Tag Archives: court

| Business, In the news, Media

An Oasis of bad publicity

Guy A. Lepage et al > Oasis

So here’s the deal: A Lassonde, the company that makes Oasis fruit drinks, is apparently sensitive to other companies using the name for consumer products, even when there’s no risk of confusion with a bottle of juice.

Saturday’s La Presse carried the story of its legal battle with a woman, Deborah Kudzman, who makes olive oil soaps called Olivia’s Oasis. Lassonde sued Kudzman, arguing that her product’s brand was confusingly similar to their Oasis juice brand, even though one’s a juice and one’s a soap, and they have nothing in common other than a word.

Kudzman not only won the case (since, among other things, “oasis” is a word in the dictionary and there are about a billion commercial products with that word in their name), but the judge ordered Lassonde to pay Kudzman’s legal bills, which had surpassed $70,000, she told La Presse.

But Lassonde appealed that part of the judgment, arguing that its lawsuit wasn’t abusive. It won that case, and was relieved of the obligation to pay Kudzman’s legal bills. Kudzman, convinced that Oasis knew from the start that it wouldn’t win its case and sued just to try to scare her away, went to La Presse. The story centred mostly on Kudzman, including only a brief comment from Lassonde saying its lawsuit was justified.

That might have been the end of it, a story in the newspaper about a big company screwing a small business, but then social media took over. Bloggers started writing about it, influential personalities like Guy A. Lepage were talking boycott, and Oasis’s Facebook page was flooded with negative comments. La Presse had a followup about the online reaction.

Then, a change of heart. In the evening, as Montrealers were focused on a meaningless hockey game, the company announced on its Facebook page that it would compensate Kudzman for her legal costs. (The post has disappeared, though I don’t know if that’s because they deleted it or for some other technical reason. Their official Twitter feed linked to the post and La Presse quoted from it.)

It’s surprising. First, that everyone would pay so much attention to this story. Second, that it would provoke a response on a Saturday evening during a long weekend. Third, that in a matter of hours a company would decide to make a PR decision that would cost them almost $100,000. And finally, that they would just give her the money after having gone through the trouble of an appeal process in order to not give her the money.

The cost of doing PR

The basics of this story happen pretty often. When the media publish a story about a big company screwing someone (usually a customer), the response tends to be to compensate that person with a refund or anything else that would make them satisfied. Whether the company was right or wrong immediately becomes irrelevant. This isn’t a customer retention issue, it’s purely a public relations one.

But these kinds of stories are usually about customers with $100 phone bills or who bought something at a store that didn’t work. Fixing those problems cost far less than the free advertising they get from being seen as a good corporate citizen on the local news. (It works best when some slick fact-play tries to turn it into some sort of misunderstanding, as was the case in Oasis-gate.)

Rarely do we see such a huge monetary settlement offered so quickly.

I can imagine some self-appointed social media marketing experts salivating at the thought of offering their two cents on the matter (oh wait, here they are). It tends to happen after high-profile cases like this. They talk about the mistakes the company made and pretend they would do things insanely better if only they were in charge. (In what I’ve read so far, the only concrete thing someone has suggested they should have done differently is to take minutes instead of hours on a holiday weekend to decide to spend almost $100,000 on their opponent’s legal fees because people complained on their Facebook page.)

What went wrong here isn’t that Lassonde had bad PR working for it. Its problems were in a conference room, either in the form of its lawyers or its executives (or both).

The real test of whether Lassonde has learned its lesson is whether it will go after other companies that dare use Oasis in their product brand names. Its conciliatory statement implies that it won’t (well, actually it implies that it never did, in one of those amazing doublespeak moments).

Even if Lassonde does change its legal strategy, there are plenty of other companies out there whose greed or fear has eroded their common sense.

UPDATE (April 11): Some people in the communications industry have pointed out that the major error on Lassonde’s part is that it didn’t consult with PR people before engaging in a legal battle that could have put them in hot water. It’s an interesting point. They could have seen this coming and prepared for it, either by not launching the lawsuit in the first place or by having a communications strategy that would mitigate any damage.

Whether that would have made a difference is hard to see. Any lawsuit can make you look bad when you’re a big (or even medium-sized) company going after a mom-and-pop shop. And it’s almost impossible to predict what kind of story will get traction in social media.

Meanwhile, Patrick Lagacé has a story in La Presse about another company, making a cleaning product called Bioasis, that was forced to shut down because it couldn’t handle the cost of renaming itself or fighting Lassonde in court. Lagacé uses this case, which dates from 2003, to call Lassonde a bully.

