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Old 05-04-2002, 04:39 PM   #1
Robbert
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I'm curious about the difference between ethics and laws, and how they are applicable over the medium of the internet. Anyone have any concrete findings which are applicable?

Specifically: When one makes an outlandish claim ("Voted #1 in the entire world"), and supplies a quote beneath it ("Blah blah blah - persons name"), which is deliberately misleading, are they violating advertising laws or ethics? Is it misrepresentation, which is a legal violation, or misleading, which would be ethical?

On whom does the onus lie to regulate ethical violations? The medium which permits the advertising? Or the viewers of that medium?

Thanks for any answers any of you have.
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Old 05-04-2002, 04:53 PM   #2
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It's illegal. Recent California Supreme Court decision on this subject.

Decision - Article

Right here is the _important_ part:
Quote:
Originally Posted by
"Because in the statements at issue here Nike was acting as a commercial speaker, because its intended audience was primarily the buyers of its products and because the statements consisted of factual representations about its own business operations," Justice Joyce Kennard wrote, "we conclude that the statements were commercial speech for purposes of applying state laws designed to prevent false advertising and other forms of commercial deception."
Very interesting reading, no? Ponder that all. And read the wording _carefully_. Don't read the subject matter - it's the legal decision that matters there. Question of legality, not ethics.

-D
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Old 05-04-2002, 05:05 PM   #3
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I think I'm missing something, could you explain how the two things are related?  Thanks.
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Old 05-04-2002, 05:30 PM   #4
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Quote:
Originally Posted by
was acting as a commercial speaker, because its intended audience was primarily the buyers of its products and because the statements consisted of factual representations about its own business operations," Justice Joyce Kennard wrote, "we conclude that the statements were commercial speech for purposes of applying state laws designed to prevent false advertising and other forms of commercial deception."
Replace Nike for any business that doesn't have factual backing of factual claims.

Achaea's claims of being the #1 MUD in the world could very well leave them liable to a lawsuit since they _are_ a for profit entity.

-D
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Old 05-04-2002, 06:05 PM   #5
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Thanks, I didn't realize he was asking about a specific comment.
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Old 05-04-2002, 06:31 PM   #6
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Quote:
Originally Posted by (Robbert @ May 04 2002,9:39 pm)
On whom does the onus lie to regulate ethical violations?  The medium which permits the advertising?  Or the viewers of that medium?
In a way, both.

The owner of the medium provides a service which appeals to a certain type of customers. It is his responsibility to ensure the presentation of content is in line with the ethical representation he wants to give to his service.

Conversely, it is also the viewers' responsability to make their opinion known when they feel the line has been crossed. In our specific example, you voted with your feet, and I am glad to get this opportunity to tip my hat off to your stand. Others practice mailstorming. In the end, if the ethical representation the owner gives is below the bar of the viewers expectations, the reputation of his site will degradate.

To address the core of your question, though:
In this context, I'd define law vs. ethics in the following way:
- law is universal and static across a given social body
- ethics is more self-contained and shifting within a smaller fraction of the audience.

IOW, law applies despite the expectations of a community, while ethics apply through the expectations of a community.

I do sound confused, don't I? It's the old age. I'll add something later, when my head clears up
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Old 05-04-2002, 06:55 PM   #7
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Thanks, Alastair, for your vote of support. To those who know of what I'm speaking, and those who have contributed to the answers here, I thank you as well.

Dulan - what are the chances of initiating a class action lawsuit against an entity such as the one you referenced? Note that this is not the same as me saying I wish to begin a lawsuit.
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Old 05-04-2002, 07:28 PM   #8
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Umm, Robbert? The cases here are almost identical, except for one vast difference - sums of money. If you are speaking of Aetolia/Achaea, you'd end up with probably Mihaely ordered to pay lawyer fees/court fees, and to stop using that crap if you won. If he continued, however, then you'd be able to give him a nice slap monetarily.

