Ben Cowgill, author of the excellent Legal Ethics Blog, reports that he has been facing resistance from the Kentucky Attorney’s Advertising Commission over the very existence of his weblog. Under the relevant Kentucky rule of professional conduct (7.02), each time a lawyer advertises legal services in the state, he or she is required to submit a copy of each advertisement to the Commission and pay a $50 filing fee. The Commission also requires an additional filing fee each time the advertisement is modified.

The Commission has apparently expressed that law-related weblog postings fall under this rule, as the definition for “advertisements” includes any communication that contains a lawyer’s name “or other identifying information.” As Mr. Cowgill correctly observes, “it would be practically impossible for a Kentucky lawyer to publish a law-related web log if he or she were required to pay a $50.00 ‘filing fee’ each and every time the content of the blog is modified.”

Communications between Mr. Cowgill and the Commission continue. This controversy is an interesting and compelling example of “antiquated” regulations being outpaced by the positive consequences of modern forms of communication.

Read more about the matter at f/k/a and at The Legal Underground.

Each week, a different law blogger takes a turn hosting a wrap-up of notable “blawg” postings from the past week. See, for example, Blawg Review #9 hosted this week by Juris Pundit. Blawg Review is a great way to see in a snapshot what’s new and interesting in the legal blogosphere.

InternetCases.com will be hosting Blawg Review #10, which will be posted on Monday, June 13, 2005. If you are a “blawgger” and write a posting about which you’re particuarly proud this week, or if you run across someone else’s blog posting that is law-related and noteworthy, let me know about it before the end of the day this coming Saturday, June 11. I’ll try my best to include it. Please see the submission guidelines.

Mark Cody was fired from his job as general sales manager for WPWX-FM in Hammond, Indiana. Soon after his termination, someone posted obscene images on the WPWX website. Cody’s former boss, Taft Harris, wrongfully accused Cody of posting the images. In a meeting of the radio station’s employees, Taft stated, “This has got to be Mark Cody. I know Mark did this. I know he is responsible for this.”

Cody sued Harris and the owner of the radio station alleging various causes of action, including defamation. Cody claimed that Harris’s comments were defamatory per se, because they were disparaging of Cody’s professional reputation, i.e., his ability to manage a sales force.

The district court dismissed Cody’s defamation count, and the Seventh Circuit affirmed the dismissal. The court held that Harris’s statements were not defamatory per se, because instead of disparaging Cody’s ability as a sales manager, they merely attacked his personal integrity. Because there was no defamation per se, it was necessary for Cody to have pled and proven actual damages for defamation, which he had not done.

Cody v. Harris, — F.3d —, 2005 WL 1274352 (7th Cir., May 31, 2005).

Falsity in body of message not a violation of Act.

Internet Access Services Providers LLC filed suit in the U.S. District Court of Idaho against Real Networks under various provisions of the CAN-SPAM Act, 15 U.S.C. §7701 et seq. Real Networks moved to dismiss, and the court granted its motion. The court noted that pursuant to 15 U.S.C. §7704(a)(1), a commercial e-mail message must not contain materially false or misleading “header information.” Because the only falsity that the plaintiff alleged concerned a statement contained in the body of the email, the Act did not apply.

In denying the defendant’s award of legal fees and costs, the court declined to exercise its discretion to do so, given the relatively new and uncertain scope of the CAN-SPAM Act.

Internet Access Services Providers LLC v. Real Networks, Inc., 2005 WL 1244961 (D. Idaho, May 25, 2005).

The InternetCases.com Podcast, which for the past couple months has been released each week, is switching to a semimonthly format (every two weeks). This will help to ensure a consistent level of quality in the subject matter. If you enjoy listening to the InternetCases.com Podcasts, please vote for it at Podcast Alley.

Defendant was hired as an independent “escort” and accompanied her client to the Embassy Suites Hotel in Livonia, Michigan. During the encounter, a scuffle ensued, and the defendant shot her client. She was charged with and convicted of assault with intent to commit murder. At trial, the defendant argued self-defense, claiming that her client had attacked her first.

Throughout the trial, the defendant had maintained that she did not engage in prostitution, and that there was nothing illegal about the services she provided. Although the question of whether the defendant was a prostitute was not related to any of the elements of the crime or to her defense, the prosecution wanted to challenge her truthfulness. To do that, the prosecution introduced into evidence the defendant’s website, which she apparently used to attract new clients.

The defendant argued that this evidence was improperly admitted because it was not relevant. The court disagreed, however, and held that it was relevant to her truthfulness, and that the jury could properly consider it to determine whether or not she was likely telling the truth in her testimony. The court further held that the website’s probative value outweighed its prejudicial effect.

People v. Earle, 2005 WL 1224611 (Mich.App., May 24, 2005).

Amiel Dabush was 40 minutes late to a business meeting in Aberdeen, New Jersey, and he blamed his tardiness on the failure of the GPS system in his $70,000 Mercedes S-Class to show him the way. Although he didn’t lose any money or business from being late to the meeting, Dabush must have been pretty ticked-off, because he filed a class action lawsuit against Mercedes under New Jersey’s Consumer Fraud Act.

Dabush claimed that Mercedes misrepresented the quality of the GPS system in its marketing brochure which claimed, among other things, that “[i]f there’s a road that goes there, the S-Class can show you the way.”

The New Jersey Court of Appeals affirmed the trial court’s dismissal of the lawsuit on summary judgment, finding that Dabush’s “asserted loss was based on an unreasonable expectation of what was ‘promised’ in the brochure – a perfect navigation system that would include data of all locations and provide directions no matter where he happened to be at a particular point.” Such an asserted loss, the court held, was not an “ascertainable loss” required to sustain a cause of action under the state’s Consumer Fraud Act.

Dabush v. Mercedes-Benz USA, Inc., 2005 WL 1240196 (N.J.Super.A.D., May 26, 2005).