German universities face funding fears as states scrap fees

Tuition fees for German students are being abolished in many states, only a few years after being introduced.

Alexandra Topping in Hamburg , in guardian.co.uk, Tuesday 15 March 2011 18.28 GMT

The German university fee system is on the brink of collapse after another state confirmed it would abolish charges for students following a change in local government.

The city of Hamburg – a state in its own right – will follow the lead of several other states that have scrapped fees since last month’s elections saw Angela Merkel’s Christian Democrats ousted by the centre-left Social Democrats.

A spokesman for the Social Democrats said: “Tuition fees keep young people from low-income families from studying and are socially disruptive.”

North Rhine-Westphalia announced it would scrap fees earlier this month, and once Hamburg follows suit only three of Germany‘s federal states – Baden-Wüttemberg, Bavaria and Lower Saxony – will continue to charge.

Universities in England are poised to raise their fees to as much as £9,000 a year after a controversial vote was pushed through the Commons last year.

German universities fear the U-turn over fees will leave them facing dramatic shortfalls in funding.

Dr Holger Fischer, vice-president of Hamburg University, said: “It is a catastrophe for the university.” He added: “We were obliged to spend the fees we received on investment in teaching, and it gave us the chance to improve the teaching and infrastructure.”

The move could have serious repercussions for the whole of Germany’s higher education system, said Barbara Geier, executive board member of education union GEW. “I think it will happen and the moment that fees are abolished in Hamburg, they will be abolished throughout Germany.”

Hamburg SPD said it would make up for the shortfall in funding through “cuts in other areas and by budgetary regrouping”. But universities doubt this will fully cover the losses. “The level of our teaching will have to decrease dramatically,” said Fischer.

Unlike in England, where student fees have cross-party support, the idea has never taken hold in Germany. “There is a tradition here that education is free from beginning to end, and that is very difficult to change,” Fischer said.

Fees would be very difficult to reintroduce, he added. “Once the fees had been introduced, the students got used to it. If they are abolished now it is going to be impossible to reintroduce them for a very long time.” At Hamburg University students currently pay €750 a year, reduced from €1,000 a year when fees were first introduced in 2007 after persistent student protests, and coalition bargaining. Government grants of up to around €600 a month for students from low-income families are common.

But there is little sense from students they are over-privileged. Sören Faika, president of the Asta student union at Hamburg, said a free education for all, up to university level, was part of the treasured “Humboldtian” ideal, named after 19th-century education reformer Wilhelm von Humboldt.

“Part of that ideal is that you can study what you are passionate about, and education is free for all so that no one is excluded,” he said. “When we look at the UK, it is crazy. You may think we are lucky, but it is a different situation.”

The ideal had not only been threatened by fees but by the introduction of Anglo-Saxon-style bachelor’s and master’s degrees, which do not allow students the freedom to explore their interests, he said.

Following the Bologna agreement, which aimed to standardise higher education across Europe, courses in Germany were shortened to three years for a BA, with an extra two years to attain a MA. In a country were students commonly studied for six to seven years for their initial degree, this was not welcomed.

“There is this feeling that the system has become too Anglo-Saxon,” said Faika. “It’s prescriptive – you have to be a machine.”

Others argue that since the new system was introduced the value of a first degree has decreased – a job in the German civil service, for example, which stipulated only one degree previously, now requires an MA.

But it stopped the small number of “lifetime students” – those who continued studying over 10 years – said Fischer, as well as improving dropout rates and preparing students to enter the working world sooner.

While there was a danger that focusing too closely on students’ post-degree job prospects could discourage the taking of less “useful” subjects, it was something the country could resist, he added.

“It would be a real pity to lose those subjects,” he said. “And if Germany cannot afford to let its students study Egyptology or Hungarian literature – then where can?”

World court rules on Nicaragua-Costa Rica dispute

THE HAGUE, Netherlands (AP) – The International Court of Justice has ordered both Costa Rica and Nicaragua to keep all military, police and civilian personnel out of a disputed border region along the San Juan river that separates them. Costa Rica had asked the court to bar Nicaraguan troops from the disputed region and order it to halt dredging and tree felling in the region where the San Juan river emptied into the Atlantic Ocean.