What I am trying to say - Thanks to _several_ Supreme Court decisions in this case, what Aetolia/Achaea is doing is illegal. The case does not have an immediately apparent parallel, however, when you read the language used in it, it _does_ have a very, very good parallel.

The ONLY way Achaea/Aetolia could wiggle out of this is if the US Supreme Court overturned the Cali Supreme Court's decision. It is a very, very good day for us all suddenly, even with all this DMCA/CDBTPA(or whatever) crap going on.

-D
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Old 05-05-2002, 02:32 AM   #9
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I'm not sure that two are one and same vis-a-vis Alchaea and Nike. Alchaea could simply claim their assertion of being the number one mud is merely a statement of opinion or merely a quote. Moreover, the California case (I have only read the article and not the case so I can not comment fully upon it) seems to be a violation of California statute. Such a statute may be fairly specific and may not apply to Alchaea. There are all sorts of issues to be considered: long-arm statues, personal jurisdiction, is Alchaea judgment proof, etc. Furthermore, my guess is that the damages are statutory and therefore you, even if you could sue, would probably not recieve any money, unless you could institute a qui tam proceeding, in which you would get a small percentage of what the Government would take. In other words, its prolly not worth it. The only reason the Atty Gen of Cali went after Nike is because of their deep pockets.

The article does not give enough information about the statute. If anyone is absolutely curious about it, I will look it up and read it and tell you all about it.
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Old 05-05-2002, 11:03 AM   #10
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I'm not concerned about monetary returns. Nor am I really willing to initiate a lawsuit against the entity, although I would certainly sign on in the event of a class action brought against them for blatant misrepresentation.

And that is what the true point is: the company responsible for both Achaea and Aetolia is, in my opinion, misrepresenting itself in advertising by placing a claim (of any sort) and then a totally unrelated quote in line with it, which appears to substantiate or reinforce the claim:

Pontiac Firebird - voted the most well-built car on the planet.
"....Clearly the best car ever made!" --Robbert Smith

The first statement suggests that a particular poll was taken, and the object (in this case, Pontiac's Firebird) was the winner. The second, both in its wording and in its inclusion with the first, implies that it is a reinforcer. However, after inspection, we see that it is totally unrelated. It is a quote from a person who not only is not associated with whatever body performed the voting poll, but also has no credence for the given testimonial. Sure, it's a valid quote, but it clearly does not belong with the first. To the casual viewer, one thinks that "Robbert Smith" is a subject matter expert on Pontiacs, and is making the statement from a position of knowledge. That belief then lends credence to the first quote.

I've been told that it is humorous, or that the quote's in question are so blatantly outrageous that they will not be believed. I say bull-hockey. They are offensive to me, and (per my beliefs) ethically misleading. From what Dulan has said, they are also legally wrong.
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Old 05-05-2002, 11:28 AM   #11
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Well, I looked at the Achaea site and it said, "Voted #1 in the world by gamers.com." If gamers.com did indeed vote them the #1 mud, it is merely a statement of fact (not that they are the #1 mud, just that they were voted as such by gamers.com), and there isn't much you can do about it. As far as people's quotes are concerned, they are called testimonial and everyone uses them. They are often found on the backs of books, in commercials for movies, and when celebrities endorse a particular product. A company can get in trouble when they make such testimonials up, as Sony pictures did for including phony quotes from a non-existent movie reviewer. Other than that, using quotes is quite legal.

Whether you think using quotes is unethical is a personal decision. It is not however, illegal to do so.

What Nike did was different and therefore the case is distinguishable from the present discussion.
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Old 05-05-2002, 12:04 PM   #12
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You're missing the point.

I know what a testimonial is. However, my contention is (has been, and so ever shall remain) that the delivery of the testimonials in question is done in such a manner as to imply that they are related to the first portion of the advertisement. This is misleading, and causes the average viewer to assume (incorrectly) that the testimonial is from an individual related to the voting mechanism/reviewing site/what have you.

