Monthly Archives: April 2013

UK Defamation Reform, Leveson & The Blogger Question

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After 170-years, The UK Has A New Set Of Libel Laws.

After 48 months of lobbying, three public consultations, two working groups and seven parliamentary debates, the UK defamation reform bill passed in the UK’s House of Lords. Leading up to yesterday’s vote, speculation swirled as to whether or not the law would even be introduced for a vote. But it was, and it passed, so, sayonara 170-year-old UK libel laws. Congratulations Brits, you’ve finally lost your title of the “libel tourism capital of the world.”

Lord Lester’s UK Defamation Reform Bill

Venerated UK human rights lawyer, Lord Lester, is the political spearhead of the UK’s defamation reform bill, though the movement included other politicians, citizen activists and media watch groups. For nearly half a decade, defamation reform advocates pushed to:

(1)    bolster free speech protection for the press – including bloggers and online media outlets;  and

(2)    diminish the number of libel tourism lawsuits filed in UK courts.

In order to achieve the above goals, Lord Lester’s libel reform bill bars foreign parties from bringing lawsuits in a UK court unless the plaintiff can prove “serious harm” and more than a tenuous connection to the nation. In addition, the bill allows for “fair comment” as an acceptable defense to defamation charges. Moreover, the bill includes stipulations that corporations would have to show “substantial financial loss” in order to win a defamation lawsuit.

What Got Knocked Down In UK Defamation Reform?

UK libel reform advocates, however, didn’t get everything they desired.  An amendment that would have prevented third parties, which do contract work for government, from suing critics without proving “substantial financial loss” was shot down. Most reformers are disappointed about the omission of the third party clause, but are nevertheless pleased that the bulk of their bill will become the law of Her Majesty’s land.

The Rocky Road To UK Defamation Reform

Before yesterday’s vote, British free speech advocates clamored for UK defamation reform – and the road to reform was bumpy. The News International Phone Hacking Scandal was perhaps the most derailing event faced.

News International Phone Hacking Scandal

Two years ago, just when it looked like the Lord Lester’s defamation reform bill would sail through Parliament, the News International Phone Hacking scandal broke. The incident prompted an inquiry into the culture, practices and ethics of the British press.

Chaired by Lord Justice Leveson, the investigation was divided into two parts. The first dealt with “the culture practices and ethics of the press, including contacts between the press and the police” and potential corruption when it came to “warnings about media misconduct.” The second part, due to commence in the coming months,  will look at “the extent of unlawful or improper conduct within News International [and] other media organizations…It will also consider the extent to which any relevant police force investigated allegations relating to News International, and whether the police received corrupt payments or were otherwise complicit in misconduct.”

Leveson part I public hearings were held between 2011 and 2012. The first findings were published in November 2012. The central suggestion proffered in the first part of the Leveson report was the establishment of a new self-regulatory press agency to replace the current Press Complaint Company – the media monitoring body that was severely criticized in the wake of the phone hacking scandal. Like the PCC, the proposed new media self-regulatory agency would be funded by membership fees; each outlet would have a representative on the new body’s board as well. The only real difference between the old and new agency is that the Leveson inspired PCC would be able to fine entities, dole out other types of sanctions and run an “inquisitorial arbitration service.” They also want to be able to impose “exemplary damages” to entities that don’t participate in the new PCC. In other words, the agency would have more actual power.

Will Proposed New Leveson Agency Still Make Bloggers Personas Non Grata Despite Defamation Reform ?

Many support the creation of a new media monitoring agency in the UK. However, detractors aren’t thrilled about how the Leveson committee’s proposed agency could hurt bloggers and online outlets disproportionately.

Kirsty Hughes, CEO of Index of Censorship, explained that Leveson’s recommendation hurts bloggers and smaller online media outlets because it “introduces a layer of political control that is extremely undesirable” because the fees to join the proposed agency are out of reach to the average blogger. But Leveson suggests that those who don’t participate in the monitoring agency should be subject to higher fines and stricter sanctions. Hughes went on to highlight the absurdity of the stance, reminding that it’s asinine for bloggers to be forced to participate in a regulatory body “that was not intended for them in the first place.”

UK Defamation Laws vs. US Defamation Laws

Before the UK House of Lords homologated Lord Lester’s bill, UK libel laws were stunningly plaintiff-friendly. In fact, they were so claimant-leaning, in 2010, the U.S. passed the SPEECH Act as a way to protect American citizens from being financially pummeled in a UK defamation lawsuit that didn’t adhere to First Amendment standards.