Instead, the court on Tuesday ordered both Costa Rican and Nicaraguan forces out, and told both countries to “refrain from any actions which might aggravate or extend the dispute.”Costa Rica went to the court last year claiming Nicaragua illegally sent troops and engineers into Costa Rican territory to dredge part of the river.

At hearings in January, Nicaragua insisted it has long exercised sovereignty over the disputed stretch of river and is working to prevent it silting up.Nicaraguan President Daniel Ortega and his Costa Rican counterpart Laura Chinchilla have said they will respect the ruling by the United Nations’ highest judicial organ.Recent reports from the Costa Rican Foreign Ministry indicated that Nicaragua may already have pulled its troops out of the area, which always has been uninhabited wetland. But the dredging work continues on the banks of the river.

The dispute drew in Google Inc. when the Nicaraguan official in charge of the dredging project said in a newspaper interview that he used Google’s map system to decide where the work should be done.Costa Rican Foreign Ministry legal adviser Sergio Ugalde told the court that Google quickly fixed an inaccurate map cited by Managua. The river has long been a source of friction between Nicaragua and Costa Rica.

In 2009, the International Court of Justice set travel rules for the river, affirming freedom for Costa Rican craft to navigate the waterway while upholding Nicaragua’s right to regulate traffic. Nicaragua lawyer Stephen C. McCaffrey said Nicaragua was under an international obligation to dredge the river to keep it clear for ships.

Google Fights over Privacy Violation Issues in Court

By Marc Brown

Google has been sued for invasion of privacy as Europe’s highest court is about to declare its verdict on the case. If the court passes the verdict against the search engine giant then it would need to remove links to certain newspaper articles from its search results. The issue cropped up as a result of a complaint from Spain. Spain’s Data Protection Agency (DPA) asked Google to remove links to nearly 100 articles from its search results in January 2011. The Spanish authorities alleged that these articles were sensitive and violated privacy. However, Google has declared that it would fight the “unjustified demands” of DPA. It has expressed deep concern over the DPA’s actions. Google believes that this kind of events can curb freedom of expression to a considerable extent. The Madrid court has requested the European court of justice is to decide the validity of DPA’s demands. The latter would check whether Google has violated European law or not. The verdict will have great significance because people will refer to it whenever controversies rise in the future about internet publishing. Sources from the Google’s European external relation section disclose that the company is happy as Madrid court is seeking the opinion of Europe’s apex court on an issue that can be viewed as a form of internet censorship. Google argues that the DPA should take action against the publishers and not the search engine which is merely the distributor of information. The publisher of the material is responsible for the contents and search engines cannot ethically block access to the content. Search engines are a fundamental part of information dissemination and any assault on them would be as bad as an attack on freedom of expression, says Google. The Spanish authorities, on the other hand, argue that suing search engines like Google is the only practical solution to block sensitive online content. Newspapers may legally refuse to oblige if they are asked to avoid controversial articles. The Madrid court is concerned with five controversial articles right now. Almost ninety more articles are in the queue. The European court of Justice at Luxembourg will resolve the disputes about the five articles immediately while the other disputes will be decided later. Google successfully stopped the Chinese censorship on search results last year. Will it be able to repeat the feat against the Spanish authorities? We are not too sure. It must be remembered that Google does comply with certain rules in certain countries while showing the search results. In the U.S, Google block sites that violate copyright. Will Google be forced to yield to the Spanish demands? Let’s keep our fingers crossed.

Author Bio : Marc Brown is an Associate Editor with Oak View Law Group. He has been writing on financial topics over the years with special focus on European economy. Marc also takes interest in debt related issues and contributes articles on debt relief to personal finance blogs

Copy, Paste and Delete

Initially, it appeared as though German Defense Minister Karl-Theodor zu Guttenberg might survive the scandal surrounding accusations that he plagiarized large portions of his dissertation. But on Tuesday, he bowed to the growing pressure and resigned.

