Pull Down Demand from Broadtrans Earthmoving - Advice?

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Pull Down Demand from Broadtrans Earthmoving - Advice?

Postby Aushiker » Wed Feb 22, 2012 1:39 pm

I have received the following email from the "Accounts Administration" at Broadtrans Earthmoving in relation to this video which BTW was reported to the City of Stirling who failed to act as they could not "view the video." Anyway that is neither here or there and really not an issue. The matter of interest is the email that follows...

[youtube]http://www.youtube.com/watch?v=pLDQ4GOgCBI&hd=1[/youtube]

Anyway the email is as follows:

I am contacting you on behalf of Broadtrans Earthmoving. We ask that you immediately remove a video you have posted on You Tube that features our business truck and one of our workers. If you have not removed the video or responded to our email by Thursday 23rd February 2012, 4pm we will be taking legal action.


My draft response is as follows ..

In reference to your "Letter of Demand" dated February 22, 2012. My apologies for the delayed response but I thought it prudent to obtain appropriate advice before replying.

My understanding is that your demand has no legal basis under both common law and state and commonwealth legislation as the recording is made public and is by no means defamatory. Therefore I will be declining your demand. However if you are able to provide appropriate legal advice supported by legislation and/or case law supporting your "demand" I will be happy to reconsider my decision.

May I suggest however, that more appropriate and positive response would be to take appropriate steps to ensure your company and its employes acts in an appropriate and safe manner in future and thus avoids such recordings.


Seeking suggestions on how I can improve my response.

Thanks in advance
Andrew
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by BNA » Wed Feb 22, 2012 2:25 pm

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Re: Pull Down Demand from Broadtrans Earthmoving - Advice?

Postby jules21 » Wed Feb 22, 2012 2:25 pm

andrew, IANAL, but i would recommend:
- not acknowledging the email
- as a precaution, removing the commentary from the Youtube page

presumably they would need to get a court injunction to force YouTube and then your ISP to identify you, in order to serve any notice. as they would struggle to prove you received the email ("i don't use that email account anymore, didn't receive it!") i'd imagine they would need to repeat the request in any personal correspondence to you. only then would i pull it down. make them work.

the fact that the 'legal' threat was sent by their Accounts Dept. suggests they may not be serious about incurring the cost of legal representation.
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Re: Pull Down Demand from Broadtrans Earthmoving - Advice?

Postby boyracer » Wed Feb 22, 2012 2:31 pm

I'd wager the first email they sent was to their pal in council for a back dated 'permit' to park on council land.
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Re: Pull Down Demand from Broadtrans Earthmoving - Advice?

Postby jules21 » Wed Feb 22, 2012 2:35 pm

boyracer wrote:I'd wager the first email they sent was to their pal in council for a back dated 'permit' to park on council land.

i think they'd struggle to justify a permit for stopping on a bike path.
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Re: Pull Down Demand from Broadtrans Earthmoving - Advice?

Postby zero » Wed Feb 22, 2012 2:43 pm

There is nothing else I'd add to your reply.

My understanding of the law is that the video is entirely safe - its a factual recording. The comment in the comments section is fine - they've indirectly confirmed the factual nature of your guess.

The comment with the video is more complex as you made an implication about the drivers thinking. It is extremely difficult for them to succeed with defamation in Australia, as they probably have more than 10 people working for them, all they can do is injurious falsehood, which would actually require them to prove that the comment cost them work.

I'd consider editing the comment - bearing in mind that the video is on youtube and thus may turn up in google searches for them.
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Re: Pull Down Demand from Broadtrans Earthmoving - Advice?

Postby hannos » Wed Feb 22, 2012 2:46 pm

if they require you to pull it down, do so, but not before you give me the video. Then I'll put it up :)
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Re: Pull Down Demand from Broadtrans Earthmoving - Advice?

Postby Mulger bill » Wed Feb 22, 2012 3:13 pm

Andrew, I'm very disappointed in you for insinuating that a "professional" road user would ever considering blocking a public carriage way, endangering other road use..pffft :lol:

Nearly got it out without laughing :wink:

Sod 'em. I'd be interested in knowing what grounds they have for demanding you pull it unless they are worried that concerned potential customers would choose not to use the services of a company that flouts road rules so blatantly. No prisoners.

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Re: Pull Down Demand from Broadtrans Earthmoving - Advice?