Lassonde responds in a new blog that things changed in 2004 when it brought its legal department in-house. Its president also says that the Olivia’s Oasis case was the only one that went to court over trademark issues, and that its settlement options include a free license to use the trademark, which allows Lassonde to protect its rights (trademarks lose their value legally if their owners don’t fight for them) without punishing a smaller company.

| Media, Montreal, Opinion

Media win battle over riot footage

Quebec Superior Court has sided with the media in a legal battle with police over notes, video and photos from the April 21 Habs riot. The material, which was seized by search warrant after the event, will be returned – unopened – to the media outlets they came from.

When I first wrote about the battle in April, I was unsure of my position, but leaning toward the idea that because journalists did not make any promises of anonymity to their subjects, there should be no reason why they can’t co-operate with police.

But after the more recent riot in Montreal North, where a La Presse photographer was attacked, I’m leaning more toward the idea that journalists can’t do their jobs properly if they can be forced to act as an arm of law enforcement (especially when that law enforcement sits blocks away waiting for backup while the journalists enter the war zone).

I won’t for a moment defend rioters, but I take some comfort in the legal precedent that journalists won’t be seen as cops. Of course, anything they end up publishing can still be used by police, so it’s still a good idea to avoid journalists, or not riot in the first place.

| Media

Liberals sue La Presse, change their minds

A day after seeking a court injunction preventing La Presse from printing a leaked copy of secret Liberal MP candidates in Quebec, the Liberal party has changed its mind, saying it’s not an official list.

La Presse hasn’t released the list yet, though they say it shows the Liberals are far behind in finding candidates for all 75 ridings in the province. The party said previously that 50 candidates were selected and 12 others are waiting for an election call to leave their current jobs and identify themselves.

| Business, In the news, Media, Montreal

Saputo is cheesed off

Cheese magnet … err, magnate Lino Saputo is suing three newspapers (and their owners) for defamation after articles in November and December said he was a target of an Italian investigation into money-laundering. The stories quoted an Italian weekly newspaper, usually with vague words like “published reports.”

Besides embarrassing the man and painting him with the dreaded Mafia brush, the news sank his company’s stock price and just plain pissed him off.

The newspapers involved are:

  • Le Journal de Montréal, owned by Sun Media
  • La Presse, owned by Gesca
  • The Globe and Mail, owned by CTVglobemedia

This makes me want to attend Concordia’s next Board of Governors meeting, where Patricia Saputo and Gesca’s Jacques Tousignant both sit as members. Awkward…

| Media, Opinion

Journalism died today

OK, maybe I’m being a bit over-dramatic. But if you’re considering leaking a document anonymously to the media, confident that you’ve been promised your name will be kept secret by the journalist, think again.

Today, the National Post lost an appeal which pitted confidentiality of sources against the interests of law enforcement. And the court has ordered the Post to reveal the identity of an anonymous source.

The case stems from the Shawinigate controversy (I’m not a fan of “-gate” terms, but this one just rolls off the tongue, doesn’t it?), in which then-prime minister Jean Chrétien had apparently helped to secure a generous loan for a hotel in his home riding, next to a golf course he technically still had a financial interest in.

Specifically, the case concerns a document received by Post reporter Andrew McIntosh, which appeared to be a loan application from the hotel. McIntosh gave his source a guarantee of anonymity in exchange for the document. But when he attempted to verify it with the bank, the bank declared it to be a forgery and began an investigation.

That investigation led to a court order for the Post to produce the document and the envelope it came in. The Crown wanted to determine the identity of the alleged forger and potentially file charges.

But (according to McIntosh) the source of the document claims he received it anonymously through the mail (hence McIntosh’s need to authenticate it), so if this is true the source would not have been the forger.

The ruling by the Ontario court of appeal argues that the interest of law enforcement to investigate a forgery intended to bring down a sitting prime minister outweighs the Post’s need to protect its sources.

In it, the court agrees with the Crown that the documents themselves are important evidence, and that the leak itself is the crime they’re investigating. Insert reference to the Valerie Plame scandal here, which also wasn’t very friendly to the media’s anonymous sources.

A key phrase comes in para. 75:

(Section 2(b) of the Charter, which guarantees freedom of the press) does not guarantee that journalists have an automatic right to protect the confidentiality of their sources.

