🚀 go-pugleaf

In article <323ddec5.1125044@news.van.hookup.net>, See@My.Sig (Mark) wrote:
>
>I too think Future Shop has been blowing a lot of hot air, and playing
>the bluff game.  I have two questions however: what is the difference
>between libel and slander? is one printed, the other spoken? And, what
>exactly is a "tort" (excuse my ignorance! :)

Okay. Taken from THE LAW AND AND BUSINESS ADMINISTRATION
IN CANADA, by Smith, Soberman, and Eason, 5th Edition, Prentice-Hall,
1987, ISBN 0-13-526104-X:

Quotation begins:
-----------------
The tort of defamation is better known in each of its two forms, libel 
(written defamation) and slander (spoken defamation). Generally speaking, it 
consists of a statement that causes unjustified injury to the private, 
professional or business reputation of another person. In defamation cases, 
the courts are not concerned with soothing mere injured feelings or redressing 
insults. They will not award damages unless the aggrieved party can 
demonstrate that the defamer has made serious allegations about his character, 
ability or business reputation causing genuine and significant injury to the 
respect and esteem in which he is held by others. Such defamation requires 
publication, that is, "communication of the disparaging statement to someone 
other than the person defamed". (Fleming, The Law of Torts (6th ed.), p. 507.)

A complete defence against a charge of defamation is that the alleged 
defamatory statements are true. The problem for a defendant in this instance 
is the difficulty in establishing to the satisfaction of a court of law the 
truth of the statements. The burden of proof makes it hazardous to make 
defamatory statements in the vague hope of later being able to establish their 
truth.
------------------
Quotation ends.

To the best of my interpretation (which may or may not be valid), Future Shop 
needs to demonstrate that the allegations expressed on your web site have 
caused "genuine and significant injury" to their reputation. It is entirely 
possible that they may have to substantiate specific business losses in order 
to move ahead with any action against you, but I may be mistaken on this 
point. Almost certainly, they will have difficulty establishing that your web 
site has demonstrably affected the regard, whether high or low, that the 
consuming public holds them in. (i.e., comparing the number of Future Shop 
customers who have seen your site with the total overall number of Future Shop 
customers; I'm pretty sure we're talking about a very small proportion).

Keep in mind, however, that if they do satisfy the courts to this extent, the 
onus then passes to you prove the truth of the allegedly defamatory 
statements. Someone with experience in notarized or other sworn statements 
should be able to shed a little more light on whatever next steps you take. 
 

>Here is their last letter to me, dated, appropriately, Friday the
>13th:
>
>>[snip]
>>
>>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.


>>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.

Not having seen the prior correspondence, I can't comment one way or the 
other. However, Future Shop doesn't strike me as being particularly impartial 
in this case, either.


>>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.


>>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.


>>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.


>>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.

Good luck,

Neil Polowin
prospectus.com

[Please note that I am not a lawyer, and this fact should be considered before 
any weight is attributed to my comments.]