when news and law collide, puffery edition

Lots of the tech news sites are up in arms this morning about this Wired story, (1)(2), reporting that ‘Apple says you’re a fool to believe our ads’ (to paraphrase the title.) While not strictly incorrect, this post really deserves some context.

First, Apple made this claim in an answer to a complaint. The complaint1 is a very comprehensive, but vague, document saying ‘here are all of my potential arguments in court.’ If the court doesn’t like the plaintiff’s complaint, the court can say ‘go away’; if the court doesn’t like the defendant’s response, he can say ‘lock them up.’ If both sides persuade the court that there are serious, important points where reasonable people can disagree, then you start on the road to a trial, where details are added and arguments fleshed out. So you want to throw the kitchen sink in there if you’ve got it, and this defense is one of those kitchen sinks. It isn’t unreasonable to think that this system is a little weird- Germans, for example, would ask a court to filter this kind of claim more aggressively- but it is the system we’ve got.

Second, and more importantly, this particular kitchen sink claim (‘no one would believe that‘) is a very standard defense against claims of advertising fraud, called ‘puffery.’ The idea behind puffery is that some ads are inevitably a little outlandish (‘best X ever’), and that reasonable people should be able to¬† tell the difference between those kinds of claims (the ‘puffery’) and the serious claims that we’re supposed to base our purchasing decisions on. We use juries to figure out what is ‘reasonable’ in this situation- does everyone on the jury think that ‘twice as fast’ was just bluff, or does the jury think that this was a Serious Claim that was intended to deceive? Admittedly it seems a bit stretched to this non-expert to call this particular ad ‘puffery’, but it isn’t insane, particularly at this early phase of litigation, when both parties are prone to outlandish claims to make sure that they get their day in court.

There is one other thing about this article that is worth mentioning, and which particularly irritates me- the reporter clearly only barely read the pleading. Wired quotes a paragraph, but ignores the title of that paragraph– ‘puffing’. If the author knew what puffing was, they wouldn’t have written this piece, or at least not in this way. If they didn’t know what puffing was, a simple google search would have lead (first link!) to a definition explaining the basics, and it isn’t far from there to understanding it. So file this under ‘sloppy, lazy ‘journalism.”

  1. in the American system- your national mileage may vary []