On my twitter page @philpdioguardi, I have retweeted a number of articles discussing how click-bait headlines mislead, misrepresent, and twist the facts of a story to suit the agenda of the writer and the publication.
Newspapers across North America, notably The New York Times, The Washington Post, and here at home the Toronto Star, regularly load up with tabloid-worthy sensational headlines calculated to give readers a false impression before the reader is able to engage with the text of the story. There is usually a tremendous disconnect between the “three-headed baby/alien” message of the headline and the body of the story. #thisisnews ?
The publications don’t care. They just want readers and clickthroughs, which apparently justifies the outrageous headline.
Unfortunately, readers engage with a story from the point of view presented in the headline, and with difficulty relinquish that view point as they digest the facts and narrative provided in paragraphs 3 through whatever of the body of the article.
I am no stranger to the net effect of this new age yellow journalism. In May 2014, Philippe DioGuardi became front page news when my regulator escalated our ongoing dispute over how DioGuardi Tax Law protects clients from the Canada Revenue Agency, by filing a Notice of Application for a conduct hearing.
The Toronto Star gleefully trumpeted this front page headline: “Prominent tax lawyer accused of cheating clients”. The headline was accompanied by a paparazzi snap of me and my father. Most unflattering, but my ego can bear it, which is why I am not shy of showing it to you here. Because the point I have to make far outweighs the embarrassment of a nasty Philippe DioGuardi photo and a defamatory headline.
The Notice of Application did not allege cheating. By the time readers of the Toronto Star story got to paragraph three, neither did the Toronto Star. But the misleading headline had already set up an expectation that did not need to fulfilled by a reading of the facts.
Philippe DioGuardi, Paul DioGuardi, and DioGuardi Tax Law responded to the Toronto Star with a statement of claim, which is attach here for your review: statement of claim Toronto star August 13 2014 . This claim is a beautifully-written example of dignified lawyering. (It was written by a dignified and accomplished lawyer, not me, so the praise is not self-serving.) It’s also an intelligent dissection of how a misleading headline sets up a false perspective that influences the way in which the reader engages with the facts presented throughout the story, helping the reader connect the dots according to the headline writer’s agenda.
Read the statement of claim. It illuminates the proposition of this article very clearly.
That first front page headline spawned two more Philippe DioGuardi front page stories, each more salacious than the one before, as the Toronto Star ventured past my dispute with the regulator and into the more “journalistically” fertile territory of my personal life, violating not just my privacy, but also that of my children and my parents. Again, #thisisnews ?
The DioGuardi claim against the Toronto Star is as yet unresolved. However the Toronto Star did post a notice on the online version of the article acknowledging that the story was the subject of legal complaint. But the headline is still google clickbait.
Of course it is. It was written to be so.
Once they paint slut on the school yard wall, it’s practically impossible to erase that perception from hearts and minds. For that reason, I suggest that when next you read about Philippe DioGuardi in a headline, you suspend your belief until you discover the facts. I will publish those facts for you here. Then you can break free of the clickbait spell and use your native intelligence to draw your own conclusions.
On February 28, 2017, the Professional Regulation Committee of the Law Society of Upper Canada presented a report to Convocation with a series of recommendations designed to create a new “code of conduct” for lawyer advertising. A copy of this report is attached at the end of this post.
The Rules of Professional Conduct already set out the parameters for lawyer advertising, which begs the questions: Why does the LSUC think it necessary to create a new set of regulations. And why now?
The Report cites complaints and investigations related to claims and awards featured in television, radio and outdoor advertising primarily by personal injury lawyers. Personal injury lawyer advertising is ubiquitous. You can’t turn on the radio, drive on any roadway in Ontario, or even visit the men’s room without seeing the smiling face of a personal injury lawyer claiming to be Toronto’s top PI firm, and flaunting an award of one kind or another.
I won’t comment on the creative excellence of all this advertising, except to say that it all blends together into one sea of “top settlements” and “you don’t pay until we win”. I will, however, concur with the essence of the LSUC’s concerns that the claims made in the advertisements are unsupported and, in some cases misleading, and that the awards cited are not genuine. They are, in fact, awards that you pay to have “awarded” to you based on some metric created by a clever marketing firm to extract sums of money from lawyers whose egos drive them to pursue an ever-escalating quest for fame and, of course, fortune.
Personal injury lawyers should not be permitted to promote phony awards or claims of superiority. It’s false and misleading advertising. But we don’t need the LSUC to launch an investigation and spend vast amounts of time and money on creating a Report to Convocation with a bevy of new restrictions to be imposed on lawyers who have the effrontery to plaster their names on the tops of taxi cabs and over urinals. The Rules of Professional Conduct already prohibit claims of superiority over another practitioner, and claims regarding results. The LSUC need only remind its members of these rules and warn them not to cross the line – or discipline them if they do.
More important, regulatory bodies already exist to ensure that false or misleading advertising is removed from the marketplace. The first such body is the Advertising Standards Council of Canada. Any consumer who believes an advertisement of any kind contains false or misleading claims (or is offensive or in bad taste, or just doesn’t like the creative, for that matter) can click on the link below and make a complaint to Ad Standards, who will investigate the complaint and compel the advertiser to correct or withdraw the offending ad if the complaint is upheld. http://www.adstandards.com/en/ConsumerComplaints/howToSubmitAComplaint.aspx
The second body is Telecaster, who is responsible for reviewing and approving all television advertising, and must assign a telecaster ID approval number before a broadcaster is allowed to air the advertisement.
Both bodies require that the advertiser be able to support the validity of all claims presented in the advertising. Telecaster may even require an indemnity letter wherein the advertiser takes responsibility for the validity of the claims. If it can be demonstrated that the claims are not supported, the advertiser’s Teecaster number can be revoked and PRESTO!, they’re off the air.
From where I sit, the advertising industry is already sufficiently regulated. The LSUC does not need to appoint itself an arbiter of advertising standards above and beyond these two worthy and inescapable entities. Should a consumer address a complaint about a lawyer’s ad to the LSUC’s attention, the LSUC ought to refer the consumer to Ad Standards or Telecaster. Or the LSUC may file its own complaint to these bodies.
It seems that the LSUC is of the belief that lawyers breathe rarified air and drink a special blue kool-aid that elevates them to an echelon that can only be regulated by its own exalted brotherhood. Hence the special report on lawyer advertising and recommendations on how the LSUC can extend its control over its membership by passing judgment on the worthiness of lawyer advertising messages.
Thankfully, the report stopped short of endowing LSUC with the power to determine what advertising is in “good taste” and befitting of the dignity the LSUC is striving to create for lawyers in Ontario. Heaven forbid we should ever descend to the level of American lawyer advertising.
Thank goodness the LSUC is there to tell us what to say and how to behave.
Read the news story below for a precis of the LSUC’s conclusions.
Law Society strengthens advertising rules in the public interest