Postby Aushiker » Wed Feb 22, 2012 3:14 pm

jules21 wrote:andrew, IANAL, but i would recommend:
- not acknowledging the email
- as a precaution, removing the commentary from the Youtube page

presumably they would need to get a court injunction to force YouTube and then your ISP to identify you, in order to serve any notice. as they would struggle to prove you received the email ("i don't use that email account anymore, didn't receive it!") i'd imagine they would need to repeat the request in any personal correspondence to you. only then would i pull it down. make them work.

the fact that the 'legal' threat was sent by their Accounts Dept. suggests they may not be serious about incurring the cost of legal representation.


Thanks for sharing your thoughts and as always I value your input. That said I couldn't not respond to them for a couple of reasons:

(1) It is simply a matter of integrity to me and not replying is not my way nor is denying that I received it;
(2) Plus I have posted here so that could be easily found in a Google search.

With respect to the business I suspect the "accounts administration" is probably pretty much the administration at the business. This is not some large corporation. I also suspect that they haven't got a clue about the law and have been watching a bit to much TV ... of course I could have that wrong but I suspect the odds are in my favour with that call. I doubt that they have got any legal advice and decided off their own bat to send out a "letter of demand" as they called it.

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Re: Pull Down Demand from Broadtrans Earthmoving - Advice?

Postby Aushiker » Wed Feb 22, 2012 3:15 pm

zero wrote:There is nothing else I'd add to your reply.

My understanding of the law is that the video is entirely safe - its a factual recording. The comment in the comments section is fine - they've indirectly confirmed the factual nature of your guess.

The comment with the video is more complex as you made an implication about the drivers thinking. It is extremely difficult for them to succeed with defamation in Australia, as they probably have more than 10 people working for them, all they can do is injurious falsehood, which would actually require them to prove that the comment cost them work.

I'd consider editing the comment - bearing in mind that the video is on youtube and thus may turn up in google searches for them.


Thanks for your comments. I will look at the commentary.

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Re: Pull Down Demand from Broadtrans Earthmoving - Advice?

Postby PawPaw » Wed Feb 22, 2012 3:33 pm

How do you think the video came to the attention of Broadtrans?
In Qld :roll: , it is illegal to block (stop or park) in a designated bike lane. Wouldn't it be the province of the police rather than the council to deal with this?
Anyway, I'd suggest you not let the council get away saying they cannot view the video, and pesonally visit them with several different formatted copies.
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Re: Pull Down Demand from Broadtrans Earthmoving - Advice?

Postby rokwiz » Wed Feb 22, 2012 5:39 pm

Yeh,
Boofhead should know better, than to park on a cycle lane, nice random block stonewall by the way. Where is this taken ?
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Re: Pull Down Demand from Broadtrans Earthmoving - Advice?

Postby grantw » Wed Feb 22, 2012 6:52 pm

I think its always a good idea to try and gather more information from a potential pita, rather than providing them with points of dispute about case law and such. You really don't need to tell them what your understanding is, let them work it out for themselves.

Knowing their motivation though, is priceless.

IANAL but the video and subsequent comments do not appear problematic (for you), but they do make them (ie the earth movers) look bad and that's not in their best interest, especially if they're tendering for contracts and have a quality tick box for OHS and not annoying the locals. Their motivation for getting you to remove it could be many and varied.

In NSW for example truck drivers and other on road workers are generally required to wear hi visibility attire when outdoors of their cab and in the presence of traffic - it appears that the driver of the inconsiderately parked vehicle was otherwise difficult to see and not wearing hi visibility gear. A parking ticket is peanuts, but a work-cover investigation and fine is something else entirely..

Personally, if I were responding I'd drop the legal stuff, Thank them for contacting you: you are happy to discuss any issues they may have with the video. If they could let you know on what specific basis they think the video should be removed, you will be happy to consider their position.

This approach is helpful, and reasonable, costs you nothing (never volunteer information) - and loads it back onto them. They'll either come blustering back at you with threats and legless legal crap, or provide some realistic information at which point you may be able to persuade them to improve their drivers behavior.
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Re: Pull Down Demand from Broadtrans Earthmoving - Advice?

Postby Aushiker » Wed Feb 22, 2012 7:15 pm

grantw wrote:Personally, if I were responding I'd drop the legal stuff, Thank them for contacting you: you are happy to discuss any issues they may have with the video. If they could let you know on what specific basis they think the video should be removed, you will be happy to consider their position..


