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Georgia Supreme Court Takes Chan v. Ellis Appeal to Redefine First Amendment Right on the Internet

Copyright Commentary First Amendment
Georgia Supreme Court Takes Chan v. Ellis Appeal to Redefine First Amendment Right on the Internet By Yixuan Long – Edited by Emma Winer Chan v. Ellis, A14A0014, (Court of Appeals of Georgia, July 02, 2014) Transfer order (hosted by Scribd) [caption id="attachment_3322" align="alignleft" width="150"]Photo By: André Natta - CC BY 2.0 Photo By: André Natta - CC BY 2.0[/caption] The Georgia Court of Appeals ordered that the appeal in Ellis v. Chan be transferred to the Georgia Supreme Court on July 02, 2014. Chan, an interactive website owner, had appealed the trial court’s permanent protective order in August of 2013. The protective order commanded him to take down more than 2000 posts on his website that mentioned Ellis, and forbade him from approaching within 1000 yards of Ellis. The Court of Appeals decided that the case “raised significant and novel constitutional issues addressing the interplay of the First Amendment and the wide dissemination of information made possible by the internet,” which are “of first impression in Georgia, and there is very little if any directly applicable law in other jurisdictions.” Order, Chan v. Ellis, A14A0014, (Court of Appeals of Georgia, July 02, 2014) (transferring appeal to Georgia Supreme Court). Ars Technica provides an overview of the case, and features an interview with Matthew Chan. Electronic Frontier Foundation offers a thorough legal analysis of the decision. Related documents, including appellate briefs, can be found on Scribd. Linda Ellis is the author of a popular inspirational poem. As Ars Technica reports, she actively searches for people who use her poem without permission and sends out settlement letters to these entities demanding thousands of dollars in damages. Matthew Chan runs Extortion Letter Info (ELI), an interactive website for discussing aggressive copyright enforcement efforts; such aggressive actors have been colloquially termed “copyright trolls”. In 2012, he began criticizing Ellis’ “trolling” practice on ELI, and the discussion soon became heated. Some users allegedly posted threats to Ellis on the website’s message board, as well as Ellis’ home address.  In 2013, Ellis filed a request claiming that Chan was a stalker and seeking a protective order. The trial court ordered a permanent restraining order. The order held Chan responsible for not removing the threatening posts from his website, saying that “[a]s the owner and operator of the site, [Chan] has the ability to remove posts in his capacity as the moderator. However, [Chan] chose not to remove posts that were personally directed at Ms. Ellis and would cause a reasonable person to fear for her safety." Commentators such as the Electronic Frontier Foundation have described the court order as “overbroad and dangerous,” on the grounds that the request to “remove all posts related to Ms. Ellis” is not sufficiently narrowly tailored to address the threats and that there are less restrictive alternatives than such a restraining order. Others have suggested that the order conflicts with Section 230 of the Communications Decency Act, under which website owners are entitled to immunity for content posted by third parties. The Court of Appeals recognized the importance of the case, “particularly with respect to the issuance of a permanent protective order and the trial court’s broad discretion to bring about the cessation of conduct constituting stalking.” Order, Chan v. Ellis, A14A0014. The pending Georgia Supreme Court decision is expected to clarify the First Amendment issues at stake in the case.