parents<p>Nirvana’s album Nevermind has reached its 30th anniversary and is under more scrutiny than ever as a result of a <a href="https://www.courthousenews.com/wp-content/uploads/2021/08/nirvana-lawsuit.pdf">lawsuit</a> recently filed by the former cover-star.</p>
<p>Spencer Elden, the underwater baby tempted by a dollar bill on a fishhook, is suing the band and Kurt Cobain’s estate for having “knowingly produced, possessed, and advertised commercial child pornography”. The claim states that the band benefited financially from their participation in his “sexual exploitation”. Elden now seeks a civil remedy of US$150,000 per defendant for the “lifelong damages” he claims to have suffered. </p>
<p>Originally inspired by <a href="https://www.google.co.uk/books/edition/Nirvana_FAQ/KCI1AwAAQBAJ?hl=en&gbpv=0">Cobain’s fascination with waterbirths</a>, it has been said the cover <a href="https://theconversation.com/nirvanas-nevermind-an-album-artwork-expert-decodes-the-famous-underwater-baby-cover-166801">can be interpreted</a> as a comment on the values society imparts to the youth. The same picture is, however, interpreted differently in the lawsuit which attempts to weave in the idea that the image was designed to elicit a sexual response from viewers. </p>
<p>It goes so far as to suggest that Cobain “chose” the image depicting Elden “<a href="https://www.courthousenews.com/wp-content/uploads/2021/08/nirvana-lawsuit.pdf">like a sex worker</a> – grabbing for a dollar bill that is positioned dangling from a fishhook in front of his nude body”.</p>
<h2>The legal argument</h2>
<p>Under <a href="https://www.law.cornell.edu/uscode/text/18/2256">US federal law</a>, a key factor in distinguishing between the artistic cover and illegal explicit content is whether the depiction of the minor constitutes a <a href="https://casetext.com/case/us-v-steen-2#1645427d-e189-4d07-857b-ec34c4cc9d51-fn30">“lascivious exhibition”</a> of their intimate parts – in other words, a depiction designed to excite sexual stimulation in the viewer. Also, any <a href="https://casetext.com/case/united-states-v-dost/?PHONE_NUMBER_GROUP=P">determination of lasciviousness</a> must be based on the depiction taken as a whole, with its overall content and context in mind. </p>
<p>Elden is likely to face an uphill struggle in persuading a court that the cover is deliberately focused on the baby’s genitals and that the creators intended to elicit a sexual response – as the first thing most people probably notice is the underwater background. </p>
<p>But, even if he was successful on the child pornography ground, the difficult question would arise of whether fans who own or have downloaded the album with its cover art have copies of a child sex image and so have committed a crime.</p>
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<p>The lawsuit also suggests that Elden has suffered a “loss of enjoyment of life” and had his privacy violated. But it could be pointed out that Elden has previously acted in ways that continue to cement his connection with the band. He has <a href="https://nypost.com/2016/09/23/nirvana-baby-recreates-iconic-album-cover-25-years-later/">re-enacted</a> the cover to honour the album’s past anniversaries and <a href="https://edition.cnn.com/2008/SHOWBIZ/Music/12/11/nirvana.baby/index.html">attended events</a> to sign album covers. </p>
<p>Although it’s not unusual for people to reconsider the impact of their experiences from early life, the fact that Elden leaned into the public sphere and seemingly relished his involvement with the album may dilute the strength of his claims. </p>
<h2>Couldn’t consent</h2>
<p>Elden’s parents were <a href="https://ew.com/article/2016/09/22/nirvana-nevermind-album-cover-behind-scenes/">reportedly</a> paid US$250 for the photo shoot. Presumably, this was a standard rate for an unknown model rather than taking into account what the image would be used for. </p>
<p>It is uncertain whether this money was passed down to Elden. He has <a href="https://time.com/4499648/nirvana-nevermind-25-baby-spencer-elden/">expressed</a> his bitterness about having never directly profited from his involvement in the Nevermind project. As his parents’ deal cannot now be renegotiated, some might dismiss his current lawsuit as an attempt to get compensation for the commercialisation of his image.</p>
<p>At the core of Elden’s lawsuit is the fact that the band’s team got his <a href="https://www.npr.org/2008/07/23/92833535/once-naked-for-nirvana-now-a-teen-spirit">parent’s consent</a> before photographing him. Though of course being a baby, Elden did not have any choice. And from this perspective, Elden’s case is a useful reminder for parents to think about the types of images they <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2711442">share</a> online. </p>
<h2>A warning to ‘sharents’</h2>
<p>A lot has changed since the release of Nevermind in September 1991. With the rise of social media sites and photo-sharing networks, the average parent today is <a href="https://parentzone.org.uk/article/average-parent-shares-almost-1500-images-their-child-online-their-5th-birthday">said</a> to share over 1,000 images of their child online before their fifth birthday. Compared to the Nirvana baby album cover, images shared online nowadays are even harder to control. </p>
<p>Indeed, a recent <a href="https://blogs.microsoft.com/on-the-issues/2019/10/09/teens-say-parents-share-too-much-about-them-online-microsoft-study/#_ftnref1">study</a> found that 42% of teenagers in 25 countries are troubled by what their parents post about them on social media. </p>
<p>Although some steps have been taken to protect children’s privacy online – such as the introduction of the <a href="http://merlin.obs.coe.int/article/8978">Children’s Code</a> which applies to digital services that target minors – the law is <a href="http://phrg.padovauniversitypress.it/2020/1/2">not clear</a> as to whether a child’s right to privacy is essentially lost when parents share their images online. </p>
<p>The legal avenues currently available <a href="https://nrl.northumbria.ac.uk/id/eprint/29792/">do not guarantee</a> protection against parental <a href="https://repository.law.uic.edu/jitpl/vol33/iss3/1/">“over-sharenting”</a> either, meaning that so-called <a href="https://infolawcentre.blogs.sas.ac.uk/2016/04/21/comment-the-not-so-secret-life-of-generation-tagged/">“generation tagged”</a> may have to live with the longevity of their digital footprint – often attached to them without their consent.</p>
<p>Elden has previously addressed the popularity of the iconic cover and he appears <a href="https://www.gq.com.au/entertainment/music/the-cover-star-baby-of-nirvanas-nevermind-album-25-years-on/news-story/091b16069b5f54dc0d27a86cf1ea3f6e">conflicted</a> about it. His ambivalence about the image may be valid. The public’s perception of the album and the visceral feelings attached to its success should not discourage a dispassionate and neutral legal assessment of whether the photograph is unlawful.</p>
<p>But the Nirvana baby lawsuit also serves as a timely reminder to parents to think carefully of the digital shadows they may create for their children. Indeed, parents cannot simply have a “nevermind” attitude to what they share online.</p><img src="https://counter.theconversation.com/content/167249/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alexandros Antoniou does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Nirvana baby lawsuit serves as a timely reminder to parents to be careful about what they are sharing about their children online.Alexandros Antoniou, Lecturer in Media Law, University of EssexLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1625792021-06-20T13:11:07Z2021-06-20T13:11:07ZAnti-SLAPP laws help keep frivolous lawsuits out of the courts, but not every province has them<figure><img src="https://images.theconversation.com/files/406550/original/file-20210615-13-okft3v.jpg?ixlib=rb-1.1.0&rect=48%2C0%2C5381%2C3576&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Anti-SLAPP law allows cases to be dismissed if they relate to public interest speech unless the case has merit and proceeding is in the public interest. </span> <span class="attribution"><span class="source">(Shutterstock)</span></span></figcaption></figure><p>On a recent episode of the podcast <a href="https://www.hardcorerenos.com/the_construction_life.html"><em>The Construction Life</em></a>, a host and guest were joking about whistling at <a href="https://www.cbc.ca/news/canada/toronto/construction-podcast-defamation-lawsuit-1.6056016">“a sexy woman on the street” and pretending to grab at her</a>. Carpenter Natasha Fritz then asked to come on the show to talk about sexual harassment in the construction industry. </p>
<p>A meeting was set up but the podcasters, Manny Neves and Jim Caruk, changed their minds. In response, Fritz created an <a href="https://www.instagram.com/tv/CPQd3m-jl__/">Instagram post</a>, alternating clips from the podcast with statistics about sexual harassment and violence. <a href="https://www.cbc.ca/news/canada/toronto/construction-podcast-defamation-lawsuit-1.6056016">Neves and Caruk then filed a $15.25 million defamation lawsuit</a>.</p>
<p>A little over a week later, the podcasters <a href="https://www.cbc.ca/news/canada/toronto/construction-podcasters-drop-lawsuit-1.6058136">said they were withdrawing the lawsuit</a>. They were wise to do so because it had virtually no chance of success. </p>
<p>Had they pursued it, the podcasters’ case would have been a candidate for quick dismissal under an <a href="https://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.html#sec137.1_smooth">“anti-SLAPP” law</a> enacted in Ontario in 2015.</p>
<p>SLAPP stands for Strategic Lawsuit Against Public Participation — a lawsuit with little or no merit, targeting public interest speech and perhaps intended to stifle criticism. The law allows cases to be dismissed if they relate to public interest speech unless the case has merit and proceeding is in the public interest.</p>
<h2>The problem of identifying SLAPPs</h2>
<p>The anti-SLAPP law addresses a thorny problem: anyone can sue anyone. </p>
<p>If I don’t like what you say, but it’s perfectly defensible, I can still sue you for defamation. If I have more money than you, I can punish or silence you by suing, even if I won’t ultimately win. </p>
<p>While the <a href="https://www.cjfe.org/defamation_libel_and_slander_what_are_my_rights_to_free_expression">law of defamation is carefully balanced</a> to protect both reputation and the right to expression, it can take years and a small fortune to defend against it. </p>
<p>Cases with little or no merit should be kept out of the courts – especially if they are a means to threaten or silence critics. The problem is in identifying such lawsuits without having a trial.</p>
<figure class="align-center ">
<img alt="Courtroom, zoomed in on chairs with microphones." src="https://images.theconversation.com/files/406552/original/file-20210615-23-149s5ln.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/406552/original/file-20210615-23-149s5ln.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/406552/original/file-20210615-23-149s5ln.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/406552/original/file-20210615-23-149s5ln.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/406552/original/file-20210615-23-149s5ln.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/406552/original/file-20210615-23-149s5ln.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/406552/original/file-20210615-23-149s5ln.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Cases with little or no merit should be kept out of the courts.</span>
<span class="attribution"><span class="source">(Shutterstock)</span></span>
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<h2>Ontario’s solution to the problem</h2>
<p>Since 2015, lawsuits in Ontario can be dismissed at an early stage if they target expression on a matter of public interest. These tend to be defamation cases, though not always. </p>
<p>Public interest is defined broadly: those matters in which some people would have a genuine interest. Lawsuits targeting expression on a matter of public interest will only survive the motion to dismiss if <a href="https://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.html#sec137.1_smooth">two things are proven</a>: first, there is some evidence that the claim will succeed; and second, the harm in dismissing the case outweighs the harm in letting it proceed. </p>
<p>If a case is dismissed, the party who brought the lawsuit must <a href="https://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.html?searchUrlHash=AAAAAQAUIkNvc3RzIG9uIGRpc21pc3NhbCIAAAAAAQ&offset=101345#sec137.1_smooth">fully compensate the other party for their legal costs</a>, which can be significant. This makes it riskier for someone to sue for defamation.</p>
<h2>The Construction Life lawsuit: A case study</h2>
<p>While the construction podcast case was not tested under the anti-SLAPP law, it is exactly the kind of case the law was meant to address. This may explain why it was so quickly withdrawn.</p>
<p>On an anti-SLAPP motion, a court would not have decided whether Fritz’s Instagram post was defamatory – that would likely require a trial and defeat the purpose of the motion. Rather, it would have decided whether the podcasters’ suit arises from expression on a matter of public interest, whether there is merit to the case and whether the harm to the plaintiff in dismissing the case outweighs the harm to the public in letting it proceed. </p>
<p>Fritz’s Instagram post calling out the podcast for its sexism is clearly a matter of public interest. Some people have a genuine interest in <a href="https://www.onrec.com/news/news-archive/we-need-to-brick-sexism-say-women-in-construction">sexism in the construction industry</a>.</p>
<p>Whether the post is defamatory is impossible to say without knowing more about the podcasters’ allegations. That said, it would likely be protected by defences such as <a href="https://www.marvinhuberman.com/files/pdfs/DefencesToDefamation.pdf">truth or fair comment</a>. The podcasters case likely lacked “substantial merit.”</p>
<p>Finally, and most importantly, the court would have had to balance harms in dismissing the case versus letting it go to trial. While this analysis would depend on the law and evidence presented on the motion, the podcasters would have had an uphill battle. </p>
<p>While the allegations of sexism against Neves and Caruk are serious, they are grounded in the men’s own words, and there is considerable public interest in allowing citizens to call out what they perceive to be sexist attitudes. </p>
<h2>Room for improvement</h2>
<p>This is largely a good news story: the law has recently evolved to protect public interest speech. And the anti-SLAPP law may have helped convince the podcasters to withdraw their lawsuit. </p>
<p>Unfortunately, though, such laws only exist in Ontario and, <a href="https://www.cbc.ca/news/canada/british-columbia/legislature-passes-anti-slapp-1.5049927">since 2019, in British Columbia</a>. Québec has its own, <a href="https://www.canlii.org/en/qc/laws/stat/cqlr-c-c-25.01/latest/cqlr-c-c-25.01.html">quite different, rule targeting SLAPPs</a>, but it is arguably less effective because it focuses on the motives for bringing a lawsuit. This is why <a href="https://www.attorneygeneral.jus.gov.on.ca/english/anti_slapp/anti_slapp_final_report_en.html">Ontario adopted a different approach</a>. </p>
<p>It’s time the other provinces — perhaps even Québec — follow Ontario and B.C.’s lead. </p>
<p>Ontario’s law was carefully crafted and has now been tested and interpreted in the courts for five years including, recently, in the <a href="https://www.canlii.org/en/ca/scc/doc/2020/2020scc22/2020scc22.html?autocompleteStr=pointes%20protection&autocompletePos=2">Supreme Court of Canada</a>. </p>
<p>Other Canadian provinces and territories should simply adopt the wording in Ontario’s legislation, as B.C. did. This would tilt the balance in favour of public interest speech without unduly restricting a person’s right to sue to protect their reputation. </p>
<p>The law protecting Fritz’s right to express herself should apply to all Canadians.</p><img src="https://counter.theconversation.com/content/162579/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hilary Young receives funding from SSHRC. </span></em></p>Anti-SLAPP laws are useful, and we need more of them across the country. They allow certain lawsuits to be dismissed at an early stage if they relate to public interest speech.Hilary Young, Associate Professor, Law, University of New BrunswickLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1453612020-09-02T12:21:41Z2020-09-02T12:21:41ZWhat college students need to know about liability waivers for COVID-19<figure><img src="https://images.theconversation.com/files/355852/original/file-20200901-20-pwc32h.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C6016%2C3989&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Waivers don't automatically mean students give up rights.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/signing-a-new-contract-royalty-free-image/1088419242?adppopup=true">Cunaplus_M.Faba/ via iStock Getty Images Plus</a></span></figcaption></figure><p>As college and university campuses across the United States reopen, administrators are faced with the task of protecting students while also protecting the interests of the institutions they lead. This includes reducing the risk of lawsuits. Some institutions have resorted to <a href="https://www.insidehighered.com/news/2020/08/03/students-asked-sign-liability-waivers-return-campus">forcing students to sign liability waivers</a>. What purpose do these serve and is this the best course of action? As a professor who researches <a href="https://scholar.google.com/citations?user=pDJHeb8AAAAJ&hl=en&oi=ao">higher education law</a>, here are my answers to four questions related to these waivers.</p>
<h2>1. Do liability waivers protect universities from lawsuits?</h2>
<p>Generally, no. A liability waiver is generally viewed in court as an <a href="https://lawshelf.com/coursewarecontentview/assumption-of-risk/">assumption of risk</a> on the part of the person who signs it. So in this case it would be the student. This means that the person acknowledges there are some naturally occurring risks to partaking in an activity. However, a liability waiver does not mean a person signs away all rights to sue for injuries or harm. If a party is <a href="https://dictionary.law.com/Default.aspx?selected=838">grossly negligent</a>, a court might still hold the party legally responsible.</p>
<p>For example, if I sign a waiver to participate in a rock-climbing class, I acknowledge some risks, such as slipping and falling and breaking a bone. However, my signature does not mean I’ve agreed to waive my right to sue if the facility’s safety equipment is faulty or it fails to provide needed instruction.</p>
<p>Students returning to campus inherently know they will face some risk of exposure to COVID-19. I do not believe universities should force them to acknowledge the obvious. However, if a university wantonly deceives the student body by hiding or delaying notification about an outbreak, or promises certain safety precautions and fails to take them, a liability waiver will not be of much use to the school against a lawsuit filed by one or more students.</p>
<h2>2. What constitutes liability?</h2>
<p>In short, a person who files a negligence claim must demonstrate that the other party was the “<a href="https://www.law.cornell.edu/wex/proximate_cause">proximate cause</a>” of the injury, meaning the injury directly resulted from the inaction or improper action of the other party. This could be physical injury, emotional injury or even injury to one’s reputation.</p>
