Thursday, April 27, 2006

Blogger Hit With Multi-Million Dollar Federal Lawsuit

Outside The Beltway blogged The Media Bloggers Association, of which I am a board member, has taken on the case of Lance Dutson, proprietor of the Maine Web Report blog, who is being sued in federal court for having the audacity to criticize his state.

I am a member as well, in fact I posted the item listed below on the MBA website, at the request of Robert Cox.
The MBA announcement:

MBA Member Hit With Multi-Million Dollar Federal Lawsuit
MBA Member Lance Dutson who blogs at Maine Web Report was recently served with a lawsuit filed in the U.S. District Court in Maine. The lawsuit alleges copyright infringement and defamation for reporting and commentary written and published by Dutson on his blog.

“This case is nothing more than an attempt by a deep-pocketed litigant to bully a blogger for criticizing state officials and state contractors”", said MBA President Robert Cox. “We have successfully defended MBA members in nine previous cases and I don’t expect the outcome here to be be any different.”

Dutson went public this morning with news of the lawsuit and provided key links here including his account of the events leading up to the lawsuit and the complaint served on Dutson by the local sheriff at his home in Maine. Dutson has vowed to fight. “The idea that criticism of the state government can be defamatory is absurd”, said Dutson, “This attempt to bludgeon critics of the state government is not going to work.”

Through its legal defense initiative, the MBA provides member bloggers with “first line” legal defense, pro bono advice on how best to respond to legal threats related to the member’s blog. “Bloggers don’t usually have an in-house legal department or high priced outside First Amendment counsel, but they’re at least as likely to need one as any MSM outlet. That’s where we come in,” said MBA General Counsel, Ronald Coleman of the Coleman Law Firm.

Dutson has secured the services of Greg Herbert of Greenberg Traurig, a specialist in media law and First Amendment/defamation litigation. The MBA, through Coleman, will act as co-counsel. Herbert noted, “Many of these cases, where a large corporation sues an individual for criticism over the internet, appear to be motivated, primarily, by an attempt to silence legitimate criticism and suppress speech.”

In addition to providing pro bono, “first line” legal advice, the MBA seeks to raise awareness of attempts by governments and corporations to intimidate bloggers and citizen journalists by encouaging members to report such actions on their own blogs and encouraging all bloggers to carry the news throughout the blogosphere.
The suit is quite bizarre. Dutson, for example, criticized the way Maine’s advertising contractor employed the state’s resources in purchasing Google keywords.
The MOT researched the most frequently searched terms containing the word ‘Maine’, and has been aggressively bidding on those terms so that they are in the top spot for everything they bid on. In particular, they found that ‘Camden Maine’, ‘Bar Harbor Maine’, ‘Bangor Maine’, ‘Acadia National Park’, and ‘Portland Maine’ were huge traffic generators. The MOT began bidding aggressively on those terms, regardless of the rest of the search term. What occurred was an aggressive campaign of outbidding Maine businesses for terms like ‘Bangor Maine plumbing’ and ‘Camden Maine web design’.
So a blogger is being sued for revealing that the State Government is doing something that may hurt small businesses in the state.
The MOT also failed to exclude Maine web browsers from the campaign, a technique known as geographic exclusion. This is a very common and simple practice that would have ensured the MOT’s campaign was focused on potential visitors, and not Maine residents. The Office of Tourism has claimed that there is ‘no specific legislation’ prohibiting them from advertising in-state, though it is hard to imagine why they would.
Just because it is legal for you to promote tourism, does that mean that a blogger can't reveal that you are doing it, and perhaps hurting small business in the state.
What occurs when the MOT bids for the top spot for these terms is that every other bidder has to pay more to be featured prominently on the page. So, my web design business was forced to pay more per-click because the VisitMaine site was occupying the op spot for ‘Camden Maine web design’. This has driven the AdWords and Overture pricing up for every business in Maine for several years, and the result would be thousands and thousands of dollars paid by each Maine business that engages in internet advertising.
This strikes me as a fair, not to mention innocuous, criticism. The result of which were some heavyhanded tactics by the state to get Dutson to take down his posts, which he details extensively at the link.

The nature of the alleged “libel” is quite fuzzy, indeed. From the text of a letter from the complaining attorney:
[Y]ou indicated that the MOT purchased “terms like Camden Maine web design”. This is a lie, pure and simple, and the readers of the Maine Coast Design blog deserve better than that. You apparently made that statement without any effort to verify it. We do not recommend buying non-tourism related terms. We do suggest phrases such as Camden Maine tourism, and the Camden chamber of commerce, or any other tourism related marketer is welcome to link with the Maine Office of Tourism web site at no cost.
Is a web design business a tourism related marketer? And note that you said that they were welcome to link "TO" your site at no cost. If you were buying links that they might other wise have purchased, then for them to be made whole you would have to offer to link "TO THEM" for free.
I looked at the site this morning and just the Mid-Coast region, including the towns of Rockland, Camden and Boothbay Harbor have over 150 listings for accommodations linked the MOT web site. That is driving traffic to those sites, not “siphoning if off”. Perhaps your extensive research didn’t include that sort of discovery, but more likely it did and your sense of one-sided reporting prevented you from including it.
Now, these are matters of empirical fact that are presumably verifiable. But, regardless of the merits, this surely does not constitute “libel.”
Your next post furthered a campaign of innuendo, falsehoods and incorrect statements. Referring to (NMC), you state “…they were responsible for wasting thousands of taxpayer dollars…” and later “…forcing thousands of Maine businesses to pay artificially-inflated advertising rates”. You imply that all of this was done “outside of the jurisdiction of the MOT”. The fact is that no taxpayer dollars were wasted, no one was working outside the areas of their responsibility, and bidding for words that you intend to buy does not artificially inflate the price of those words at auction. Bidding for words is part of the competitive nature of the business and there’s nothing artificial about that.
Whether taxpayer money is “wasted” is surely a matter of opinion.

And it is rather amusing that the state of Maine is being
I assume he means buying, but then this opens an interesting question. Is MOT promoting such services in Maine?
keywords like “Camden Maine child pornography” and “Camden Maine escort services.”

Obviously, bloggers should support, at the very least, the right of people to criticize their government. Indeed, that would seem the basic point of the 1st Amendment.

Unfortunately, this may be a Larry Flynt situation. Dutson’s is not a site I would visit (even if I were interested in Maine). His tone is a more hyperbolic and less professional than I would prefer. His statements are quite likely sloppy in places. I would not point to him as an example of “This is what a blogger should be.”

But this is hardly the basis for heavyhanded state action. And if the threat of big pockets lawsuits can be used against a small fry running a website, it can be used against anyone, regardless of the merits of their case. We need to get it established once and for all that people have the right to post opinions, even half-witted ones, on the Internet.


Anonymous said...

Please keep me posted on this one. As a former U Mainer, I have some interest from way up there! Also as a blogger I am curious to see how this is handles on both sides.

Wendy said...

Better late than never: