Donald Trump's long time lawyer, Michael Cohen has been in a bit of hot water of late. As you no doubt heard, the FBI raided Cohen's office and home seeking a bunch of information, some of which related to the $130,000 he paid to adult performer Stormy Daniels. Already there have been a few court appearances in which Cohen (and Donald Trump) have sought to suppress some of what's been seized, but that doesn't seem to be going too well. At the same time, Cohen is still fighting Daniels in court, which also doesn't seem to be going too well.
Given all of that, it's not too surprising that Cohen has decided to dismiss his ridiculous lawsuit against Buzzfeed for publishing the Christopher Steele dossier. As we pointed out, that lawsuit was going nowhere, because it sought to hold Buzzfeed liable for content created by someone else (oh, and that leaves out that much of what Cohen claimed was defamatory may actually have been true.
And while many are suggesting Cohen dropped that lawsuit because the other lawsuits are a much bigger priority, there may be another important reason as well. As we noted last month, through a somewhat complex set of circumstances, the lawsuit against Buzzfeed may have resulted in Cohen having to reveal the details he's been avoiding concerning Stormy Daniels. That's because Buzzfeed was claiming that Cohen's interactions with Daniels were relevant to its case, and it was likely to seek that information as part of the case moving forward.
In other words, dropping the Buzzfeed lawsuit (that he was going to lose anyway), Cohen wasn't just ditching a distraction in the face of more important legal issues, he may be hoping to cut off at least one avenue for all the stuff he's been trying to keep secret from becoming public. That doesn't mean it won't become public eventually. After all the DOJ has a bunch of it. But it does suggest that Cohen had more than one reason to drop the Buzzfeed lawsuit.
We've written about Trump's long-term personal lawyer Michael Cohen a few times before. The first time was back in 2015 when he made a particularly stupid threat against reporters for reporting on Cohen's own stupid comments. In case you don't remember:
“I will make sure that you and I meet one day while we’re in the courthouse. And I will take you for every penny you still don’t have. And I will come after your Daily Beast and everybody else that you possibly know,” Cohen said. “So I’m warning you, tread very fucking lightly, because what I’m going to do to you is going to be fucking disgusting. You understand me?”
“You write a story that has Mr. Trump’s name in it, with the word ‘rape,’ and I’m going to mess your life up… for as long as you’re on this frickin’ planet… you’re going to have judgments against you, so much money, you’ll never know how to get out from underneath it,” he added.
That lawsuit never materialized.
The second time Cohen was written about here was when he did sue the press. Earlier this year he actually filed a lawsuit against Buzzfeed over Buzzfeed's decision to publish the infamous Christopher Steele dossier. As we noted, this lawsuit was particularly nonsensical, as he's suing Buzzfeed for statements in the dossier made by someone else.
But, now it appears that that lawsuit may backfire in a way so spectacular, I don't think any novelist could create a twist this diabolical.
You see, Cohen is also at the center of the whole Stormy Daniels mess. If you somehow have been under a giant rock for the past month or so, Cohen has admitted to paying $130,000 to Daniels (real name: Stephanie Clifford). As multiple places have reported, Daniels was apparently paid the money as part of an agreement to buy her silence over an affair she had with Donald Trump a decade or so ago. There are a huge list of important questions around all of this, including whether the whole thing violated campaign finance laws (which it very likely did).
A big part of the fight is over whether or not Daniels can really tell her story. We've noted that Trump lawyers are threatening to go to court to stop CBS from airing an interview, while Daniels' lawyers have argued that the agreement is not valid as Trump never signed it -- while also offering to pay back the $130,000 to break the agreement (which... uh... is not exactly how it works). And I won't even get into the hilariously meaningless "private" temporary restraining order that Cohen went to an arbitration firm to get, without even notifying Daniels.
Enter Buzzfeed: one of its lawyers on the Cohen case, Katherine Bolger from powerhouse law firm Davis, Wright, Tremaine, just sent a letter to Daniels' lawyer, Michael Avenatti, asking Daniels to preserve the documents at issue (i.e., the gag agreement), noting that this may be relevant to their own defense against Cohen. This suggests a plan to subpoena this information, which would likely free it from the gag order (and hand Buzzfeed one hell of a story). The preservation demand covers a lot of potentially interesting info:
This includes without limitation all relevant ESI (including but not limited to e-mail), banking records, Word documents, spreadsheets, PDFs, reports, articles, books, memos, letters, calendar entries, handwritten notes, text messages, chats, phone messages, phone logs, audio recordings, or any other type of document or communication, final or draft, in either written or electronic format.
