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Free Speech

TV Station's Agreement with Advertisers Didn't Bar It from Airing Stories Critical of Those Advertisers


From Wellness Walk in Tubs, LLC v. Scripps Media, Inc., decided by Judge Robert Blackburn (D. Colo.) in June but just posted on the Westlaw Bulletin squibbing service:

This case arises out of a November 2018 contract between plaintiff and defendant for the provision of advertising services. The contract consists of a one-page introductory letter and an attached "Media Plan," which appears to be a replication of a Power Point presentation. The cover letter stated that defendant practiced "a Guardian culture model," which "means we are looking out for your business at every turn." Therein, defendant claimed to "place an emphasis on a high level of ethics, accuracy and balance in our news products and our business practices."

Unlike other media companies, which "believe their work is complete when your message is seen or when your prospect visits your website," defendant was "focused on how the advertising impacts your bottom line" and would be "there with you each month to ensure you are hitting your sales goals." Defendant further touted the "decades of combined experience our management team has and … their proven trace record of helping local businesses achieve their financial goals" and claimed "the strength of our product, our people and of our processes" gave it "the highest level of renewal of advertising campaigns."

Two additional pages of the Media Plan describe defendant's "Reputation Management" services. Noting that "More accurate and Consistent Business listings Helps [sic] a business to rank higher in a search!," defendant allegedly promised, inter alia, to "[e]nsure that the information about your business is correct throughout the web" and "Protect Your Reputation" by "[p]revent[ing] negative reviews with the review generation and filtering tool – improve your review score!"

Plaintiff contends that in April 2019, during the term of the contract, defendant broadcast negative, allegedly inaccurate, news stories about it. {These stories were published under the auspices of KOAA's "News5 Investigates" series.} These news stories allegedly damaged plaintiff's reputation and caused it to lose contracts and hundreds of thousands of dollars in revenue.

Plaintiff sued for breach of contract, but the court said no:

It is abundantly clear that the parties' contract was for the provision of advertising services. The representations made in the cover letter (to the extent they can be considered actionable terms of the contract, and not mere puffery) repeatedly refer to an "advertising campaign" "focused on how advertising impacts your bottom line," which will provide plaintiff with "the highest quality, largest, most efficient and most effective form of advertising results." Consideration of the provisions of the contract as a whole and in context further bolsters that conclusion. The document sets forth a proposed media strategy centered on getting the "right message" to the "right audience." It points out that Google and Walmart spend a substantial portion of their advertising budgets on television and sets forth a proposed broadcast schedule for plaintiff's advertising and suggests that such television advertising will drive potential customers to engage with plaintiff online.

It is this context in which defendant agreed to "Protect Your Reputation" by generating positive reviews for the company and monitoring social media for negative reviews. It promised to "[e]nsure that the information about your business is correct throughout the web" by taking steps to "help your business come up higher in search engines" and "mak[ing] sure your [Google, Bing, and Yelp] profiles say the right things to stand out and get traffic," thus ensuring a "[m]ore accurate and [c]onsistent business listing[ ]" to help plaintiff "rank higher in a search!"

None of these statements plausibly can be construed to constitute a promise that defendant would prevent its investigative news division from reporting negative stories about plaintiff. Indeed, nothing set forth in the Amended Complaint suggests defendant's advertising department has any input into or ability to control the output of the news division. By the terms of the contract, defendant agreed to monitor and manage negative customer reviews of plaintiff's business such as might be found on Yelp or similar online crowd-souring or peer-to-peer outlets, not negative news reports. Accordingly, defendant's motion to dismiss this claim will be granted….

Congratulations to Andrew Phillip Valencia and Gregory Paul Szewczyk (Ballard Spahr LLP), who represent defendants.