Sounds reasonable but I am not really interested in getting involved in a lengthily discussion with them. Maybe the one reply and see what happens then but I am not really keen on drawing this out,

Any more thoughts?

Andrew
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Re: Pull Down Demand from Broadtrans Earthmoving - Advice?

Postby Aushiker » Wed Feb 22, 2012 7:22 pm

rokwiz wrote:Yeh,
Boofhead should know better, than to park on a cycle lane, nice random block stonewall by the way. Where is this taken ?
Geoff


Telford Crescent, Stirling, Western Australia

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Re: Pull Down Demand from Broadtrans Earthmoving - Advice?

Postby jules21 » Wed Feb 22, 2012 7:28 pm

another thought - if it's defamatory, then YouTube are also potentially liable. i think that they would pull the video down, or at least contact you to request you do, before it got to the stage where YouTube would have to pass your IP details onto the company's legal team. in short, the fact that the company have emailed you suggests they don't have your personal details (you already know that i suppose) and probably don't have any obvious means of obtaining them. i think the risk of their taking legal action action you is probably minimal. but then, i've been known to be wrong :)

i know you want to keep it civil Andrew but i admit i tend towards digging my heels in when someone makes threats from a position of weakness. they should be apologising, not bluffing you.
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Re: Pull Down Demand from Broadtrans Earthmoving - Advice?

Postby uncle arthur » Wed Feb 22, 2012 8:48 pm

You might check (and quote) relevant local laws/traffic codes regarding parking of heavy vehicles in a designated bikeway in your reply.....

Put the onus back on them to demonstrate that the behaviour of their driver was both legal AND safe, in the eyes of the operations OH&S officer.
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Re: Pull Down Demand from Broadtrans Earthmoving - Advice?

Postby trailgumby » Wed Feb 22, 2012 9:10 pm

Rather than say "I will decline... However ..." i'd change it to "I'm not inclined to accede to your request at this time, however... " This is not an outright refusal but conveys your scepticism and with the rest of your excellent letter puts the onus back on them to justify why you should remove it. No court will penalise you for negotiating in good faith. Their response may open options to deal with their specific complaint without removing the vid (eg, some of the commentary)

However, the commentary as I just observed it at 10:41pm AEST 22/2/2011 looks to me to be entirely safe. It is factual, and with your "it seems" comment you are reporting your impression of the behaviour you observed, which an odinary and reasonable person would make.

(I can envision a couple of scenarios that *might* justify their being there, but I won't outline them here lest a search pick them up. They can ruddy well make up their own excuses!)

I'd close the Youtube vid to further comment for now, and then once you've had a couple of email exchanges with them, post the correspondence in the video comments.

If they're accusing you of destroying their reputation, my response would be that it's not the video that's doing so, but their behaviour that has done the damage, and their attempt to bully you into removing the evidence that is making it worse. Every organisation makes mistakes - an apology and commitment to remedial action would make a much better impression
Last edited by trailgumby on Wed Feb 22, 2012 9:52 pm, edited 1 time in total.
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Re: Pull Down Demand from Broadtrans Earthmoving - Advice?

Postby KenGS » Wed Feb 22, 2012 9:52 pm

Why waste energy on lots of words?
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Re: Pull Down Demand from Broadtrans Earthmoving - Advice?

Postby Downhill » Wed Feb 22, 2012 11:57 pm

I'd be inclined to ask them to outline the reasons for their request rather than encouraging them to "go legal". It's a perfectly reasonable response and will provide you with additional information. If they stated something like, "it makes us look bad..." then it could add weight to your case.

Then again, they might have a perfectly good reason for asking for the video to be pulled down, and the driver might have a good reason for getting off the road (though I would have expected hazard lights & cones if that was the case).
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Re: Pull Down Demand from Broadtrans Earthmoving - Advice?

Postby Aushiker » Thu Feb 23, 2012 12:07 am

trailgumby wrote:Rather than say "I will decline... However ..." i'd change it to "I'm not inclined to accede to your request at this time, however... " This is not an outright refusal but conveys your scepticism and with the rest of your excellent letter puts the onus back on them to justify why you should remove it. No court will penalise you for negotiating in good faith. Their response may open options to deal with their specific complaint without removing the vid (eg, some of the commentary)


I like your suggestion. With yours and others this is coming together nicely.

