April 12, 2007

Suing a Blogger Update

With the fallout continuing for Nashville law firm King & Ballow and the Nashville office of the "career search experts" firm JL Kirk Associates over the law firm's ill-advised decision to threaten a blogger with a libel suit because she wrote something critical of the consulting firm, now might be a good time for me to mention that I do consulting work for business clients with blog problems.

I possess a rather unique mix of experience in journalism, blogging and media relations, and any company looking to cope with what it believes to be false or false and defamatory information published on some blog somewhere would be smarter to pay my consulting fee to help them understand the right way to address the situation than they would be to pay King & Ballow or some other law firm's inflated law fees to fire off a demand letter making threats that will, almost with a certainty, generate severe blowback and damage the company's reputation far worse than the blog post that initially offended them.

I do consulting work for business clients on these kinds of new-media relations. Do not think for one second that tradtional media relations will work in the blogosphere. It doesn't. It can't because traditional media relations is designed for a media architecture that is 180 degrees different than the way the blogosphere is constructed. And the truth is that, as far as I can tell, there isn't a single public relations/media relations/government relations firm in Nashville that truly understands how the blogosphere works. Some pretend they do, but they don't. And because they don't, most of their clients don't, either.

King & Ballow would never have sent that threatening "demand letter" to a big newspaper or TV station. The firm has a near-perfect winning record in libel lawsuits in all likelihood because when it goes up against deep-pocketed plaintiffs it only brings libel cases it knows or strongly believes it can win. They have no real case against Katherine Coble and suing would only open up JL Kirk Associates to a potentially embarrassing discovery process and drain the client's bank account to pay King & Ballow's hefty legal fees. But if King & Ballow had sent such a demand letter to a local media outlet, you can bet that the matter would have been handled quietly, between lawyers, and probably never have been mentioned in the pages of the newspaper or on the TV news.

Not so, the blogosphere. Coble got the demand letter because King & Ballow and JL Kirk Associates perceived her to be a weak opponent who would easily cave. What they failed to understand is that behind every blogger stands an army of more than 71 million bloggers, a tribe that is growing fast, a tribe that includes many lawyers and legal experts and media experts in its ranks - and roughly 71 million or so passionate believers in freedom of speech.

And the tribe react to attacks lightning-quick. The threat made against Katherine Coble is seen by the tribe as a threat against every blogger, and when that threat is based on false claims of libel, well, them's fighting words.

By sending that demand letter to Katherine Coble, King & Ballow did more damage to JL Kirk Associates' reputation than Coble's blog post ever did - and JL Kirk Associates paid them to do it.

If you're a business owner or executive facing a blog problem, don't call your lawyer. At least not yet. Don't let a small problem get King & Ballooned into lasting damage to your company's reputation. Contact me. When it comes to blogs, most lawyers don't know what they're doing.

Now, on to today's updates on the Coble Case:

Lawyer and blogger Rob Huddleston says "this is a real blunder by King & Ballow."

Yes, the practice of issuing demand letters as a way of getting what a client wants without having to resort to actual litigation is widely used. However, you can't treat every case the same. You need to know when something is going to be attractive to media - local, state, or (in this case) global. This goes for civil suits (as the one being threatened against Kat), criminal suits, and even juvenile cases (because the media can request access on certain hearings there, too). If this case is going to make the media take notice (taking into account that mainstream sources oftentimes are agitated to action by bloggers), then you have to be perfect in your actions.

King & Ballow were not perfect here. Not by a long shot. They ignored the relevant federal case law regarding libel, opinions as free speech, truth as an absolute defense, and 1st Amendment litigation in general. And surely they knew (or should have known) that Kat would take this public. Anyone familiar with Kat's writings (and you have to assume that the associate who wrote this letter at King & Ballow would be so familiar, having referred to specific posts of the blog) knows that she doesn't take crap from anyone. They should have known that she would expand this conflict, and the public relations blowback against JL Kirk and King & Ballow would be more than significant.

However, the real culprit here is JL Kirk & Associates. They should have let sleeping dogs lie.

Update: Jay Bush reminds us that the anti-blogger legislation proposed in the state House earlier this year which the Tennessee blogosphere soon beat to death would have altered Coble's legal rights.

The Woodson bill stated that a blogger would have two days from the date of notice to remove defamatory statements from their blog. Failure to remove defamatory statements would create a "presumption of malice intent." While the legislation appeared to have been aimed at protecting public officials, who have a higher burden to prove defamation, Sen. Woodson had described it as "related to encouraging web-site owners to remove knowingly defamatory statements against individuals from their web-site."

Update: Paul Chenoweth writes that the Coble Case demonstrates that there is "a wide gap in understanding of the power that personal (or volunteer) journalism is having in the world of consumer/public relations" between "a company who resorted to the delivery of a certified letter (snail mail) and a customer who is well versed in the art of electronic communications."

Update: Newscoma is keeping a running list of blogs writing about the Coble Case.

Update: The Media Bloggers Association is now working on the Coble case. That's good news for Kat Coble, bad news for the other side. Full disclosure: I'm a founding board member of the Media Bloggers Association and handle some of their media relations work.