<p>Though the higher education community has sought immunity <a href="https://www.insidehighered.com/news/2020/07/20/republicans-make-it-harder-sue-colleges-coronavirus">from Congress over COVID-19-related lawsuits</a>, the probability that courts would hold a university that has taken good faith, common sense measures liable for a student’s illness is unlikely, I believe. First, establishing proximate cause would be difficult. Could the student have been infected at the grocery store? Was the student infected by the carelessness of a roommate or classmate, rather than any malfeasance on the part of the institution? Further, if courts were to open the doors to such lawsuits, then universities could perhaps be sued every cold and flu season. Similarly, every airline, restaurant, and department store could be held liable for their customers’ COVID-19 – or flu infections. That is something I just do not see courts paving the way for.</p>
<h2>3. Can universities force anyone to sign liability waivers?</h2>
<p>Unfortunately, it appears that an institution can legally make signing liability waivers mandatory and an enrollment requirement. What is problematic is this places a student who may feel uncomfortable returning to campus or signing such a document in an unfair predicament. Can that student defer without paying a penalty? Will the student be able to transfer courses taken at another school during the pandemic? Essentially the student is being offered a “take it or leave it” contract with potentially serious repercussions for their education.</p>
<h2>4. What might be a better course of action?</h2>
<p>Universities have the authority to control and monitor student behavior via their student <a href="https://www.insidehighered.com/news/2020/07/15/student-conduct-codes-and-pledges-promise-good-covid-19-habits">codes of conduct</a>. These codes create a contractual agreement between the university and the student as to what is acceptable behavior. Instead of trying to shirk responsibility for student safety, some campuses have made it clear to students that they share in the responsibility for keeping the broader community safe. Some schools are enforcing these regulations more harshly than others. The Ohio State University has cracked down on students who do not follow safety regulations. By late August, it had <a href="https://www.npr.org/sections/coronavirus-live-updates/2020/08/25/906039378/more-than-200-ohio-state-university-students-suspended-for-violating-pandemic-ru">suspended more than 200 students</a> for violating its COVID-19-related restrictions.</p>
<p>While suspension would appear to be an extreme measure, there unfortunately are no easy answers as to how a university can keep its campus open without succumbing to additional viral outbreaks. <a href="https://www.lsu.edu/roadmap/docs/roadmap-fall-2020.pdf">At Louisiana State University</a>, where I teach, students complete online daily symptom checks and are offered free testing. They are quarantined for 14 days – with provisions that classwork will be made virtual for them – should they be exposed to the virus.</p>
<p>All in all, attempting to deflect liability by forcing students to sign waivers strikes me as ill-advised for colleges and universities. The optics of having students sign liability waivers are not good, to say the least. It makes colleges and universities seem like they are more concerned with resuming in-person instruction and reopening their dorms than they are about the health, welfare and safety of their students.</p><img src="https://counter.theconversation.com/content/145361/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joy Blanchard does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A legal expert explores the limitations of COVID-19 liability waivers some colleges are asking students to sign.Joy Blanchard, Associate Professor of Higher Education, Louisiana State University Licensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1176632019-05-24T08:55:19Z2019-05-24T08:55:19ZIndonesia’s presidential election dispute: Prabowo’s plan to challenge election result may be in vain<p>It is official. Indonesia’s president Joko “Jokowi” Widodo is reelected for the second time. This is also the second failed attempt from former military general Prabowo Subianto to become president of the world’s third largest democracy with the biggest Muslim population. </p>
<p>After more than a month tallying votes from the 17 April election, the General Elections Commission (KPU) formally <a href="https://www.bbc.com/indonesia/indonesia-48329211">announced</a> Jokowi’s reelection on May 21. </p>
<p>Not long after the announcement, Prabowo’s camp <a href="https://www.cnnindonesia.com/national/20190521115051-32-396813/prabowo-gugat-hasil-pilpres-2019-ke-mahkamah-konstitusi">declared</a> that they will challenge the result to the Constitutional Court, a similar move he took five years ago. The Court, in 2014, <a href="https://nasional.kompas.com/read/2014/08/22/11025921/Ini.Penjabaran.Lengkap.Putusan.MK.Tolak.Gugatan.Prabowo-Hatta?page=all">rejected</a> Prabowo’s lawsuit due to insufficient evidence. </p>
<p>The article will describe the legal process that Prabowo must undergo for his case, and why it will likely fail. </p>
<h2>Constitutional Court’s mandates</h2>
<p>The Constitutional Court is one of the judicial powers in Indonesia. It holds <a href="http://www.dpr.go.id/jdih/uu1945">four mandates</a>:</p>
<ol>
<li><p>reviewing laws to decide if they are in accordance with Indonesia’s Constitution–whether it is “constitutional” or “unconstitutional”</p></li>
<li><p>settling disputes over the authority of state institutions</p></li>
<li><p>deciding dissolution of political parties</p></li>
<li><p>settling disputes over the results of general elections.</p></li>
</ol>
<p>Prabowo’s lawsuit falls under the Court’s last authority. </p>
<p>Under his current lawsuit, Prabowo hopes the Court will nullify KPU’s decision and disqualify his opponent, Jokowi, which ultimately will lead to Prabowo winning the election.</p>
<h2>Breakdown of the legal process</h2>
<p><a href="https://mkri.id/index.php?page=web.Perkara2&menu=4">The process</a> will begin when Prabowo files the lawsuit to <a href="https://mkri.id/index.php?page=web.ProfilMK&id=5&menu=2#">the Court’s clerk</a></p>
<p>The clerk will examine the documents to ensure they include the applicants’ identities and their demands.</p>
<p>The Court will inform Prabowo that whether his lawsuit meets the Court’s initial requirements. If the conditions are not met, Prabowo will be given one day to revise and complete his lawsuit, then file it back to the clerk. After the Court decided that the lawsuit qualifies for a preliminary hearing, the Court will announce a date. The Court will also inform, and invite, the defendant and other related parties (in this case, Jokowi and KPU) to the hearing.</p>
<p>During the hearing, judges will ask Prabowo about his lawsuit and give suggestions related to Prabowo’s demands. <a href="https://mkri.id/public/content/persidangan/risalah/risalah_sidang_6940_1.PHPU.PRES.XII.2014.6%20AGUSTUS%202014%20(BY%20INDAH).pdf">He will then be given time, up to three days</a>, to revise it. </p>
<p>After the revision, the Court will hold trials to examine whether the claims made by Prabowo are legally sound. During the hearing, the judges will listen to the testimony from plaintiffs, defendants, other related parties, and experts. There will be at least two sessions of the trial, held on different days - one to hear the plaintiff’s side and another to hear from other parties. </p>
<p>The court will also examine written evidence, cross-examine the testimonies of the witnesses, and examine other proofs and clues. Written evidence include, but are not limited to, the KPU’s documents supporting the declaration of Jokowi’s victory.</p>
<p>After all those processes, the Court will decide whether to grant or to deny the motions, within a maximum of 14 working days since the case is registered. </p>
<h2>Trial schedule</h2>
<p><a href="https://www.hukumonline.com/pusatdata/detail/lt59ba5511ab93b/node/534/undang-undang-nomor-7-tahun-2017/">The 2017 Law on Elections</a> states candidates who are unsatisfied with election results can submit a lawsuit to the Constitutional Court by no later than three days after KPU announces the results.</p>
<p>Thus, the deadline for Prabowo to formally file his lawsuit is on May 24.</p>
<p>Once Prabowo filed his lawsuit, the Court will register the case on June 11 and will notify the other related parties to attend the preliminary hearing.</p>
<p>On June 14, the preliminary hearing will take place, and Prabowo will be given time until June 17 to revise his application. After that, the Court will hold trials to further examine the case from June 17 to 21. </p>
<p>The judges are expected to read the final verdict by June 28. </p>
<h1>Decision options</h1>
<p>The Court has three final decision options - not to process the case, to grant the plaintiff’s demands or to reject them.</p>
<p>The Court will not process a lawsuit if it does not meet requirements. This include mistyping the identity of the plaintiffs, the plaintiffs are not valid candidates, or the plaintiffs pass the 3-day deadline to file the lawsuit. </p>
<p>The Court will reject a lawsuit if it is unlawful. Prabowo faced such rejection in 2014. The Court decided to reject his demand due to <a href="http://wcw.cs.ui.ac.id/repository/dokumen/lihat/11587.pdf">insufficient evidence</a>.</p>
<p>The final option is the Court will grant the plaintiff’s motions when they are proven to be legally sound.</p>
<p>If the Court grants Prabowo’s motions, the Court will nullify KPU’s decision and determine the right result of the election. </p>
<p>However, if the Court decides to deny Prabowo’s motions and therefore reject his lawsuit, this will lead to Jokowi’s victory, as the Court’s decision is final and binding. </p>
<h2>Difference between 2014 with 2019</h2>
<p>In 2014, when Jokowi won by a slim margin, Prabowo only had to bring evidence from 57,000 polling stations.</p>
<p>This year, according to the KPU, Jokowi wins by 16 million votes over Prabowo. </p>
<p>To prove electoral fraud in the 2019 election, Prabowo has to show that there are at least 100 frauds in <a href="https://nasional.kompas.com/read/2019/05/21/19060811/agar-gugatannya-di-mk-kuat-kubu-prabowo-harus-hadirkan-bukti-sebanyak-ini">100,000 to 200,000</a> polling stations.</p>
<p>Therefore, it seems that Prabowo’s lawsuit will also end up in vain.</p>
<p><em>Las Asimi Lumban Gaol translated this article from Indonesian.</em></p><img src="https://counter.theconversation.com/content/117663/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Josua Satria Collins tidak bekerja, menjadi konsultan, memiliki saham, atau menerima dana dari perusahaan atau organisasi mana pun yang akan mengambil untung dari artikel ini, dan telah mengungkapkan bahwa ia tidak memiliki afiliasi selain yang telah disebut di atas.</span></em></p>Indonesia’s General Election Commission (KPU) has announced incumbent Joko “Jokowi” Widodo’s victory in 2019 presidential election. His opponent Prabowo Subianto, plans to challenge the result. Here’s why it will likely end up in vain.Josua Satria Collins, Researcher at Indonesia Judicial Monitoring Society (MaPPI), Faculty of Law University of Indonesia, Universitas IndonesiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1157542019-04-22T17:54:32Z2019-04-22T17:54:32ZTrudeau’s libel threat against Scheer: A great Canadian political tradition<figure><img src="https://images.theconversation.com/files/270090/original/file-20190418-28100-157t0om.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Prime Minister Justin Trudeau's threat of a defamation suit against Conservative Leader Andrew Scheer is just the latest example of a political fight that's turned litigious.</span> <span class="attribution"><span class="source">THE CANADIAN PRESS/Adrian Wyld</span></span></figcaption></figure><p>Prime Minister Justin Trudeau’s <a href="https://www.cbc.ca/news/politics/trudeau-threatens-scheer-with-lawsuit-over-snc-lavalin-comments-1.5088175">threatened defamation suit</a> against Conservative Leader Andrew Scheer over the SNC-Lavalin affair is just the latest in a rapidly growing list of Canadian political mud-slinging matches that have taken a litigious turn.</p>
<p>Scheer had already employed some overheated rhetoric at earlier stages of the controversy, <a href="https://nationalpost.com/news/politics/andrew-scheers-full-statement-calling-for-justin-trudeaus-resignation-over-snc-lavalin-scandal">accusing Trudeau of exerting “frankly illegal pressure”</a> on former attorney general Jody Wilson-Raybould over the prosecution of the Québec-based company on bribery and corruption charges.</p>
<p>But in late March, the Tory leader’s vague smears morphed into a more specific and unsubstantiated charge of criminality, the most severe kind of malfeasance in the political arena.</p>
<p>A statement by Scheer — circulated via Twitter and Facebook, beyond the robust legal protections afforded by Parliamentary privilege — said <a href="https://twitter.com/AndrewScheer/status/1111760838606512128">Trudeau’s actions in the affair amounted to “corruption on top of corruption.</a>”</p>
<p><a href="https://www.cbc.ca/news/politics/trudeau-threatens-scheer-with-lawsuit-over-snc-lavalin-comments-1.5088175">A letter from Trudeau’s lawyer highlighted the “corruption” claim</a> against the prime minister as particularly egregious because it painted him as the perpetrator of “the worst political conduct possible, being corruption, which is deserving of a criminal penalty of up to 14 years’ incarceration.”</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1116044103282774016"}"></div></p>
<h2>Following the playbook</h2>
<p>In serving that notice of libel, Trudeau was following the playbook of modern Canadian political leaders. In fact, each of the country’s three previous prime ministers got lawyers involved when their main political rivals stepped over the rhetorical line between vigorous debate and alleged slander.</p>
<p>In March 1998, then-prime minister Jean Chrétien threatened to sue Preston Manning and other Reform MPs if they repeated — outside of the House of Commons — an accusation that newly appointed B.C. Senator Ross Fitzpatrick was the beneficiary of a Senate “seat sale” after Chrétien had benefited financially years earlier from a Fitzpatrick stock tip. Manning moderated his attacks and the threatened lawsuit never materialized.</p>
<p>In November 2005, former Liberal PM Paul Martin’s legal team issued a libel warning to Stephen Harper after the then-opposition leader (under the protection of Parliament) accused Martin of heading a party that broke “every conceivable law in the province of Québec with the help of organized crime.”</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/270091/original/file-20190418-28090-1tl6gq4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/270091/original/file-20190418-28090-1tl6gq4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=413&fit=crop&dpr=1 600w, https://images.theconversation.com/files/270091/original/file-20190418-28090-1tl6gq4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=413&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/270091/original/file-20190418-28090-1tl6gq4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=413&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/270091/original/file-20190418-28090-1tl6gq4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=518&fit=crop&dpr=1 754w, https://images.theconversation.com/files/270091/original/file-20190418-28090-1tl6gq4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=518&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/270091/original/file-20190418-28090-1tl6gq4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=518&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Stephen Harper (left) was threatened with a lawsuit by then prime minister Paul Martin (right) in 2005. A few months later, the threatened lawsuit was seemingly forgotten and Harper was elected prime minister.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Tom Hanson</span></span>
</figcaption>
</figure>
<p>Laws were broken and perpetrators were eventually jailed in the post-1995 referendum sponsorship scandal, but there was never any evidence that organized crime was involved.</p>
<h2>Forgotten threats</h2>
<p>In media statements and a shot-across-the-bow lawyer’s letter to Harper demanding an apology, the Liberals warned the Conservative leader that if he uttered the same “false smear” outside the Commons, he’d be facing a defamation suit. But a few months later, with no apology offered and the threatened lawsuit seemingly forgotten, Harper was elected prime minister.</p>
<p>While Conservatives had dismissed Martin’s lawsuit threat as pure bluster and an attempt to gag critics, Harper as PM <a href="https://www.theglobeandmail.com/news/national/harper-sues-liberal-party-over-cadman-allegations/article958237/">took the same legal route in March 2008</a> after then-Liberal leader Stéphane Dion accused the prime minister of knowing about an alleged 2005 “Conservative bribery” attempt to manipulate independent MP Chuck Cadman, dying of cancer at the time, in a crucial House of Commons vote.</p>
<p>There was no proof that Harper knew about the nature of the dealings with Cadman. He said the suit was necessary to safeguard his honour: “I have every right, as does my family, to defend our reputation.”</p>
<h2>Suit against Harper fizzled</h2>
<p>To Dion, Harper was wielding the defamation threat to “bully” his Liberal opponents into silence on the matter. The lawsuit fizzled and was dismissed without costs in 2009.</p>
<p>Trudeau — like Martin in 2005 and Harper in 2008 — was just months away from a federal election when he threatened his chief opponent with court action.</p>
<p>It’s no wonder critics see such libel notices as primarily aimed at slapping a lid on damaging accusations at a time when voters are about to pass judgment on a government. But it’s no surprise, either, that opposition rhetoric gets amped up to legally risky levels when all parties are girding for an election.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/is-sir-john-a-macdonald-to-blame-for-the-wilson-raybould-affair-112594">Is Sir John A. Macdonald to blame for the Wilson-Raybould affair?</a>
</strong>
</em>
</p>
<hr>
<p>Accusations of defamation have become almost routine in Canadian politics in recent years.</p>
<p>Former Ontario premier Kathleen Wynne, for example, <a href="https://www.cbc.ca/news/canada/toronto/kathleen-wynne-suing-patrick-brown-defamation-1.4443500">filed lawsuits</a> against successive provincial Progressive Conservative leaders Tim Hudak and Patrick Brown over their inflammatory attacks, respectively, that she “oversaw and possibly ordered the criminal destruction of documents” (no such evidence) and was “on trial” in a case of alleged bribery (she was, in fact, called to court as a witness).</p>
<h2>Extracted apology</h2>
<p>The Hudak suit was settled or withdrawn in 2015; the Brown suit appears to have been dropped. In September 2017, Wynne did extract an immediate apology from Conservative MPP Bill Walker after threatening to sue him for falsely saying she was under investigation for bribery.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/270092/original/file-20190418-28084-moustp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/270092/original/file-20190418-28084-moustp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=525&fit=crop&dpr=1 600w, https://images.theconversation.com/files/270092/original/file-20190418-28084-moustp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=525&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/270092/original/file-20190418-28084-moustp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=525&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/270092/original/file-20190418-28084-moustp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=659&fit=crop&dpr=1 754w, https://images.theconversation.com/files/270092/original/file-20190418-28084-moustp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=659&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/270092/original/file-20190418-28084-moustp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=659&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Former Ontario Conservative leader Patrick Brown was sued by then premier Kathleen Wynne, but the case never made it to court. Brown was also later sued by a former caucus colleague.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Peter Power</span></span>