Click here to read more about UK defamation law.

Kelly Warner handles all manners of international defamation lawsuits and litigation. If you’re a company or a private citizen in search of international defamation litigation counsel, please get in touch today.

Can I Be Sued For Slander If I Don’t Use the Person’s Name? Yes!

sued for slander if I don't use the person's name“Can I be sued for slander if…..?”

Sure, it’s tough to win a defamation lawsuit in the United States, but yearly, thousands of peole win slander and libel cases – even in instances when the defendant doesn’t use names.

The First Amendment Makes Winning Defamation Lawsuits Difficult, But Not Impossible

Thanks to the First Amendment of the United States Constitution, defamation laws in the U.S. are decidedly defendant-friendly. Unless a statement is blatantly false, and has a deleterious effect on a person’s or entity’s reputation, it’s tough to prove defamation – but it’s not impossible.

You Can Be Sued For Slander Even If You Don’t Use The Person’s Name

Our nation’s free speech rights erroneously lead some people to believe they’re legally untouchable when it comes to smack talking and divulging others’ secrets online. For example, many believe that if you don’t use your target’s actual name then you can’t be prosecuted.

That is not necessarily true. So long as another individual can figure out the person being described, then it’s possible to be sued for defamation. For example, let’s say you make a YouTube video about “a female talk show host, who now has her own television station, and recently interviewed Lance Armstrong said [insert disparaging comment here]” – expect Oprah Winfrey to sue you. Moreover, expect her to win if (a) what you said was false, (b) you knew it was false and did it anyway, and (c) the statements caused “O” reputational or financial harm.

Even If You Can’t Be Sued For Slander, You Could Be Sued For Something Else

Let’s say, however, that the information you posted is true. While you would definitely have a stronger defense, it is not a given that you will escape legal censure. Other charges – like false light or various publicity and privacy torts – can be used to go after “truth defamers.”

One Can’t Be Sued For Slander If The SOL Has Expired

The important thing to remember, though, is that there is a statute of limitations for defamation. If the incident occurred many moons ago, the chances of you being granted a hearing are between slim and none. Check here to see if list of limitation statutes in each state.

Are you dealing with a slander or libel issue? Kelly Warner Law has experienced great success with various types of defamation lawsuits. If you are looking to sue for slander, or are being sued for slander, get in touch. Our team of defamation attorneys will provide superb counsel and help you through the process.

Mistranslation Defamation

mistranslation defamation case
What happens if you bungle a word in a different language? Can you be sued for defamation?

During the 2012 elections, many people clamored for President Obama’s school records. He declined to produce them, arguing college academic records have no effect on governing. An educator in Hong Kong, however, is bending over backwards to make sure every man, woman and child is familiar with a sub-par university grade, because if he can convince a judge of his long-time struggle with the English language, he may successfully defend himself against defamation charges. The case also raises the question: can you be sued for mistranslating?

Parent Files Complaint; Principal Uses Incorrect English Word To Describe Complaint

The mistranslation defamation melee started several months ago when a parent at the Wah Yan College – a well-known Catholic secondary school on Hong Kong Island – submitted a complaint about a teacher named Shiu Han-po. The principal of the school, George Tam Siu-ping, allegedly  repeated the accusation and called the complaint “valid.” Upon hearing the news, Shiu filed a HK$200,000 defamation lawsuit against Tam.

Teacher Files Defamation Lawsuit Over Alleged Mistranslation

The defending principal, however, insists he should have used the word “real” not “valid.” He’s arguing he only meant to convey that the parent filed the complaint, not comment on its veracity. Shiu is not hearing it, though, and formally accused Tam of “endorsing a groundless complaint filed by a parent.”

Lawyers Produce Evidence Of ‘Bad English’ In Mistranslation Defamation Case

As part of their defense plan, Tam’s lawyers stressed that their client often misuses English words. They went so far as to provide transcript testimony proving Tam once used the word “invest” for “investigate” and “divert” for “disclosure” in other former documents. Tam’s attorneys also highlighted that even though their client has a Masters degree from Hong Kong University, he failed his A-Level English exam in 1970.

Perhaps in an attempt to elicit more sympathy for their client, the defendant’s attorney also called attention to Tam’s lifelong breathing difficulties and severe shortsightedness. Are they purposefully conjuring the image of a well-meaning, but bumbling, nerd being bullied by the better looking jock? (Hey, perception plays a large part in defamation lawsuits.)