I'll add here that my original question did not ask about the legality of a specific entity; rather, it was posed in such a manner as to allow for generic, broad responses:

Quote:
Originally Posted by
I'm curious about the difference between ethics and laws, and how they are applicable over the medium of the internet. Anyone have any concrete findings which are applicable?

Specifically: When one makes an outlandish claim ("Voted #1 in the entire world"), and supplies a quote beneath it ("Blah blah blah - persons name"), which is deliberately misleading, are they violating advertising laws or ethics? Is it misrepresentation, which is a legal violation, or misleading, which would be ethical?

On whom does the onus lie to regulate ethical violations? The medium which permits the advertising? Or the viewers of that medium?

Thanks for any answers any of you have.
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Old 05-05-2002, 12:30 PM   #13
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There is no legal mandate that states that testomonials must be separated by a certain amount of space or time. Advertisers use such tactics all the time, and it is only a few rare instances where anything may happen. Consider those weight loss commericials where people say, "I lost 200 pounds in 6 months," and then at the bottom is a statement which reads, "results are atypical." Now, you and I may know that atypical means not typical. The average viewer may not. Is this misleading? Probably. Is this illegal. Nope.

Advertising has always been misleading. Think about all the commercials which imply that you will get laid simply by using their product (e.g. beer, toothpaste, gum, etc). Think about commercials that have nothing to do with the product (e.g The Gap, most beer commercials).

So, simply having such testimonials close together in space or time is not a cause of action in itself. Maybe, if it was discovered that the quote was never said the person to whom it was attributed would be able to sue, though such a suit would not qualify for a class action suit. Class action suits have specific requirements which I won't address here because it is entirely too lengthy.

I don't know if this answers your question or not. If not, respond and we can discuss this further.
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Old 05-05-2002, 03:16 PM   #14
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-shake- Not entirely, Mason.

Remove the circumstances, company names, etc. etc.

Just look at the decision. A company falsely advertised to put itself in a better light, and to improve its reputation with consumers (And thus, have a better chance of them buying their product). In doing such, they were caught, and brought to court over false advertisement. The judge removed First Amendment protection, thus requiring them to prove it fact as they had a factual statement.

And if memory serves, Achaea wasn't even CREATED when said gamers.com poll went on. (Forgot who brought it up on TMC though)

-D
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Old 05-05-2002, 07:45 PM   #15
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Quote:
Originally Posted by (Dulan @ May 05 2002,2:16 pm)
-shake- Not entirely, Mason.

Remove the circumstances, company names, etc. etc.

Just look at the decision. A company falsely advertised to put itself in a better light, and to improve its reputation with consumers (And thus, have a better chance of them buying their product). In doing such, they were caught, and brought to court over false advertisement. The judge removed First Amendment protection, thus requiring them to prove it fact as they had a factual statement.

And if memory serves, Achaea wasn't even CREATED when said gamers.com poll went on. (Forgot who brought it up on TMC though)

-D
Cases are often distinguishible for any number of reasons. You can't take one case based on a state statute and then apply it to every single instance. Often, outcomes can differ for any number of reasons. Therefore, it would be inaccurate to say what would happen merely because of that one case.

If Achaea is falsely attributing a quote to gamers.com, then gamers.com might have a claim against Achaea. But it is certainly nothing that would necessitate a class action suit. I'm not necessarily saying you are wrong, but you cannot simply assert you are right because of one case. All I do in law school is look at cases that appear to be similar in facts but have different outcomes. Trust me, nothing is so easy in the law as you make it out to be.
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Old 05-07-2002, 09:21 AM   #16
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I would like to point out that that recent decision in California was made in contradiction to a previous ruling that takes precedence. The ruling applies to this court case in particular, but unless it is appealed and unheld in a higher court, an earlier ruling by the 7th district court takes precedence... I don't have a reference to that court case, I believe I read about it on Salon.com if you are interested.

Darrik Vequir
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