Filed under: Analysis / Opinion, iPod Family, Bad Apple
Apple most assuredly NOT slapping family with "gagging order" over iPod fire
Across the pond in the UK, in what may be a bit of a legal "lost in translation," an 11-year-old girl was using her iPod when, according to her, there was a hissing noise and an ominous pop. It rapidly heated, and then allegedly jumped 10 feet into the air. She was left with a melted mass of unplayable music. Needless to say, not usual iPod behavior. (To be fair, you might not be surprised at spontaneous suicidal combustion after asking it to play anything by, say, Paris Hilton, though there's no evidence the girl committed that particular crime against nature.) She and her father contacted Apple, seeking a refund for the presumably out-of-warranty iPod. Apple apparently agreed to return the purchase price of the iPod, and sent a letter to the family offering the refund, denying overall liability with regard to the incident, and included a standard confidentiality clause in it.
This is where things went a bit off the rails.
The little girl's father went ballistic, refused to sign, and soon enough, there was press coverage. The Times UK covered the incident, complete with photograph of the girl holding her toasted iPod, accusing Apple of slapping the girl with a "gagging order" and attempting to "silence" them, mafia-style. Whoa, there, Times.
1) This is no gagging order. As nice and evil and meaty as such an accusation sounds, a gagging order comes from a court and no court is involved here. It implies that Apple has gone after this family legally, and that there's been a hearing and a decision and a court order. Quite the opposite. This is just a regular, ho-hum contract between two parties, describing the things they want out of each other.
While the family may be shocked they got a letter, from a legal perspective they should be shocked if they didn't get one. Apple doesn't feel like they've done anything wrong and isn't going to start admitting its products are combustion risks by returning money out of warranty, which is exactly what it would do it if gave money to these people without some sort of settlement agreement.
2) A confidentiality agreement is standard operating procedure. Sure, a letter filled with legalese is a little heavy-handed, but hey, the iPod was out of warranty and when a company agrees to give you money it doesn't feel it owes you, especially in a situation such as this one, it can very well request confidentiality you keep your trap shut about it going forward. It's standard practice even when the company thinks it probably does owe you money. No courts are involved, and litigation is spared where the parties would fight over whether or not the money is owed. And when a confidentiality agreement is sought, it's also pretty standard to remind the parties the possible consequences of breaching the agreement.
Remember: no court is involved here and Apple and this family can reach whatever agreement they want. If the family wants an admission of liability from Apple, they remain absolutely free to pursue a lawsuit in which it will be determined whether or not Apple is at fault. And now, of course, having disclosed all the contents of the letter, Apple I'm sure has rescinded whatever refund it offered.
The UK Times has vastly overstated the standard form letter that Apple sent to them when they sought an out-of-warranty refund. I suspect, however, that Apple could have averted this public relations issue had it said, "look, we're happy to give you your money back. We have no idea why that iPod went kablooey. It could be any number of reasons, including many that don't involve us at all. So if you want us to give your money back, we will, but you have to agree not to discuss it. Why? Because that way people won't think we make defective and dangerous products when it's not at all clear that we do, and giving you your money back is good business, not an admission of liability." And then, when a legal-sounding letter shows up in the mail, nobody is shocked.
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Reader Comments (Page 1 of 4)
Jim said 10:48AM on 8-03-2009
Mindless defense of apple here.
As usual.
It doesn't excuse the fact that IPODS ARE CATCHING ON FIRE and as you've stated, apple feels it's done "NOTHING WRONG."
If this were a Zune, you'd be the first person on the bandwagon.
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Edd Morgan said 11:05AM on 8-03-2009
Ahem, mindless attack of the blogger?
Nowhere does this post defend the exploding of iPods (a problem which has been around for quite a while with most consumer electronics, by the way, not just iPods. Laptop batteries and power 'bricks' are famously very prone to 'splosions).
