I Blog—Therefore I'm Sued
Web site designer and search engine marketer Lance Dutson recently found himself on the receiving end of a multi million-dollar lawsuit. The legal action was a result of continued criticism in his Maine Web Report blog of how the Maine Office of Tourism was conducting its marketing campaign, and by extension the large New York City-based firm responsible for the campaign. The case is quickly becoming a cause célèbre in the blogosphere from a freedom of speech perspective. But it also raises significant questions for those who create, purchase or comment on marketing communications.
Dutson first became irate about the online marketing practices of the Maine Office of Tourism (MOT) last October, when he discovered that it was bidding on Maine-related keywords on Google that would take people to the MOT's VisitMaine.com site, designed to generate leads for those interested in visiting the state. From his perspective, this wasn't a cost effective way to attract potential new visitors to the state, and was reaching only those who already were aware of what Maine had to offer. Better for the state to try to get the attention of potential visitors who were unaware of its attractions and stop bidding up state-specific keywords that could be better used by local businesses to attract targeted traffic, including the clients of his own Maine Coast Design firm. The issue of the responsibility of deep-pocketed government agencies to not drive up the prices of keywords in the public marketplace is certainly one that needs to be more deeply explored, since individuals and small businesses will typically be unable to compete. So kudos to Dutson for tackling this topic.
However, from this point on things seemed to escalate, with Dutson's criticisms of the MOT and the campaign's marketing firm, Warren Kremer Paino Advertising, becoming increasingly merciless. For example, he displayed a graphic that embarassingly carried the phone number of a sex talk service, used during a MOT presentation at the Governor’s Conference on Tourism. He also posted Alexa.com charts comparing the flat traffic of the VisitMaine.com site with the rising traffic of VisitFlorida.com. Suddenly there were mysterious phone calls in the night, anonymous letters... and then the lawsuit.
All this and much more, including the full text of the Warren Kremer Paino Advertising lawsuit, can be perused at leisure on Dutson's Maine Web Report site. In a nutshell, WKPA is claiming defamation, libel and copyright infringement, the latter for—don't laugh—displaying the infamous sex chat graphic.
What lessons can we draw from this sorry state of affairs?
First, if you're discussing the marketing communications work of others online, be very careful what you say. You think a logo sucks? What's it worth to you to make the client and design firm of record look ridiculous? If you have a fondness for stringent commentary at the expense of others, it would be wise to seek legal advice before being sued, to perhaps set up a new legal entity that would provide you and your business with more protection in case someone or something decides to go after you.
Second, if you provide design services, think very carefully about using the courts to seek recourse from someone who blogs critically about your work. WKPA may well be having second thoughts about the lawsuit in question, since this case has now taken on a life of its own, being picked up by the Associated Press and discussed in respected venues like the Wall Street Journal Law Blog. Perhaps even more damaging for the agency is that trade publications such as Advertising Age are now also covering it, so the firm's questioned practices in the Maine campaign are being examined by peers and potential clients. Not really a good thing.
Third, if you purchase such services, do you want the firm you hire creating a stink by suing a critic of their practices? The lawsuit has certainly brought more exposure to Maine but it can't be of a desirable nature, since the state is cast as a Goliath by association crushing a David-like blogger who dared criticize the expenditure of public funds. Perhaps it's time to starting adding clauses in contracts with those providing creative services, specifically prohibiting them from suing bloggers who criticize any aspect of the campaign? Because it just doesn't pay to go after the little guy. If only to avoid such comments as this by a recent visitor to the Maine Web Report site: "I won’t be spending my customary week in Maine this August. This disgusting episode has caused me to check out the Lake Champlain/Lake George region."
As is so often the case, nobody wins once the lawyers are brought in.
Chris Dickman
Editor, Graphics.com
Update: The media attention generated around this has apparently had its effect, and WKPA has dropped its lawsuit. Good news for Dotson and for those of us who still harbor the belief that there's at least a modicum of free speech still remaining.
wow. this is really sad. getting sued for speaking your mind? stuff like this is really frustrating.
i have a section on my website where i tear apart some bad design in my state. i hope i dont get sued! but then again, i dont think i get enough traffic on my site to worry lol.
It's ironic that Lance Dutson's criticism had less of a public impact than the reaction of the MOT and WKPA. Lawyers and egos are always poor partners in the public arena.
Least the one thing we shouldn't forget, good or bad, publicity is publicity and it's funny how these things work out. As the "little guy" he stands a good chance of benefiting from the exposure. Think about it. He was resourceful (albeit, I haven't seen the graphic he guerilla’ed into the campaign), he had a POV, he was looking out for the benefit of his local clients, and he obviously did his research. These are good traits for a designer.
This will pass and it's really a landmark case on so many levels, but the one thing we needn't do is stiffle our freedom of speech.