"ESI" in the above stands for "electronically stored information." The letter also asks for details of "any and all payments made by Mr. Cohen or Essential Consultants, LLC to Ms. Clifford, including but not limited to documents that would show the means by which the funds were transferred and/or the payments were made."
So why does Buzzfeed argue this is relevant to their own case? Well, because Cohen's lawsuit against Buzzfeed argues that Buzzfeed defamed him by implying that he had some role in possible Russian connections with the Trump campaign -- and Buzzfeed argues that cash payments Cohen was making to someone to silence them around the campaign is directly relevant to the questions at play in the lawsuit:
In his Complaint... Mr. Cohen asserts a claim for defamation based on an article published by Defendant BuzzFeed in January 2017 entitled "These Reports Allege Trump Has Deep Ties to Russia".... The Article contained an embedded document file containing a 35-page colleciton of memoranda that primarily discuss Russian efforts to influence the 2016 U.S. Presidential election, including alleged ties between Russia and President Trump's campaign... The memoranda in the Dossier contain certain references to Mr. Cohen that Mr. Cohen alleges falsely imply that he played a role in facilitating Russian interference in the election...
Mr. Cohen's role in President Trump's 2016 campaign, including but not limited to any payments he made or facilitated to third parties during or in connection with the campaign, is therefore directly relevant to the Action.
Who knows if this move will actually work, but if it does, that would be quite an incredible "own goal" by Cohen in which his own silly lawsuit unravels the other legal mess that he's been trying to keep under wraps. This is the kind of plot twist most novelists can only dream about (or reject for sounding to implausible to be real)...
The government's antipathy towards FOIA requesters is well-documented. Our last president declared his White House to be the Openest Place on Earth. This was followed by a clampdown on FOIA responses, huge increases in withheld documents, and a war on whistleblowers. The Trump Administration has made no such promises. Good thing, too, as the uncontrollable mouth running the country would make these promises impossible to keep. We're living in a halcyon era of unprecedented, if inadvertent, government transparency. Whatever multitudinous leakers won't provide, the president will hand over himself via Twitter or televised interviews.
Late last year, Trump handed plaintiffs in two FOIA lawsuits a gift when he undercut an FBI Glomar response ("neither confirm nor deny") by confirming FBI investigations (and FISA court involvement) in domestic surveillance. Trump has done it again, thanks to approving the release of the Nunes memo. Again, FOIA requesters seeking information about FBI domestic surveillance have been handed a gift by the Commander in Chief, as Politico reports.
During a hearing on a bid by BuzzFeed to get more information about how a so-called dossier compiled by a former British spy was handled, U.S. District Court Judge Amit Mehta grew frustrated with a Justice Department lawyer who argued that Trump’s declassification order did not alter the contours of the legal dispute.
Mehta said the government would normally be entitled to deference in asserting the need to keep its investigative work under wraps, but perhaps no longer with respect to the dossier.
“This isn’t the ordinary case,” Mehta told a Justice Department lawyer, Anjali Motgi. “I don’t know of any time the president has declassified the fact of a counterintelligence investigation. That’s going to be a hard sell given what the president has done. … This is a new frontier and it has an impact.”
The DOJ tried to argue that Trump's declassification of the memo wasn't an endorsement of its contents. The judge found this assertion literally incredible, saying she found it impossible to believe the DOJ and the White House disagreed about the factual basis of the released memo. If the DOJ can't find a way to push this argument past the judge, Buzzfeed will likely gain access to documents it might need to defend itself from a libel lawsuit brought by someone mentioned in the Steele dossier. If nothing else, the declassification of the memo shows there's substantial public interest in the contents of the dossier, which would buttress Buzzfeed's claims that publishing it (without verifying the contents first) was "fair reporting" on government activities.
The DOJ, however, continues to insist the sought documents, even if released, change nothing for Buzzfeed. But to make this argument it has to sell its first argument -- that the facts disclosed by the Nunes memo are not actually facts. The DOJ will get to make this argument in person, behind closed doors with the judge, where it will argue that releasing documents to Buzzfeed would harm its ongoing investigation.