</figcaption>
</figure>
<p>Brown, in turn, was <a href="https://www.cbc.ca/news/canada/toronto/ont-fedeli-brown-1.5053262">recently sued</a> by his ex-ally — Ontario Finance Minister Vic Fedeli — over statements in Brown’s new book alleging scurrilous behaviour by Fedeli before and during the 2018 upheaval among Ontario Tories that put Doug Ford on the path to becoming premier (and Brown en route to the mayoralty of Brampton.)</p>
<p>University of Guelph political scientist Byron Sheldrick argued last year in a <a href="https://www.macleans.ca/politics/politicians-need-to-stop-suing-each-other-its-bad-for-democracy/"><em>Maclean’s</em> article</a> that the sharp rise in politically motivated defamation battles could lead to the stifling of constructive political debate in Canada. He has urged a <a href="https://ccla.org/focus-areas/fundamental-freedoms/freedom-of-expression-2/public-participation-anti-slapp/">SLAPP-type testing of defamation claims in the political arena </a>to weed out strategic lawsuits launched to smother harsh criticism from those cases in which genuine reputational harm seems to have been inflicted by a partisan rival’s reckless words.</p>
<h2>Not a new idea</h2>
<p>If the idea gains traction, the recent upward trend in political defamation claims could be curbed. But it’s unlikely to end a phenomenon as old as Canadian politics itself.</p>
<p>In 1878, during Sir John A. Macdonald’s years in the opposition wilderness, the notoriously heavy drinker was spotted passed out in the House of Commons and being discreetly carried to an antechamber by fellow Tories. Prime Minister Alexander Mackenzie described the scene in a note to fellow Liberal titan George Brown — a Grit senator, publisher of the staunchly partisan <em>Globe</em> newspaper and for decades Macdonald’s arch nemesis — who printed an editorial condemning Sir John A.’s behaviour.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/270093/original/file-20190418-28113-182h0fa.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/270093/original/file-20190418-28113-182h0fa.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=402&fit=crop&dpr=1 600w, https://images.theconversation.com/files/270093/original/file-20190418-28113-182h0fa.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=402&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/270093/original/file-20190418-28113-182h0fa.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=402&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/270093/original/file-20190418-28113-182h0fa.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=505&fit=crop&dpr=1 754w, https://images.theconversation.com/files/270093/original/file-20190418-28113-182h0fa.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=505&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/270093/original/file-20190418-28113-182h0fa.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=505&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Canada’s first prime minister, Sir John A. Macdonald, threatened several lawsuits in 1878 after his political opponents accused him of being drunk in the House of Commons.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Adrian Wyld</span></span>
</figcaption>
</figure>
<p>“To say that Sir John Macdonald was on Friday night somewhat under the influence of liquor would be a grossly inadequate representation of fact,” the <em>Globe</em> stated. “He was simply drunk in the plain ordinary sense of the word.”</p>
<p>The accusation was widely republished in the Liberal press, and a flurry of threatened lawsuits from Macdonald followed, none of which was acted upon — perhaps because truth is an absolute defence against a charge of libel.</p>
<p>Nevertheless, Macdonald reclaimed the prime ministership in the 1878 election and — occasional bouts of drunkenness and defamation notwithstanding — kept it until his death in 1891.</p><img src="https://counter.theconversation.com/content/115754/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Randy Boswell does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Politicians threatening to sue each other is not unusual in Canada, but the lawsuits seldom make it to court.Randy Boswell, Associate Professor, School of Journalism and Communication, Carleton UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1144692019-03-28T20:46:06Z2019-03-28T20:46:06ZWhat Oklahoma’s opioid settlement means for other states, cities and counties suing Purdue Pharma<p><a href="http://www.oag.ok.gov/mike-hunter-oklahoma-attorney-general">Oklahoma Attorney General Mike Hunter</a> recently announced that the state had reached <a href="https://www.nytimes.com/2019/03/26/health/opioids-purdue-pharma-oklahoma.html">a US$270 million settlement</a> with <a href="https://www.purduepharma.com/">Purdue Pharma</a>, the largest manufacturer of prescription opioids. The settlement resolves the state’s claims against Purdue over costs incurred in addressing the opioid crisis and allows Purdue to avoid a trial that was scheduled for May.</p>
<p>So the natural question arises: What does this development mean for the <a href="https://www.jpml.uscourts.gov/sites/jpml/files/Pending_MDL_Dockets_By_District-March-15-2019.pdf">1,700 or so cases</a> brought largely by city and county governments against Purdue and a swath of other pharmaceutical-industry defendants? </p>
<p>My advice for other plaintiffs and opioid victims, <a href="https://law.case.edu/Our-School/Faculty-Staff/Meet-Our-Faculty/Faculty-Detail/id/936">based on my nearly three decades studying and practicing civil litigation</a>: Don’t get your hopes up. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/266425/original/file-20190328-139356-15zjw18.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/266425/original/file-20190328-139356-15zjw18.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=422&fit=crop&dpr=1 600w, https://images.theconversation.com/files/266425/original/file-20190328-139356-15zjw18.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=422&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/266425/original/file-20190328-139356-15zjw18.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=422&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/266425/original/file-20190328-139356-15zjw18.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=531&fit=crop&dpr=1 754w, https://images.theconversation.com/files/266425/original/file-20190328-139356-15zjw18.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=531&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/266425/original/file-20190328-139356-15zjw18.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=531&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Judge Dan Polster is overseeing a case involving dozens of opioid lawsuits.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Opioid-Crisis-Lawsuits/a5dc160477c543f68badf78bc12374cc/3/0">AP Photo/Tony Dejak</a></span>
</figcaption>
</figure>
<h2>Purdue’s potential bankruptcy</h2>
<p>Most of the outstanding cases have been consolidated into so-called <a href="https://www.ohnd.uscourts.gov/mdl-2804">multidistrict litigation in Ohio</a>. The court’s judge, Dan Polster, <a href="https://www.nytimes.com/2018/03/05/health/opioid-crisis-judge-lawsuits.html">has pushed hard for a settlement</a>.</p>
<p>So will these cases follow Oklahoma’s lead and reach a settlement?</p>
<p>Not so fast.</p>
<p>Rumors have swirled around Purdue’s <a href="https://theconversation.com/purdue-pharma-bankruptcy-filing-would-make-lawsuits-slower-and-costlier-for-plaintiff-cities-and-states-113309">possible plan to seek bankruptcy protection</a> from creditors, including the plaintiffs in the opioid cases. That plan may make sense to Purdue given that the ongoing litigation could result in judgments in the <a href="https://www.nytimes.com/2019/01/30/health/opioid-lawsuits-settlement-trial.html">tens of billions of dollars</a> – presumably far in excess than the <a href="https://www.newyorker.com/magazine/2017/10/30/the-family-that-built-an-empire-of-pain">combined net worth</a> of the family that owns the private company, the Sacklers.</p>
<p>But a bankruptcy filing would create havoc for any prospect of near-term settlement for the outstanding opioid cases. An <a href="https://www.law.cornell.edu/uscode/text/11/362">automatic stay</a> would be issued that would bring all pending U.S. litigation to a screeching halt – including the bellwether multidistrict trial, which is set for October. </p>
<p>A bankruptcy judge with no familiarity with the case would suddenly find herself responsible for resolving perhaps the <a href="https://www.forbes.com/sites/nicolefisher/2018/10/18/opioid-lawsuits-on-par-to-become-largest-civil-litigation-agreement-in-u-s-history/">largest mass litigation</a> of its kind in history in terms of monetary size. That judge would have to approve any new settlement involving ongoing litigation in other jurisdictions and would likely require it to be global. That’s a herculean task – just ask Polster, who had hoped to settle the cases before him by now.</p>
<p>At the same time the alternative is also unthinkable in which all of the claims against Purdue would potentially relocate to the bankruptcy court where Purdue files. In other words, all 1,700 or so cases – including the multidistrict litigation and the state lawsuits – would be lumped together before the bankruptcy court to be resolved there. </p>
<p>That court could choose to send them back for trial to the courts where they originated but still would have ultimate authority to determine how much each creditor and plaintiff would end up with. </p>
<h2>Oklahoma’s settlement</h2>
<p>A bankruptcy filing by Purdue could also pose problems for the settlement with Oklahoma. </p>
<p>Although Oklahoma claims that <a href="https://www.nytimes.com/2019/03/26/health/opioids-purdue-pharma-oklahoma.html">its settlement is secured</a> against a possible bankruptcy filing – and Purdue <a href="http://www.startribune.com/the-latest-oklahoma-to-announce-settlement-in-opioids-case/507666652/">reportedly committed</a> to delay any filing – it’s likely the other plaintiffs would challenge it. Why should Oklahoma get a large settlement while all the other states with pending litigation are forced to accept the scraps following Purdue’s bankruptcy? </p>
<p>After all, there is nothing unique about Oklahoma’s case except that it was the first to come to trial. I don’t think a bankruptcy judge would feel warm and fuzzy about affirming a disproportionate settlement that would benefit one state to the detriment of all the other plaintiffs. </p>
<p>If the plaintiffs are crafty, they’ll try to force Purdue into bankruptcy by filing what is known as an <a href="https://www.law.cornell.edu/uscode/text/11/303">involuntary bankruptcy petition</a>. All it takes is three creditors with claims against a potentially insolvent company – such as three of the hundreds of states, counties or cities that are suing Purdue – to ask a bankruptcy court to assume control of its assets.</p>
<p>And in this case, the Oklahoma settlement could be deemed an attempt – legally called a <a href="https://codes.findlaw.com/us/title-11-bankruptcy/11-usc-sect-547.html">“preference”</a> – to benefit one creditor at the expense of others. Thus Oklahoma would lose whatever security interest it may have, as well as any money it received, within 90 days of such a bankruptcy petition. Those assets would return to the estate for division among all unsecured creditors. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/266426/original/file-20190328-139371-1mx8qgz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/266426/original/file-20190328-139371-1mx8qgz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=421&fit=crop&dpr=1 600w, https://images.theconversation.com/files/266426/original/file-20190328-139371-1mx8qgz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=421&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/266426/original/file-20190328-139371-1mx8qgz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=421&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/266426/original/file-20190328-139371-1mx8qgz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=529&fit=crop&dpr=1 754w, https://images.theconversation.com/files/266426/original/file-20190328-139371-1mx8qgz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=529&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/266426/original/file-20190328-139371-1mx8qgz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=529&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Oklahoma Attorney General Mike Hunter recently settled his state’s opioid lawsuit against Purdue.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Mike-Hunter/d9edc767bb1a4bad9c7cae5460c9cdf2/47/0">AP Photo/Sue Ogrocki</a></span>
</figcaption>
</figure>
<h2>What’s in it for Purdue</h2>
<p>So why did Purdue settle with Oklahoma rather than file for immediate bankruptcy protection? </p>
<p>Clearly, in my view, it’s not ready to file – but didn’t want the Oklahoma trial to start either. A cynic might wonder whether Purdue’s owners received profit distributions within the last year and are waiting to file for bankruptcy after the <a href="https://codes.findlaw.com/us/title-11-bankruptcy/11-usc-sect-547.html">so-called lookback period expires</a>. During the lookback period, creditors can claw back certain types of payments made within the year before the filing. For insiders like the Sackler family, the lookback period is a full year rather than 90 days – as it is for Oklahoma. </p>
<p>In any event, the Oklahoma settlement proceeds may well end up much lower than the settlement agreement provides. So the Oklahoma attorney general may have scored a political victory in announcing the settlement, but it remains to be seen whether his constituents will actually see the money – and, if so, how much and when.</p>
<p>Knowing that, it’s hard to imagine any significant further settlement activity, at least until another case gets within a month or two of trial. And, if Purdue does file for bankruptcy, the opioid cases may never get that close to a trial again.</p>
<p>And that, of course, means that the various states and local governments that have brought lawsuits will have to continue to bear the cost of opioid-related treatment and services for the foreseeable future.</p>
<p>[ <em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/114469/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Andrew Pollis does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The $270 million settlement may not mean a whole lot if Purdue files for bankruptcy as it’s reportedly considering.Andrew Pollis, Professor of Law, Case Western Reserve UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1133092019-03-13T10:41:34Z2019-03-13T10:41:34ZPurdue Pharma: Bankruptcy filing would make lawsuits slower and costlier for plaintiff cities and states<figure><img src="https://images.theconversation.com/files/263428/original/file-20190312-86696-ysb943.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Purdue faces about 2,000 lawsuits related to the opioid crisis.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Opioid-Lawsuits-States/a54fadc047154c0fb8bdaea9516cad71/3/0">AP Photo/Toby Talbot</a></span></figcaption></figure><p>A <a href="https://www.reuters.com/article/uk-purduepharma-bankruptcy-exclusive/exclusive-oxycontin-maker-purdue-pharma-exploring-bankruptcy-sources-idUSKCN1QL1KP">report that Purdue Pharma may file for bankruptcy</a> has <a href="https://www.nhpr.org/post/possible-bankruptcy-purdue-pharma-could-affect-local-lawsuits-against-drugmaker">many</a> <a href="https://www.statnews.com/2019/03/04/if-purdue-pharma-declares-bankruptcy-what-would-it-mean-for-lawsuits-against-the-opioid-manufacturer/">wondering</a> how bankruptcy <a href="https://www.beckershospitalreview.com/pharmacy/what-happens-if-purdue-pharma-declares-bankruptcy.html">would affect</a> the ongoing opioid litigation. </p>
<p>Nationwide the OxyContin maker as well as other drug manufacturers and distributors face about 2,000 lawsuits related to <a href="http://www.jpml.uscourts.gov/sites/jpml/files/MDL-2804-Initial-Transfer-11-17.pdf">allegations that they contributed</a> to the <a href="https://theconversation.com/opioid-epidemic-the-global-spread-explained-101649">opioid crisis</a> through negligent marketing, fraud and unjust enrichment.</p>
<p>A bankruptcy filing by a defendant in such situations is always a possibility since the potential financial impact on companies in this type of <a href="https://definitions.uslegal.com/c/complex-tort-litigation/">tort litigation</a> is substantial and future exposure is hard to calculate. The same thing happened in 1982 over <a href="http://www.fundinguniverse.com/company-histories/johns-manville-corporation-history/">asbestos litigation</a>, in 1985 over <a href="http://articles.latimes.com/1985-08-22/news/mn-2221_1_dalkon-shield">flawed intrauterine devices</a> and in 2017 over <a href="https://www.usatoday.com/story/money/cars/2018/02/12/takata-settles-injured-drivers-exit-bankruptcy/328396002/">defective Takata airbags</a>. </p>
<p>In a recent paper <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3308838">I argued</a> that successful outcomes for the opioid litigation have always been fraught with uncertainty. </p>
<p>While a bankruptcy filing would definitely affect any litigation or settlement, it doesn’t mean plaintiffs wouldn’t get any compensation. It would mean, however, that there may be less money to go around and that plaintiffs would have to wait longer for a resolution of their cases. </p>
<h2>Litigating the opioid crisis</h2>
<p>A <a href="https://www.cdc.gov/nchs/nvss/vsrr/drug-overdose-data.htm">record 48,000 people died</a> of overdoses related to opioids in 2017, including prescription painkillers, heroin and fentanyl. That brings the total number of U.S. deaths since the epidemic began around 20 years ago to <a href="https://www.cdc.gov/drugoverdose/epidemic/index.html">almost 400,000</a>, at an estimated cost of <a href="https://altarum.org/about/news-and-events/economic-toll-of-opioid-crisis-in-u-s-exceeded-1-trillion-since-2001">US$1 trillion</a>.</p>
<p>As a result, thousands of cities, states, counties and tribal nations that have suffered as a result of the <a href="https://theconversation.com/the-opioid-epidemic-in-6-charts-81601">opioid crisis</a> are trying to hold drugmakers responsible and recover some of their health care and law enforcement costs. </p>
<p>The largest lawsuit is taking place in Cleveland and involves more than 1,500 plaintiffs. Originally, these were separate lawsuits, but they were combined using a procedure called <a href="https://www.law.cornell.edu/uscode/text/28/1407">multi-district consolidation</a>. Consolidation is designed to promote a global settlement between all the parties, with so-called <a href="https://judicialstudies.duke.edu/sites/default/files/centers/judicialstudies/panel_5-bellwether_trials.pdf">bellwether trials</a> held to narrow down the issues in dispute. </p>
<p>In addition to the Cleveland case, another 300 have been filed in 45 state courts against most of the same defendants.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/263431/original/file-20190312-86696-u5g8ad.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/263431/original/file-20190312-86696-u5g8ad.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=414&fit=crop&dpr=1 600w, https://images.theconversation.com/files/263431/original/file-20190312-86696-u5g8ad.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=414&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/263431/original/file-20190312-86696-u5g8ad.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=414&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/263431/original/file-20190312-86696-u5g8ad.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=521&fit=crop&dpr=1 754w, https://images.theconversation.com/files/263431/original/file-20190312-86696-u5g8ad.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=521&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/263431/original/file-20190312-86696-u5g8ad.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=521&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Those who have lost loved ones to opioid overdoses protest outside Purdue headquarters.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Opioid-Lawsuit-Massachusetts/47388fa1497e4bc284cd41bad99f24d8/2/0">AP Photo/Jessica Hill</a></span>
