Jenny Hui

Breitbart vs. Kellogg’s: When business gets politicized, terms get forgotten

December 23, 2016

Links from this article: serving up bigotry at your breakfast table pulled its ads from the website Source SHOCK: Amnesty International Blasts Kellogg’s for Using Child Labor-Produced Ingredients

Breakfast is the most important meal of the day, but you’ve probably never heard of your morning bowl of cereal “serving up bigotry at your breakfast table.” That’s what conservative news source Breitbart said about Kellogg’s just this past week. Kellogg’s was scrutinized on social media for advertising with Breitbart, and as a result pulled its ads from the website citing the website’s values “aren’t aligned with the values of the company.” In quick succession, many other companies pulled their advertisements from Breitbart, including names like Allstate and Warby Parker. SourceBreitbart has responded with swift and uncalculated retaliation, calling for people to #DumpKelloggs by boycotting the food company’s products. The news website has also been publishing a series of articles that stir up old negative publicity about Kellogg’s, including headlines like “SHOCK: Amnesty International Blasts Kellogg’s for Using Child Labor-Produced Ingredients” and “Criminal Investigation Opened After Man Appears to Urinate on Kellogg’s Cereal Assembly Line.” First things first, none of these companies had any idea who they were advertising with—they all work through third-party agencies that target and make deals for them. As a result, Breitbart isn’t exactly justified in saying Kellogg’s is a hypocrite for backing out when they never directly committed to them anyways. The politicization of this point is what has left the issue much more complex than the business of it. Breitbart is a right-wing news source—some might even say alt-right. The public pressure companies face is often more left, making the waters of corporate social responsibility murky. It is useful to look at the situation objectively. Breitbart did not have a contract with Kellogg’s, and Kellogg’s did not have one with Breitbart. Instead, their dealings were mediated by a third party marketing or advertising agreement. Inside of this agreement, the contractual language related to termination is key. The agreement would have, ideally, well-constructed and fair termination clauses. Termination for Convenience allows a party to, unilaterally, end an agreement upon notifying the other party, with reason or not. More restrictive would be Termination for Cause, where a reason is required and often comes from a predetermined list of reasons. Keeping that in mind, and whatever termination language is in the Breitbart-Kellogg’s contract, there probably isn’t any sort of breach of contract. Breitbart isn’t pursuing action for them leaving the agreement for any contractual reason. They’re just sore about it, and that’s where real action could be taken—by Kellogg’s. Source: NY PhotographicKellogg’s may choose to bring a libel claim against Breitbart. Libel is defined as “a written or oral defamatory statement or representation that conveys an unjustly unfavorable impression.” This is where more specific termination language related to defamation, non-disparagement, and libel and slander would have been useful for Kellogg’s to push for inclusion in their contracts. It would give them the footing to hold Breitbart to civil liability and make up for losses caused by this whole controversy. However, at this time Kellogg’s doesn’t look like it’s going to diverge from its aim to disengage, even as Breitbart continues to instigate. Libel can be difficult to prove, but it is not impossible. For example, in Leenen v. Canadian Broadcasting Corp. (2001) (ONCA), the CBC aired a television special on the questionable use of potentially harmful heart medication by cardiologists that was found to have been defamatory. To prove the cardiologist’s claim of libel, the statement had to be made to a third party, be identifiably about the cardiologist, and considered defamatory by the judge. In deciding if what a party has done is libelous or not, the courts often have to consider if what was said can be considered a fair commentary on the situation, or if it was justified as per public interest. Of course, the politics of the issue would become relevant at this point. However, it can be difficult for the law to offer an opinion, because the question here would essentially be who is speaking the truth, the right or the left? That’s a scary question to have the law decide upon, so perhaps it’s for the best that that question isn’t being brought up.To see a standard software development agreement, visit our Small Business Law Library!

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Written by Jenny.