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Puffery drift
I continue to be fascinated — maybe uniquely so? — by puffery. Probably because of the marketing background, but the notion that being untruthful is okay if the lie is extravagant enough that a layperson wouldn’t believe it 1my own words; I’m working on a set of definitions in case law, which will be interesting (to me, anyway). is not only intriguing, but I’d argue in some ways necessary to modern advertising.
At the far end, it makes perfect sense. If you watch an ad for Skittles and a unicorn touches a couch with its horn and the couch turns to Skittles, it would be preposterous for somebody to sue the Skittles people if a furniture-transforming unicorn fails to appear when they open a pack.
But at the other end of the spectrum, there’s a line past which the grey starts shading into black, and judges are making very nuanced decisions based on, I’d argue, very little guidance. Looking at CanLII, the word ‘puffery’ has been used a lot in court decisions in the last few years, with subtypes of puffery including…
- “election puffery,” examined repeatedly by the Nova Scotia Labour Board (there seem to be a lot of union disputes in the Maritimes these days)
- Criminal court, where puffery has been raised as a form of braggadocio under which somebody claiming to have committed acts of violence was clearly using puffery to enhance their rep, but not seriously confessing to crimes
- Privacy statements, even granular ones such as “[COMPANY] complies with all applicable privacy laws, rules, and regulations in the jurisdictions within which it operates”.
Nothing substantial here today, but a bit of a placeholder to remind myself that I’d like to unpack this a bit more.
- 1my own words; I’m working on a set of definitions in case law, which will be interesting (to me, anyway).