</figcaption>
</figure>
<h2>Purdue’s road to possible bankruptcy</h2>
<p>The possibility that Purdue <a href="https://www.uscourts.gov/services-forms/bankruptcy/bankruptcy-basics/chapter-11-bankruptcy-basics">might enter into Chapter 11</a> bankruptcy proceedings is not a surprise. </p>
<p>Back in August, the Oklahoma attorney general <a href="http://www.oag.ok.gov/Websites/oag/images/Emergency%20Motions.pdf">argued in a filing in his state’s case</a> against opioid manufacturers that Purdue was “trying to buy time so it can move assets and employees overseas … and either file bankruptcy or leave an empty shell here in the United States for all of the victims of its corporate greed.”</p>
<p>In addition, Purdue left visible breadcrumbs by <a href="https://www.insurancejournal.com/news/national/2019/03/04/519476.htm">hiring a law firm</a> as well as a <a href="https://www.bloomberg.com/news/articles/2018-07-23/-turnaround-kid-miller-tapped-to-lead-oxycontin-maker-s-board">new board chairman</a> with expertise in corporate restructuring. </p>
<p>While the the Cleveland litigation <a href="http://www.oag.ok.gov/Websites/oag/images/Emergency%20Motions.pdf">has stalled</a>, attention has shifted to actions brought by some states, notably those in Massachusetts and Oklahoma. </p>
<p>The Massachusetts complaint made public some <a href="https://www.npr.org/sections/health-shots/2019/02/01/690556552/lawsuit-details-how-the-sackler-family-allegedly-built-an-oxycontin-fortune">incendiary allegations</a> about some members of the Sackler family, which owns Purdue. For example, the <a href="https://www.mass.gov/files/documents/2019/01/31/Massachusetts%20AGO%20Amended%20Complaint%202019-01-31.pdf">Massachusetts attorney general claimed</a> that family members “directed deceptive sales and marketing practices deep within Purdue, sending hundreds of orders to executives and line employees. From the money that Purdue collected selling opioids, they paid themselves and their family billions of dollars.” </p>
<p>Considerable attention has also been paid to the <a href="https://www.documentcloud.org/documents/5745056-Depo-022019.html">leaked deposition</a> of one of members of the Sackler family in the Oklahoma case. The Oklahoma lawsuit became even more important when it became clear that it would be the <a href="https://www.bloomberg.com/news/articles/2019-03-08/purdue-pharma-says-trial-timing-won-t-sway-bankruptcy-decision">first to go to trial</a>. On March 8, a judge ruled against Purdue and other drugmakers that had asked to delay it.</p>
<p>Cases brought by states in their own courts <a href="https://www.washingtonpost.com/national/oklahoma-could-provide-first-test-of-who-will-pay-for-the-opioid-crisis--and-how-much/2019/02/19/c35ad366-3082-11e9-8ad3-9a5b113ecd3c_story.html?utm_term=.286a65d377ed">pose great risk</a> to the defendants, a consideration that likely has amplified the bankruptcy chatter. For its part, <a href="https://www.bloomberg.com/news/articles/2019-03-08/purdue-pharma-says-trial-timing-won-t-sway-bankruptcy-decision">Purdue “categorically denied”</a> that it would affect its decision on whether to declare bankruptcy. </p>
<h2>Assessing the impact</h2>
<p>A bankruptcy filing by Purdue would be like hitting a <a href="https://www.law.cornell.edu/uscode/text/11/362">nationwide pause button</a> on all the claims against the company, whether in federal or state courts. </p>
<p>The claims against Purdue <a href="https://www.law.cornell.edu/uscode/text/28/157">would be put</a> under the exclusive jurisdiction of a <a href="https://www.law.cornell.edu/uscode/text/28/1334">federal bankruptcy court</a>. </p>
<p>It would then be the responsibility of that court to <a href="https://www.law.cornell.edu/uscode/text/28/157">determine any damages</a> to be allocated to plaintiffs as part of the company’s restructuring and possibly establish a trust fund that would apply to future opioid claims – for example, those individuals suffering from opioid use disorder not just their cities or states – after the company emerged from bankruptcy.</p>
<p>In advance, the court might also have to appoint a new attorney to <a href="https://www.law.cornell.edu/uscode/text/11/1123">represent the plaintiffs</a> during the restructuring, just one of the many procedural issues that could delay the resolution of the case. </p>
<p>The multi-district and state litigation could still proceed, except that Purdue would no longer be a defendant. However, the exit of a major defendant – and the only one to have <a href="https://www.nytimes.com/2007/05/10/business/11drug-web.html">pleaded guilty</a> to related conduct – is bound to have an impact on the representation and tactics of the other parties. </p>
<p>Further, complex <a href="https://www.justia.com/injury/negligence-theory/joint-and-several-liability/">legal rules</a> could come into play in deciding the extent to which the remaining defendants could be responsible for damages partially caused by Purdue.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/263432/original/file-20190312-86707-oyu2tk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/263432/original/file-20190312-86707-oyu2tk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=423&fit=crop&dpr=1 600w, https://images.theconversation.com/files/263432/original/file-20190312-86707-oyu2tk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=423&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/263432/original/file-20190312-86707-oyu2tk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=423&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/263432/original/file-20190312-86707-oyu2tk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=531&fit=crop&dpr=1 754w, https://images.theconversation.com/files/263432/original/file-20190312-86707-oyu2tk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=531&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/263432/original/file-20190312-86707-oyu2tk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=531&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Overdoses kill nearly 200 people a day on average.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Opioids-Left-Behind-Sisterhood-of-Grief/10e312c16c20429f80b2d09f12a8e8ba/19/0">AP Photo/Jessica Hill</a></span>
</figcaption>
</figure>
<h2>Possible upside for co-defendents</h2>
<p>Purdue, of course, isn’t the only drugmaker on trial. </p>
<p>Johnson & Johnson, Teva Pharmaceuticals and Actavis are also defendants in most of the lawsuits, including the multi-district litigation in Cleveland. While the impact of a Purdue bankruptcy on individual co-defendants is complex, there is at least one scenario where it might actually end up benefiting them. </p>
<p>The opioid cases have always been viewed as an <a href="https://www.healthaffairs.org/do/10.1377/hblog20180517.992650/full/">uphill battle</a>, in contrast to the litigation in the 1990s that led to the <a href="https://www.npr.org/2013/10/13/233449505/15-years-later-where-did-all-the-cigarette-money-go">$246 billion settlement</a> between <a href="https://www.publichealthlawcenter.org/sites/default/files/resources/master-settlement-agreement.pdf">Big Tobacco and 46 states</a> in 1998. </p>
<p>After all, the opioid defendants can argue their products, unlike cigarettes, were <a href="https://www.fda.gov/Drugs/DrugSafety/InformationbyDrugClass/ucm338566.htm">approved by the Food and Drug Administration</a>. Furthermore, in the case of Big Tobacco,
<a href="https://www.nytimes.com/1994/05/07/us/tobacco-company-was-silent-on-hazards.html">whistleblowers revealed documents</a> demonstrating that the tobacco companies were fully aware of the dangers of smoking, prompting the settlement. </p>
<p>It is only recently that the hint of a potentially damaging smoking gun has emerged in the opioid cases, first in the allegations made in the Massachusetts case and in <a href="https://www.statnews.com/2019/02/21/purdue-pharma-richard-sackler-oxycontin-sealed-deposition/">deposition testimony</a> of the Sackler family member in Oklahoma. If Purdue is removed from the litigation, this possibly damaging evidence likely exits along with the company.</p>
<h2>Asbestos not tobacco</h2>
<p>Eventually, the litigation will reach a resolution. But most likely, compensation will be too little or too late for the victims who are suffering from the overdose epidemic. </p>
<p>And even if the lawsuits result in a substantial settlement resembling that in the tobacco litigation, there is little likelihood that those settlement dollars will find their way to the individuals or families most affected by the epidemic. </p>
<p>If the bankruptcy courts become involved, even those prospects may decrease. And instead of parallels to the tobacco litigation, we’ll see more comparisons to the <a href="https://www.rand.org/pubs/monographs/MG162.html">asbestos litigation</a>, which, in over 40 years, has failed to produce a global settlement.</p><img src="https://counter.theconversation.com/content/113309/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nicolas Paul Terry receives funding from the Indiana University Addictions Grand Challenge, <a href="https://grandchallenges.iu.edu/addiction/index.html">https://grandchallenges.iu.edu/addiction/index.html</a> </span></em></p>OxyContin maker Purdue has reportedly been mulling a bankruptcy filling, just as the first of around 2,000 lawsuits against it prepares to go to trial.Nicolas Paul Terry, Professor of Law, Indiana UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1002292018-07-19T10:41:06Z2018-07-19T10:41:06ZMGM is suing the victims of the worst mass shooting in US history. Here’s why<figure><img src="https://images.theconversation.com/files/228322/original/file-20180718-142423-18aacnq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The scene in Las Vegas several days after the worst mass shooting in U.S. history.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Gun-Background-Checks-Nevada/b9b5faef764a4af091cf21a4cee294b6/11/0">AP Photo/Gregory Bull</a></span></figcaption></figure><p>Last October, Stephen Paddock unleashed a barrage of automatic gunfire from a 32nd-floor hotel room overlooking a large crowd of concertgoers attending a country music festival in Las Vegas. With a body count of 59 dead and another 500 wounded, it was the <a href="https://www.nytimes.com/2017/10/02/us/las-vegas-shooting.html">worst mass shooting</a> in U.S. history. </p>
<p>Victims of the attack <a href="https://www.nytimes.com/2017/11/21/us/vegas-shooting-lawsuits.html">filed lawsuits last fall</a> against MGM Resorts International, the owner of the hotel and the festival grounds, alleging that the company provided lax security, ignored warning signs that Paddock was stockpiling guns and ammunition in his hotel rooms for days, and failed to respond quickly once the shooting was underway.</p>
<p>On July 13, MGM fired back.</p>
<p>The company <a href="https://www.nytimes.com/2018/07/17/us/mgm-resorts-sues-victims.html">filed a lawsuit in federal court</a> against the victims, seeking a declaration that, under federal law, it is immune from any liability for injuries arising out of the Las Vegas mass shooting. </p>
<p>In <a href="https://scholar.google.com/citations?user=yQUI6yEAAAAJ&hl=en">two decades of writing</a> about litigation arising out of gun violence, I believe that MGM’s legal strategy is unprecedented but not entirely unexpected. If successful, MGM’s lawsuit would fundamentally alter the duties that hotels and concert venues owe to their patrons at a time in our nation’s history when mass shootings have made them especially vulnerable.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/228314/original/file-20180718-142432-6w8at8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/228314/original/file-20180718-142432-6w8at8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/228314/original/file-20180718-142432-6w8at8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/228314/original/file-20180718-142432-6w8at8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/228314/original/file-20180718-142432-6w8at8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/228314/original/file-20180718-142432-6w8at8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/228314/original/file-20180718-142432-6w8at8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A sign asks for prayers outside of the MGM hotel in Las Vegas.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Las-Vegas-Shooting/fafbf3241e044b7b9415cd10b4266b66/6/0">AP Photo/John Locher</a></span>
</figcaption>
</figure>
<h2>The basis for MGM’s lawsuit</h2>
<p>MGM’s claim of immunity is based on a federal statute called the <a href="https://www.law.cornell.edu/uscode/text/6/chapter-1/subchapter-VIII/part-G">Support Anti-Terrorism by Fostering Effective Technologies Act</a> – known as the SAFETY Act – passed shortly after the Sept. 11, 2001, attacks on the Twin Towers and the Pentagon. </p>
<p>The act limits the liability of companies that develop new technologies or sell services to prevent and respond to terrorist attacks. More importantly for MGM’s purposes, the act makes the customers of such companies entirely immune from liability. These liability provisions apply to any claims arising out of “an act of terrorism.”</p>
<p>To provide security at the Route 91 music festival, MGM hired the <a href="https://csc-usa.com/">Contemporary Services Corporation</a>, a company whose security services have been certified by the secretary of Homeland Security to fall under the provisions of the SAFETY Act, which would render MGM, as a client, immune from liability.</p>
<h2>Why is MGM suing the victims?</h2>
<p><a href="http://cdn.cnn.com/cnn/2018/images/07/17/mgm.complaint.pdf">MGM’s complaint</a> asserts that more than 2,500 individuals have filed or threatened to file lawsuits against the company for injuries – ranging from death to emotional distress –arising from the shooting. </p>
<p>Because MGM’s lawsuit is based on a federal statute, it will be heard in a federal court. The company likely expects a federal judge would be less sympathetic to the victim’s claims than the local state court judges by whom the victims’ lawsuits will be heard. If the federal judge decides in MGM’s favor, that would put an end to the lawsuits in state courts.</p>
<p>MGM’s lawsuit seeks a declaratory judgment that it is immune from liability under the SAFETY Act, which would dispense with all 2,500 potential claims against it in one fell swoop. </p>
<p>The initial public response to MGM’s lawsuit has been <a href="https://www.usatoday.com/story/news/nation/2018/07/17/mgm-resorts-sues-victims-las-vegas-massacre-denies-liability/791511002/">highly critical</a>, but the company is likely betting that reducing its potentially disastrous liability exposure – which could run into hundreds of millions of dollars – is worth any damage to its brand.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/228315/original/file-20180718-142417-sb9q16.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/228315/original/file-20180718-142417-sb9q16.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=388&fit=crop&dpr=1 600w, https://images.theconversation.com/files/228315/original/file-20180718-142417-sb9q16.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=388&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/228315/original/file-20180718-142417-sb9q16.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=388&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/228315/original/file-20180718-142417-sb9q16.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=488&fit=crop&dpr=1 754w, https://images.theconversation.com/files/228315/original/file-20180718-142417-sb9q16.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=488&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/228315/original/file-20180718-142417-sb9q16.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=488&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">People carry flowers as they walk near the Mandalay Bay hotel and casino during a vigil for victims and survivors of the mass shooting in Las Vegas.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Las-Vegas-Shooting/51db84d4431e4459914f110d41609c98/3/0">AP Photo/John Locher, File</a></span>
</figcaption>
</figure>
<h2>MGM’s odds of success</h2>
<p>To obtain immunity under the SAFETY Act, MGM will have to convince the court that the Las Vegas mass shooting was an act of terrorism, which <a href="https://www.law.cornell.edu/uscode/text/6/444#2_A">the law</a> defines as an illegal act that “uses or attempts to use instrumentalities, weapons or other methods designed or intended to cause mass destruction.” Just how the court will decide that issue remains unclear.</p>
<p><a href="https://www.nytimes.com/2018/07/17/us/mgm-resorts-sues-victims.html">According to MGM’s own lawyer</a>, this is the first litigation invoking the act, and no court has yet interpreted the provisions of the act.</p>
<p>Gun sellers and retailers are already immune from such lawsuits arising out of the criminal misuse of the weapons that they sell under the 2005 Protection of Lawful Commerce in Arms Act. </p>
<p>If successful, MGM’s lawsuit would extend similar protection to the hotels, concert halls, fairgrounds, schools and other venues currently responsible under the law for taking reasonable measures to protect the public. MGM’s denial of any responsibility for public safety on its property represents a new strategy by public accommodations for responding to mass shootings: run for the exits.</p><img src="https://counter.theconversation.com/content/100229/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Timothy D. Lytton has provided expert consulting services to law firms representing gun violence victims</span></em></p>The hotel company filed an unprecedented lawsuit against the victims of the mass shooting in Las Vegas last October, arguing it has immunity from liability under federal law.Timothy D. Lytton, Distinguished University Professor & Professor of Law, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/894262018-01-05T03:04:00Z2018-01-05T03:04:00ZWhen charities let telemarketers gouge donors<figure><img src="https://images.theconversation.com/files/200864/original/file-20180104-26157-1q0sb8o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Some telemarketers retain nearly all of the charitable dollars they solicit.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/closeup-businessman-holding-telephone-receiver-about-269439785">Gajus/Shutterstock.com</a></span></figcaption></figure><p><a href="https://content.govdelivery.com/accounts/OHAG/bulletins/1c7fd02">Ohio Attorney General Mike DeWine</a> recently called Ohio Cops for Kids a “purported charity” when he sued the group for allegedly defrauding donors in his state.</p>
<p>The complaint claims that the <a href="http://www.cleveland.com/metro/index.ssf/2017/11/cops_for_kids_a_sham_that_gave.html">group spent merely 2 percent</a> of the money raised on its behalf on efforts related to its official mission of helping children whose families were victims of crime. Telcom Enterprises, a for-profit fundraiser the charity hired, kept 79 percent of those funds, and the nonprofit spent the rest on its salaries and overhead, according to DeWine’s lawsuit.</p>
<p>This alleged racket may sound like an isolated case of extreme malfeasance. But the Ohio Cops for Kids case is only the latest example of for-profit telemarketing companies <a href="https://www.publicintegrity.org/2017/12/13/21395/charities-employ-controversial-telemarketers-tug-heartstrings-and-loosen-purse">accused of turning</a> donations intended to support good causes into private gold mines.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/bxHDuKoE7WE?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Cleveland’s News 5 reported on an Ohio-based charity claiming to work ‘hand in hand’ with law enforcement agencies across that state but is being accused of bilking over $4.2 million from thousands of donors.</span></figcaption>