At first, he thought he could withstand the pressure. But in the end, even German star politician Karl-Theodor zu Guttenberg could not escape the growing scandal surrounding indications that he plagiarized large portions of his doctoral dissertation. On Tuesday, he announced his resignation.

More here

 

Poland to run out of students?

In ten years Poland will see a rapid decrease of the number of students.

According to a report quoted by the Rzeczpospolita daily the present 1.9 million students will drop to 1.2 million in 2020.

The prognosis spells trouble for many schools of higher learning in Poland, especially in the north east and south, which are not popular among students , who continue to count on studies in large prestigious centers like Warsaw, Krakow, Wroclaw or Katowice.

 

Already the less popular colleges have  problems with acquiring students, the worst situation is in private schools of higher learning, since the majority of secondary school graduates apply first for state financed studies and paid courses are seen as a last resort.

To keep their position on the market private schools offer special elite courses or come up with incentives aimed at attracting the attention of students.

The demographic low , which will cause the drop of students by one third in 2020, will have a great bearing also on public universities, which are already preparing programmes on attracting more students.

The regions which will become most affected with the demographic low  also count on students from Ukraine and Belarus. (ab)

 

Twitter in the Court

by  Anita Ramasastry

Ironically, it took the WikiLeaks controversy — which itself involved momentous issues of openness and secrecy — to bring greater openness to British courts. Late this month, during a bail hearing for WikiLeaks founder Julian Assange, Igor Judge — the Lord Chief Justice of England and Wales — published an interim guidance document that allows reporters to use the micro-blogging service Twitter in UK courtrooms.

The interim guidance arose from the Assange case because two judges hearing Assange’s bail application had disagreed about the micro-blogging issue. On December 14, Justice Howard Riddle permitted journalists who were present in his courtroom to send out messages while he heard the case. Two days later, however, Justice Duncan Ouseley — who was hearing the appeal of Justice Riddle’s decision to grant bail — ordered journalists in his courtroom to switch off all Blackberries, mobile phones, and computers.

Lord Judge’s subsequent issuance of the interim guidance was groundbreaking news in the UK — where courts ban cameras, television broadcasting, and even courtroom artists, who must leave the courtroom in order to create their sketches of the proceedings.

In this column, I will describe Lord Judge’s ruling and examine why the UK is different from the US in terms of its courtrooms’ openness to journalists. I will also argue — elaborating on a point I presented in a prior column — that more courts and judges in the US, as well as the UK, should allow journalists to use Twitter and other social-media services in the courtroom.

The UK Guidance Regarding the Use of Twitter in the Courtroom

As noted above, Lord Judge’s interim court guidance document states that “live text-based communications,” such as mobile e-mail and social media, can be used by reporters during hearings. Since the interim guidance was issued in advance of a planned public consultation, it is possible that the ultimate result that the courts will reach on this issue will be different. But for now, such communications are permitted.

In support of the result he reached in the interim guidance, Lord Judge pointed out that “[t]here is no statutory prohibition on the use of live text-based communications in open court.” Yet he also noted that courts must balance the proper administration of justice with the need for openness in court proceedings.

In striking this balance, Lord Judge concluded that ” the use of an unobtrusive, hand-held, virtually silent piece of modern equipment for the purposes of simultaneous reporting of proceedings to the outside world as they unfold in court is generally unlikely to interfere with the proper administration of justice.” Accordingly, he concluded that “mobile phones, small laptops (e.g. notebooks) and other types of mobile devices may be used for the sole purpose of making live text-based communications of court proceedings.”

Despite the Interim Guidance, Judges Still Retain Power Regarding the Use of Social Media in their Courtrooms

Notably, there is an exception to the interim guidance: UK judges may still prevent reporters and members of the public from e-mailing, texting, or using Twitter in the courtroom if they rule that their doing so poses a danger to the administration of justice or to the guarantee of a fair trial, or that their doing so is disrupting courtroom proceedings.

Moreover, the ban on making sound recordings in court and taking photographs remains in place; the interim guidance, by its terms, only covers “live text-based communications.” Thus, simply because laptops with the capacity to record sound or save images may now be taken into a courtroom, does not mean they can be used that way.

