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.