On top of this turn of events, the Nunes memo's release has also forced the DOJ to change its opacity stance in other FOIA lawsuits.
In one of those FOIA cases on Wednesday, government lawyers notified the court that the president’s declassification actions forced them to withdraw a refuse-to-confirm-or-deny response issued on requests that USA Today reporter Brad Heath and the pro-transparency James Madison Project made for surveillance warrants on Trump associates.
The DOJ may end up having to release documents it doesn't want to release, thanks to the president and legislators aligned with Nunes. All it can do right now is buy time. And it will be an indefinite amount of time, apparently.
“Given recent events, and the possibility of additional declassifications by the president,” the lawyers wrote, “the government is unable at this time to propose a timetable to conduct this review.”
The Forever War on Transparency continues, but it's being frustrated by self-serving acts of openness by the White House. I guess we're the beneficiaries of accidental largesse, although it may be outweighed by other damaging White House acts and policies. However, someone writing about issues like these should never wish to live in uninteresting times, so the remainder of the Trump presidency should provide plenty of transparency yin/yang moments like these, where the government's natural affinity for opacity is undone by the Commander in Chief's proclivity for outing company secrets whenever it seems it might serve his singular narrative.
Another day, another stupid lawsuit/legal threat emanating from the Trump offices. Trump's personal lawyer, Michael Cohen, has decided to rub up against the libel laws Trump so badly wants to "open up" by filing a ridiculous defamation lawsuit against Buzzfeed for publishing the Christopher Steele dossier compiled by Fusion GPS. Fusion is also being sued, but the addition of Buzzfeed strips the lawsuit of much of its credibility.
Cohen has every reason to dislike what was said about him in the dossier. According to the Fusion GPS opposition report, Cohen was supposedly instrumental in hooking the president's people up with high-ranking Russian officials during the presidential campaign. Cohen maintains all of these allegations are false. From the lawsuit [PDF]:
Under this report, Plaintiff is alleged to have an inappropriate and possibly criminal relationship with the Russian government stemming from his wife's familial relations with a Russian property developer. None of these allegations are true. Plaintiff does not have any relationship with Russian officials and his father-in-law is not a leading property developer in Moscow; he has only been to Russia once. In fact, Plaintiff's father-in-law does not even own a vacation home in Sochi, nor has he ever been there. Additionally, Plaintiff's wife was born in the Ukraine region and immigrated to the United States over forty (40) years ago; she has never been to Russia.
The dossier was published in full last January. In March, Cohen provided Buzzfeed with his passport, showing he had never traveled to the areas the report said he had. That should have been enough for Cohen, but he's decided to, at the very minimum, force Buzzfeed to defend itself against defamation claims up to a motion to dismiss.
The lawsuit goes on and on about allegations made in the report, each one supposedly provably false. Several paragraphs are devoted to quoting parts of the report, followed by Cohen's rebuttal of the report. Even a casual observer of defamation suits should be able to see the problem. The entity Cohen should be suing is Fusion GPS, and Fusion GPS only.
Cohen's lawsuit is largely made up of counterspeech. The best weapon against speech you don't agree with is more speech, delivered from your side. But using a federal lawsuit to engage in counterspeech doesn't do anything positive for the First Amendment. If Cohen wanted to rebut these allegations publicly, I'm sure there's no shortage of press outlets willing to make space for an op-ed piece by the president's personal lawyer. Cohen has instead decided to use the government to grant credence to his side of the story and is hoping to take home $100 million on top of whatever collateral damage he does to the First Amendment.
Cohen has to stretch to make Buzzfeed the target of a lawsuit complaining about things that weren't said by anyone at Buzzfeed.
Defendants knew that the Dossier reports were false and/or acted with reckless disregard in determining whether the reports were true or false.