The upshot is that reporters, bloggers and even members of the public will now, for the first time, be able to sit in courts and report in real time and post courtroom happenings online — so long as they do so quietly, and so long as they have sought prior approval from the presiding judge. (Based on the interim guidance, it is up to individual judges to decide whether to restrict the use of social media such as Twitter to reporters, or to also allow it to those in the public gallery.)

In the interim guidance, Lord Judge also noted that criminal proceedings are where “the danger to the administration of justice is likely to be at its most acute,” which suggests that such proceedings may be more likely than civil proceedings to be closed to social-media use (or at least to social-media use by non-reporters.)

The reason for the difference is the risk that witnesses who have not yet appeared in court may be apprised of what is happening in court through Twitter or other live feeds. For criminal proceedings — where the stakes are especially grave — this risk is particularly troubling.

However, it is worth noting that the same risk is also posed by reporters’ stepping outside the courtroom to report on the proceedings — perhaps with a delay of only a few moments between testimony and reportage.

Why Journalists in the UK Must Still Be Careful about Their Courtroom Use of Social Media

As news reports indicate, Lord Judge’s interim guidance on micro-blogging is the most significant change in how court cases can be reported in the UK since the Contempt of Court Act in 1981 (which I’ll refer to as “the 1981 Act”). Moreover, the 1981 Act and other aspects of UK law may affect how micro-blogging sites like Twitter can be used.

In part because the UK lacks a counterpart to the US’s First Amendment, UK publishers and journalists are subject to much tougher libel and defamation laws than their US counterparts are. Such laws will likely make it especially hazardous for reporters to use micro-blogging sites like Twitter, where messages cannot exceed a fixed number of characters — especially when the micro-blogging is done under time pressure, without much opportunity for editing, review, reflection, or self-correction.

UK law is demanding: To avoid contempt of court, journalists must remain balanced in their reporting as long as a case is ongoing, and must avoid saying anything that could sway the judge or jury either way. According to the 1981 Act, published reports of active court proceedings must be balanced, fair, and accurate, and cannot present “a substantial risk of serious prejudice to the administration of justice.”

For journalists and publishers, moreover, contempt of court is a strict-liability offense: That is, the UK publisher or journalist can be held liable even if he lacked any intent to prejudice proceedings, and even if he did not know he was doing anything wrong.

In addition, the strict-liability rule makes no exceptions for micro-blogging. The Act defines a “publication” as being “any speech, writing or communication in whatever form which is addressed to the public at large or any section of the public.” Thus, a “Tweet” or other electronic text communication that is aimed at a public audience may be considered a publication.

The contempt-of-court rules apply as long as legal proceedings are “active” (that is, underway). The court has the power to ban all reporters from the courtroom for the duration of a case, and the power — in order to avoid “a substantial risk of prejudice to the administration of justice” — to order the delay of the publication of any news account the court proceedings for a period the court deems necessary.

Judges may invoke this rule more often if they feel that the recurrent use of Twitter or mobile devices is leading to reporting that is less than fair or accurate, or that is somehow unduly prejudicing defendants. But if judges do invoke the rule, journalists can challenge the findings behind it, arguing that they do not fit the statute’s requirements.

Journalists — including micro-bloggers — can also invoke the statute’s defenses. For instance, the 1981 Act makes clear that a journalist who creates reports on a public court proceeding that are “fair and accurate, and contemporaneously published in good faith” cannot be held in contempt of court. However, it may be especially challenging to provide that a tweet is “fair and accurate.” A tweet provides a short space in which to have to be fair: Must 70 characters be devoted to one side, and 70 to the other? A better rule, under the UK system, would look to the fairness of Twitter coverage over a period of time on the same subject. Finally, journalists cannot blog about only one side of a case, and ignore the other, under the UK rules.

