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 []

5 thoughts on “when news and law collide, puffery edition”

  1. Agree generally about reporters taking boilerplate legal defenses out of context. Two points though. First, it is an unfortunate that lawyers have so walled off the language of law that the initiating documents of a legal claim are unintelligible to or outrageous-sounding to the untrained, and I have a difficult time justifying this even though I know that the law in common law systems accretes organically in a way that is not guaranteed to promote clarity. Second, when I saw this ad, even braced as I am with a lawyer’s skepticism, I had a similar reaction to the plaintiffs. Apple knew better — this ad is deeply deceptive.

  2. If ‘puffing’ hadn’t been RIGHT THERE in the document, I wouldn’t have written the post, because I certainly don’t want to defend Apple, and I don’t really feel like defending the legal system either- adversarial notice pleading is a bit insane. But there is a difference between ‘I can’t understand opaque legal documents’ and ‘I can’t be bothered to look up the definition of a word that I obviously don’t know.’

    I’d be interested to see an expert in puffery discuss the argument; I may be over-sophisticated, but it is obvious (to me) that any claim of ‘twice as fast’ comes with disclaimers about coverage, hypothetical maximums, etc., and keeping those in mind, the claim that it is twice as fast is not unreasonable. Whether the hypothetical reasonable consumer can be expected to know those things is a different matter.

  3. But if the reporter looked up “puffing,” he would find something like: “statements … such that no reasonable person … could have reasonably relied on or misunderstood [the] statements as claims of fact.” So I’m not sure the article would change much if he looked it up. Is the problem just that he doesn’t sufficiently acknowledge that Apple’s claim has a basis in actual legal doctrine?

  4. No, it’s that he doesn’t bother to find out that there is a legal doctrine, despite the presence of this unusual word right there in the title. It’d even be OK if he’d said ‘you know, there may be something I don’t understand here.’ Law is not easy, and certainly even in a brief thing like this there is a lot of nuance that you can’t expect non-lawyers to understand. But media (inc. bloggers) rarely admit they don’t know something, and (maddeningly) they’d rather go with the quick and easy- ‘apple says you can’t believe a word they say’- than notice there is something unusual here and do the necessary research to (at least) admit they don’t understand what is going on or (ideally) find someone who can explain what they don’t understand.

Comments are closed.