Monthly Archives: April 2013

UK Defamation Reform: The Blogger Question

lord-lester-uk defamation reform passed
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 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 spearheaded 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:

  • Bolster free speech protection for the press – including bloggers and online media outlets;  and
  • Diminish the number of libel tourism lawsuits filed in UK courts.

To achieve its goals, Lord Lester’s reform bill bars foreign parties from filing UK defamation lawsuits unless plaintiffs can prove “serious harm” and more than a tenuous connection to the country. In addition, the bill allows for “fair comment” as an acceptable defense to defamation charges, plus includes stipulations regarding “substantial financial loss”in corporate defamation cases.

What Got Knocked Down In UK Defamation Reform?

UK libel reform advocates didn’t get everything they wanted.  Lawmakers rejected an amendment preventing third party government contractors from suing critics without proving “substantial financial loss”. Most reformers are disappointed about the omission, but nevertheless are pleased with the reform results.

The Rocky Road To UK Defamation Reform

The road to UK defamation reform was bumpy, in large part because of a phone hacking scandal.

News International Phone Hacking Scandal

Two years ago, just as Lord Lester’s defamation reform bill was about to sail through Parliament, the News International Phone Hacking scandal broke, and a formal inquiry began.

Chaired by Lord Justice Leveson, investigators focused on two things — a) industry ethics and b) improper conduct on both the part of the newspaper and law enforcement.

Beef Up The Media Regulatory Agency

In November 2012, the committee published findings from part I of Leveson’s public hearings. The report suggests replacing  the current, self-regulatory Press Complaint Company.

Like the PCC, membership fees would fund the proposed media regulatory agency, with each outlet having a board seat. So, what’s the difference between the proposed agency and the old one? The new agency could issue fines, dole out sanctions, and run an “inquisitorial arbitration service.” It could also impose “exemplary damages” on parties that don’t participate in the new PCC.

In other words, the agency would have more power.

Will Proposed Media Agency Still Make Bloggers Personas Non Grata?

Many support the creation of a new media monitoring agency. However, detractors think that the 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.” How? Well, under the proposal, non-payers are subjected to higher fines and stricter sanctions, which is a concern for smaller outlets. Hughes also highlighted the “absurdity” of forced participation in a regulatory body “that was not intended for them in the first place.”

UK Defamation Laws vs. US Defamation Laws

Before the House of Lords passed Lord Lester’s bill, UK libel laws were stunningly plaintiff-friendly. In fact, U.S. legislators passed the SPEECH Act to protect American citizens from paying unreasonable UK defamation award damages.

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 Libel If I Don’t Use the Person’s Name? Yes!

sued for libel if I don't use the person's name“Can I be sued for libel if I don’t use the person’s name?”

Sure, it’s tough to win U.S. defamation lawsuits, but yearly, thousands of people win 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, defamation laws in the U.S. are decidedly defendant-friendly. Unless a statement is blatantly false and has a deleterious effect on a reputation — either personal or business — it’s tough to prove defamation, but not impossible.

Question: Can I be sued for libel if I don’t use the person’s name?

Some people erroneously believe it’s legal to divulge other people’s secrets online. For example, many think that replacing a real name with a fake one is all it takes to get around libel laws.

Not true.

For example, let’s say you post about a female talk show host, with her own television station, who recently interviewed Lance Armstrong. 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 Libel, You Could Be Sued For Something Else

Let’s say the information you post is true. While you would definitely have a stronger defense, it’s not a given that you’ll 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

Remember to sue before the defamation statute of limitations in your jurisdiction expires. If the incident occurred moons ago, the chances of a judge granting a hearing are between slim and none.

Are you dealing with a slander or libel issue? Kelly Warner Law has experienced great success with various types of defamation lawsuits. Get in touch.

Translation Defamation: A Libel Case Study

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

A Hong Kong educator is bending over backwards to make sure every man, woman, and child is familiar with one of his sub-par university grades, because if he can convince a judge of his long-time struggle with the English language, he may untangle himself from a translation defamation case.

