Thickness of biz skin and freedom of blogspeech
As some readers may already know, blogger Lance Dutson has been hit with a federal lawsuit seeking potentially more than $1 million in damages. The plaintiff, Warren Kremer Paino Advertising, is claiming defamation, libel, and copyright infringement for entries Dutson has recently posted on his blog. Basically, Lance made critical comments about the way the agency employed the state’s resources to enhance web traffic through the purchase of keywords at Google AdWords and Overture. He has argued that the state’s payment of premium rates for keyword placements outbids smaller business owners that wish to utilize the search engines to draw traffic to website. He also reported that a draft of the agency’s ad campaign [for promoting Maine’s tourism industry] included photos (apparently pulled from Maine’s Department of Economic and Community Development website) which mistakenly display a phone sex number. Lance tells the whole story here.
Blogger criticism of the agency is abundant. Some examples…
Glenn Reynolds (author of the new book An Army of Davids):
You’d think an advertising agency would be brighter than that.
I’m an attorney, and I say this: Our legal system is not an appropriate venue to handle disputes between deep pocketed plaintiffs and one-man defendants. The lawsuit itself is generally enough to destroy a person because they cannot affort proper legal representation. Warren Kremer Paino, the plaintiff, should be ashamed of itself for taking this to court, and their reputation, as well as that of their client, the state of Maine, will certainly take a hit for this.
Based on the facts as I understand them right now, this lawsuit is ridiculous.
Any sane person knows that if enough people shout about something, whether they want to stop something or not, it will get noticed. Same thing with lawsuits. Slap a big lawsuit on a blogger for something he or she says on their blog and gee…now we have a real big PR mess on our hands, instead of just a small easily managed one.
The web/internet is such that things do not quickly disappear and they are a lot harder to clean out the more something is viewed, linked to, copied, etc. So the LAST THING you want to do if you want some troubling comments to go away quietly is to put a big sign on the comments or page telling the world you really really hate what was said, which in effect is what happens when you make a huge lawsuit to do just that.
Boy, there’s a way to generate business - whenever you get criticized, make sure you sue the guy behind the criticism.
If the Boston Globe had run the stories that Dutson did, do you think McCartin would be suing them? Of course not. He’s created a negative PR event whether the case has merit or not.
Even if the complaint has merit — and from my superficial understanding of the case, at least parts of it are questionable — is this a smart strategy for any company to take when confronted with a hostile blogger?
A relatively unknown gadfly was irritating the agency and its client, the Maine Office of Tourism. Now Dutson is a cause celebre in the blogosphere, and his allegations about the agency and the tourism department are headed for very wide distribution.
Already, the first Google page in a search for “Warren Kremer Paino Advertising ” shows entries from the Maine Web Report, but not the agency’s own homepage — and I’d guess that Google front page is going to get uglier for WKP in the weeks ahead.
The agency and its client look like bullies for trying to outspend and outlawyer an independent writer.
Clearly an understanding of the [blogging] medium and the blowback it can uncork are critical to doing business these days.
If the State of Maine had any clue, they’d do themselves a favor and pause to learn about the nature of the web and the power of conversations across state lines before backing an agency over one of their own residents. But then again, this is reality.
[T]he agency is quickly going to learn what kind of a public relations problem the blogosphere can create for a business which doesn’t understand the medium.
Problems out here spread exponentially. It’s a word of mouth issue which no company, lawsuit or any amount of behind the scenes strong-arm tactics can stop; you can’t ‘unring’ a bell. WKPA has rung a very loud bell and attracted the attention of some of the blogosphere’s most read authors.
[T]he days of traditional techniques of intimidation are numbered. That’s because any attempt at intimidation will immediately be widely reported, and, as an attack on one becomes an attack on all, suddenly the attacker will not be a bully facing one lone victim, but hundreds, maybe thousands of victims — all turning the tables and defending themselves at once. It would be as if a mugger selected a victim in a crowded city and everyone suddenly leaped into action to help. To add insult to the bully’s injury, a documented attack on a blogger tends to produce what every blogger wants: hits and traffic. Thus, the bully who tries to intimidate a blogger ends up helping the very thing he intended to harm!
Several have weighed in on the legal implications here…
Opinion has traditionally been protected pursuant to the First Amendment, since the failure to protect the free expression of opinion will chill the free exchange of ideas and discourse. Traditionally, Americans have been free to express their opinions about the government freely and without fear of retribution.
The case raises the issue of how free speech protection will be applied in the proliferating world of weblogs, or blogs, and underscores the growing influence of bloggers on business and government.
‘’It’s a reflection of the extent to which businesses are taking critiques from the blogosphere very seriously,” said John G. Palfrey, executive director of the Berkman Center for Internet & Society at Harvard Law School. ‘’Bloggers have gained enormous power.”
I would hope that we would always be protected from challenging government spending. “Pissing away [tax money]” is a value judgment any taxpayer should be able to make.
I would hope, too, that we would always have the right of fair comment on anything produced with our tax dollars.
[T]his case is not just about journalism but also citizenry: We must always have the right and even duty to watch and question our government. Contractors acting as agents of government should come under the same scrutiny as government.
[T]he point of this lawsuit is not to win a jury trial. It is to get Lance to stop doing his privilege and duty as a citizen of the State of Maine, namely, criticizing government and its contractors when he perceives that they are doing wrong. This is known as a SLAPP suit…
Dutson’s is not a site I would visit (even if I were interested in Maine). His tone is a more hyperbolic and less professional than I would prefer. His statements are quite likely sloppy in places. I would not point to him as an example of “This is what a blogger should be.”
But this is hardly the basis for heavyhanded state action. And if the threat of big pockets lawsuits can be used against a small fry running a website, it can be used against anyone, regardless of the merits of their case. We need to get it established once and for all that people have the right to post opinions, even half-witted ones, on the Internet.
These three bloggers were kind enough to provide some practical advice for organizations who consider legal action against a blogger:
If WKPA’s intentions were to keep this issue out of the public eye, then LISTENING to blogs and engaging the author in a dialogue would have been a more prudent course of action than filing its suit.
One, instead of trying to bully the blogger, try working with them. Listen to what they have to say. In a nutshell, co-opt them for your purpose. If you take them seriously, treat them with respect, listen to what they have to say and try to address their grievances, then 99 times out of 100 you’ll get the person to turn 180 degrees and become a supporter for your cause.
Or two, start your own blog where you have your own message and can counter what the other person says. You can point outright to the blogger and say this nutso is wrong and here’s why or you can just obliquely deal with the bombs they throw at you and tell the story you want to tell.
Both ways will be a hell of a lot cheaper and in the long run much easier than hiring lawyers. Perhaps companies do this because they have good lawyers and not enough good PR/marketing people.
Whatever side of the coin you’re on when it comes to the effect blogs have on business, this much is true: they’re a force and they’re not going away. If you don’t believe me, just do a Google search on Warren Kremer Paino Advertising LLC. What pops up in the first result set? Something positive? Nope. A couple more days of this and blog posts will be the only Google results for the firm.
This is a tired theme in PR blogs, but…”note to business”: you have to start working with blogs and bloggers (or at least paying attention to them), even if you don’t “get” the technology or don’t subscribe to the notion that blogs represent a tectonic shift in mass communications.
Until the courts establish a precedence for this issue, this warning is worthy of consideration by all bloggers…
The situation points up the need for bloggers to realize their speech is subject to such actions. We get no pass when it comes to defaming people, and we shouldn’t.