Puffery And Prevention

Puffery is like a fig leaf for writers. A vague or highly subjective assertion does not expose you, legally. Whether or not it is good writing is another matter entirely.

Here's an example of non-actionable puffery. "Alien Romances is the most interesting, reader-friendly, quick-read blog that has been active for more than 10 years."

The Frankfurt Kurnitz Klein + Selz PC advertising law blog article, 'Does "Tested" Actually Mean That You've Conducted Testing?' discusses a recent legal dispute over truth in advertising plumbing equipment.

https://advertisinglaw.fkks.com/post/102h5bl/does-tested-actually-mean-that-youve-conducted-testing

Legal blogger Jeff Greenbaum expertly runs through three separate claims that a rival purveyor of plumbing supplies found offensive, and why --on appeal-- two of the claims did not stick (legally speaking), but one did.

For UK law firm Burges Salmon LLP, legal expert Helen Scott-Lawler and Amanda Leiu examine two stories of social media influences who fell foul of the law (the Advertising Standards Authority), one for allegedly using her Instagram presence to promote products for profit without --allegedly-- properly disclosing that her posts were advertisements, and the other for running a social media "contest" and allegedly failing to deliver the prize to the contest winner.

https://www.burges-salmon.com/news-and-insight/legal-updates/commercial/advertising-standards-authority-asa-bans-instagram-influencers-ads-for-disregarding-ad-rules

We writers like stories, we advertise, we promote, we try to use social media for visibility and profit... so these cautionary tales are good to know.

Most scandalous of all (for today)  Elizabeth Tuttle Newman, writing for the FKKS IP and Media Law blog discusses the slander of a public figure in No Slander, No Case...

https://ipandmedialaw.fkks.com/post/102h5ak/no-slander-no-case-court-dismisses-avenattis-defamation-claims-against-fox-new

Lexology link:

https://www.lexology.com/library/detail.aspx?g=8b3d5642-64ef-4e92-ad53-e0353a5569d4

The bottom line is that aggrieved public figures have to be able to prove actual and deliberate malice, and moreover,  mild inaccuracies or fanciful speculation are not necessarily defamatory. For any writer considering articles or biographies of interesting subjects, this is edifying reading.

Also precautionary....

For writers who own blogs or websites where other people may add comments, you should register a copyright agent and keep your account active by changing your password when prompted, which is usually every couple of months.

 https://dmca.copyright.gov/osp/p1.html

The designated copyright agent for this blog is Rowena Cherry.

The purpose of designating a copyright agent and registering with the DMCA Designated Agent Directory is to qualify for safe harbor protection. For an explanation, see here.

All the best,

Rowena Cherry  

SPACE SNARK™

http://www.spacesnark.com/  http://www.rowenacherry.com

 

Damned If You Do...

Social media is a minefield.

Anyone can make an accusation, anyone can repeat terminological inexactitudes, and although a reasonable person might think that it would be safe to set the record right, it's not. It might cost you.  You might give others the impression that the first person is... a liar.

And that is actionable.

John C. Greiner, writing for the law firm Graydon Head & Ritchey LLP discusses an emerging trend of using defamation lawsuits to resurrect untimely complaints of sexual assault (after the statute of limitations deadline.)
https://graydon.law/sexual-assaults-and-defamation-litigation-an-emerging-trend/

There's more this month on the topic of defamation in social media.

Jerod MacDonald-Evoy, writing on Law & Government for the AZ Mirror writes about a discussion taking place in Arizona about removing the current statute of limitations, which rules that a defamed person can only sue for defamation  within the first year that a libelous comment is published online.

https://www.azmirror.com/2020/01/08/internet-libel-lawsuits-social-media-posts/

Given that "the internet is forever", perhaps the current law is inadequate. Unless one obsessively "googles" oneself (which may not be a reasonable expectation), it is possible that one might not discover an untruthful and scurrilous assertion within a year of it being published.  Many authors, for instance, deliberately do not read their books' reviews.

Authors are discouraged from responding to published reviews, and if a reviewer could sue an author for defamation if an author were to suggest in writing that that reviewer was veridically challenged, there's all the more reason to stay away!