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

The translation defamation melee started when a parent at the Wah Yan College – a well-known Catholic secondary school on Hong Kong Island – submitted a complaint about a teacher, Shiu Han-po.

Principal George Tam Siu-ping allegedly  repeated the accusation — in English (which becomes important) — and called the complaint “valid.” Irrate over the slight from his boss, Shiu filed a HK$200,000 defamation lawsuit against Tam.

Teacher Files Defamation Lawsuit Over Alleged Mistranslation

The defending principal, however, insists he confused the words “real” not “valid.” He’s arguing he only meant to convey that the parent filed the complaint, not comment on its veracity.

Shiu, however, is not hearing it and formally accused Tam of “endorsing a groundless complaint filed by a parent.”

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

In defense, Tam’s lawyers stressed their client’s tendency to misuse English words. They submitted transcripts proving that Tam used the word “invest” for “investigate” and “divert” for “disclosure”. Tam’s attorneys also highlighted that their client failed his A-Level English exam in 1970.

Perhaps in an attempt to elicit sympathy for their client, the defense attorneys also highlighted Tam’s lifelong breathing difficulties and severe shortsightedness.

Judge Set To Deliberate Translation Defamation Evidence

Judge Wang Hung-chun, the ruling official, seemed sympathetic to Tam’s plight, and will soon hand down a decision.

Are you interested in learning more about international defamation laws? Check out the Kelly Warner International Defamation Law Database. Looking for a lawyer to assist with a defamation issue? Whether it’s an international or domestic issue– get in touch with Kelly Warner law today.

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

picture of guy dunking to accompany article about Dunk City answering question: If I’m The First to File For A Trademark Registration, Do I Get ItWe’re often asked: “If I’m the first to file for a trademark registration, will I automatically get it?” To uncover the answer, let’s deconstruct a recent case.

A 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 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: Is The First To File For A Trademark Registration The Automatic Recipient?

FGCU came into existence at about the same time the Internet began spreading like wild ivy, 1991. So, it’s fitting that the school’s new tagline – Dunk City – dribbled into existence via hashtags.

Perhaps “Dunk City’s” lack of verifiable provenance is why producer Charlie Pennachio of Fort Myers, Florida, tried to snag federal trademark rights to the phrase soon after it went viral.

In the middle of the FGCU winning streak, encouraged by his business partner –Florida personality and VH1 reality show participant, Tripp Tribbett – Pennachio filed formal, federal trademark registration paperwork. 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 uses “Dunk City” on merchandise. More importantly, from a trademark registration standpoint, the school sells products emblazoned with the phrase. In other words, the school first used the mark in commerce.

Additionally, the school’s website dons the tagline. Plus, FGCU 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, explained that “‘Dunk City’ is inextricably linked with FGCU. Had it not have achieved its fame or notoriety.”

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

The question: Will Pennachio get “Dunk City”, over FGCU, since he was the first to file a trademark registration? Probably not.  Here’s why:

  1. According to the Lanham Act, a party cannot register a trademark already in commercial use. Since the university uses it on merchandise, Pennachio will have a hard time proving that he used the term first. Most noteworthy, Pennachio admits that he never heard the phrase until FGCU’s success.
  2. The school could argue “Dunk City” is a collective trademark since the university used it on student identification badges. As a collective trademark, the school would enjoy strong trademark protections.
  3. The annual NCAA Basketball Tournament is a popular happening. Since “Dunk City” entered the public consciousness via a publicized event, attorneys could  argue that the phrase is a “famous trademark.” As such, FGCU could sue for infringement and trademark dilution if Pennachio tried to use it for alternative reasons — like promoting a music company.  Moreover, since there is no need to show likelihood of confusion, FGCU could stop other parties from using the mark.

If you have a trademark legal issue, and need a lawyer with intellectual property litigation experience, get in touch.