And he's right, Apple have done nothing wrong. Confidentiality agreements are of course standard procedure. And hey - who says it's a confidentiality agreement about the faulty iPod she had? Maybe it's to make them keep schtum about the fact that they're offering her an out-of-warranty refund and they don't want everyone to feel that they deserve one.
If I was Apple, with a product that had a 1 in a metric zillion chance of being explosively faulty when used, I'd want to keep that under wraps as much as possible. I'd then use the incident to breathe down the necks of my manufacturer to make them take greater care (because this is clearly not a design defect), threatening to take my very valuable contract elsewhere.
Tom Goetz said 11:06AM on 8-03-2009
I have to agree that this article seems to have a Apple can do no wrong slant.
nomadic0ne said 11:41AM on 8-03-2009
I disagree.
I read this article as a criticism of exhibitionist media and overreacting to standard corporate policy.
I'll admit. I like Apple. Not ALL of Apple, as they are definitely too heavy handed and blunt in many ways, but most of their products and services I'm a fan of.
However, every company can put out a malfunctioning product and all of them would likely respond similar...or maybe with slightly more finesse. (But hey, it's Apple, finesse is not a word their legal or PR teams know.)
Izzy said 3:57PM on 8-03-2009
Regardless of any slant, it sounds like the UK story is extremely exaggerated. There are no materials in any ipod to give it enough thrust to fly 1 foot, let alone 10 feet. The damn thing fried, they were offered a refund with the usual crazy Apple letter saying they weren't at fault. The END.
But as usual someone wants to sue. But in the UK, if they want to sue and they lose, they have to pay Apple's legal bills. It helps stop those frivolous lawsuits like "I didn't know coffee was hot." BS.
Martin Greenberg said 1:20PM on 8-11-2009
This sentence in your retort perfectly summarizes what's wrong with TUAW, "Nowhere does this post defend the exploding of iPods (a problem which has been around for quite a while with most consumer electronics, by the way, not just iPods. Laptop batteries and power 'bricks' are famously very prone to 'splosions)" You say that you're not defending the exploding of iPods, but then you go ahead and say, "Oh, yeah, well, uh...OTHER COMPANIES DO IT TOO!"
And that's funny that you would mention that. It's true that other companies have exploding batteries, yet TUAW's coverage begs to differ with your opinion of your own reporting as being neutral.
In this article on Sony's battery woes (http://www.tuaw.com/2006/08/25/sony-announces-price-on-battery-recall-checks-couch-for-loose-c/) says, "The moral of this story? QA is a good thing."
In this article about the same (http://www.tuaw.com/2006/10/25/sony-sorry-about-all-those-batteries-can-we-still-be-friends/), it says, "Poor Sony, they just can't seem to win lately. At least they have apologized for those batteries that had a tendency to make laptops burst into flames, and that has to count for something right?"
Engadget, in the same network, said this (http://www.engadget.com/2006/06/29/dell-looking-into-flaming-laptop-incident/) about the Dell laptop explosions, "You've got to hand it to Dell; even though its laptops may burst into flames at the most inopportune moments, at least the company has the good sense to conduct a prompt and public investigation into the matter"
When a Nano exploded all you did was comment that there were some photos.
When a Powerbook caught fire all you did was dig at Dell and make a joke about recalls.
Not a very neutral track record; blogs that cover PCs rarely make digs at Macs. And that's the problem I have with Macs. The products are fine, but the people who buy them are largely buying them out of worship for Steve Jobs. They see themselves as sitting on a very high throne while the filthy Windows peasants struggle with pestilence and famine below them.
Michael Belong said 10:49AM on 8-03-2009
Those people are probably Microsoft plants faking an incident in an attempt to try and put a damper on Apple's credibility and quality consumer appeal.
"Yes they deserve to die, and I hope they burn in hell!"
—Samuel L. Jackson
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Cal said 2:18PM on 8-03-2009
Profound.