</figure>
<h2>Telemarketing trouble</h2>
<p>While researching the finances of charities and the for-profit fundraisers they hire, I have noticed two related problems with the practice of farming out fundraising.</p>
<p>One is legal: <a href="https://www.urban.org/sites/default/files/publication/84161/2000925-State-Regulation-and-Enforcement-in-the-Charitable-Sector.pdf">State</a> and <a href="https://theconversation.com/the-irs-targeting-scandal-was-fake-but-irs-budget-woes-are-a-real-problem-85310">federal authorities</a> have a limited ability to regulate charities and their fundraisers.</p>
<p>The other is cultural: Charities fight new regulations, <a href="https://www.philanthropy.com/article/Opinion-Independent-Sector/228239">arguing that they can police themselves</a>. Yet, they are reluctant to call out their peers who abuse the <a href="https://www.philanthropy.com/article/The-Overhead-Debate-Charities/154087">public trust</a>.</p>
<p>Paying for-profit companies to fundraise for charities isn’t inherently problematic. Because outsourcing gives nonprofits room to focus on work donors really care about, it can be more efficient than hiring in-house staff. This is especially true when there are <a href="http://www.sciencedirect.com/science/article/pii/S0167268117300598?via%3Dihub">high upfront costs</a> for fundraising campaigns.</p>
<p>But more often than not, charities that rely on contractors for telemarketing campaigns wind up raising less money for the charity’s operations than they do for the telemarketers, especially when they <a href="http://journals.sagepub.com/doi/abs/10.1177/0899764098273002">pay fundraisers on a commission</a> basis.</p>
<p>New York State Attorney General <a href="https://www.charitiesnys.com/pdfs/pennies-for-charity-2017.pdf">Eric Schneiderman’s office</a> examines regional and national professional fundraising campaigns. In 2017, it found that telemarketing companies pocketed more funds than they passed along to the charities they worked for more than two-thirds of the time.</p>
<p>More shockingly, 18 percent of the time, telemarketers <a href="https://www.charitiesnys.com/pdfs/pennies-for-charity-2017.pdf">charged charities more in fees</a> than they ended up collecting in donations, leaving the nonprofits worse off than had they not sought donations in the first place.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"806227702315356161"}"></div></p>
<h2>Call me never</h2>
<p>Whatever their track record, telemarketers have become increasingly reliant on charitable fundraising, if only because other options are being precluded.</p>
<p>The national <a href="https://www.donotcall.gov">do-not-call registry</a>, adopted in 1991, gives Americans the option of blocking most telemarketer calls. But this does not extend to solicitations <a href="https://www.ftc.gov/tips-advice/business-center/guidance/qa-telemarketers-sellers-about-dnc-provisions-tsr#exemptorgs">on behalf of charities</a>. That loophole means that <a href="https://www.lexology.com/library/detail.aspx?g=b5f41129-078d-4cff-821f-ff73f1b1c0d8">for-profit companies</a> may legally dial the more than <a href="https://www.ftc.gov/news-events/press-releases/2017/12/ftc-releases-fy-2017-national-do-not-call-registry-data-book-dnc">229 million</a> registered numbers with charity-related pitches. </p>
<p>Charities must maintain and <a href="https://www.charitynavigator.org/index.cfm?bay=content.view&cpid=224">honor their own</a> do-not-call lists, however.</p>
<p>Perhaps unsurprisingly, as the number of people who have registered their “do-not-call” preferences has risen, <a href="http://countingoncharity.blogspot.com/2014/02/the-do-not-call-list-and-charity.html">so too has solicitation</a> by telemarketers-for-hire on behalf of charities.</p>
<p>What’s more, with telemarketers <a href="https://www.revealnews.org/article/one-donation-to-charity-telemarketer-spawns-more-solicitation-calls/">amassing their own donor lists</a> and charities <a href="https://www.nytimes.com/2015/12/02/your-money/before-giving-check-out-charities-and-their-policies-on-privacy.html">selling data about their donors</a>, repeat offenders are assured. Once donors give through these fundraising companies, they risk getting other telemarketing appeals for years to come.</p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/200866/original/file-20180104-26151-61etld.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/200866/original/file-20180104-26151-61etld.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/200866/original/file-20180104-26151-61etld.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/200866/original/file-20180104-26151-61etld.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/200866/original/file-20180104-26151-61etld.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/200866/original/file-20180104-26151-61etld.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/200866/original/file-20180104-26151-61etld.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/200866/original/file-20180104-26151-61etld.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Charities and telemarketers working on their behalf are not subject to the do-not-call list.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-vector/no-mobile-phone-206777542">Butterfly Hunter/Shutterstock.com</a></span>
</figcaption>
</figure>
<h2>State investigations</h2>
<p>One typical defense of the profits earned from charitable telemarketing is that paying telemarketers big bucks is worth it if they make obtaining charitable dollars easier in the future. But do they?</p>
<p>After combing through data collected by state attorneys general serving in <a href="https://oag.ca.gov/charities/cfr">California</a>, <a href="http://www.michigan.gov/ag/0,4534,7-359-82916_81983_47203-408953--,00.html">Michigan</a>, <a href="https://www.charitiesnys.com/pdfs/pennies-for-charity-2017.pdf">New York</a> and elsewhere, I have seen <a href="http://countingoncharity.blogspot.com/2013/07/does-charity-telemarketing-pay-in-long.html">little evidence</a> that telemarketing campaigns generate more donations at a lower cost over time.</p>
<p>Meanwhile, many of the charities that hire the most egregious professional fundraisers continue to grow despite <a href="http://www.tampabay.com/news/nation/americas-50-worst-charities-rake-in-nearly-1-billion-for-corporate/2339540">occasional public relations debacles</a>.</p>
<h2>Guardrails</h2>
<p>A natural response to this menace is to pursue <a href="http://unitedwaysuncoast.org/floridas-top-charity/">legal remedies</a>. However, the <a href="https://www.charitynavigator.org/index.cfm/bay/content.view/cpid/351.htm">Supreme Court</a> has ruled that laws capping the share of money telemarketers may pocket violate the charities’ <a href="http://www.chicagotribune.com/news/watchdog/ct-charity-telemarketers-met-20150828-story.html">free speech rights</a>.</p>
<p>Enforcement cases like Ohio’s are rare, partly because they can <a href="http://www.illinoisattorneygeneral.gov/pressroom/2017_11/20171106.html">take years</a> of dogged efforts, as Illinois Attorney General Lisa Madigan’s prosecution of telemarketer Safety Publications and the <a href="http://peoriapublicradio.org/post/rockford-based-vietnow-dissolved-fraudulent-fundraising-activities#stream/0">Rockford, Illinois-based VietNow charity</a> demonstrated. </p>
<p><a href="http://www.nytimes.com/2003/02/02/us/with-a-lawsuit-pending-charities-are-divided-over-disclosure-to-donors.html">Charities have even helped defeat</a> efforts to require telemarketers to tell donors how their gifts are spent.</p>
<p>This leaves the authorities unable to to target abusive telemarketers unless they <a href="http://www.chicagotribune.com/news/watchdog/ct-charity-telemarketers-met-20150828-story.html">intentionally deceive donors</a> about how much money they will retain.</p>
<p>Cash-strapped budgets further <a href="https://www.philanthropy.com/article/187-Million-Fraud-Case-Puts/230567">hinder enforcement efforts by state regulators</a>. </p>
<h2>Follow the money</h2>
<p>Another complication is that charities face few disclosure requirements. One exception is that they must file annual financial reports with the IRS, including the cash their <a href="https://www.jstor.org/stable/30245363?seq=1#page_scan_tab_contents">outsourced fundraisers collect from donors</a> and how much of it their contractors retain.</p>
<p>Done right, this mandate should let donors figure out how much of their money the charities spend on this service. But the data is not reliable.</p>
<p>When <a href="https://www.jstor.org/stable/30245363?seq=1#page_scan_tab_contents">accounting researchers from Boston College and the University of Alabama</a> compared charity IRS filings with the professional fundraising reports their telemarketers filed in several states, they found that <a href="https://www.jstor.org/stable/30245363?seq=1#page_scan_tab_contents">more than 70 percent</a> of the charities failed to accurately report how much they paid professional solicitors.</p>
<p>Even charities that follow proper reporting practices can exploit a <a href="https://www.charitywatch.org/charitywatch-articles/tricks-of-the-charity-trade-donors-unknowingly-pay-to-receive-more-solicitations/125">little-known rule</a> to treat some payments to telemarketers as “<a href="http://fasb.org/jsp/FASB/Document_C/DocumentPage?cid=1176156442680&acceptedDisclaimer=true">programming costs</a>” when their pitches help satisfy public education goals.</p>
<p>This makes it difficult for even the most diligent donor to know precisely how much money telemarketers retain, unless they hear about it from <a href="https://www.publicintegrity.org/2017/12/13/21395/charities-employ-controversial-telemarketers-tug-heartstrings-and-loosen-purse">the media</a> or watchdogs like <a href="https://www.charitywatch.org/charitywatch-hot-topic/donor-alert-39-aclj-39-is-two-charities-dominated-by-one-family/74">Charity Watch</a>.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"941656292736847872"}"></div></p>
<h2>Donor beware</h2>
<p>Absent aggressive enforcement, the charitable sector has <a href="https://www.philanthropy.com/article/187-Million-Fraud-Case-Puts/230567">struggled to regulate itself</a>.</p>
<p>The <a href="http://countingoncharity.blogspot.com/2013/05/the-big-three-of-professional.html#more">biggest offenders</a> often work on behalf of nonprofits doing <a href="https://www.publicintegrity.org/2017/12/13/21395/charities-employ-controversial-telemarketers-tug-heartstrings-and-loosen-purse">heartstring-pulling</a> work like <a href="https://theconversation.com/want-to-support-veterans-4-tips-for-finding-good-charities-77921">serving veterans</a> and supporting <a href="https://www.theatlantic.com/business/archive/2015/05/are-you-donating-to-charity-or-lining-someones-pockets/393725/">people with cancer</a>. </p>
<p>The <a href="http://www.cleveland.com/metro/index.ssf/2017/11/cops_for_kids_a_sham_that_gave.html">Ohio Cops for Kids</a> case shows the potential for aggressive action by state authorities. However, the fact that the offenders in extreme cases may profiteer for years without suffering consequences also highlights a <a href="https://nonprofitquarterly.org/2013/11/14/six-problems-third-in-a-series-on-the-wapo-nonprofit-asset-diversion-database/">festering accountability crisis</a>.</p><img src="https://counter.theconversation.com/content/89426/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Brian Mittendorf does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>For-profit fundraisers often keep more of the money they collect on behalf of nonprofits than they should but Ohio’s attorney general is accusing a charity of serving as an accomplice to a crime.Brian Mittendorf, Fisher College of Business Distinguished Professor and Chair, Department of Accounting & Management Information Systems (MIS), The Ohio State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/864512017-11-06T01:24:07Z2017-11-06T01:24:07ZTaxpayers are subsidizing hush money for sexual harassment and assault<figure><img src="https://images.theconversation.com/files/193264/original/file-20171103-1011-su99sq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The secret settlements that leave the reputations of alleged sexual abuse perpetrators intact are also tax-deductible.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/locker-bank-vault-storage-cash-documents-71417005?src=jK7LyeHElAbODzkiDUjnpA-1-63">Lisa S./Shutterstock.com</a></span></figcaption></figure><p>Many of the recent stories about sexual abuse claims against disgraced Hollywood mogul <a href="http://www.slate.com/blogs/the_slatest/2017/10/10/a_list_of_sexual_assault_and_harassment_allegations_against_harvey_weinstein.html">Harvey Weinstein</a>, former Fox News host <a href="https://www.gq.com/story/megyn-kelly-bill-oreilly-the-receipts">Bill O’Reilly</a> and <a href="http://wjla.com/news/entertainment/looking-back-at-the-sexual-harassment-media-stories-that-dominated-coverage-this-year">other powerful actors, journalists and executives</a> mention settlements either they or their employers made to silence women who accused them of misconduct. </p>
<p>These settlements often require alleged victims to sign a nondisclosure agreement – essentially a pledge of secrecy – in exchange for a cash payment. They are designed to keep the reputations of allegedly abusive high-flyers intact, an arrangement that can allow repeated wrongdoing. </p>
<p>As a law professor who focuses on <a href="https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=182574">white-collar crime</a>, what I find striking about these contracts is how they can be treated as tax-deductible business expenses. That means American taxpayers are helping foot the bill for keeping despicable behavior in the shadows.</p>
<p>I don’t believe that secret payments to settle sexual abuse claims should be tax-deductible. Here’s why.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/193217/original/file-20171103-1014-1p3ya0r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/193217/original/file-20171103-1014-1p3ya0r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/193217/original/file-20171103-1014-1p3ya0r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/193217/original/file-20171103-1014-1p3ya0r.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/193217/original/file-20171103-1014-1p3ya0r.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/193217/original/file-20171103-1014-1p3ya0r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/193217/original/file-20171103-1014-1p3ya0r.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/193217/original/file-20171103-1014-1p3ya0r.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Before Fox News fired Bill O'Reilly, there was a great deal of outrage over his alleged sexual abuse.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/TV-Fox-O-Reilly/3b446a6e30c04fa9b231a077f9856ea7/30/0">AP Photo/Bebeto Matthews</a></span>
</figcaption>
</figure>
<h2>Secret settlements</h2>
<p>Sexual harassment <a href="https://www.eandblaw.com/employment-discrimination-blog/2016/02/04/sexual-harassment-at-work-a-crime/">becomes a crime</a> only when there is a nonconsensual touching or sexual contact that can be prosecuted.</p>
<p>Victims of sexual harassment in the workplace usually can pursue personal injury claims by seeking damages from the executive or colleague responsible for it – or their employer – to compensate for emotional distress and any physical injury the abuse caused. These cases are mostly litigated at the state level, if they ever reach a courtroom.</p>
<p>The broader cost of these confidential agreements to society is that they leave perpetrators free to prey on new victims who are unaware that they may be walking into a trap when they meet privately with a powerful executive or someone who simply has <a href="https://www.washingtonian.com/2017/11/01/matt-taibbi-politics-prose-event-canceled-sidwell/">greater seniority and influence</a>.</p>
<p>Some states have tried to stop or at least curb this practice.</p>
<p>For example, Florida’s <a href="http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0069/Sections/0069.081.html">Sunshine in Litigation Act</a> prohibits courts from entering an order that conceals information related to a public hazard, which is defined as something or someone “that has caused and is likely to cause injury.”</p>
<p><a href="https://www.rcfp.org/secret-justice-alternative-dispute-resolution/secret-settlements-hazardous-cases">Other states</a> with anti-secrecy laws include Texas, Virginia, North Carolina, New York, Oregon and Georgia. </p>
<p>That kind of solution, however, only goes a short way toward protecting the public because it is limited to cases that go to court. For example, a former Weinstein Company employee withdrew her complaint to management without ever resorting to a legal filing by <a href="https://www.boston.com/culture/entertainment/2017/10/12/weinstein-co-may-have-known-of-settlements-since-2015">accepting a settlement</a> in 2015. A <a href="https://www.nytimes.com/2017/10/05/us/harvey-weinstein-harassment-allegations.html?_r=0">total of eight women</a> have collected between roughly US$80,000 and $150,000 each due to secret agreements not to disclose Weinstein’s alleged misconduct, The New York Times reported in October.</p>
<p>When settlements stave off the filing of a sexual harassment complaint in court, the agreements aren’t subject to mandates like Florida’s Sunshine in Litigation Act.</p>
<p>California State Sen. <a href="http://variety.com/2017/biz/news/bill-settlement-ban-sexual-harassment-harvey-weinstein-1202593778/">Connie Leyva</a> plans to introduce a bill that would go even further. Her legislation would ban all secret nondisclosure agreements in financial settlements that arise from sexual harassment, assault and discrimination cases.</p>
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<h2>Ordinary business expenses</h2>
<p>The payments associated with these settlements can be treated as a business expense. That means they are tax-deductible, as long as they are related to the conduct of the company’s ordinary operations.</p>
<p>Although it might seem odd to say that sexual harassment is within the realm of a company’s business, the many accusations against Weinstein involved encounters that were at least purportedly related to future movie productions.</p>
<p>Either an employer or the person accused of harassment can pay the money required by these settlements. In O’Reilly’s case, Fox has said it knew that he had reached a new settlement with an accuser before it renegotiated his contract earlier this year. Fox’s insistence that the company was unaware of the size of the settlement – <a href="http://deadline.com/2017/10/james-murdoch-oreilly-settlement-was-news-to-me-1202194410/">$32 million</a> – makes it clear that O'Reilly wrote the check.</p>
<p>Even the attorney’s fees for negotiating the settlement are deductible as another ordinary business expense.</p>
<p>Until about 50 years ago, payments related to violations of what the courts deemed violations of “public policy” were not tax-deductible. Congress changed that in 1969. Section 162 of the <a href="https://www.law.cornell.edu/uscode/text/26/162">U.S. tax code</a> now only explicitly prohibits the deduction of bribe payments, health care kickbacks, lobbying expenditures and any fines or penalties paid to the government for violating the law.</p>
<p>Just about everything else is deductible. But <a href="http://www.queensemploymentattorney.com/blog/2016/03/is-income-from-a-sexual-harassment-settlement-taxable/">most victims</a> of sexual harassment and abuse <a href="http://californiaceo.net/tax-planning-sexual-harassment-claims">do not get a break</a>. That’s because the law exempts payments only for <a href="https://www.law.cornell.edu/uscode/text/26/104">physical injuries</a>, not for payments related to emotional distress. </p>
<p>Who else gets to deduct their settlement <a href="https://uspirgedfund.org/sites/pirg/files/reports/USPIRG_SettlementsReport.pdf">payments for misconduct</a>?</p>
