April 29th, 2006

Appearances and the Law in the Lance Dutson Lawsuit


Much has been said already about the lawsuit against blogger Lance Dutson by ad agency Warren Kremer Paino Advertising, but here are some issues I haven’t seen addressed yet:

1. The lawsuit should be required reading for every blogger — seeing the substance of his blog posts cast in the legal terms of defamation, whether right or wrong, must surely have been a sobering experience for Lance, as it should be for us all.

2. I took the time to look up on Lance’s blog each of the defamation points cited in the lawsuit, and he does not appear (I’m not a lawyer) to have made any observations about Warren Kremer Paino Advertising work for the Main Office of Tourism that were gratuitously or knowingly false. Now, it’s possible that some of them were false, but Lance did place phone calls and exchange correspondence with the parties involved in reference to the facts of the case, so the appearance is that he made a good faith effort to try to get the facts straight.

Whether he can be held legally liable for defamation is beyond my knowledge of the law, but the PR fallout for Warren Kremer Paino Advertising and for Maine Tourism will hinge largely on the appearance of Lance’s actions.

The key issue for bloggers is that if we want the same protections as journalists, we will also be held to the same standards with regards to fact-checking and libel laws. So Lance is not automatically on the right side of this case in legal terms simply because he’s a David facing a Goliath. There’s a right side of this case from a PR perspective, which it appears that Lance occupies, but there’s also a right side from a technical legal perspective, and that requires hashing through a lot of granular details.

3. The monetary damages sought in the lawsuit are principally for copyright violation. What Lance did was take images of ads displayed in a PowerPoint presentation by the Maine Office of Tourism and post them on his site. The PowerPoint presentation is on a public website operated by the state of Maine (and is STILL THERE, including the ad with the incorrect sex line phone number). The key issue here, it seems, is whether Warren Kremer Paino Advertising has legal control over the reproduction of these ads, or whether Maine taxpayers like Lance, having provided the funds that paid for these ads, have a right to reproduce them as part of a political critique of how their government spent these tax dollars. It’s not as if Lance took these images illicitly from a private location — he took them from a public document on a public website.

Again, the appearances are on Lance’s side, but it still remains to be seen which side the law technically is on.

In either case, we as bloggers need to think about the implications of posting images on our sites.

Lance is fortunate to have an organization like the Media Bloggers Association — it’s only when an individual blogger finds himself in serious legal and financial jeopardy that we truly appreciate the importance of such organizations, and we as bloggers should all be grateful for the MBA’s existence.

Even if it turns to be true what most bloggers suspect that Warren Kremer Paino Advertising made a huge mistake, both in PR and legal terms, in filing this lawsuit, there is much to be learned on both sides.

Comments (15 Responses so far)

  1. + Discussion:Publishing 2.0 and Center for Citizen Media

  2. visits. Remember the days when you had to pay to get magazines delivered to your home? I think those days are almost over. Update 4/29: First, some more c-n-p from MWP: Downbrigade news, The Blog Herald, Pascal Vernier, Bring It On, Seth Finklestein,Publishing 2.0, Silent Running City Troll, Mike Orren, The Bell Curve Scar, Tris Hussey, Brian Bonner, Journalism Hope, Gary Goldhammer, The Blogging Journalist, Coffeehouse Studio, Lewiston Sun Journal Lance is really getting an impressive amount of support from

  3. Read the entire blog, then read this: http://www.spj.org/ethics_code.asp . What is posted on the blog is not even distantly related to journalism.

  4. Stanley,

    I think this is much more complicated than your black-and-white characterization suggests. Just because Dutson had an overt self-interested agenda, doesn’t mean he has no entitlement to the term “journalism.” Many an opinion column has railed against the “perceived” evils of Walmart, but that doesn’t make them either legally libelous or beneath the standards of a journalistic organization to print.

