Blogger Lawsuit: Stupid Publicity Stunt or Just Plain Stupid?

The blogosphere has been abuzz the last few days with the story of an ad agency, Warren Kremer Paino Advertising (WKPA) that is suing a blogger, Lance Dutson of Maine. The issue in dispute is Mr. Dutson’s coverage of the work that the agency was doing for the Maine Department of Economic and Community Development.

In one particularly ridiculous mistake, WKPA created an ad that referred readers to a sex chat line instead of the actual information line for Maine tourism. In order to cover the mistake on his blog, Dutson pulled the ad from the Maine Department of Economic and Community Development website and republished it on his blog. WKPA holds a copyright for that advertisement.

Dutson also claimed that WKPA had made grievous mistakes in the way that they conducted their Google advertising, allowing people within the State of Maine to see and click the ads on Google. He argued that this was an unwise allocation of the tax money being used to pay for the ads - which were intended to encourage tourism - and that they competed unfairly for attention with ads placed by Maine businesses looking for customers within the State of Maine, including his own clients.

There are a number of other facts in dispute in the suit (PDF), which claims copyright infringement, defamation and trade libel/injurious falsehood against Mr. Dutson for his coverage. I haven’t the time or room here to rehash every factoid. There are many other sources, including Dutson himself that tell the complete story already. I don’t want to be an echo chamber.

What I do want to do is explore why WKPA filed this lawsuit in the first place. To this end, I chatted with a couple of lawyers - my father and uncle, if truth be told. Both of them confirmed what I already knew: truth and the expression of a personal opinion are both absolute defenses against defamation claims.

What’s more, under Sullivan vs. New York Times, there has to be acutal malice for a public figure - which WKPA may be - to claim libel. For actual malice to apply here, Dutson would need to have known that his claims against WKPA were false. However, whether WKPA can be considered a public figure, and whether Dutson knew the claims were false are issues of fact for a jury to find.

Also in question is Dutson’s use of material for which WKPA holds a copyright - the ad with the sex chat number that he republished to illustrate his point. What is not clear is whether his republication of the ad in question falls within the parameters of fair use. This is also an issue of fact for a jury.

It’s possible that WKPA and its lawyers believe that they have a valid claim against Dutson, but as Steve Rubel has already told us, suing bloggers is such a bad public relations move that unless they had a very clear cut case against Dutson, it would be a terrible idea to sue him. And in this case the merits of this lawsuit are far from clear.

But what I find particularly interesting about this entire issue has very little to do with the merit or lack thereof of the lawsuit:

Tom McCartin, president of WKPA, is most concerned about Mr. Dutson’s public posts because if potential clients search for the agency online, they will likely see Mr. Dutson’s critique-filled blog before the agency’s own Web site. As a result, Mr. McCartin says his business, which sees capitalized billings in the $40 million range, has been hurt. And he wants to protect his reputation. (From AdAge)

What this basically tells me is that apart from being incredibly naive about the potential for backlash in the blogosphere, WKPA is also ignorant of the way that search engines work and why blogs are more powerful than traditional Websites when it comes to search engine optimization (SEO). Indeed, a Google Search of WKPA’s name reveals numerous sites positioned ahead of the firm’s actual website. If McCartin is really concerned about his site’s page rank and performance on Google, his firm should start its own blog.

At first I believed that the relative lack of merit in this suit meant that WKPA was using the courts to intimidate detractors while gathering inbound links, and didn’t expect to win their case. But having explored the issue further, I can only conclude that WKPA has no idea what they have gotten themselves into. Their naivete about the blogosphere and search engines leads me to believe that they are simply using outdated legal tactics in a new world where they don’t work anymore.

My verdict: Just Plain Stupid.

Via TailRank.