<p>One good example is BP. The oil giant got to write off over $15 billion of its <a href="https://www.forbes.com/sites/robertwood/2015/10/06/bps-20-8-billion-gulf-spill-settlement-nets-15-3-billion-tax-write-off/#2ef4a0c25c5b">$20.8 billion settlement</a> with the federal government over its massive Gulf Coast oil spill, allowing it to potentially shelter years of income from federal taxes. </p>
<p>Another is <a href="http://www.businessinsider.com/tax-deductible-of-jp-morgan-settlement-2013-11">JP Morgan</a>. Its $13 billion settlement for faulty mortgages allowed the company to deduct about $7 billion from its taxes. A similar settlement by <a href="https://newrepublic.com/article/132628/goldman-sachs-settlement-5-billion-sham">Goldman Sachs</a> for subprime mortgages it packaged into securities resulted in a $5 billion settlement of which over half was tax deductible.</p>
<h2>Changing the law</h2>
<p>One way to discourage corporate misconduct is to raise the cost of engaging in it. </p>
<p>Congress is now weighing whether to close many loopholes as part of a broad <a href="https://www.pbs.org/newshour/politics/gop-tax-bill-would-be-broadest-tax-code-rewrite-in-30-years">tax package</a>. In my opinion, that makes this the ideal time to stop allowing deductions for secret settlements of sexual abuse claims from corporate or personal income taxes.</p>
<p>Ending this tax break would make this kind of confidentiality agreement more costly for perpetrators and the companies that let them off the hook. That would give corporate accountants and human resources departments a powerful incentive to <a href="https://theconversation.com/how-companies-can-learn-to-root-out-sexual-harassment-85862">root out</a> the problem.</p>
<p>There are no surefire ways to end sexual harassment and assault in the workplace. But making it cost more to hide this misconduct might help make it less commonplace.</p><img src="https://counter.theconversation.com/content/86451/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Peter J. Henning does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Secret payments in exchange for silence regarding work-related sexual abuse are usually tax-deductible. How about changing that?Peter J. Henning, Professor of Law, Wayne State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/754422017-03-31T02:03:50Z2017-03-31T02:03:50ZWas Chuck Berry the lone genius he’s made out to be?<figure><img src="https://images.theconversation.com/files/163353/original/image-20170330-4569-jyf7ni.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Rock and roll legend Chuck Berry performs in 1980.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Associated-Press-Domestic-News-United-States-En-/a3fa991a67e5da11af9f0014c2589dfb/12/0">AP Photo</a></span></figcaption></figure><p>In the days following Chuck Berry’s death, commentators have trampled over each other in a race to honor him as the “Father of Rock and Roll,” the art form’s <a href="http://www.billboard.com/articles/news/magazine-feature/7735698/chuck-berry-rock-n-roll-teenagers-inventor">lodestone</a> and <a href="https://www.nytimes.com/2017/03/22/arts/music/popcast-chuck-berry.html?_r=0">mastermind</a>. They’ve marveled at his songs, not just because of how witty, influential and danceable they were, but because they were the work of Berry alone.</p>
<p>A <a href="http://www.chicagotribune.com/entertainment/ct-ent-0319-chuck-berry-obit-20170318-story.html">few</a> have mentioned a lawsuit involving Berry’s longtime piano player <a href="https://www.rockhall.com/inductees/johnnie-johnson">Johnnie Johnson</a>, where Johnson claimed he was Berry’s co-writer, but which the court dismissed because he took too long to sue. And that’s all they say.</p>
<p>As a St. Louis lawyer, teacher and music geek, I had heard about the case a few years back and wondered if there was more to the story than simply “Johnson sued too late.”</p>
<p>I felt this case was still important, given the songs’ seismic cultural influence, as well as Berry’s notorious reluctance to discuss his creative process (“Talking to Chuck Berry about his music is a little like meeting God and finding out He doesn’t remember making the Earth or care what people do there,” author and MTV executive Bill Flanagan <a href="https://books.google.com/books?id=BUAqAAAAQBAJ&printsec=frontcover&source=gbs_atb#v=onepage&q&f=false">once wrote</a>). </p>
<p>So I reached out to the attorneys, and they gave me access to the case file, which, until then, had been gathering dust in storage, unavailable for study. First, in 2015, I used it to <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2530741">explore authorship in copyright law</a>. But now, as we reflect on Chuck Berry’s life, I think the case of Johnson v. Berry has an even greater meaning: a search for truth in the fog of legend.</p>
<h2>‘In a roundabout sense, I suppose he did’</h2>
<p>On Aug. 21, 2002, sitting in a nondescript little conference room inside a St. Louis law firm, Chuck Berry was asked something that called into question not only his own legacy, but that of rock and roll itself.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/163352/original/image-20170330-4557-14wg080.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/163352/original/image-20170330-4557-14wg080.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/163352/original/image-20170330-4557-14wg080.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=854&fit=crop&dpr=1 600w, https://images.theconversation.com/files/163352/original/image-20170330-4557-14wg080.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=854&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/163352/original/image-20170330-4557-14wg080.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=854&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/163352/original/image-20170330-4557-14wg080.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1073&fit=crop&dpr=1 754w, https://images.theconversation.com/files/163352/original/image-20170330-4557-14wg080.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1073&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/163352/original/image-20170330-4557-14wg080.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1073&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Johnnie Johnson, photographed in 1997 at the age of 72.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/AP-A-NY-NY457-FEA-US-JOHNNY-JOHNSON/77de419fa8e0da11af9f0014c2589dfb/2/0">AP Photo/Adam Nadel</a></span>
</figcaption>
</figure>
<p>Two years prior, Johnnie Johnson had sued Berry. In his suit, Johnson claimed he’d co-written, on his piano, nearly every song in Berry’s remarkable 1950s and ‘60’s run – “Roll Over Beethoven,” “Back in the U.S.A.” and “Nadine,” among many others – classics that helped sow the seeds of a worldwide musical and cultural revolution.</p>
<p>Having gotten neither credit nor a dime of the millions in royalties those songs had generated, Johnson set out – nearly 50 years later – to rewrite history via the courts.</p>
<p>Though the case had started slow – lawyers jousting, sending letters, serving subpoenas – on that day in August 2002, inside that little conference room, Johnson’s attorney had the chance to ask Chuck Berry, in person and under oath, the question that cut to the heart of the case:</p>
<blockquote>
<p>“Do you believe as you sit here today, that Johnnie Johnson had any, played any part in creating the songs that we’ve said he did?”</p>
</blockquote>
<p>“No” or even “Hell no” would have been perfectly acceptable (and, to Berry’s lawyers, highly desirable) answers. But instead, Berry’s response was profoundly equivocal:</p>
<blockquote>
<p>“In a roundabout sense, I suppose he did. I don’t know, but I suppose he did; but in a legal sense, no, because I consider myself having written any songs that is out now with Chuck Berry on it, because that’s the way it went, I composed it and I did it.”</p>
</blockquote>
<p>A good trial lawyer could’ve made a lot of hay with that: “Mr. Berry has testified that Johnnie Johnson helped create these songs in a roundabout sense…just not in a legal sense,” one can easily picture a jury hearing in closing argument, “but you, ladies and gentlemen, get to decide how the law applies here, not Mr. Berry.”</p>
<p>A jury, however, would never hear the case. On Oct. 21, 2002, just two weeks before trial was set to begin, <a href="http://www.billboard.com/articles/news/73733/judge-dismisses-chuck-berry-royalty-suit">the judge ruled against Johnson</a>. He decided that the statute of limitations had expired – Johnson had waited too many years to sue – and that was that. Or was it?</p>
<h2>Father(s) of rock and roll?</h2>
<p>In the course of Berry’s sworn deposition, and Johnson’s own, taken two months earlier, the two men spoke more expansively about their part in rock and roll’s creation than they ever had before – or ever would again.</p>
<p>Interestingly, but perhaps not surprisingly, they spoke most freely when discussing how they worked together.</p>
<p>From Johnson: </p>
<blockquote>
<p>“[T]hat’s the way our teamwork came in together, whoever come up with the idea, it was tried by the both, he would try it, my piano part, which mostly I would do, I would try his guitar part, and together we collaborated on it…and [would] find out which part worked the best, and that’s the one that would be used.”</p>
</blockquote>
<p>And from Berry:</p>
<blockquote>
<p>“[T]here was a harmonious understanding after a few recordings, that when I stop singing, Johnnie played this riff, or that riff, or that riff, and there are certain ones that I can name…he played it and played the da-da-da-da riff, I could implicate the rhythm and he would remember the thing that I liked so much, and the same thing would happen, turned around, when I would play the riff, that I’d ask him to play a certain thing, seemed like to me, he would just fall in….”</p>
</blockquote>
<p>They even played their instruments – Johnson on piano and Berry on guitar and piano – trying to show what they did and how they did it. </p>
<p>Neither man would bend on his respective legal position. On that, reasonable minds can disagree. It’s not easy to mark the point at which a creative contributor becomes a co-author. But both men were candid about the creative process, itself, and how it was fueled by their musical interplay. That is what’s most instructive for us today.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/163351/original/image-20170330-4583-1cqxt2n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/163351/original/image-20170330-4583-1cqxt2n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/163351/original/image-20170330-4583-1cqxt2n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=385&fit=crop&dpr=1 600w, https://images.theconversation.com/files/163351/original/image-20170330-4583-1cqxt2n.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=385&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/163351/original/image-20170330-4583-1cqxt2n.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=385&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/163351/original/image-20170330-4583-1cqxt2n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=484&fit=crop&dpr=1 754w, https://images.theconversation.com/files/163351/original/image-20170330-4583-1cqxt2n.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=484&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/163351/original/image-20170330-4583-1cqxt2n.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=484&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Johnnie Johnson, left, and Chuck Berry pose in an undated photo.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Associated-Press-Domestic-News-Missouri-United-/b25eb6ffd2e4da11af9f0014c2589dfb/5/0">AP Photo</a></span>
</figcaption>
</figure>
<p>Most of us view Berry as the self-reliant father of rock and roll, the mastermind who created these amazing songs essentially from scratch. <a href="https://books.google.com/books?id=6xBB7KLQP-AC&pg=PA21174&lpg=PA21174&dq=johnnie+johnson+true+father+of+rock+and+roll&source=bl&ots=gEY6gHVMFb&sig=IVbGM6lDOLXSRmWAl1GKLePE_h8&hl=en&sa=X&sqi=2&ved=0ahUKEwjs0aHJ4P3SAhUJTCYKHcoHAVoQ6AEIVDAJ#v=onepage&q=johnnie%20johnson%20true%20father%20of%20rock%20and%20roll&f=false">Others</a> see Johnson as the jilted, true composer of the music that turned Berry’s lyrics into classic songs. </p>
<p>But read what Berry and Johnson have said themselves, under oath, and you can see it was a collaboration – their unspoken musical bond – that gets closest to the truth of how these classic, wildly influential songs were born.</p>
<p>Society often constructs (and then fights to preserve) myths around individual genius. Collaboration – with <a href="https://www.nytimes.com/interactive/2017/03/26/arts/music/before-and-after-chuck-berry-rock-n-roll.html?_r=0">past influences</a>, as well as with present partners – isn’t nearly as sexy. But it’s how works of genius regularly get written, designed, sculpted, filmed and recorded. From the songs of <a href="https://www.rockhall.com/inductees/jerry-leiber-and-mike-stoller">Leiber and Stoller</a> and <a href="https://www.rockhall.com/inductees/holland-dozier-and-holland">Holland-Dozier-Holland</a>, to the film “<a href="http://www.tabletmag.com/scroll/141861/the-brothers-who-co-wrote-casablanca">Casablanca</a>,” to the writings of <a href="http://www.nybooks.com/articles/archives/2010/may/27/two-raymond-carvers/">Raymond Carver</a>, collaborative creativity has produced many of our most prized cultural treasures, often without our knowing it.</p>
<p>And sometimes, perhaps, an individual genius finds a partner, one who helps him hit a creative zenith higher than he could’ve reached alone. Recognizing this in the story of Chuck Berry – or at least acknowledging its possibility – doesn’t detract from his legacy; it honors it more deeply. </p>
<p>Near the end of the film “<a href="http://www.imdb.com/title/tt0092758/">Hail! Hail! Rock 'n’ Roll</a>,” director Taylor Hackford asked Berry how he wanted to be remembered. </p>
<p>“I tell you what,” Berry replied. “Whatever it be, I just hope it’s real and it’s a fact, which will be the truth. That’s it. I hope they’ll just speak the truth be it pro, con, bad, good.”</p>
<p>Amen, Chuck.</p><img src="https://counter.theconversation.com/content/75442/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Tim McFarlin does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In 2000, Berry’s longtime piano player sued him, claiming he never got any credit for songs he had co-written. Even though the case was dismissed, a St. Louis lawyer decided to investigate further.Tim McFarlin, Fellow, Elon UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/746762017-03-28T02:40:07Z2017-03-28T02:40:07ZWe’re suing the federal government to be free to do our research<figure><img src="https://images.theconversation.com/files/161247/original/image-20170316-10895-1r2ouuw.png?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The LinkedIn Terms of Service include elements that prevent scholars from doing research on the site's algorithms.</span> <span class="attribution"><a class="source" href="https://www.linkedin.com/legal/user-agreement">Screenshot of LinkedIn.com</a></span></figcaption></figure><p>Many apps and algorithms that feature prominently in our lives are, essentially, black boxes: We have no idea how they accomplish what they do; we just know they work. Or at least we think we do. Most recently this became apparent when The New York Times <a href="https://www.nytimes.com/2017/03/03/technology/uber-greyball-program-evade-authorities.html?_r=0">revealed that Uber used a system</a> it called “greyballing” to show certain users phantom cars and prevent them from getting rides through the Uber app.</p>
<p>In essence, these users – often government officials or others Uber feared might interfere with the company’s services – were shown a completely different (and deliberately false) view of Uber’s data, without their knowledge or consent. Given the ubiquity of the Uber service – and the <a href="https://www.nytimes.com/2017/02/22/technology/uber-workplace-culture.html">controversy that surrounds Uber</a> in general – this article immediately raised questions about the fairness and legality of Uber’s practices. For example, why should people trust Uber’s surge prices if the app and data can be manipulated arbitrarily, at will by Uber?</p>
<p>Unfortunately, platforms like Uber are almost always closed: Users, regulators and policymakers typically have no way to know whether, or to what extent, apps and algorithms are behaving in questionable ways. The greyballing was only discovered because its existence was leaked to the media by current and former Uber employees.</p>
<p>But algorithms are widely used in many contexts, including <a href="https://www.nytimes.com/2015/06/26/upshot/can-an-algorithm-hire-better-than-a-human.html">selecting job applicants when hiring</a>, <a href="http://money.usnews.com/money/personal-finance/articles/2015/06/23/can-alternative-credit-scoring-models-help-millions-of-consumers">estimating borrowers’ creditworthiness</a>, <a href="http://www.economist.com/news/briefing/21582042-it-getting-easier-foresee-wrongdoing-and-spot-likely-wrongdoers-dont-even-think-about-it">determining where police departments should deploy patrol officers</a> and even <a href="http://www.sfchronicle.com/crime/article/Seeking-a-better-bail-system-SF-turns-to-8899654.php">setting bail for criminal suspects</a>.</p>
<p>In all of these cases, the output of the algorithm can have enormous consequences on people’s lives, and yet we often lack a basic understanding of whether they may be biased, unfair or discriminatory. It’s a concern <a href="https://obamawhitehouse.archives.gov/sites/default/files/docs/big_data_privacy_report_may_1_2014.pdf">shared by</a> <a href="https://obamawhitehouse.archives.gov/sites/default/files/microsites/ostp/2016_0504_data_discrimination.pdf">government</a> <a href="https://www.ftc.gov/news-events/blogs/techftc/2015/03/booting-new-research-office-ftc">agencies</a> and <a href="http://www.csmonitor.com/World/Passcode/Passcode-Voices/2017/0324/How-to-reform-the-outdated-federal-anti-hacking-law">scholars</a> alike.</p>
<h2>Running up against the law</h2>
<p>Our own research seeks to identify these problems through study and scholarship, without needing to wait for whistle-blowers to spill the beans. We leverage real users and fake accounts created by us to <a href="https://doi.org/10.1145/2488388.2488435">compile data from online services</a>. Using these data, we try to tease out how black-box algorithms work: What data do they use? How do <a href="https://doi.org/10.1145/2663716.2663744">user characteristics affect the output of the algorithm</a>? Does the system do things that <a href="http://datworkshop.org/papers/dat16-final22.pdf">a normal person might find questionable</a>? Of course, companies view their algorithms and data sets as proprietary, and are loath to open them up to outside scrutiny, especially when it may <a href="https://doi.org/10.1145/2815675.2815681">reveal embarrassing things</a> (like attempts to manipulate law enforcement).</p>
<p>In effect, our goal is to increase the <em>transparency</em> of black-box algorithms (like those used by Uber) that affect our daily lives, and to make algorithms and their human designers <em>accountable</em> to social and legal norms. We’re developing ways for researchers, regulators and policymakers to measure these systems and identify instances of unfairness and discrimination.</p>
<p>But there is a <a href="http://www.csmonitor.com/World/Passcode/Passcode-Voices/2017/0324/How-to-reform-the-outdated-federal-anti-hacking-law">significant legal barrier</a>, one that we think effectively ensures the American public is, and will stay, in the dark about how these computerized systems work, and whether they’re fair and equitable to everyone. It’s called the <a href="https://www.law.cornell.edu/uscode/text/18/1030">Computer Fraud and Abuse Act</a> (CFAA). It’s the country’s main “anti-hacking” law, originally passed in 1986 and broadened in 1996. And we’re among a group of scholars and news organizations who have sued to overturn key provisions that block researchers like us from investigating these crucial elements of modern American life.</p>