While it's true Buzzfeed thought the document might be sketchy, it did warn readers the dossier had not been verified and included errors. This is hardly "reckless" behavior. The dossier was definitely newsworthy. On top of that, government officials had already acted on information contained in the document, lending it further credence and adding to its public interest value. Buzzfeed's Ben Smith offered his defense of the document's public value (and implicit pedigree) at the New York Times. His statement goes right to the heart of Cohen's "reckless disregard" allegations:
When we published the dossier, we knew a lot: We knew that it had been written by the former head of the Russia desk at Britain’s main foreign intelligence agency, a man whose job had made him a leading source on Russian espionage. We knew that key members of the Senate — Harry Reid, the Nevada Democrat, and John McCain, the Arizona Republican — had acted on its contents. We had also learned that intelligence officials had briefed President Barack Obama and President-elect Trump on the dossier, and that the F.B.I. was already looking into it.
So, it's not as though some internet rando jammed a bunch of virtual papers through Buzzfeed's SecureDrop mail slot. This document had received vetting from government officials, many of which saw enough in it to move forward with investigations and Congressional hearings.
To be fair, Cohen is also suing Fusion GPS. But adding Buzzfeed to the lawsuit serves zero purpose other than to hassle it for ensuring the document ended up in the public's hands. This rolls back a lot of the fairness I so recently extended Cohen. New York has a severely-restricted (and mostly useless) anti-SLAPP law so Buzzfeed won't be able to turn around and demand a refund from Cohen for wasting its time.
Cohen clearly doesn't like what was said about him in the Fusion report. Great, sue Fusion. Sue Christopher Steele. But don't make this about a third party that did nothing more than publish a document of public interest with fair warning to readers about the dubious veracity of the contents.
I recognize that not everyone agrees that the jury verdict against Gawker in the case brought by Hulk Hogan was a disaster for the First Amendment. I disagree. As we explained, even if you dislike Gawker and believe that it was a terrible smut rag that deserved to go out of business, the lawsuit presented a clear blueprint via which the famous and wealthy could attempt to silence any publication -- even those doing legitimate reporting. We, somewhat obviously, are feeling the rather direct effects of that ourselves, given that we're facing a lawsuit filed by the same lawyer who represented Hogan.
But, here's yet another example of the chilling effects created by the Hogan verdict directly. You may have heard, recently, about a fairly astounding story, reported by famed music reporter Jim DeRogatis, that the singer R. Kelly was "holding women against their will in a 'cult.'". The story is quite incredible and detailed. It was published in Buzzfeed which, despite its reputation for viral videos and top 10 gif lists, has been publishing some amazing reporting over the past few years.
But the story of why it was in Buzzfeed, and how the Hulk Hogan verdict almost kept the story from being revealed at all is important, and highlights the chilling effects of the Hogan verdict, and how it is likely stifling other important stories about the rich and famous from being published. DeRogatis, beyond his many years of excellent reporting about music and the music world, has tangled with R. Kelly before. You may be familiar with some older controversies involving Kelly... and most of those were also broken by DeRogatis, starting way back in 2000, when he broke the story of R. Kelly having sex with teenaged girls. DeRogatis was also deeply involved in the criminal trial of Kelly a decade ago (in which Kelly was eventually found "not guilty.")
You can read the details of DeRogatis' latest story at Buzzfeed, but that's not the part that really interests us at Techdirt. Instead, it's the fact that multiple publications wouldn't publish this latest story -- often pointing to the Hulk Hogan verdict as the reason why. DeRogatis discussed the background to the story with Josh Levin at Slate, which includes this tidbit:
What was the reporting process like? Was most of that time spent trying to get people to talk?
Most of that time was spent, post–Hulk Hogan and Gawker, finding a media outlet that was willing to run it. I’ve been working with BuzzFeed since Wednesday afternoon, and those were 12-plus–hour days every single day until this morning.
So... that's interesting. Here you have a well-known, well-respected reporter who has a long history of breaking these kinds of stories about R. Kelly -- and the hardest part was finding a publication that would actually publish the story? Because of the Hogan verdict? Margaret Sullivan, over at the Washington Post goes deeper into the chilling effect of the Hogan verdict on DeRogatis's reporting saga.
Three separate media organizations were interested but got cold feet at the last minute, DeRogatis said. Each one, after investing months of work, backed away from the story that used named sources and documents to describe how women near Atlanta and Chicago were held as if in a cult, according to what parents and others had told police. (DeRogatis declined to name the news organizations because of his appreciation of the editors he worked with; they weren’t the ones who pulled the plug. They include a regional print publication, a world-famous multimedia behemoth and a radio-based digital outlet.)