Although the US Has Stronger Free Speech Protections Generally, the UK May Be More Advanced Now When It Comes to the Use of Twitter in Court

While the UK struggles with the rise of social media and mobile devices, US courts also face the same struggle. As I have noted in prior columns such as this one , US federal courts instruct jurors to avoid Facebook, Twitter and other social-networking applications, but the courts leave it to each individual judge to decide whether, in his or her courtroom, journalists can Tweet or blog from court. Relatively few federal courts have embraced Twitter, although last year, a federal judge in Kansas allowed a reporter to use the micro-blogging service to provide updates from a gang-related trial.

Ironically — in light of the U.S.’s generally stronger free-speech protections — the UK seems to be substantially ahead of the US when it comes to micro-blogging in the courtroom. Thus, if the US wants to keep its free speech climate healthy, its courts may want to consider keeping pace.

---

Anita Ramasastry, a FindLaw columnist, is the D. Wayne and Anne Gittinger Professor of Law at the University of Washington School of Law in Seattle and a Director of the Shidler Center for Law, Commerce & Technology. She has previously written on business law, cyberlaw, computer data security issues, and other legal issues for this site, which contains an archive of her columns

 

German Defense Minister Accused of Plagiarism

He has long been Germany’s most popular politician. But now, Defense Minister Karl-Theodor zu Guttenberg is facing trouble on several fronts. And on Wednesday, a German newspaper reported that he may have plagiarized part of his Ph.D. dissertation. Chancellor Merkel’s cabinet could lose a doctor.

German Defense Minister Karl-Theodor zu Guttenberg has proven himself to be a veritable Houdini when it comes to political escape acts. When questions arose about the Defense Ministry’s handling of the 2009 Kunduz air strike — a bombing which killed several, possibly dozens, of civilians — Guttenberg fired the head of the German military and a senior Defense Ministry official. When a scandaldeveloped late last year surrounding the naval training ship Gorch Fock, Guttenberg relieved the captain of his duties.

This time around, however, there isn’t anybody to fire. This time, Guttenberg himself has been accused of wrongdoing. According to the Munich dailySüddeutsche Zeitung, Guttenberg may have plagiarized large passages of his doctoral dissertation. And if the accusation is proven, he could be stripped of his Ph.D.

The copying concerns came to light when Andreas Fischer-Lescano, a law professor at the University of Bremen, sat down last Saturday evening to begin writing a review of Guttenberg’s dissertation, which was published in 2009. He told the Süddeutsche that in reviewing works such as that by Guttenberg, he has made it a habit to plug passages into Google to check for potential problems.

When he did that last Saturday, he immediately found an article from the Swiss newspaper NZZ am Sonntag, large passages of which were to be found one-to-one in Guttenberg’s work — without citation. Further searches found other passages apparently copied-and-pasted out of other articles and sources — some slightly altered, but most faithfully reproduced, word for word. Several pages of the 475-page work appear to have been borrowed without adequate citation.

‘Brazen Plagiarism’

“The text duplications can be found throughout the entire work and covering a range of subjects,” Fischer-Lescano told the Süddeutsche. In several places, he says, the dissertation reveals “brazen plagiarism.”

Accusations that Fischer-Lescano’s sudden discovery could be politically motivated have been denied by Felix Hanschmann, a colleague and friend of Fischer-Lescano who dealt with plagiarism issues during his time as a research assistent with Germany’s high court. “Neither the (center-left) Social Democrats nor the Left Party stand behind us,” Hanschmann told SPIEGEL ONLINE, referring to two of Germany’s main opposition parties. Accusations of political activism, he said, “don’t concern me in the slightest.”

Guttenberg handed in the work, a legal comparison between European attempts to formulate a constitution and the process followed by the US, in 2006 and it received top marks from the University of Bayreuth. The university has now said that it will refer the plagiarism concerns to an ombudsman who deals with concerns of substandard scholarship.

The defense minister told the Süddeutsche on Wednesday that he welcomes the move by the university to check his dissertation. “I await the results of the verification … with equanimity,” he said. “I prepared the work to the best of my ability and with a clear conscience.”

in Der Spiegel

Can Free Speech Be Protected on a Private Internet?

Does the US constitution protect WikiLeaks? Only courts can decide how far the whistleblowing platform can go. Yet Amazon and others have simply blocked the site, rather than waiting for legal clarification. The companies’ cowardice is now threatening Internet freedom.