Judge Set To Deliberate Mistranslation Defamation Evidence

Judge Wang Hung-chun, the ruling official, seemed sympathetic to Tam’s plight, and she is due to hand down a decision soon. We’ll have to wait a few days to see what happens in this translation misinterpretation defamation lawsuit.

Are you interested in learning more about international defamation laws? Check out the Kelly Warner International Defamation Law Database. If you are looking for a lawyer to assist with a defamation issue – whether it is international or domestic in nature – get in touch with Kelly Warner law today.

If I’m The First to File A Trademark Registration, Do I Get It?

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Is the trademark “Dunk City” up for grabs?

A Florida businessman is trying to grab the trademark rights to “Dunk City.” Will the USPTO grant him the rights to the phrase? Does he have a legal leg to stand on?

Florida Gulf Coast University came, saw, and conquered. Well, they conquered until the Elite 8 when a neighbor Gator team defeated the beloved underdog of this year’s NCAA tourney. But the loss mattered little.  America was already smoldering with a case of FGCU fever. People wondered, “What is the deal with this school and how did they get such a talented basketball team!? Is it a fluke, or is FGCU a new force on the court?

Within days, every leading media outlet mentioned the new Florida university, and all used the term ‘Dunk City’ – a moniker of unclear origins – to refer to the new basketball phenoms.

Now, an industrious businessman from the Gulf Coast – who clearly understands the financial power of intellectual property – is trying to register the trademark “Dunk City.” Can he?

Dunk City Intellectual Property Case Background

FGCU came into existence at about the same time the Internet began spreading through the suburbs like wild ivy, 1991. So, it is fitting that the tagline for which the school is now inextricably linked – Dunk City – dribbled into existence via hashtags, blogs posts and social media updates.

Perhaps “Dunk City’s” lack of verifiable provenance is why music producer Charlie Pennachio of Fort Myers, Florida, tried to snag federal trademark rights to the phrase soon after it went viral. After all, the chances that another party had already filed for the registration was slim.

In the middle of the FGCU winning streak, encouraged by his business partner –Florida music personality and VH1 reality show participant, Tripp Tribbett – Pennachio filed trademark registration paperwork with the United States Trademark and Patent Office. He requested rights to the phrase “Dunk City” for a yet undetermined business.

Florida Gulf State University’s Claim to “Dunk City”

Currently, Florida Gulf Coast University is using “Dunk City” on merchandise alongside its logo. Perhaps more importantly, from a trademark registration standpoint, the school has been selling said products emblazoned with the phrase – which means the school was the first entity to use the mark in commerce.

Additionally, not only does a splash page on the school’s website now dons the tagline, but FGCU also used “the term as a part of a campus food drive. The school created Sixteen hundred student IDs with the ‘Dunk City’ moniker.” Students who donated goods to a local food bank drive were given the special IDs as thanks.

The position of Michael Van Wieren, General Counsel of licensing Resource Group, the firm that handles school’s licensing program, is “‘Dunk City’ is inextricably linked with FGCU. Had it not have achieved its fame or notoriety.”

Does Pennachio Have A Shot At Being Granted The Trademark Registration for ‘Dunk City’?

The question of the hour is: does Pennachio have a chance at beating FGCU to the USPTO? And if he does, could he be granted the trademark registration for “Dunk City”?

In two words: probably not.  Here’s why:

  1. According to the Lanham Act – the nation’s chief trademark law – a party cannot register a trademark if another party is already using the mark or phrase commercially. Since the university uses it on merchandise, Pennachio will have a hard time proving that he used the term first. Most noteworthy, Pennachio admits to not hearing of the phrase until FGCU’s NCAA success.
  2. The school could argue “Dunk City” is technically a collective trademark of FGCU since the university used it on student identification badges. As a collective trademark, the school would enjoy strong trademark protections./li>
  3. The annual NCAA Basketball Tournament is a popular, national happening. Since “Dunk City” entered the public arena via a highly publicized event, attorneys for FGCU easily could  argue that the phrase is a “famous trademark” – which means it would be granted superior protection under the law. As such, the holders (FGCU) could sue for infringement and trademark dilution if Pennachio, et al. tried to use it to promote a music company.  Moreover, since there is no need to show likelihood of confusion, FGCU could stop others from using the mark in unrelated fields.  However, showing that a mark has reached a “famous” level is not a given, especially since it has only been in use for a short while — even with Dickie V. shouting it from courtside.

If you have a trademark legal issue, and need a lawyer who regularly deals with intellectual property litigation, get in touch with us here.