“Gawker came up in a lot of those conversations,” DeRogatis said, referring to the snarky and risk-taking website that was put out of business last summer after a lawsuit brought by Terry Bollea, also known as Hulk Hogan. The invasion-of-privacy suit was bankrolled by billionaire Peter Thiel, a confidant of President Trump.
“Nobody wanted to take that risk.”
Nobody wanted to take that risk. To break a major story about a celebrity potentially holding women against their will. Argue all you want that Gawker was about sex and privacy, or that Gawker was sleazy -- none of that changes that the case created real chilling effects. It provided the rich and famous with a clear path to try to silence publications or scare them away from publishing true stories. And it put the fear of such attacks deep into the hearts of many media publications, including those with experienced legal teams.
As Sullivan concludes in her piece:
Plenty of people were disgusted by Gawker’s airing of the Hulk Hogan sex tape and, as a result, not unhappy to see the site go out of business. But some of them would be less pleased to know that a story like the R. Kelly reporting — or many others that we don’t know about — might never see the light of day.
But it's probably worse than that, because at least the Kelly piece was published. We'll probably never know about a variety of other -- potentially important and newsworthy -- stories that aren't getting published at all out of a fear over these kinds of lawsuits. Even when the reporting is solid and the reporters and editors and lawyers all believe the story is protected speech, just the threat of these kinds of lawsuits can scare away many publications and completely kill important stories. This is why having a strong First Amendment matters, and it's why verdicts like the Hogan one against Gawker can cause so many problems even if -- actually especially if -- you disliked Gawker. We should be even more serious about protecting the free speech rights of those we disagree with, as they often need those protections the most.
In the last few months, Facebook Live has certainly become "a thing." Launched just recently, it was suddenly everywhere -- from the pure (but very viral) joy of Candace Payne and her Chewbacca mask to the live streaming of the tragic aftermath of Philando Castile being shot by a police officer in Minnesota. Of course, it appears that part of the reason why Facebook Live is getting so much usage isn't necessarily that it's a better product than its competitors, but rather that Facebook has been generously throwing around cash to all sorts of people and companies to get them to use the platform. Last month, it was reported that Facebook was paying many millions of dollars to big media players in exchange for them promising to broadcast via Facebook Live:
According to a document recently obtained by the Wall Street Journal, the social networking giant has signed as many as 140 contracts worth a total of $50 million.
The list of media outlets being paid by Facebook includes traditional players such as CNN and the New York Times, the Journal says, as well as digital-only publishers like Vox, Mashable, and BuzzFeed. The celebrities who are being compensated for creating live video include comedian Kevin Hart and chef Gordon Ramsay.
Some contracts are worth smaller amounts, while 17 of the deals Facebook has signed are worth more than $1 million, according to the document obtained by the Journal. Two media outlets are getting paid more than $3 million to create live video—BuzzFeed and the New York Times, and CNN is not far behind, with a reported payment of $2.5 million.
Later in that article, it notes that BuzzFeed is getting $250,000 per month, for 20 Facebook Live videos each month. Good money if you can get it!
Then, a few weeks later, another report came out, noting that Facebook was trying to buy successful YouTubers and Vine users away from those platforms by giving them cash to use the platform as well:
For example, the Journal says it has seen documents that show Facebook is paying Vine star John Paul Piques $119,000 to post at least five videos on its live-streaming service over the next two months. That’s the equivalent of $24,000 per video. And he is just one of about two dozen other Internet celebrities and video stars who have signed similar deals.
The newspaper says the highest-paid independent video performer appears to be Ray William Johnson, who developed a following for a YouTube show called “The Equals Three Show,” in which he makes fun of viral videos. He could make as much as $224,000 over the next six months.
This kind of thing doesn't always work well, for a variety of reasons, but it appears that maybe it's actually succeeding this time. It'll be worth watching to see how well things go after the money runs out.
Still, there's another question that is raised by these stories: are Facebook and all of these other companies and individuals running afoul of the FTC's social media guidelines? And might the FTC crack down? Now, to be clear, I'm skeptical about the FTC's rules because they create free speech questions. So far, the FTC's enforcement over its own guidelines has been, well, haphazard and seemingly arbitrary at best. However, the FTC did update its guidelines last year, and it seems like not disclosing these payments could create some problems, if the FTC decided to step in.