For any Scottish readers, Marianne Griffin, writing for Brodies LLP and the Enlightened Thinking blog explains the Defamation and Malicious Publication (Scotland) Bill.
https://brodies.com/blog/dispute-resolution/katie-price-and-the-defamation-and-malicious-publication-scotland-bill/

It's worth reading, especially for those who re-Tweet others' social media comments without great mindfulness.


Happy reading!

Rowena Cherry 
SPACE SNARK™ http://www.spacesnark.com/

Lessons From A Pyrrhic Victory

While it would not be exactly true to say that I have a "fondness" for any underdog in any fight, I dislike unfairness, particularly when the Media piles on and stirs the pot with half truths and --what I perceive as-- maliciously inaccurate reporting.

I am talking about a recent libel suit against the estate of a deceased author, in which the majority of a jury allegedly found for the plaintiff.

http://redalertpolitics.com/2014/07/29/jury-awards-jesse-ventura-1-8m-defamation-case-american-sniper-author-chris-kyle/

Almost every talking head that I have heard has vilified the plaintiff and focused on emotional buzzwords equivalent to "motherhood" and "apple pie" to suggest that the outcome of the trial was an outrage simply because of the buzzwords associated with the defense.

This might give comfort to authors who may consider libelling (or allegedly libelling) a public figure for profit, especially when pundits on TV asseverate that anyone can publish anything (regardless of truth) about any public figure.

Perhaps the supermarket tabloids do so with impunity, but perhaps they have better insurance policies than the average debut author.

Reality check. Word Castle Publishing kindly purblishes online a sample contract, so I have made fair use (I hope) of a couple of pertinent clauses which are typical of my experience with four other publishers whose contracts I have read, but which are supposed to be confidential.

Author Warranties

3.        The work does not infringe upon any copyright, privacy rights, rights of a third party, or any common law or statutory law.

4.        The work does not contain any material of a libelous or obscene nature.

http://www.worldcastlepublishing.com/sample-contract.html

And....

B.       Author Agrees to hold Publisher harmless and indemnify the Publisher against any claim, demand, action, suit, proceeding or any expense whatsoever, arising for claims of infringement of copyright or proprietary rights, or claims of libel, obscenity, invasion of privacy, or any other unlawfulness based upon or arising from the publication or any matter pertaining to the work.

C.       Author warrants and represents that to the best of Author’s knowledge and belief, all statements of fact contained in the work are true and based on appropriate and diligent research. A note may be added to the work to show proof of research completed if Author so desires.

http://www.worldcastlepublishing.com/sample-contract.html

Please notice such words as "privacy", "libellous", and "based on... diligent research". Also notice "indemnify the Publisher" and 'hold Publisher harmless". In theory, that means that the Publisher and the Publisher's insurance company will not pay out.

Notice also that most publishers put the entire onus of any breach of the above-mentioned warranties on the author and the author's heirs and assigns.

Interestingly, there appear to be three authors of the book, but only one is mentioned as the plaintiff. I wonder why. No matter.

Check your own contracts. Then read this account of the controversial trial. It is probably not typical.... in that the Publisher and the Insurance company is paying up.

http://redalertpolitics.com/2014/07/29/jury-awards-jesse-ventura-1-8m-defamation-case-american-sniper-author-chris-kyle/

I visited Amazon to check out the front matter of the allegedly true memoir in question, but Look Inside is not available. Preview is not available on Barnes and Noble, either.

Scribd came through with the front matter disclaimer:

"The events that happened in this book are true, recounted from the best of my memory.... we've reconstructed dialogue from memory which means that it may not be word for word...."

http://www.scribd.com/read/163638913/American-Sniper-The-Autobiography-of-the-Most-Lethal-Sniper-in-U-S-Military-History

I guess, if you put dialogue into the mouth of someone else, and you admit in the front matter that what you remember that he (or she said) may not be word for word.... you shouldn't have a legal leg upon which to stand.

This has been a highly instructive saga.  We could all do well to learn from it, even if most of us write  science fiction and fantasy, and our front matter disclaims any resemblance of our alien characters to any real person alive or deceased.

All the best,
Rowena Cherry
SPACE SNARK™ http://www.spacesnark.com/ 

alien romances