Should the ease of finding information online lower a court’s standard of proof?

The information age has placed so much knowledge at our fingertips that it is often easy to simply accept what one finds online as true without any further inquiry. Perhaps if this was being done to confirm the week-end’s sports results, or the latest gossip surrounding Hollywood celebrities I would be less troubled then when courts begin to do the same thing. For better or worse as more and more courts and attorneys are turning to the Internet for fast, free information the notion of judicial notice is beginning to bend to embrace this new reality.

Traditionally, judges have been free to accept at face value certain pieces of information without further proffers of proof. This is known as taking judicial notice and is allowed under the rules of evidence in most if not all jurisdictions. For example the Federal Rules of Evidence 201(b) states that:

(b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it:

(1) is generally known within the trial court’s territorial jurisdiction; or

(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

 While this rule allowed courts to rely upon such traditional sources of information as the Oxford English Dictionary it is now being used (perhaps unintentionally) to give authority to various web based sources. Early in the information age web sites that were cited for the type of facts that were “not subject to reasonable dispute” were government web sites such as the Federal Reserve Board and the United States Naval Observatory. More recently courts have begun to allow for the citation of just about any web site with little or no real fact checking.

Some courts are resisting the notion that just because it can easily be found online it deserves judicial notice. The court in Flores v. Texas specifically declined to extend judicial notice to information found on Wikipedia. While the Flores court is to be applauded it appears to be on the losing end of this game. More recently the Eastern District of New York in the case of United States v. Sessa took judicial notice of distance by use of Google Maps claiming that “[c]ourts commonly use internet mapping tools to take judicial notice of distance and geography.” (see page 65 of the opinion).

The use of online sources as the basis for judicial notice will surely grow over time. I am not suggesting that we stop this growing practice, only that the courts take caution in what they decide is “not subject to reasonable dispute” because too often material from the Internet is posted with little to no editorial oversight. The information age has certainly made information easier to find, the challenge now is to make sure the courts maintain high standards as they decide what deserves judicial notice and what deserves to be relegated to the gossip pages.

– Post by Michael Whiteman, Associate Dean for Law Library Services & Information Technology

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Publishers are Free to use Athlete and Celebrities in Video Games without Permission

In Brown v. Entertainment Merchants Association (2011), the Supreme Court stated unequivocally that video games are entitled to the same broad First Amendment protections as those afforded to other media. But just as laws and regulations distinguish newspaper, magazine and television content from the advertising sold in those media, new policies are required to distinguish the communicative content of video games, virtual worlds and social media from the advertising and commercial purpose activity conducted in those media. Particularly in the area of publicity rights, states and courts have struggled to delineate those contours.

This article explains the emerging contours of commercial speech under recent First Amendment jurisprudence, highlighting the free speech rights of publishers, participants and players while shielding individuals from unfair commercial exploitation and protecting the public from misleading advertising.

By comparing the court decisions and statutes involving state publicity rights to the regulations of the FTC regarding commercial endorsements and the FCC involving broadcast advertising and sponsorships, states and courts can more carefully delineate what is appropriate for publicity rights and endorsements in video games, virtual worlds and social media.

What may be the most surprising aspect of this analysis is that the use of a sports figure or celebrity in a video game or virtual world should be treated as fully protected speech and those identities are free for the publisher and player to use. Recent cases involving Sam Keller, Ed O’Bannon, Ryan Hart have highlighted such unauthorized use. Only when the celebrity or athlete’s identity is used to sell some goods or services – other than the game itself – do the rights of publicity properly come into play. Of course, there are many good business reasons for acquiring the license and cooperation of celebrities, so the legal dispute will likely affect only controversial content of the licensing of athletes governed by the NCAA.

Maryanne Zeleznik speaks with Jon Garon on Cincinnati Edition

Over the weekend, I spent a few minutes with the Cincinnati local public radio station WVXU. The interview aired Sunday, Dec. 4, 2011 at 7:10. If you are interested, please give a listen.

Law and Informatics
Maryanne Zeleznik speaks with Jon Garon, a law professor at NKU’s Chase law School, about Law & Informatics and how information can be shared and protected in the digital age.
By: Maryanne Zeleznik
For more information: Law and Informatics
 Listen to the MP3 (9:46)