A commentary by Konrad Lischka ( in Der Spiegel)

  

  

 

The disappointment was huge — the fury even greater.

Why have companies like Amazon and PayPal decided that they didn’t want WikiLeaks as a customer? Angry citizens have called for boycotts on online forums, Facebook and Twitter. Many accuse the companies of censorship.

 This term is misleading. There is no state censorship at play here. For that a court would have to decide in a concrete case against the freedom of the press. And that has not occurred here — mainly because the Internet companies did not even take their chances with the legal route.

Despite all the political pressure that is being applied to WikiLeaks, in the US it is not against the law to process donations for the platform or to distribute its documents. Yet Amazon and PayPal have decided not to do so any more.

WikiLeaks can continue to communicate via Twitter or Facebook, and many people can access the platform’s contents on their Internet providers. These other companies have not decided to block WikiLeaks.

‘Pick Your Fights’

The different reactions from Internet firms to the WikiLeaks publications reveal a dilemma. Many citizens regard the Internet as a public space, but in fact it is a private sphere. And the companies that control almost all the forums on the Web can, if in doubt, exercise their rights of ownership and ban who they like.

The extent to which citizens are free on the Internet depends on whether these companies want to get into conflict with the state or other firms, for example copyright holders.

They have to work out, on their behalf, how far the right to free speech goes, and when it infringes upon other rights, for example personal or author rights.

There is a saying “pick your battles.” Well, Internet giants Amazon and PayPal have clearly decided not to join the fight for WikiLeaks. They are avoiding conflict and have thrown out the activists by pointing to their terms and conditions. They have the right to do so. Companies should be allowed to be cowards, if the risk seems too high for them.

That risk could be a general threat from the US political establishment — or the fury of US customers, who regard WikiLeaks as a platform for state treason. Such rage could hit the company a lot harder than the revolt by those activists now calling for a boycott of Amazon and PayPal.

Up to the Courts to Rule on WikiLeaks

Yet these calls for a boycott should be welcomed. They could show the companies that the situation is actually the exact opposite to what they had assumed: that perhaps they have been wrong in their appraisal of the reaction to WikiLeaks and have actually annoyed more customers than expected with the block. Then perhaps the next time they will do things differently.

What is really of concern is how quickly the companies made these decisions. Their way of dealing with controversies can only harm the Internet, regardless of what one’s stance is on WikiLeaks. These positions are so contrary — treason vs. serving the public good — and the contentious issue is so fundamental — what can citizens publish? — that it should be a question for the courts.

At the moment it is doubtful that it will get that far — not just because the Internet giants are too cowardly to put the US government’s desire for a lawsuit against WikiLeaks to the test.

Avoiding Conflict

But WikiLeaks activists themselves are also avoiding a legal confrontation. Instead of suing Amazon they are simply putting the data on a different server. The move demonstrates pragmatism. But in the

In Germany a similar question is also pending. The non-profit Wau Holland Foundation, which handles and transfers donations to WikiLeaks in Germany, is looking at taking legal action against PayPal. The eBay subsidiary had blocked the foundation’s account — and a bank is not allowed to simply close the account of a party or organization. There are relavent precedents in Germany.

 The question in the US is whether the constitution gives protection to the controversial WikiLeaks publications. It is to be hoped that a court will clarify this issue with relation to the WikiLeaks dispute, instead of the current situation where companies are making these decisions based on their expectations of public opinion and the potential for conflict with politicians.

It is only with companies that are more generous in their interpretation of fundamental rights that the Internet can continue to function as a public space.

The Legal Issues Posed by Internet Debt Collection

Have you ever been called by, or received mail from, a collection agency — and wondered how the agency located you? Before the Internet, the caller might simply have used the phone book or a mailing list. But now, the agency may have used social-networking sites such as Facebook or MySpace to research you as well.

With the economic downturn, many consumers have fallen behind on various payments — such as payments on car loans, mortgages, and credit-card debt.