    We are in uncharted territory here, and citing an ethics code that was conceived before the advent of technology that made possible a mode of individually communication that can be characterized as “citizen journalism” is to oversimplify the issue.

    If you’re going to go referencing ethics codes, it would be good journalistic practice to cite SPECIFICALLY what actions on the site are in violation of that code.

  5. I have a post which discusses the libel charge of the lawsuit regarding the Google aspect:
    Warren Kremer Paino v. Lance Dutson, and Google keyword matching

  6. What I want to know: Did anyone ask him, or his host, to remove the image?

    If yes, where’s that email? ;)

  7. Scott,

    If having a keyboard and an opinion makes a person a journalist, then we’re all in trouble.

  8. [...] The Florida Masochist cehweidel Don Singelton Orient Lodge Gabe Gates Digg Ed Cone Bill Hennessy VicePR The Boston Globe The Portland Press Herald Dave Winer Eric Jaffa Lisa Renee VillageSoup Center for Citizen Media Bill Trippe Travis Corcoran Pajamas Media John Palfrey Presto Vivace Blog Robert Ambrogi PRSpeak Eric Scheie Michael Feldman James Robertson about:blank Eric Siegmund Overlawyered the Blogging Times William Quick adland Ron Coleman at Dean’s World Wall Street Journal Law Blog Berkman Center for Internet & Society Mark Glaser Scott Johnson Mark A. Rose tHg News smays Brett Schulte Big News Michael Arrington First Maine Forward Civil War Cavalry Dan Gilmour Robert Scoble Words Matter Downbrigade news The Blog Herald Pascal Vernier Bring It On Seth Finklestein Publishing 2.0 Silent Running City Troll Mike Orren The Bell Curve Scar Tris Hussey Brian Bonner Journalism Hope Gary Goldhammer The Blogging Journalist Coffeehouse Studio Lewiston Sun Journal [...]

  9. [...] SethF consistently whines about being a Z lister, but it is the cheesy comment link drops that makes him hard to like. Cat:  [...]

  10. I think the main question is wether or not a person has the right to comment and question his goverment and it’s use of public funds. In my opinion if the ad agency takes public money and has a public contract, it becomes an extension of the govement and is subject to scrutny. If you bid on goverment work expect the taxpayer to look at the results.

  11. [...] A Maine-based blogger has been sued for copyright infringement, defamation, and libel for posting complaints about a Maine tourism campaign. How far does free speech go online? Dutson’s role as defendant in a case brought by the creator of a tourism ad campaign for the state of Maine, Warren Kremer Paino, may determine that. Dutson has been a critic of the state government and of the contractors Maine brought in to do this work. Dutson copied an ad created for a January 2006 presentation made to the state government for the tourism program. The ad was part of a PowerPoint presentation, and is still available on the state’s website (hat tip to Publishing 2.0 blogger Scott Karp for pointing to it.) [...]

  12. [...] Unbeknownst to the plaintiff it turns out the blogger was sitting on free legal support, love from many many bloggers, and coverage in the WSJ, EWeek and Boston.com. [...]

  13. [...] First of all, let’s forget about the idea that this is about copyright infringement (for posting some of the agency’s work) or about defamation or any of that bollocks, although my pal Scott Karp is quite right to point out that this lawsuit is a warning shot across the bow of all bloggers. If you want to be treated as journalists in some sense, that includes dealing with the risk of libel and defamation lawsuits. Still, this lawsuit is clearly about WKPA (which of course makes me think of WKRP, being of a certain age) getting its nose bent about some criticism. [...]

  14. [...] Scoble Words Matter Downbrigade news The Blog Herald Pascal Vernier Bring It On Seth Finklestein Publishing 2.0 Silent Running City Troll Mike Orren The Bell Curve Scar Tris Hussey Brian Bonner Journalism Hope [...]

  15. Appearances have been SO deceiving in this case.

    Here’s a chance to finally learn the truth:


    Thank you for your time….


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