Arguments from Posung side

1. Whether the TV commercial aired by Posung amounts to Disparagement?

Competitive Comparison: Comparative advertising is a common practice in the market.

Posung's commercial merely presents its own products in a positive light compared to non-
Posung devices. This does not necessarily amount to disparagement, as the aim is to highlight
product advantages rather than malign competitors.

Factual Basis: The commercial's claims about Posung phones being water-resistant, dust-
proof, and easily connected might be factual, backed by actual features of the product. If the
claims are based on accurate information, they can't be considered disparaging, but rather
informative.

Freedom of Expression: Companies have the right to communicate the benefits of their
products to consumers. Posung's commercial can be seen as a legitimate exercise of free
speech, sharing the advantages of their products without directly attacking competitors.

Humorous Approach: The commercial's portrayal of the struggling person could be

interpreted as a humorous depiction rather than a malicious attack. Humor is subjective and
can be used to engage consumers without necessarily intending to disparage competitors.

Consumer Education: The commercial's intention could be to educate consumers about the
benefits of Posung phones, not necessarily to harm the reputation of other products.
Providing accurate information about one's own products doesn't inherently disparage others.

No Named Competitor: The commercial doesn't mention any specific brand or product by
name. It draws a general comparison between Posung devices and unnamed non-Posung
devices. This lack of specificity might weaken the argument that it's specifically targeting a
competitor for disparagement

2. Whether the Kyutube video uploaded by Capple amounts to Disparagement?

Unsubstantiated Claims: The video captures a presenter from Capple comparing tphones to
non-tphone devices using terms like "mass production plastic phones" and labeling non-
tphone users as "luddites." These derogatory terms and characterizations are not supported by
any specific evidence or factual information, and they could be seen as an attempt to demean
competing products and their users.
Negative Implication: The video, by using negative terms and generalizations, creates a
negative implication about non-tphone devices and their users. This could influence viewers
to perceive these devices as inferior, thereby potentially damaging the reputation of non-
tphone manufacturers in the market.

Public Dissemination: The video was widely circulated on Kyutube, garnering significant
attention and views. The fact that this negative comparison was shared publicly and widely
could contribute to the argument that it was intended to undermine competitors in the eyes of
the public.

Commercial Motive: The context in which these comments were made matters. As part of a
live launch event for Capple's new products, the comments could be viewed as an attempt to
position tphones in a favorable light while belittling non-tphone devices, thereby potentially
benefiting Capple's commercial interests.

Potential Harm: If the comments made in the video are perceived as truthful and trustworthy
by viewers, they could have a detrimental impact on the reputation of non-tphone
manufacturers and their products, potentially leading to a decline in market share and
consumer trust.

Competitive Advantage: The video could be interpreted as an attempt to gain a competitive

advantage by tarnishing the image of competing devices. If Capple's intention was to position
their products as superior by devaluing non-tphone devices, it could be seen as a form of
disparagement.

Misleading Information: If the presenter's comments are based on misleading or inaccurate

information, it could further strengthen the argument that the intention was to discredit
competing products unfairly.

3. Whether the TV commercial aired by Capple amounts to Disparagement?

Negative Depiction: Capple's TV commercial portrays a person burdened with an oversized

phone that catches fire. This negative portrayal of an unidentified phone suggests that non-
tphone devices are unreliable and even hazardous. This portrayal could be interpreted as an
attempt to undermine the reputation of competing devices.
Comparative Messaging: The commercial explicitly contrasts Capple's phones with the
unidentified devices, implying that non-tphone devices are cumbersome and dangerous. This
direct comparison suggests that Capple's products are superior by highlighting supposed
drawbacks of competing products, which can be seen as a form of disparagement.

Damage to Reputation: The visual depiction of an oversized phone catching fire could
negatively impact the reputation of non-tphone devices and their manufacturers. This
portrayal could lead viewers to associate non-tphone devices with safety hazards, potentially
causing harm to their market reputation.

Inaccurate Representation: If the portrayal of the non-tphone device catching fire is based on
inaccurate information or does not reflect the actual state of competing products, it could be
viewed as misleading and contribute to the argument of disparagement.

Commercial Gain: The commercial ends by encouraging viewers to switch to tphones for
"speed, convenience, and productivity." This could suggest that non-tphone devices lack these
qualities and are thus inferior, potentially influencing consumer preferences based on
unsubstantiated claims.

Competitive Motive: Given that the commercial is produced by Capple, a direct competitor of
other smartphone manufacturers like Posung, it can be argued that the commercial was
motivated by a desire to gain a competitive edge by diminishing the image of rival products.

Potential Consumer Confusion: The visual depiction of an unidentified phone catching fire
might create confusion among consumers who could associate the depicted incident with
devices produced by other manufacturers, including Posung.

4. Whether the law of Disparagement is valid in light of Article 19(1)(a) of the

Constitution of Intovia?

Constitutional Protection: Article 19(1)(a) guarantees the right to freedom of speech and
expression, which includes the right to express opinions, ideas, and information.
Disparagement laws, if applied too broadly, might encroach upon this fundamental right,
limiting individuals and companies from expressing their views on products and services,
even if those views are critical or negative.
Subjective Nature of Disparagement: Determining what constitutes disparagement can be
subjective and open to interpretation. Disparagement laws might be prone to misuse, as
statements critical of a product or company could be labeled as disparaging, stifling
legitimate criticism and debate.

Chilling Effect: Strict enforcement of disparagement laws might have a chilling effect on
open discourse and honest critique in the marketplace. If individuals and businesses fear legal
consequences for expressing their opinions, it could stifle innovation and competition.

Consumer Information: Disparagement laws could hinder consumers' access to honest and
accurate information about products and services. If individuals and businesses are afraid to
share negative experiences or criticisms, consumers may be deprived of valuable insights for
making informed decisions.

Public Interest: In the realm of technology and business, transparency and accountability are
vital. The right to express concerns, critiques, and even negative opinions about products
serves the public interest by promoting healthy competition and driving improvements in
products and services.

Balancing Rights: While protection against false statements is important, it is equally

essential to strike a balance between protecting reputation and upholding the right to free
speech. Any law restricting speech must pass the test of being necessary, reasonable, and
proportionate to the purpose it seeks to achieve.

Defamation Laws: Intovia's legal framework likely already includes defamation laws to
address false statements that cause harm to reputation. These laws provide a mechanism to
address false information without potentially infringing on the broader right to express
opinions and critique.