My belief has always been that BW is trying to establish through judicial action some point of law, or some precedence that they would be (or have been) unable to establish through legislative channels. I have felt that this is the true motive from the very first day this lawsuit was announced. However, I am unable to specifically identify the exact precedence that they are trying to establish. Perhaps some of the legal minds that lurk this thread could offer an informed guess?
I disagree.
No, I am not a legal mind, but my olfactory abilities, [which in the past have served me well in real life], tell me: I smell rat.
My reasons for saying so is that I believe that the defense has clearly established that the case from BW falls in the anti-SLAPP statue.
Now, you are indicating that BW real intent is "establishing a precedence, since they have failed to do so by legislative channels", please illustrate: (1) an example in which BW has tried in the past to use said channels, and (2) specifically what is the theory they are trying to establish, or whatever law they are trying to enact.
A law that frees them from being liable when they put out a stupid, fraudulent and baseless PR announcement by an equally crooked flea market company ?
Yet... at the same time, the very same law gives them the latitude to take legal action against a group, "loosely associated", that their worst action was to prove that the business practices of an "information age" company is a notch better than the building permit department of some bureaucratic city hall in Latin America ?
Not to mention that in the process their Argentinean size ego was badly smeared with stupidity mud....
To me that sounds like a "double standard law".... then again, I should not be surprised, since politicians do it all the time with campaign promises.... and let us not forget that most politicians are lawyers.... hmmm, after all, you may have a point.
But I still disagree...
My point is that the Internet should not make this kind of difference in terms of what would be different between the normal world and the Internet world, in terms of already established laws that are perfectly applicable as they are today, as the defense has shown, i.e.: the anti-SLAPP law.
You have referred to BW legal team as a competent legal team, would that be simply because they are trying to obfuscate clear actions and issues...? well, I guess that would be one way of looking at it.
However you indicated that they are attempting to establish a legal precedence not tried before, or because BW has failed via the legislative channel....
I found this case, which seems to be interesting... and maybe related, at least in terms of the issue of establishing a precedent.
I would think that SI Bob would be interested in reading the following:
arentfox.com
arentfox.com
PROTECTION OF ON-LINE SERVICE PROVIDERS AS PUBLISHERS OF
DEFAMATORY STATEMENTS
The legislative history of the Act indicates it was also intended to overrule the case of Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 N.Y. Misc. LEXIS 229 (N.Y. Sup. Ct. May 24, 1995). In Prodigy, the court ruled that a libel suit against Prodigy could continue because Prodigy had advertised itself as a family-oriented network that, among other safeguards, authorized its bulletin board system operators to remove user-posted messages and utilized a software program to screen offensive language. In the court's view, because Prodigy attempted to control the content of the bulletin board, it essentially held itself out as being a publisher of the information. As such, it could be held liable for any defamatory messages that were downloaded from its service even if it did not know of the existence of the defamatory statement.
The Act overrules this holding by insulating an interactive computer service provider from liability for defamation and other claims (except, potentially, liability under intellectual property laws) where the provider acts in good faith to restrict access to material that the provider considers obscene, indecent, excessively violent, harassing, or otherwise objectionable -- even where the deleted material is constitutionally protected. The Act similarly protects an interactive computer service provider that makes mechanisms available to content providers permitting them to restrict access to its material.
My point here is that The 1996 Telecommunications Act, defines specific actions, in this case, who is liable for "on line" defamatory statements, and under what set of rules such liability is established or shielded from.
So in your analysis of the legal team... what principle would that be, they are trying to establish, and why current law would not be applicable.
Then my first questions would be (again):
1. What principle/theory/law would that be,
2. Are you aware of their prior intents to establish so, and
3. Why have they failed before. (if they did try).
Personally I am not aware of any such attempts.