Collection agencies essentially use social-networking sites for three purposes: One is to track consumers down even despite common names, unlisted phone numbers, changes of address, and the like. The second is to ascertain whether, despite unpaid debt, a consumer is still making unneeded purchases — as evidenced, say, by a photo of a fancy sportscar on his Facebook page — and clearly has the resources to pay the debt at issue. The third — employed more rarely — is to harass or shame the consumer.

Of course, it’s not only your own Facebook or MySpace page that may reveal information about you: Such information may also be found on the web pages of other parties — friends, relatives, neighbors and the like — and thus, they too may be sources of information if the debt collector can track them down.

Some of this collection-agency activity — such as trying to find the location of a debtor by surfing the Internet — may be perfectly legal. It might be fine, for instance, to use Michael S. Smith’s public Facebook page to verify that the Michael S. Smith who is the debtor — and who lists Seattle as his home city on Facebook — is probably also the Michael S. Smith who is listed in the Seattle public phone directory (or to rule out another Michael S. Smith, who lives in Denver). Other tactics, however, clearly are not acceptable–as a court recently ruled, in holding in favor of a consumer.

In this column, I will discuss the case law and the way in which a federal law, the Fair Debt Collection Practice Act (FDCPA), may protect consumers with respect to their social-networking activity.

Debt Collecting 3.0: Applying the FDCPA to Debt Collectors’ Internet Activity

 

Under many state laws, debt collectors may not publicize a debt — or disclose the debt to a person’s friends, family members, or colleagues — in order to use peer pressure or public shame to exact payment. Nor can debt collectors use abusive or oppressive methods to collect. Debt collectors, for example, must stop calling a debtor’s home or place of employment after being asked to communicate in writing.

 

The federal FDCPA, which governs consumer debt collection agencies, provides rules on how these agencies can obtain information about a debtor’s location, but nothing in the statute addresses the use of social-networking sites.

Among other things, the FDCPA (1) places restrictions on a collection agency’s revealing or discussing the nature of debts with third parties (other than the consumer’s spouse or attorney); (2) prohibits agencies’ making contact with the debtor regarding a debt by using embarrassing media, such as a postcard; (3) prohibits the use of any language or symbol, other than the debt collector’s address, on a mailing envelope except that the collector may use its business name if it does not indicate that it is in the debt-collection business; and (4) prohibits the publication of a list of bad debtors.

The FDCPA is silent on whether the first or second rules — which seem like they might apply — cover social-networking sites. But just last week, a court in Minnesota asked that question and sided with the plaintiff.

The Minnesota Case: Allegations of Shady Tactics Lead a Court to Side with the Debtor

In the Minnesota case, Sohns v. Bramacint, the plaintiff was late on her monthly car payments, and her lender turned the debt over to a collection agency.

Allegedly, the agency’s first bad decision was to use a caller-ID spoofer to make it look like its collection calls were calls from the plaintiff’s mother-in-law. The agency was also alleged to have accessed the plaintiff’s MySpace page, learned that she had a daughter, and used that fact to subsequently intimidate her. Indeed, there was evidence in the record to suggest that the collection agency’s “investigator” said to the plaintiff, after mentioning her “beautiful daughter,” something to the effect of “Wouldn’t it be terrible if something happened to your kids while the sheriff’s department was taking you away?”

The plaintiff sued the agency under the FDCPA; moved for summary judgment; and won. The Court held that the collection agency engaged in conduct the natural consequence of which was to harass, oppress, or abuse the debtor in connection with the collection of the debt; used false, deceptive, or misleading representations or means in connection with the collection of the debt; and used unfair or unconscionable means to collect or attempt to collect the debt.

Additional Suits Show that Debt-Collection Agencies Might Frequently Be Making Use of Debtors’ Social-Networking Pages

When another consumer, Paula Newland, fell behind on her payments on her 2005 Chevy, she alleges that she was shocked to see that very information appear on her MySpace page. Based in part on the posting, Newland sued the collection agency, claiming that the agency had violated collections law by harassing her on the Internet, as well as on the phone, and in person. She alleged violations of Michigan law, and sought a minimum award of $25,000, representing “damage to her business and community reputation, extreme mental distress, aggravation, humiliation and embarrassment.”