<h2>Letting companies make the rules</h2>
<p>Among other things, the CFAA imposes civil and criminal penalties on anyone who “exceeds authorized access” to any computer. This might seem relatively benign and vague, but the vagueness is part of the problem. Some courts and prosecutors have taken the position that it “exceeds authorized access” to do anything contrary to a website’s or company’s Terms of Service. These are the long screens of legalese users must agree to – usually <a href="http://dx.doi.org/10.2139/ssrn.2757465">without having read</a> a <a href="https://tosdr.org/">word of them</a> – before using a website or a piece of software.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/161623/original/image-20170320-9117-1w5ytnq.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/161623/original/image-20170320-9117-1w5ytnq.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=201&fit=crop&dpr=1 600w, https://images.theconversation.com/files/161623/original/image-20170320-9117-1w5ytnq.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=201&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/161623/original/image-20170320-9117-1w5ytnq.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=201&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/161623/original/image-20170320-9117-1w5ytnq.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=252&fit=crop&dpr=1 754w, https://images.theconversation.com/files/161623/original/image-20170320-9117-1w5ytnq.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=252&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/161623/original/image-20170320-9117-1w5ytnq.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=252&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Facebook’s Terms of Service include provisions raising privacy concerns.</span>
<span class="attribution"><a class="source" href="https://www.facebook.com/legal/terms">Screenshot of Facebook.com</a></span>
</figcaption>
</figure>
<p>Unfortunately, many Terms of Service contain what we consider egregious claims and limitations on users.</p>
<ul>
<li><p>Verizon and AT&T included <a href="https://betanews.com/2007/10/11/verizon-revises-isp-terms-of-service/">a prohibition from criticizing the company</a> when using their internet service, threatening to cut off critics’ internet access, even if the criticism was fair, accurate and true.</p></li>
<li><p>Facebook disallows <a href="https://www.facebook.com/terms">providing any false personal information</a> in one’s Facebook profile. That’s a problem for anyone who wants to protect their privacy by using a pseudonym or giving a false age, especially since Facebook’s business model is entirely based on mining users’ personal data to serve targeted ads.</p></li>
<li><p>Internships.com, a website for finding internship opportunities, had a <a href="http://web.archive.org/web/20160601182948/http://www.internships.com/terms">provision allowing them to charge US$50,000</a> to anyone who used a web scraper to collect data from their website. This threat prevents researchers like us from examining the site, to look for issues like hiring discrimination and bias.</p></li>
</ul>
<p>If, as <a href="https://en.wikipedia.org/wiki/United_States_v._Drew">prosecutors and courts have successfully argued</a>, violating Terms of Service agreements can violate the CFAA, anyone who did any of these things – and anything else contained in any similar document – would be violating federal law and exposed to both criminal penalties and civil liability. In essence, we think the current interpretation of the CFAA lets companies write federal law.</p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/161238/original/image-20170316-10925-1g5r9tt.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/161238/original/image-20170316-10925-1g5r9tt.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/161238/original/image-20170316-10925-1g5r9tt.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/161238/original/image-20170316-10925-1g5r9tt.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/161238/original/image-20170316-10925-1g5r9tt.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/161238/original/image-20170316-10925-1g5r9tt.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/161238/original/image-20170316-10925-1g5r9tt.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/161238/original/image-20170316-10925-1g5r9tt.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Faust 2.0: Mephistopheles encounters the End User License Agreement, also often called ‘Terms of Service.’</span>
<span class="attribution"><a class="source" href="https://xkcd.com/501/">Randall Munroe/XKCD</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc/4.0/">CC BY-NC</a></span>
</figcaption>
</figure>
<h2>Ensuring the law is clear</h2>
<p>Along with <a href="http://www-personal.umich.edu/%7Ecsandvig/">other</a> <a href="http://social.cs.uiuc.edu/people/kkarahal.html">researchers</a> and <a href="https://www.firstlook.media/">media organizations</a>, we are plaintiffs in a <a href="https://www.aclu.org/legal-document/sandvig-v-lynch-complaint">lawsuit filed last year by the ACLU</a> challenging the provision of the CFAA that has been used to equate Terms of Service violations with breaking federal law. This connection is a serious impediment to the goals of algorithmic transparency and accountability: The CFAA was not intended to be a shield that blocks companies from public scrutiny. Yet that is what the prevailing legal interpretations of the law allow.</p>
<p>In the past, independent scrutiny has been crucial in identifying pernicious business practices like <a href="https://doi.org/10.1093/sf/sou111">discriminatory hiring practices</a> and <a href="https://doi.org/10.1006/juec.1993.1014">redlining</a> (illegally denying loans to customers based on race). For the good of modern society, researchers need the ability to audit algorithms without fear of legal reprisal.</p>
<p>On a personal level, the legal threat posed by the CFAA takes a toll on our research. CFAA violations are punishable with jail time and large fines. (To see an example of how large the stakes can be, consider <a href="http://www.nytimes.com/2013/01/13/technology/aaron-swartz-internet-activist-dies-at-26.html">how programmer and activist Aaron Swartz was charged under the CFAA</a>.) In the past, we have abandoned projects because the risks seemed too great, or changed our methods to avoid particular Terms of Service minefields. But, even with this abundance of caution, we, our collaborators, and our students choose to put ourselves at risk every time we begin a new research project.</p>
<p>Currently, our lawsuit is pending before a federal judge in the D.C. District Court, while we await the court’s response to the government’s request that the suit be dismissed. However, our suit is already providing positive results: As part of its filings, the Department of Justice publicly released a previously unknown <a href="https://www.lawfareblog.com/doj-intake-and-charging-policy-computer-crime-matters">2014 memorandum</a> containing guidelines for federal prosecutors bringing charges under the CFAA. On one hand, the guidelines suggest that federal prosecution may not be warranted in instances where someone has only breached a website’s Terms of Service, which sounds good. On the other hand, these are only guidelines; they do not change the law itself or its surrounding precedents, and these guidelines could be changed at any time. Changes in the executive branch and in the leadership of the DoJ highlight how fungible these guidelines are. </p>
<p>Ultimately, this lawsuit will bring clarity to what we and our co-plaintiffs see as a dangerously ambiguous and over-broad law. Researchers, journalists and activists should know where the lines are when planning their online investigations.</p><img src="https://counter.theconversation.com/content/74676/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Christo Wilson receives funding from the National Science Foundation, the Data Transparency Lab, Verisign Labs, and the European Commission. </span></em></p><p class="fine-print"><em><span>Alan Mislove receives funding from the National Science Foundation, the Data Transparency Lab, Google, Amazon, and Narus.</span></em></p>Algorithms can have enormous consequences on people’s lives, yet a federal law prevents us from studying whether they may be biased, unfair or discriminatory.Christo Wilson, Assistant Professor of Computer and Information Science, Northeastern UniversityAlan Mislove, Associate Professor of Computer Science, Northeastern UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/720552017-02-09T03:47:09Z2017-02-09T03:47:09ZCan Facebook be sued for live-streaming suicides?<figure><img src="https://images.theconversation.com/files/156108/original/image-20170208-17313-1692gdy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/nshepard/289077373/">nshepard/flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span></figcaption></figure><p>In January, two different suicides were streamed using Facebook Live, a service that allows Facebook users to create and broadcast real-time videos to their followers. At the end of the month, a third was streamed live using a different service and is still publicly available on Facebook.</p>
<p>On January 22, a 14-year-old girl <a href="http://www.miamiherald.com/news/nation-world/national/article129120064.html">hanged herself</a> in front of about 1,000 viewers. It took nearly an hour for her to prepare, and <a href="http://www.miamiherald.com/opinion/opn-columns-blogs/leonard-pitts-jr/article129303609.html">followers watched her body hang</a> in the bathroom where she took her life for another hour.</p>
<p>The very next day, a 33-year-old father of six told his Facebook followers that he was going to kill himself and <a href="http://www.latimes.com/local/lanow/la-me-ln-actor-death-20170124-htmlstory.html">subsequently did so</a> while live-streaming. The video remained up on his Facebook page <a href="http://www.lindaikejisblog.com/2017/01/upcoming-us-actor-jay-bowdy-commits.html">for eight hours</a>, with many users sharing it on their own pages.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"823632438391934976"}"></div></p>
<p>The following week, a popular gospel singer filmed a two-minute live video of himself drinking poison <a href="http://www.inquisitr.com/3957106/richard-nhika-suicide-video-zimbabwe-singer-posts-streaming-video-of-final-act/">after breaking up</a> with his girlfriend. People who knew him were shocked, and his suicide sparked conversation on social media about suicide prevention. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"825916390473342976"}"></div></p>
<p>This disturbing trend isn’t new. In fact, just weeks before these suicides, a 12-year-old girl created a <a href="https://www.washingtonpost.com/news/the-intersect/wp/2017/01/15/a-12-year-old-girl-live-streamed-her-suicide-it-took-two-weeks-for-facebook-to-take-the-video-down/?utm_term=.fca6113e1695">40-minute live video</a> of her own suicide using the streaming app Live.me. <a href="http://www.dailymail.co.uk/news/article-4111988/Katelyn-Nicole-Davis-12-livestreamed-committing-suicide-cops-t-stop-video-shared-online.html">It went viral on YouTube and Facebook</a>, and even though her family immediately deleted it, it took Facebook two weeks to scrub all traces of it from the network. </p>
<p>These streams can be damaging on a number of fronts. Could they cause <a href="https://theconversation.com/to-talk-or-not-to-talk-the-dilemma-of-suicide-contagion-46434">suicide contagion</a>, in which a suicide attempt in an online or local community raises the likelihood of more suicide attempts within that network? What about the trauma inflicted on those who watch, especially family and friends? </p>
<p>Should Facebook be legally obligated to do more to prevent these types of disturbing live broadcasts? </p>
<p><a href="http://www.miamiherald.com/news/nation-world/article128747259.html">Some see an ethical obligation for them to do so</a>. But as a law professor who researches the real-world implications of social media, I don’t believe current law requires Facebook to take any additional steps. </p>
<p>Though these types of videos are tragic and devastating, the law has evolved in a way to protect social media companies from most lawsuits. </p>
<h2>Suing for emotional harm</h2>
<p>In general, you can sue for emotional distress when you witness the death of a family member. In recent times, relatives have sued television stations that aired deaths and <a href="http://tucson.com/news/state-and-regional/lawsuit-over-broadcast-of-suicide-puts-focus-on-real-time/article_c9cb3fde-073c-5d10-97eb-3973b3bf4f4b.html">suicides</a> live on air. But it can be difficult to win these cases, even though the legal rules are well-established. </p>
<p><a href="http://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1906&context=plr">Since the late 19th century</a>, the law has recognized a limited right to sue for emotional harm. However, these laws were controversial from the start because courts typically think of harm as physical in nature. Courts <a href="https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2574942">have also been skeptical</a> because emotional harm is difficult to prove and they disfavor rules with indefinite boundaries.</p>
<p>The 1968 case <a href="http://law.justia.com/cases/california/supreme-court/2d/68/728.html">Dillon v. Legg</a> recognized that relatives could bring a lawsuit for emotional distress without any physical injury. After a child was hit by a car and killed, his sister and mother – who witnessed the accident – sued the car’s driver, claiming emotional distress. The court held that they could receive damages, even though they weren’t physically harmed or in danger of harming themselves. </p>
<p>The rule for this sort of claim – called “negligent infliction of emotional distress” (NIED) – <a href="http://scholarship.law.ufl.edu/cgi/viewcontent.cgi?article=1509&context=facultypub">generally requires that</a>: </p>
<ul>
<li>the plaintiff was near the scene of the incident;</li>
<li>the plaintiff’s observation of the incident caused significant distress;</li>
<li>the plaintiff and the victim were closely related.</li>
</ul>
<p>But this is hard to prove and often unsuccessful in cases involving media. For example, in 2015, the <a href="http://www.leagle.com/decision/In%20INCO%2020150921116/CLIFTON%20v.%20McCAMMACK">Indiana Supreme Court</a> denied damages to a father who learned of the car accident that killed his son on television and then rushed to the scene. The court determined that the father could not prove NEID because he knew about the accident before arriving on the scene, did not observe any injury, blood or resuscitation efforts, and never saw his son’s body uncovered by the white sheet.</p>
<h2>Does Facebook already do its part?</h2>
<p>It isn’t clear how this applies to social media. In the <a href="http://www.nydailynews.com/news/national/texas-woman-sues-facebook-revenge-porn-article-1.1887690">United States</a> and <a href="https://www.theguardian.com/technology/2016/oct/09/facebook-revenge-pornography-case-could-open-floodgates">Ireland</a>, Facebook has been sued in “revenge porn” cases. One was dismissed before a decision; the other is still pending. </p>
<p>Federal law, however, probably protects social media companies like Facebook if they’re confronted with revenge porn or live suicide cases. For example, <a href="https://www.law.cornell.edu/uscode/text/47/230">Section 230</a> of the 1996 Communications Decency Act notes that providers of “interactive computer service[s]” are not the speakers or publishers of information provided by others. This means that Facebook isn’t liable for what people post, though there are exceptions for things like crime and intellectual property violations. It protects companies like Facebook from being held responsible for what it takes down or leaves up. </p>
<p>Furthermore, though it isn’t required to under the law, Facebook has created its own <a href="https://www.facebook.com/communitystandards#self-injury">community standards</a>, which prohibit “the promotion of self-injury or suicide.” It also allows users to report such posts so that it can consider whether to remove them (though Facebook is generally hesitant to take information down). Its <a href="https://qz.com/884293/a-suicide-streamed-live-exposes-facebooks-fb-thin-line-between-violence-and-public-service/">basic policy</a> “is to not remove any user content, as long as the value of public discourse outweighs the discomfort caused by said content.” </p>
<p>In addition, the social media site has voluntarily created a detailed <a href="https://www.facebook.com/help/suicideprevention">suicide prevention page</a> and a two-tiered reporting system. Viewers can report the content to Facebook directly from the post itself or through the “<a href="https://www.facebook.com/help/contact/305410456169423">Report Suicidal Content</a>” page, which implores users to contact law enforcement or a suicide hotline immediately.</p>
<h2>A slippery slope</h2>
<p>To force Facebook to change its approach, either the law must change or users must demand more corporate accountability. But changing the law to extend liability for emotional distress stemming from live-streamed suicides would open a Pandora’s box of issues. If Facebook could be sued for money damages based on live suicide posts, it could lead to countless lawsuits. This would also force the company to take drastic, and perhaps implausible, measures to protect itself by monitoring and deleting billions of posts. </p>
<p>This would raise serious, legitimate concerns about <a href="https://qz.com/777855/norway-facebook-censorship-norway-is-furious-with-facebook-and-its-algorithms-for-censoring-the-pulitzer-prize-winning-war-photo-of-a-young-girl-fleeing-a-napalm-attack-the-terror-of-war/">when censorship is appropriate</a>. As of the end of 2016, Facebook had <a href="https://www.statista.com/statistics/264810/number-of-monthly-active-facebook-users-worldwide/">1.86 billion monthly active users</a> worldwide. Monitoring each user’s content for acceptable information would be a monumental, if not impossible, burden. Legally requiring the company to determine when something should stay up or be removed because of the emotional distress it could inflict would seem to require Facebook to make nearly instantaneous decisions about complicated law. </p>
<p>In addition, the company could potentially be vulnerable to millions of lawsuits. Content is constantly being posted. If Facebook’s team makes any wrong calls, it could find itself responsible for significant legal damages on a number of fronts. </p>
<p>Finally, the negative impact on speech would be significant: The company would have the power to determine what posts are permissible and what posts aren’t. In the United States, <a href="https://qz.com/884293/a-suicide-streamed-live-exposes-facebooks-fb-thin-line-between-violence-and-public-service/">one bedrock legal principle</a> is protecting the free exchange of speech and ideas. Others, however, have noted that allowing nearly all speech online has <a href="https://techcrunch.com/2015/09/29/mr-obama-tear-down-this-liability-shield/">created a dangerous world</a> full of doxing, bullying and live suicide videos. </p>
<p>Live suicide videos are harrowing and alarming, and social media has made them easy to watch. Centuries-old laws related to emotional distress could not have anticipated these events that are, unfortunately, becoming more frequent. It may be impossible for Facebook to eliminate them from its site, and current law does not obligate them to do so. To prevent live-streamed suicide videos, we may have to ultimately rely on providing social media users with the tools to help prevent suicides.</p><img src="https://counter.theconversation.com/content/72055/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Shontavia Johnson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>After witnessing a streamed suicide, users could sue for emotional harm. But it’s tricky to prove – and even trickier to hold Facebook accountable.Shontavia Johnson, Professor of Intellectual Property Law, Drake UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/646302016-09-02T09:42:33Z2016-09-02T09:42:33ZWhen a gig goes wrong: pop music’s hall of shame<p>Israeli fans of Australian popstar Sia have reportedly <a href="http://www.jpost.com/Israel-News/Culture/Sia-target-of-class-action-suit-by-disappointed-Tel-Aviv-concert-goers-464152">filed a £1.6m lawsuit</a> against her promoter because they felt short-changed by her recent live show. Unhappy punters paid £70 for a 65-minute performance in Tel Aviv that some felt was “too short” and “lacklustre”, while poorly-synched video and a “lack of banter” left some in her audience calling for their money back.</p>