However, the commentary as I just observed it at 10:41pm AEST 22/2/2011 looks to me to be entirely safe. It is factual, and with your "it seems" comment you are reporting your impression of the behaviour you observed, which an odinary and reasonable person would make.


Nothing changed from the initial posting, but the comments section is now moderated. If I go to no comments it removes them from display.

Thanks
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Re: Pull Down Demand from Broadtrans Earthmoving - Advice?

Postby Oxford » Thu Feb 23, 2012 5:01 am

I've had the same threats and have never removed any videos. One entity even tried to get YouTube to tell me to take a video down. Don't be verbose with your reply, gives them too much to hang you with if they do try something on which they cannot. I would do two things: remove any comments and ability to comment videos, I do for all of mine to remove defamatory capability; and remove your comments and simply let the video stand on its own. The video on its own is factual and not illegal, everything else is personal commentary and is where potential trouble lies.
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Re: Pull Down Demand from Broadtrans Earthmoving - Advice?

Postby rolandp » Thu Feb 23, 2012 7:36 am

Andrew, I'll visit you in jail.

I've also got additional photos of the area as this is not a once off occourance though my images are of the license plate number and I can't say if it was the same company.

Unfortunately I didn't ride yesterday, otherwise you would have had a second person reporting this to stirling via neatstreets.
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Re: Pull Down Demand from Broadtrans Earthmoving - Advice?

Postby RobertFrith » Thu Feb 23, 2012 8:58 am

Another non-lawyer, there are an awful lot of us aren't there? As a professional photog. I do have some exposure to this issue. If you are situated in a public place you are within your rights to photograph or film anything you like.

It's how you subsequently use the photographs/film that is an issue. If it used to report on a matter of fact (such as a Broadtrans truck parked in a bike lane with no apparent traffic management in place) all is well. If it used to promote a product, service or opinion the subject or owner of the subject may have grounds to ask for you to stop using the film/photo or for $.

People have developed some weird ideas about privacy in the last decade. I agree with Oxford, keep the letter short, they don't deserve any more. They have no idea, let their lawyer sort them out (if indeed they follow through with this pathetic tv lawyer soapie style threat).

I reckon your reply should just read "No" :D

If you are going with a more polite (verbose) reply, you currently have 3 "appropriate"s in one sentence. It reads better if you simply remove the first two.
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Re: Pull Down Demand from Broadtrans Earthmoving - Advice?

Postby find_bruce » Thu Feb 23, 2012 11:05 am

Hey Andrew,

it's funny to see how many people are keen to point out they are not lawyers - not sure if this is because they are concerned to (1) distance themselves from the otherwise sterling reputation of lawyers or (2) ensure they are not providing "legal advice", despite all evidence of you being a careful & considered person who is most unlikely to be silly enough to follow "legal advice" given for free by someone over the interwebs.

If you don't want to enter into a debate with them, then, as others have said, keep it short and sweet. The company is wanting you to take action so they need to persuade you to do so. So far that has been simply by making some vague threat of "legal action" without any justification. To be fair, a quick look at the company’s website suggests this is a small company.

In drafting your response, I would suggest you think about why you post these sort of videos in the first place. Your motivations are your own & I could be completely wrong, but as I understand it, you post them as a warning to other cyclists and because of a desire to improve the behaviour of these drivers and companies.

The company may not know it, but their email says they know about this driver's behaviour, which helps to establish their vicarious liability for his future behaviour - they cannot now say "this was contrary to company policy & we didn't know he was doing it".

The other thing to remember is that if, god forbid, this matter should end up getting more serious, you want the reader to be struck by how polite and considerate you were.

I would suggest something short and sweet along the following lines.

Thank you for your email. I am pleased to hear that this video has come to the attention of your company as, in my opinion, parking a truck and trailer combination on a bike path is neither smart nor considerate. It appears from your email that you are conscious of the importance of your legal obligations and I hope that you will take all necessary action to ensure there is no recurrence of this practice.

Concerning your request that I remove the video, I am presently unable to properly consider your request as you have not provided any reasons as to why I am obliged to do so. Accordingly I am not inclined to accede to your request at this time, however I will reconsider the matter if you provide any proper basis for the removal of the video.
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Re: Pull Down Demand from Broadtrans Earthmoving - Advice?

Postby trailgumby » Thu Feb 23, 2012 11:36 am

^^ This is a further improvement.
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