Similarly, in para. 79:

The journalist-confidential source relationship is not protected by a class privilege. However […] the confidentiality of the relationship between a journalist and the journalist’s source may be protected on a case-by-case basis.

In para. 94:

Journalists can never guarantee confidentiality. There will be some cases – and this is one of them – where the privilege cannot be recognized. Refusing to recognize the privilege in appropriate cases will not, in our view, cause media sources to “dry-up”.

Nice to see the court is so confident. But to me, this ruling seems to say that a journalist can be forced to give me up if there’s a reasonable belief (whether it’s true or not) that knowing my identity may be important to the police investigating a crime.

Considering how many confidential leaks involve some issues of legality, I could certainly see more people clamming up about important issues of public interest in the belief that they could be prosecuted, fired or otherwise be punished for bringing it to light.

Confidential sources are confidential, except when the government decides it wants to know.

The judgment also includes a dig at new media* includes an argument from the Crown which suggests that new media journalists aren’t journalists, in para. 98:

[The Crown submits that …] Today, many persons, especially by using the internet, may be called “journalists” or “the press” because they disseminate information to the public, yet may not merit the journalist-confidential source privilege.

We reject the Crown’s first contention.  The case-by-case approach to privilege does not require us to establish the boundaries of legitimate journalism.

So feel free to ignore what I’m saying here. Because according to the Ontario court of appeal, I’m probably not a journalist.*

*I totally misread the judgment originally and read a summary of the Crown’s argument as the judgment of the court. My apologies.

UPDATE:

| Media, Montreal

Freelancers vs. The Gazette

The so-called Electronic Rights Defence Committee, a group of former Gazette freelance writers, finally had its day in court this week to seek class-action status for a lawsuit against the newspaper over online rights to their content.

The lawsuit, launched in 1997, was actually filed against Southam, which owned The Gazette at the time. That’s how old it is. Besides freely reprinting writers’ stories on the Canada.com website, the lawsuit takes issue with Canwest-owned Infomart, which sells archived articles individually or as a group, without giving a cut to the writer.

Precedent exists in the case, thanks to a woman named Heather Robertson. She sued the Globe and Mail over electronic archival and won a case that went all the way to the Supreme Court.

The hearing continues today, in Room 16.01 of the Palais de Justice, starting at 9:15am.

For more information, check out the blogs of ERDC members Mary Soderstrom and Jack Ruttan (Day 1, Day 2, Day 3). (UPDATE: And Craig Silverman.)

(Full disclosure: I’m both a freelancer for and an employee of The Gazette currently. I don’t take a position here on the merits of this lawsuit.)

| In the news, Media

Libel chill is warming slightly

Legal precedent in Canada when it comes to libel has just taken an interesting turn. The Ontario Court of Appeal has given journalists a new kind of defence in libel cases: “public interest responsible journalism”.

(See the complete court ruling)

In short, the defence, which is modelled after a similar one in England, protects journalists who execute due dilligence and responsible journalistic practices in their reporting (like fact-checking, making attempts to get the other side of the story, checking sources for hidden agendas etc.), even if they get some of their facts wrong and even if those things are defamatory, when they write articles about issues of public interest.

The case, Cusson v. Quan, concerns an OPP police officer who sued the Ottawa Citizen and its reporters for an investigative piece they wrote about him, questioning his “heroics” after 9/11, going down to Ground Zero to help in recovery efforts. The article alleges he impersonated an RCMP officer and lied about training he and his dog had received. Though the gist of the story seemed to be correct, and some facts were debatable, the jury ruled that the Citizen got enough facts wrong that the officer should be compensated financially.

Ironically, since the Citizen did not use this defence at trial (one might argue it couldn’t since the defence didn’t exist yet in Canadian law), the appeal was denied and the Citizen still has to pay.

Despite the loss, the Canadian Newspaper Association and other journalist groups are hailing the decision as a victory for journalism in Canada, which will help remove some libel chill that journalists experience even when they do their jobs to the best of their abilities.

Whether a particular piece of journalism qualifies for this defence depends on the following 1o factors (though this is not an exhaustive list):

  1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
  2. The nature of the information, and the extent to which the subject-matter is a matter of public concern.
  3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
  4. The steps taken to verify the information.
  5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.
  6. The urgency of the matter. News is often a perishable commodity.
  7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
  8. Whether the article contained the gist of the plaintiff’s side of the story.
  9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
  10. The circumstances of the publication, including the timing.