<p>Sia had allegedly <a href="https://bdsmovement.net/cultural-boycott">been pressurised to cancel her performance</a> by the pro-Palestinian <a href="https://bdsmovement.net/cultural-boycott">BDS (Boycott, Divestment and Sanctions) movement</a> – so did this affect her performance or the way it was received? A review of her <a href="http://www.billboard.com/articles/columns/music-festivals/7334157/sia-coachella-2016">recent Coachella Festival appearance</a> in music industry magazine Billboard makes it clear that the Californian concert was similar to the Jerusalem gig with the atmosphere being more of an arty contemporary dance event than a rock gig. </p>
<p>The promoter, Tandi Productions, commented that there had been “hundreds of comments from satisfied fans”, but the episode highlights the problems that can happen when an audience’s expectations aren’t matched by an act’s creative vision. However, the history of music is littered with examples of truly disastrous performances – here is my “Hall of Shame”. </p>
<h2>Battling the bottle</h2>
<p>Abuse of alcohol and drugs have been to blame for many shows going wrong. Fans of Amy Winehouse will have seen in director Asif Kapadia’s film Amy, the tragic decline in her performances. But booze-fuelled gig fails aren’t a new phenomenon. In the late 1950s, iconic country music performer Hank Williams was renowned for his alcohol-related performance issues. </p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/136314/original/image-20160901-1023-1gomdj6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/136314/original/image-20160901-1023-1gomdj6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=737&fit=crop&dpr=1 600w, https://images.theconversation.com/files/136314/original/image-20160901-1023-1gomdj6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=737&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/136314/original/image-20160901-1023-1gomdj6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=737&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/136314/original/image-20160901-1023-1gomdj6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=926&fit=crop&dpr=1 754w, https://images.theconversation.com/files/136314/original/image-20160901-1023-1gomdj6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=926&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/136314/original/image-20160901-1023-1gomdj6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=926&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">One of the greats (when sober): Hank Williams.</span>
</figcaption>
</figure>
<p>The composer of such standards as Your Cheatin’ Heart, Hey Good Lookin’ and Jambalaya was well-known for not showing up at gigs – but his lowest point was in Dallas where the promoter took money from audience members who paid to go backstage to see the artist lying unconscious on the floor.</p>
<p>Williams, who suffered from Spina Bifida, is alleged to have used alcohol to ease the pain from the disease – but Keith Moon, the drummer from British rock band The Who, had no such excuse. On November 20, 1973, at <a href="http://www.rollingstone.com/music/pictures/10-classic-drugged-out-performances-from-santana-to-green-day-20130606/5-keith-moon-at-the-cow-palace-1973-horse-tranquilizers-and-brandy-0239704">San Francisco’s Cow Palace</a>, “Moon the Loon” passed out on stage. He was high on animal tranquilisers and had to be carried off stage to be replaced by an audience member who played the rest of the set.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/136310/original/image-20160901-1043-12i4xve.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/136310/original/image-20160901-1043-12i4xve.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=396&fit=crop&dpr=1 600w, https://images.theconversation.com/files/136310/original/image-20160901-1043-12i4xve.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=396&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/136310/original/image-20160901-1043-12i4xve.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=396&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/136310/original/image-20160901-1043-12i4xve.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=497&fit=crop&dpr=1 754w, https://images.theconversation.com/files/136310/original/image-20160901-1043-12i4xve.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=497&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/136310/original/image-20160901-1043-12i4xve.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=497&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Keith Moon: an artist when upright.</span>
<span class="attribution"><span class="source">Jean Luc via Wikimedia Commons</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>Scott Stapp, meanwhile, the singer of rock band Creed, was so intoxicated for their performance at the Allstate Arena in Rosemont, Illinois on December 29, 2002, that he spent much of the show rolling around on the floor unable to remember any lyrics. He then passed out.</p>
<p>The band sent an apology email to their fans praising them for being part of the “unusual world of rock and roll history”. <a href="http://www.mtv.com/news/1478673/creed-fans-upset-over-sloppy-show-lose-suit-but-fight-on/">The subsequent legal case</a> brought by several audience members was thrown out by the judge who agreed with the band that they had fulfilled their contractual duty to appear.</p>
<h2>Anger management</h2>
<p>On September 9, 1985, the Jesus And Mary Chain were booked to play at Camden’s Electric Ballroom. The riot that ensued after their drunken 15-minute set of “<a href="http://thequietus.com/articles/07301-jesus-and-mary-chain-psychocandy">indeterminate white noise hampered by a faulty PA</a>” led to a stage invasion. Their gear was trashed and the police were called. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/hclcrEpui64?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
</figure>
<p>Sometimes, tensions within bands lead to violence on stage with The Who, The Kinks and Oasis all being renowned for their on-stage scuffles. </p>
<p>Of course, violent behaviour doesn’t just happen at rock gigs. The premiere of Igor Stravinsky’s ballet music The Rite of Spring on May 29, 1913, at the Théâtre des Champs-Élysées in Paris is a case in point. Fights broke out between fans of the modernist composer and those who objected to his “<a href="http://www.theverge.com/2013/5/29/4375736/igor-stravinsky-rite-of-spring-100-anniversary-paris-riot">puerile barbarity</a>”. Vegetables were thrown at the orchestra who soldiered on to the bitter end. </p>
<p>Another classic case of an audience being hostile to an artist’s intentions happened on May 17, 1966, at the now-infamous Bob Dylan concert at the Manchester Free Trade Hall. To be fair, this has since become one of pop’s seminal moments – the troubadour of folk appeared backed by The Band playing – shock, horror! – electric guitars. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/0ntAPh4AC-c?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
</figure>
<p>Many members of the audience walked out in protest but disgruntled Dylan fan Keith Butler called Dylan “Judas” with Dylan replying “You’re a liar” – and a new rock legend was born.</p>
<h2>Talent deficit</h2>
<p>Nothing beats sheer incompetence for creating a shoddy live show but – with <a href="https://www.youtube.com/watch?v=ncBwkKVWUMA">so many artists miming</a> or using autotune to correct their pitch – a lot has to go wrong for a modern pop artist to really demonstrate their shortcomings.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/136321/original/image-20160901-1036-mqrmo8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/136321/original/image-20160901-1036-mqrmo8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/136321/original/image-20160901-1036-mqrmo8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/136321/original/image-20160901-1036-mqrmo8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/136321/original/image-20160901-1036-mqrmo8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/136321/original/image-20160901-1036-mqrmo8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/136321/original/image-20160901-1036-mqrmo8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Will the real artists please stand up?</span>
<span class="attribution"><span class="source">acme401</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>Milli Vanilli, an R&B vocal duo who won the best new artist Grammy in 1990, went one better by not singing on their records and miming during their live shows <strong>link</strong>. At an infamous performance for MTV in 1989 their backing track kept skipping, leading to the group running off stage in shame. When the real singers behind the duo’s successes became known they were <a href="http://gizmodo.com/5694574/20-years-ago-today-milli-vanilli-lost-their-grammy-for-lip-syncing">stripped of their Grammy</a> and disappeared into the footnotes of pop history.</p>
<p>So what is it reasonable to expect from a gig in terms of band for your buck? From a purely legal perspective, it seems that if the artist turns up and makes it onto the stage upright, then you have had your money’s worth. And you’d be surprised <a href="http://www.independent.co.uk/arts-entertainment/music/news/the-libertines-pull-out-of-show-two-hours-after-it-was-scheduled-to-start-due-to-medical-situation-10496117.html">how often this still happens</a>. However, it’s probably a good idea to understand the strengths and weaknesses of the performers you invest your money and time in rather than being surprised when they let you down.</p><img src="https://counter.theconversation.com/content/64630/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Adrian York is affiliated with the Labour Party, the Music Producer's Group, The Musician's Union and the British Academy of Songwriters, Composers and Authors. </span></em></p>Sia is being sued for what her fans felt was a lacklustre show. But pop history is littered with live disasters.Adrian York, Senior lecturer in Commercial Music Performance, University of WestminsterLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/561672016-03-11T17:10:46Z2016-03-11T17:10:46ZFive years after Fukushima, there are big lessons for nuclear disaster liability<p>As four reactors at the Fukushima Daiichi Nuclear Power plant suffered <a href="http://fukushimaontheglobe.com/the-earthquake-and-the-nuclear-accident/whats-happened">catastrophic cooling failures</a> and exploded in March 2011, the world watched in disbelief. For Japan, this was not just the greatest nuclear disaster since <a href="http://news.bbc.co.uk/1/shared/spl/hi/guides/456900/456957/html/nn1page1.stm">Chernobyl</a>. <a href="http://www.bbc.co.uk/news/world-asia-pacific-12726297">It was</a> “the most severe crisis … since World War II.” </p>
<p>Five years on, the nation continues to struggle with the effects. Towns <a href="http://www.meti.go.jp/english/earthquake/nuclear/roadmap/pdf/141001MapOfAreas.pdf">up to 40km</a> from the plant remain a dead-zone: desolate and uninhabited. As many as 100,000 people <a href="http://www.cbc.ca/news/world/fukushima-nahara-japan-reopens-1.3217085">still remain displaced</a>, unable to return to their homes. Workers at the <a href="http://www.tepco.co.jp/en/index-e.html">Tokyo Electric Power Company (TEPCO)</a> still don claustrophobic masks and rubber suits to venture into the Fukushima facility. Their job is to decommission the plant safely, a task that plant manager Akira Ono <a href="http://www.sciencemag.org/news/2016/03/five-years-after-meltdown-it-safe-live-near-fukushima">recently said</a> was “about 10% complete”.</p>
<p>The task is beset with setbacks and spiralling costs. In December 2011 the government estimated that managing Fukushima would cost US$50 billion. By 2014 this <a href="http://www.japantimes.co.jp/news/2014/08/27/national/fukushima-nuclear-crisis-estimated-to-cost-%C2%A511-trillion-study/#.VuINr5OLSb8">had nearly doubled</a> to include US$19 billion to decommission the Fukushima plant; US$22 billion to decontaminate the surrounding area; US$9 billion to build temporary storage facilities for nuclear waste; and US$43 billion to compensate the victims. Today even this looks <a href="http://www.theguardian.com/environment/2016/mar/11/fukushima-daiichi-nuclear-reactors-decommission-cleanup-japan-tsunami-meltdown">hopelessly optimistic</a>. </p>
<h2>Compensation</h2>
<p>Fukushima <a href="http://talks.cam.ac.uk/talk/index/50572">is now</a> the biggest civil liability case in history. More than two million people have sued TEPCO and US$50 billion has <a href="http://talks.cam.ac.uk/talk/index/50572">already been</a> paid out. This is already equivalent to 49 <a href="http://thinkprogress.org/climate/2013/07/15/2301451/25-years-after-exxon-valdez-oil-spill-company-still-hasnt-paid-for-long-term-environmental-damages/">Exxon Valdez</a> oil spill settlements, and experts <a href="http://www.law.cam.ac.uk/press/events/2015/11/expert-workshop-fukushima-five-years-legal-fallout-japan-lessons-eu">predict</a> the total cost of compensation could rise to US$120 billion. </p>
<p>One notable subplot has been compensation for cases of suicide. A court’s <a href="http://www.theguardian.com/environment/2014/aug/26/fukushima-suicide-victim-family-damages-tepco-hamako-watanabe">landmark decision</a> that TEPCO pay US$470,000 to the heirs of a 58-year-old farmer’s wife named Hamako Watanabe could prove much more costly. The Watanabe family were evacuated from the village of Yamakiya in April 2011, losing their farm and leaving them with a US$140,000 mortgage on their now uninhabitable home. Watanabe became severely depressed and during an authorised one-night visit to their home in June the same year, she burned herself to death. </p>
<p>Other bereaved families have also come forward. Two similar cases are now underway, and the Japanese government <a href="http://www.fukushimawatch.com/2015-09-01-fukushima-disaster-sparks-rise-in-suicide-and-spontaneous-abortion-rates.html">anticipates that</a> as many as 56 suicides could be tied to the disaster. And this looks conservative: the NHK broadcasting service <a href="https://www.washingtonpost.com/world/in-a-first-japanese-court-rules-that-nuclear-plant-operator-is-liable-for-suicide/2014/08/26/bc43af62-6c30-4e70-8e22-ffe1895727c1_story.html">has put</a> the number at 130. What is certain is that the number is rising. A further 19 evacuees <a href="http://ajw.asahi.com/article/0311disaster/fukushima/AJ201512280026">took their lives</a> in 2015 and there is no reason to believe 2016 will be any different. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/114839/original/image-20160311-11285-1y1p393.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/114839/original/image-20160311-11285-1y1p393.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/114839/original/image-20160311-11285-1y1p393.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=434&fit=crop&dpr=1 600w, https://images.theconversation.com/files/114839/original/image-20160311-11285-1y1p393.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=434&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/114839/original/image-20160311-11285-1y1p393.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=434&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/114839/original/image-20160311-11285-1y1p393.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=546&fit=crop&dpr=1 754w, https://images.theconversation.com/files/114839/original/image-20160311-11285-1y1p393.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=546&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/114839/original/image-20160311-11285-1y1p393.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=546&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Anti-nuclear demonstration in Nagatacho, 2015.</span>
<span class="attribution"><a class="source" href="http://www.shutterstock.com/cat.mhtml?lang=en&language=en&ref_site=photo&search_source=search_form&version=llv1&anyorall=all&safesearch=1&use_local_boost=1&autocomplete_id=&searchterm=fukushima&show_color_wheel=1&orient=&commercial_ok=&media_type=images&search_cat=&searchtermx=&photographer_name=&people_gender=&people_age=&people_ethnicity=&people_number=&color=&page=1&inline=284080646">TK Kurikawa</a></span>
</figcaption>
</figure>
<h2>Who pays</h2>
<p>Officially the buck for everything stops with TEPCO. Under <a href="http://www.oecd-nea.org/law/legislation/japan-docs/Japan-Nuclear-Damage-Compensation-Act.pdf">Japanese nuclear-liability law</a>, the nuclear operator is responsible for the full cost of an accident, even if it is not proven to be negligent.</p>
<p>In practice, the Japanese taxpayer <a href="http://www.ft.com/cms/s/97c88560-e05b-11e5-8d9b-e88a2a889797,Authorised=false.html?siteedition=uk&_i_location=http%3A%2F%2Fwww.ft.com%2Fcms%2Fs%2F0%2F97c88560-e05b-11e5-8d9b-e88a2a889797.html%3Fsiteedition%3Duk&_i_referer=&classification=conditional_standard&iab=barrier-app#axzz42otjbPkG">is bearing</a> most of the burden. TEPCO’s liability may be unlimited, but its assets are not. Despite the country’s <a href="http://www.livescience.com/30312-japan-earthquakes-top-10-110408.html">seismic history</a>, TEPCO’s private insurance policy did not cover earthquakes or tsunamis. And in accordance with <a href="http://www.oecd-nea.org/law/legislation/japan-docs/Japan-Nuclear-Damage-Compensation-Act.pdf">regulations introduced</a> in 2009, TEPCO was insured through private policies and state indemnities for up to only US$1.1 billion: about a fiftieth of the damages paid out so far. </p>
<p>The government has been forced to prevent TEPCO’s bankruptcy – over and above all of its other Fukushima-related outgoings. It <a href="http://www.economist.com/blogs/schumpeter/2012/05/tepco%E2%80%99s-nationalisation">has bought</a> a majority share and has continued to finance compensation payments through a <a href="https://www.oecd-nea.org/law/fukushima/7089-fukushima-compensation-system-pp.pdf">series of</a> indemnity agreements and loans in the form of government compensation bonds. The state <a href="http://link.springer.com/chapter/10.1007/978-3-642-39768-4_5">has also</a> enacted retroactive legal guidelines that obligate other power companies and financial institutions to contribute to the compensation effort. </p>
<p>One has to ask whether the concept of unlimited liability has any real meaning when the operator’s capacity to pay is so limited. It also raises questions for <a href="http://www.law.cam.ac.uk/press/events/2015/11/expert-workshop-fukushima-five-years-legal-fallout-japan-lessons-eu">other parts</a> of the world. In the UK, for example, nuclear liability is <a href="http://www.world-nuclear-news.org/NP_UK_consults_on_nuclear_liability.html">capped at</a> a mere US$220m, less than two hundredths of what TEPCO has already paid in compensation claims. Japan is evidently not the only country that should be taking lessons from Fukushima.</p>
<p><em>The article originally said that the TEPCO payouts to date are 400 times that of Exxon Valdez, as opposed to 49. It also said that the dead zone around the plant was 10km, but now says 40km.</em></p><img src="https://counter.theconversation.com/content/56167/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Makoto Takahashi receives funding from the ESRC. </span></em></p>The nuclear operator was nowhere near adequately covered for the disaster. And it’s not just a Japanese problem.Makoto Takahashi, Pre-doctoral researcher, University of CambridgeLicensed as Creative Commons – attribution, no derivatives.