Newland also alleged that the collection agency’s methods included not only posting information about her indebtedness on her MySpace page, but also threatening to camp out in front of her house and to park a “shame automobile” there over a weekend. Newland alleges that both those methods violated Michigan’s law which prohibits collectors from “[u]sing a shame card, shame automobile, or otherwise bring[ing] to public notice that the consumer is a debtor.”

Another consumer, Jennifer Dicks, became acquainted with a collection agency when she missed two payments on her Chevrolet Cavalier–causing the agency to repossess it. She alleges that, when she went to pick up the car, the agency informed her that they had planted a GPS device on her car to track it down. She also alleges that, after she missed a later payment, the agency created a website with the domain name “jenniferdicks.com” — and that site was identical to the agency’s website except for the heading: “Jennifer Dicks isn’t paying for her Cavalier!” And indeed, the domain name is registered to the agency’s president, a co-defendant in the case.

Unlike the other suits noted above, which focused on collection law, Ms. Dicks invoked privacy torts. Her suit alleged that the actions by the agency constituted “invasion of privacy, an intrusion into private affairs, and public disclosure of private facts.”

There Are Lessons to Learn For Both Sides in Consumer/ Debt Collector Clashes

For consumers, the main lesson to be learned from these debt-collection dramas is to be careful about Facebook and MySpace postings, and wary of accepting “friend” requests from people they do not know.

For collection agencies, the lesson to be learned is that, while existing collection law was not written with social-networking sites in mind, it very likely will still apply to tactics that employ these sites. Moreover, the same legal rules — prohibiting threats and shaming as collection strategies — will very likely apply when the banned actions and messages occur online, rather than via mail, in person, or otherwise.

And finally, collection agencies would be wise to remember that there is no exception to general criminal laws, such as anti-harassment laws, for social-networking sites. If there is a gap in the civil law regarding collection-agency actions, agencies may find local or even federal prosecutors stepping in to try to fill the gap.

---

Anita Ramasastry, a FindLaw columnist, is the D. Wayne and Anne Gittinger Professor of Law at the University of Washington School of Law in Seattle and a Director of the Shidler Center for Law, Commerce & Technology. She has previously written on business law, cyberlaw, computer data security issues, and other legal issues for this site, which contains an archive of her columns

Ramasastry is currently on leave from the University to work for the federal government. The views expressed in this column are solely those of Ramasastry in her personal capacity and do not necessarily represent the views of any of her employers, past or present.

in http://writ.news.findlaw.com/ramasastry/20101019.html?DCMP=NWL-pro_top

Human Rights and the Internet

First Lecture of the Human Rights in a Globalized World Lecture Series by Human Rights Watch and the Hertie School of Governance

Human Rights and the Internet.
How can the Global Network Initiative defend Freedom of Speech?

Susan Pointer, Director, Public Policy, Google, London
Arvind Ganesan, Director, Business and Human Rights, Human Rights Watch, Washington

 20 October 2010
18:00 – 20:00 pm

Hertie School of Governance
Friedrichstrasse 180, 10117 Berlin
Registration: events@hertie-school.org
The Lecture Series “Human Rights in a Globalized World”, October 2010 – May 2011
Globalization offers new opportunities to promote human rights across borders, but it also poses challenges to existing human rights law. In today’s fast changing world, human rights are relevant in areas ranging from political reconfiguration to economic globalization. One consequence includes shifts in sovereignty, with non-state actors becoming increasingly involved.

What role do global actors, such as large international companies, play today? What can be done to strengthen mechanisms such as voluntary standards of global governance to ensure respect for human rights across the globe? What special challenges do conflict zones present and what is the current human rights situation like here in Germany?

The Hertie School of Governance and Human Rights Watch have invited experts working at the heart of human rights issues across the globe. The lecture series aims to create an open dialogue forum on the various opportunities and challenges of globalization in the context of human rights today.

All panels will be held in the English language and are open to the general public. We kindly request that you register for this event. Please confirm your attendance by 19 October 2010 via email to: events@hertie-school.org.