The guidelines themselves seem more focused on "endorsements," but the question here is whether or not merely using the platform to post new videos is considered an "endorsement." Under the current guidelines, the FTC has a fairly loose standard of how the situation impacts the credibility given to the person or company by their audience:
The question you need to ask is whether knowing about that gift or incentive would affect the weight or credibility your readers give to your recommendation. If it could, then it should be disclosed.
They also note that merely using a product could be seen as an endorsement:
Simply posting a picture of a product in social media, such as on Pinterest, or a video of you using it could convey that you like and approve of the product. If it does, it’s an endorsement.
You don’t necessarily have to use words to convey a positive message. If your audience thinks that what you say or otherwise communicate about a product reflects your opinions or beliefs about the product, and you have a relationship with the company marketing the product, it’s an endorsement subject to the FTC Act.
While it's not a direct parallel, you could see how this is pretty close to the situation at hand. People viewing these videos are getting the message that these media companies and individuals approve of Facebook Live -- and yet many have not disclosed that they have a strong financial incentive to use the product. It seems like they may be in trouble if the FTC ever decides to take a look.
The question, then, is whether or not the FTC will bother?
Have you heard? Today is the anniversary of "the dress." You know the one. It was all over the internet exactly a year ago. White and gold or blue and black. It was a phenomenon. And, yes, I know a bunch of you are snidely mocking it as you read this, but shut up. It was a fun way to kill an afternoon a year ago and it made a bunch of people happy, so don't be "that person." A year ago, we wrote a short piece about it, noting that you had fair use to thank for it, because the dress was being shared widely, and that was possible due to fair use. And the timing was great, because it was fair use week -- as it is again.
One of the points I made in that post was that it was awesome that no one even seemed to bring up the copyright question, because it was so obviously fair use that no one even bothered. Except... in an article about the anniversary, at the Guardian, it mentions that there actually was a copyright dispute about the dress. The woman who took it, Cecilia Bleasdale (who also bought and wore the dress at her daughter's wedding), apparently got upset that everyone else was getting so much attention from the dress and hired lawyers to go around demanding money for it.
It was and still is difficult for Bleasdale, who is 57, and Jinks, 47, to understand what happened, still less what they should do about it. Obviously, they had created something of immense value – though they did not know how they had created it, nor how valuable it was. As the photographer, Bleasdale owned the copyright, but at first she was neither consulted nor credited by McNeill or Buzzfeed....
[....]
... Eventually, they engaged solicitors to chase up royalty payments, but the money so far collected (including from the Guardian) has not yet paid off the solicitors’ fees....
[....]
... Legal conversations are continuing with Buzzfeed. Perhaps something good may yet emerge from them.
The article also notes that the company that made the dress, Roman Originals, that sold many, many, many, many more of them than it originally expected, offered her a free dress, but she asked them for more, and they stopped responding.
That was in mid-December -- and the story also noted that the original Buzzfeed Tumblr post that made the whole thing so viral had been taken down. But I looked as I was writing this and it's back up. And then, buried deep, deep, deep in this insane oral history of the dress (and the llamas, and a few other big events from that day), Buzzfeed admits that it bought the copyright off of Bleasdale:
Cecilia Bleasdale, the original copyright owner of the photo of The Dress, had the photo taken down over a copyright issue. Earlier this year, BuzzFeed reached an agreement with Bleasdale to acquire the rights to the photo.
But this is the fallacy of copyright in action. The idea that merely taking the picture "creates value." Note that line "they had created something of immense value." But that's wrong. It wasn't the act of photographing it that created the value. There was a happy accident in the lighting that really made the optical illusion work, and what created the value was the ability of the internet to make it viral. Taking credit for the viralness because she took the photo completely misses the point. Copyright assumes that it's solely the act of creation (a quick click of a cellphone camera button in this case) that creates all of the value. But it's not. It's the actions of so many other things, including the growth of the internet and sites like Buzzfeed, combined with social media like Tumblr, Facebook and Twitter -- and the power of all of you internet users that made the photo valuable. To go back after the fact and argue that there's a copyright issue here seems not just petty, but a perfect example of the kind of ridiculousness and "ownership" mentality that copyright creates.