It’s a victory for common sense, albeit thanks to a bit of judicial activism. The court based its decision based more on the laws of other countries and its own opinions of what balance there should be between two charter rights than it did based on Canadian jurisprudence.

A couple things to note about this decision before you start breathing too easily:

  1. It’s the Ontario Court of Appeal, not the Supreme Court of Canada. So technically it just applies to Ontario. Whether it goes up to the Supreme Court depends on whether someone appeals the decision (since the Citizen lost the case, I guess it would be up to them to do so), but it’s a significant enough one that I think they would jump at the chance.
  2. Though other provincial courts will probably follow that decision as jurisprudence, Quebec is an entirely different animal. Our laws are very different, and in fact our entire legal system is different from the rest of Canada (distinct society woo!). We’re based on civil law, whereas Ontario’s system (and the principles on which this judgment is based) are common law.
  3. Even if it’s accepted here, you still have to do your homework when you write potentially damaging things. This isn’t like in the U.S. where a plaintiff has to prove “actual malice” and show you intended to lie or be reckless with facts. They need only show that you were lazy, or sensational, or forgetful, or otherwise irresponsible. Or they can simply show that the reporting wasn’t in the public interest.

Still, a good day for journalism.

UPDATE (Nov. 22): CBC lawyer Daniel Henry delves into the ruling for some of its implications.

| In the news, Montreal

Fabrikant gets his way

It’s said there is a fine line between insanity and genius. Valery Fabrikant is a textbook example of this.

Fabrikant was a very smart man who became an engineering professor at Concordia University. When he became frustrated with the academic backstabbing going on at the department, he decided to start killing his colleagues. To this day he feels he was justified in doing so.

He’s in court again, a decade and a half after the shootings (for which he was convicted and is serving a life sentence), to follow through with a lawsuit he filed before the killing spree began. Throughout the proceedings, he has been acting like a lunatic, insulting the judge, raising frivolous objections and basically doing everything you’re not supposed to do in court (including, of course, representing yourself). His more immediate goal was to get the judge to recuse himself from the case, claiming the judge stopped listening to his incomprehensible ramblings.

And it worked.

The judge, fed up of the insults, finally gave in and removed himself from the case. His reasoning was that he can no longer be counted on to be impartial because Fabrikant has gotten on his nerves so much.

I guess that’s one tactic you’ll see taught in law schools now: If you don’t like the judge presiding over your case, insult and annoy him until he throws in the towel. Or maybe you’ll just see it on a Boston Legal episode.

So: Insanity, or genius?

UPDATE (Nov. 27): The next judge dismisses the case, calling it frivolous. So insanity it is.

| Uncategorized

Fabrikant makes serial killers look bad

Most school campus shoot-em-up maniacs have the decency to kill themselves before they’re arrested: Harris and Klebold, Cho, Gill. But Valery Fabrikant, the paranoid Concordia engineering professor who killed four of his colleagues in 1992, was arrested and tried for the murders and is in prison. His first chance for parole won’t come for another 10 years.
But jail (and a lack of access to computers) hasn’t stopped him from publishing articles, updating a website, appealing, appealing, appealing, appealing, appealing, appealing, appealing, appealing and otherwise reminding his victims’ families that he’s sitting comfortably in jail while his victims are still dead.

So you can imagine the gall this guy has to sue his former colleagues for $600,000 for their actions that somehow forced him to go on a shooting rampage. He’s demanding access to his computer so he can pursue his case.

Considering he has a 0% success rate in court (mostly because he represents himself), I don’t think anyone has much to worry about. But it’s still annoying that we have to keep hearing from this guy.

| Business, In the news

Cellphone user wants his fees back

I’ve always found it odd that Canadian wireless consumers are forced to pay a “system access fee” of about $7 every month on top of their rate plan. It sounds like something that should just be included in the plan itself. I mean, would you accept it if Wal-Mart imposed a mandatory cashier’s fee, or if the public transit authorities started charging you a monthly fee for accessing their network?

Virgin Mobile is one of the few companies not to charge this fee. Their service is more expensive, but at least it’s honest, and it doesn’t force you into 3-year contracts.

Well it seems the dishonesty of telling someone a plan is worth $20 a month when it’s actually $30 plus tax has hit a nerve. Hou-Hou points us to a story about a Regina lawyer whose lawsuit has just gained class-action status.

It’s potentially the largest class-action in Canadian history, and it goes after the three cellphone giants at once, who will no doubt throw about a quadrillion lawyers on the case.

So … good luck with that.