These sites cover internet related issues, perhaps better trained eyes would find some kind of principles that could be applicable here, I could not find any.
arentfox.com (index)
arentfox.com
This may have something of interest, but I could not make an exact "match":
arentfox.com
Copyright Protection...
arentfox.com
Here you will find an interesting essay re: Jurisdiction, a concept that the Internet definitively challenges from several points of view, (advertising, gambling, copyright infringement, promotions, etc....)
arentfox.com
And on this page, there may be something slightly related perhaps...
arentfox.com
Even though Cardtoons' activity did not fit neatly within either of the two exceptions to the Oklahoma statute, the court held that application of the Oklahoma statute against the parody cards impinged upon Cardtoons' First Amendment right of free speech. The court reasoned as follows:
Cardtoons' parody cards received full First Amendment protection as parody. Cardtoons' parody cards were not commercial speech since they did more than advertise another product. 8/
In analyzing the tension between Cardtoons' right of free speech and MLPA's property right, the court considered the following:
(1) Cardtoons' expression required the use of the players' identities because the cards were lampooning individual players. Also, the trading card format was an essential component of the parody because baseball cards have traditionally been used to celebrate baseball players. Therefore, an attempt to enjoin Cardtoon would do more than impose "time, place and manner" restraints; it would impinge upon the content of Cardtoons' speech.
(2) The effect of limiting Cardtoons' right to market its parodies would implicate core First Amendment concerns. The court stated, "In order to effectively criticize society, parodists need access to images that mean something to people, and thus celebrity parodies are a valuable communicative resource. Restricting the use of celebrity identities restricts the communication of ideas." 9/
(3) On the other hand, the effect of infringing upon MLPA's right of publicity did not outweigh Cardtoons' core First Amendment rights. The court analyzed MLPA's right of publicity in terms of the economic and noneconomic justifications of that right. None of those justifications was sufficient to overcome Cardtoons' right of free speech in its parody cards.
Thus, the Cardtoons case stands for the proposition that, outside of the advertising context, the right of publicity may have significant limitations to the extent its enforcement implicates core First Amendment interests.
What about.... Publisher's liability of an ad content ??
arentfox.com
Is BW a publisher of news ?.... and... Are "news" originated by a company who is the beneficiary of the "effort" considered news, PR, or mere advertising....
A publisher is generally responsible for the content of his or her magazine. I'm not sure that a disclaimer on the masthead would relieve you of potential liability if you were to publish a deceptive ad in the body of your publication. It would be different if you were not acting as a publisher, but more like a service provider that did not take editorial control over the content of the service. Even still, if you were to become aware of something that was misleading, you might have to take some action to remove it.
Is BW a mere channel for "advertising disguised as something else"
arentfox.com
re: Advertisements disguised as something else
Yes, the FTC does regulate advertising that poses as editorial material. In fact, this is a rather hot area as of late. Last year, the FTC stopped a direct marketer from sending out unsolicited advertisements for an expensive public speaking program. T he ad looked like an editorial page from a magazine, and there was a "post-it" note attached that bore a statement such as "David -- This really works! -- J." The statement looked like it was written by hand. It came in a plain envelope. The FTC said t hat it misrepresented that it was an objective review when in fact it was advertising posed as editorial content, and that it had the potential to mislead consumers.
The FTC's 900 number rule is another example of how the Commission has sought to ensure that program length television shows disclose that the audience is watching a paid announcement from a commercial sponsor. (You probably did not watch the Great America show long enough to see the disclaimers, assuming it was in compliance with the rule).
Apart from the FTC, magazines routinely place the legend "Advertisement" or "Special Advertising Section" on pages that has the capacity to confuse consumers about the line between editorial content and advertising.
This issue is particularly important in the Internet context, since the line between information and advertising has become even more ambiguous. If I am on a newsgroup and talk about my business, am I advertising? The multifaceted Internet provides a great wealth of information, some of which is inextricably intertwined with advertising content. The question for regulators is how to decide which is which and what to regulate.
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For now this will do...
I can not see where the BW lawyers could possibly be leading to, nor the assumed objective of using this case as a sample or precedent establishing case.... under what theory ?
Well, maybe others have a better opinion.
(Don't forget the latest post in reference to PR announcements by BW that were not even authorized by the company that the announcement was making reference to). |