In case you haven't read the news reports, Bill Cosby is having a terrible, no good, very bad few weeks. Ever since Hannibal Buress, a fellow comedian, brought up the fact that Bill Cosby has been accused of sexual assault and rape an incredible number of times, details of the accusations have been making headlines and formerly silent women have come forward with new accusations of their own. The pudding guy, on the other hand, has been remarkably silent on the matter, even as a Netflix special and a scheduled network sitcom are being sidelined as the controversy grows. In the midst of all this, one would think Mr. Cosby would be out there telling his side of the story. He isn't. His lawyers, on the other hand, have been quite active, but most of their work has been in the arena of making sure that nobody's side of the story gets out. In addition to blasting one of his alleged victims, who claimed her publisher nixed part of her book that detailed her allegations against Cosby, that letter to Buzzfeed from Cosby's attorneys makes some barely-veiled threats.
Because you can confirm with indpendent sources the falsity of the claim that my client's lawyers allegedly pressured the publisher to kill the story, it would be extremely reckless to rely on anything Ms. Dicknson has to say about Mr. Cosby since the story about the publisher is false...If you proceed with the false Story when you can check the facts with neutral independent sources who will provide you with facts demonstrating that the Story is false and fabricated, you will be acting recklessly and with Constitutional malice.
It goes on and on in that fashion. It's worth noting that the neutral third parties the lawyers are insisting Buzzfeed rely upon are the same publishers that allegedly conspired with Cosby's lawyers to pull the rape allegation from the book. So... yeah, not the most independent of choices, I don't think. In any case, attempting to muscle journalists in any situation probably wouldn't reflect well on their client, but doing so when Cosby is remaining completely silent on the matter, beyond the occasional attempt to intimidate journalists himself, really doesn't look good.
Add to all of this the always laughable claim at the top of the letter sent to Buzzfeed:
CONFIDENTIAL LEGAL NOTICE
PUBLICATION OR DISSEMINATION IS PROHIBITED
And you can tell that they mean business because they used all caps. Too bad this is a statement equal parts meritless and futile. As Marc Randazza notes, the proper responses to that disclaimer all involve vulgarity.
No. Wrong. Jesus Hello Kitty Christ on a Rocket-Powered Toboggan, NO! It is NOT confidential. You CAN disseminate it.
That link he provides is a nice overview of why the confidentiality disclaimer is complete horseshit. In that rundown he highlights the futility of the disclaimer, since it's ultimately reproduced when the recipient goes ahead and publishes the letter anyway. It lets any reader know not only that you're the kind of lawyer who will make a false claim, but also that you don't really want your actions to be known publicly, indicating that there's something underhanded in all of this.
Which there is. Several women have now come forward at this point with claims of rape against Bill Cosby. You can choose to believe they're all lying if you like, but attempts to muzzle the press aren't going to get Mr. Huxtable very far, I fear.
Sometimes I wonder what sort of qualification you need to be a "publicist." At the very least, you would think that it would help to be familiar with the basics of The Streisand Effect, and making sure that you don't make something worse. Apparently, that's not the case for the publicist that Beyonce hired to try to get "unflattering" images taken of her at the Super Bowl disappeared. It all started with Buzzfeed doing what Buzzfeed does -- pulling together a silly collection of images. In this case, The 33 Fiercest Moments From Beyonce's Halftime Show. That apparently resulted in a quick phone call from someone working as a publicist complaining that some of those photos were "unflattering," which was then followed up by an email... which Buzzfeed chose to post publicly as: The "Unflattering" Photos Beyonce's Publicist Doesn't Want You To See:
If you can't read that, the important part says:
Thanks for taking my call. As discussed, there are some unflattering photos on your current feed that we are respectfully asking you to change. I am certain you will be able to find some better photos.
Now, to their credit, the publicist did not demand that the photos be changed, nor make any kind of legal threat. While that may seem obvious since there would be no legal basis for Beyonce to make such a threat, we've certainly seen others make similar legal threats in the past. So it was a respectful "request." And, you can certainly make the argument that Buzzfeed's response was anything but respectful. But, come on. This is Buzzfeed we're talking about. Pageviews uber alles. So of course they're going to get more attention for it.