Brian said 10:53AM on 8-03-2009
Please stop the robotic Apple zealot overtones and write something with substance.
The articles I read this morning compared it to a "gag order". Given the text of the letter Apple sent threatening legal action if the family ever disclosed the event it sure sounds like a good comparison.
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JKT said 11:49AM on 8-03-2009
You didn't even bother reading the article. Your claim is SPECIFICALLY refuted in it. Directly and on point. Please stop posting and wasting our time until you have the courtesy of reading what you're responding to.
John Meadows said 10:55AM on 8-03-2009
It's amazing to see how much latitude, and benefit of the doubt Apple is given, compared to whenever evil twin Microsoft is naughty.
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John alder said 10:56AM on 8-03-2009
Though in addition Apple should employ a linguistic expert so "gone kablooey" can be translated to the appropriate language.
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jb510 said 10:56AM on 8-03-2009
Remember when people and companies just accepted that shit happens and they didn't go all postal over anything and everything?
Who knows what the real intent of Apple's request for confidentiality was, maybe they simply don't want the fact they give money back out of warranty made public because they'd have magnitudes more customers demanding and EXPECTING money back out of warranty regardless of the circumstances.
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Gilbert Davis said 12:12PM on 8-03-2009
Remember when an item would blow up and the company that made it didn't immediately descend upon you with lawyers to harass you and opposition research to besmirch you character? Yeah, the good old days indeed.
You know, last time I looked at consumer electronics one of the things that say - Consumer Reports tests, is the ability to survive being dropped or not. I don't recall them testing anything that passed the test which would blow up after being dropped and I don't recall anyone saying it's okay that something explodes because it is a couple of years old. - Like that would make a difference - it doesn't even make a good argument.
DAJ said 11:01AM on 8-03-2009
I think this comes down to the fact that here in the UK we are not used to the 'gagging' clause as we do not share the same litigious culture as our friends over the water.
UK people are more reserved and don't like to make a fuss when complaining. Clearly the father was most perturbed with the Apple approach
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puhsitch said 2:44PM on 8-03-2009
Yeah, but if you keep repressing the natural human "fuss" instinct, it'll just end up coming out in, you know, unhealthy ways.
James Donevan said 11:03AM on 8-03-2009
@Brian
The header on The Times story (where all these reports originated) reads:
"Apple tried to silence owner of exploding iPod with gagging order". That seems pretty clear in its meaning - although totally wrong.
Hirsch's piece is right on the mark. While not the best PR move perhaps, Apple had no reason to offer even a refund. The iPod was broken by the father, it was not faulty. This all smells more like an irate customer trying for a tidy payout, is rejected, and goes to The Times. The latter revels in these kind of 'champion the consumer' pieces where they draw coverage across the media.
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VanillaSpice said 12:28AM on 8-04-2009
Yes, thank you! Finally someone has the guts to say it - this family could easily have had all their *reasonable* expectations met. The problem was, the father wanted an *unreasonable* payout, and decided to try and use the media to obtain it.
The only real criminal here is The Times, which has knowingly colluded in an individual's attempt to defraud a company by forcing them into an unreasonable settlement.
ars_workerbee said 11:04AM on 8-03-2009
*golfclap*
great breakdown of the latest iPod fearmongering going around.
For all the folks saying "zomg but what if it was microsoft?!!?" well, I'd say the same thing. A few dozen failures out of hundreds of millions of units is going to happen, especially in the event that the unit is damaged (as in this case, they dropped it first).
Everyone needs to calm down and take a deep breath, much as Lauren has done here.
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Mathias Bengtsson said 11:09AM on 8-03-2009
Please. Although I think the article IS on the verge of fanaticism, people are overreacting, badly. Ever signed up to facebook? Ever signed up to any other internet service, or anything at all? We agree to all kinds of stuff, almost daily, just that we never bother to read it. This family did, and because of that it's all over the news, but that doesn't mean it's something new.
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