🚀 go-pugleaf

Please note: I am only a law student..not a lawyer.  Not giving legal advice, only 
discussing legal information.

In article <524cir$kua@news.istar.ca>, polowin@prospectus.com says...

>In article <323ddec5.1125044@news.van.hookup.net>, See@My.Sig (Mark) wrote:
<snip>
>>Here is their last letter to me, dated, appropriately, Friday the
>>13th:

>>>the Future Shop. Once a false and defamatory story is posted the damage is
>>>done. It is your responsibility and the legal onus is on you to check the
>>>stories you are publishing and make sure that they are true before you post
>
>This seems to be a bit of a half-truth. The legal onus does pass to you as 
>they describe here, but only after they prove to a court of law that said 
>statements have caused "genuine and significant injury," etc., etc. In other 
>words, they need to substantiate their charges against you BEFORE you need to 
>present a defence.

There is a grain of truth to what Future Shop has said here.  To quote Klar "Torts"
(2nd ed., p.565): 'The defense of justification does not inquire into questions
of good intentions or reasonable care.  Material is either substantially true or
false.  It is no excuse to allege that the defendant had every reason to believe
that what was published was true, that all reasonable care was exercised, or that
the publisher had excellent motives, when material has not been shown to have in
fact been true."  But that's only using the defense of justification.

>>>them on your web site. In addition your previous correspondence clearly
>>>evidences the fact that you are maliciously trying to damage the Future Shop
>>>and are obviously not an impartial person for the verification of the stories.
>>>Your revised disclaimer in which you note that "any of the stories at this
>>>web site that are proven false by Future Shop will be removed", is a feeble
>>>attempt to avoid defamation proceedings.  As pointed out above the onus is
>>>on you, as publisher, to ensure that all statements you publish are true
>>>before publishing them.
>
>As pointed out above, this claim isn't entirely accurate. See my earlier 
>comments.

This seems to indicate that they are taking away the idea of your site providing
a 'fair comment' (proof of malicious intent would undermine this defense).  C.f.,
Klar, p.584.


>>>With respect to your assertion that "fair criticism is a right in this
>>>country" we would like to point out that this defense is not available to
>>>you. Fair comment must be based on facts that are true which is not the case
>>>with your web site and in any case can be defeated where malice is involved.
>
>"A complete defence against a charge of defamation is that the alleged 
>defamatory statements are true". Malicious or not.

Considering that you are trying to invoke 'fair comment'--here's what Klar
states that you must establish:
	"a) the comment must be on a matter of public interest
	b) the comment must have been based on fact
	c) the comment, though it can include inferences of fact, must be recognizable as comment
	d) the comment must satisfy the following objectives test: could any man honestly express
	that opinion on the proved facts?
	and e) even though the comment satisfies the objective test the defense can be defeated if the
	plaintiff PROVES THAT THE DEFENDANT WAS ACTUATED BY EXPRESS MALICE.
	(Klar's emphasis)." (P.580).


>>>Your assertion that you are entitled in law to use someone else's registered
>>>trade mark by ackowledging it's owner is simply wrong. Specifically, your
>>>web site is clearly intended to depreciate the goodwill associated with our
>>>trade mark. We demand that you cease and desist use of our trade mark or any
>>>similar mark.

>Can someone with expertise in trade mark law through some comment in here? 
>Future Shop may be completely within its rights here with this request.

Considering the nature of tort law and the fact that corporations have the same
right to be protected against "unfounded and justified attacks" (p.551), just like
individuals...

>>>We are proud of our company and our staff and won't stand by idly watching
>>>them being maligned. We believe that this isn't just about the Future Shop
>>>and a much bigger issue is involved.  The unfettered democracy of the net
>>>carries responsibility too. Otherwise everyone is vulnerable. We believe
>>>your actions are malicious, defamatory and illegal and should be stopped. We
>>>demand that you immediately delete your web site referring to the Future
>>>Shop and hereby put you on notice that we intend to exercise all remedies
>>>available to us to respond to your actions.
>>>
>>>Yours sincerely,
>>>
>>>Eric Ommundsen
>>>Public Relations Coordinator
>>>Future Shop


>It's interesting that the letter didn't come from Future Shop's legal 
>department, but rather from the Public Relations end of things. I can't help 
>but wonder whether this gives them more latitude in what they can express in a 
>letter that threatens legal action.

Neil, it is not uncommon for public relations departments to have
a couple of lawyers on hand to deal with customer complaints in some
corporations.

MARK, DO YOURSELF A FAVOUR...CONTACT LEGAL COUNSEL...PRONTO!
-- 
----
Tom Asquith                   
Edmonton, Alberta, Canada              
University of Alberta          
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         Just a law student, not a lawyer.  Only discussing
        legal information, not giving legal advice.
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