Some will argue, of course, that "any publicity is good publicity" and perhaps that was the strategy all along. That's a dubious argument however. Beyonce was getting a ton of great press for her Super Bowl performance. Why sully it with suddenly hunting down "unflattering" images that weren't doing any damage to her reputation in the first place? Asking for those images to be taken down hurts her image a lot more than any of the photos in question.
There's been an uproar about The Atlantic's decision yesterday to run sponsored content from Scientology, which consisted of a pretty poorly done advertorial about Scientology's "successes" in the past year. The comments on the piece included a bunch of "wow this is just awesome!" type comments that suggest both moderation and pre-planned comments from supporters. After widespread outcry about The Atlantic going in such a direction, the piece was pulled. Recently, there's also been similar (though slightly different) "sponsored" posts on Buzzfeed, in which staff plaster some company's name over a "top 10" or "top 15" list that they slap together -- often by pulling images from other sources (Reddit is a popular one), without making much effort to credit whoever came up with the content. There's even been a fair bit of controversy over the Associated Press' recent decision to allow sponsored tweets from Samsung during CES.
All of these seem like examples of doing "sponsored content" badly -- just as more and more publications are getting into sponsored content. While it's good to see publications taking some risks and trying something new, the downside is that it has the potential to completely scare off companies from doing any forms of sponsored content, even when it can be done much better. For many, many years, we've talked about how how content is advertising and advertising is content, and those who get it right are going to go far. The problem is that it's tough to get right -- often because the marketers themselves are so focused on old school "advertising" in which they have to keep pushing their message and their message alone, they miss out on the fact that this backfires in a big bad way every single time.
There's been a lot of talk lately about "native advertising" -- which is the buzzphrase around this kind of content these days. Many point out that "advertorial" is nothing new, and that's accurate, but true native content is something different. For years, when we've talked about these concepts, everyone has complained about said "advertorial", suggesting that it's annoying or misleading -- and that's been the problem with the examples above. But, when done right, it doesn't need to be either annoying or misleading. And we need to get to that point. Five years ago we put forth some basic concepts for why the world needed to move towards this model, and I still think they hold true today:
The captive audience is dead. There is no captive audience online. Everyone surfing the web has billions of choices on what they can be viewing, and they don't want to be viewing intrusive and annoying ads. They'll either ignore them, block them or go elsewhere.
Advertising is content. You can't think of ads as separate things any more. Without a captive audience, there's no such thing as "advertising" any more. It's just content. And it needs to be good/interesting/relevant content if you want to get anyone to pay attention to it.
Content is advertising. Might sound like a repeat of the point above, and in some ways it is -- but it's highlighting the flip side. Any content is advertising. It's advertising something. Techdirt content "advertises" our business even if you don't realize it. Every bit of content advertises something, whether on purpose or not.
Content needs to be useful/engaging/interesting. This simply ties all of that together. If you want anyone to pay attention to your content (which is advertising something, whether on purpose or not) it needs to be compelling and engaging.
The problem is that many marketers (and many publications) seem to really miss out on that last point. The content -- whether it's advertising, native content, advertorial or whatever -- needs to be useful/engaging/interesting. The Scientology advertorial and the AP sponsored tweets really fell down on that point. The Buzzfeed content at least got much of that aspect correct, but fell down on the kinds of things that often piss people off: poorly attributed copied content. There's no reason why Buzzfeed couldn't have done such a collection with proper attribution and most of the controversy would have been avoided.
And that's the real point here: it is possible to do "sponsored content" in a compelling way. I still like to point to the example that we did a few years back with UPS sponsoring us to do some videos about the topics we already talk about, leading to things like the following video about the economics of abundance:
When we posted that we were actually surprised (but thrilled) to find out that many in our community were happy to see projects like that move forward. That was because it was about creating useful and engaging content that wasn't misleading or just pure propaganda.
The world will get there eventually, but it's an ongoing struggle to get both publications and marketers to realize that "native advertising" isn't native if the content sucks and no one wants to see it (especially if it's pure propaganda, or otherwise enrages people). Some continue to insist that any and all such sponsored content is, by definition, problematic, but I don't think it needs to be. It's just that we need to get people in marketing firms and at publications to move past such a view of native advertising. The Atlantic should have known ahead of time how people would react. Buzzfeed should have made sure its content didn't set off a firestorm. And the companies paying for such ads should also learn that if they're just creating annoying content, it's not helping anyone, least of all themselves.
