Friday, December 9, 2011
By: Angela Render
A US District Court Judge in Portland, Oregon has ruled that a blogger who wrote critically about a finance firm is libel for defamation, and is not protected under Oregon journalism shield laws. She’s been ordered to pay $2.5 million in damages (Oregon Judge Rules Bloggers Aren’t Journalists.)
This is an interesting ruling on a number of levels. Of most importance to you bloggers who are reporting on the world around them, is that you are not immune to libel. What essentially happened is that the blogger in question wrote a long list of negative and damaging things about a company. That company called her to task for defamation of character (libel), and she claimed that she could not reveal her sources and that she was protected under journalism shield laws. The judge said that since she was a blogger and not a journalist, she was not protected under those laws and that since she couldn’t back up her claims with facts, she was liable for damages.
Too often, bloggers feel that since they have first amendment rights to speak freely and it’s their blog, they can say whatever they want. You may have the right to say it, but anyone you happen to hurt has the right to sue you for damages – and in this case win.
Lesson: Think before you type.
On another level, this case is interesting in that the judge essentially said that if you aren’t performing investigative journalism for an established newspaper, magazine, or other media channel, you aren’t an investigative journalist. I’m not defending libel or your constitutional right to commit it. I’m just saying that the way the law was interpreted in this case opens up a few questions.
What if a professional journalist (or a writer with a journalism degree just getting started) researched and posted an article on their blog rather than for an established media? Are they suddenly no longer a journalist?
For that matter, who is to define “established?” There are lots of start-up periodicals every year. How long must they have been in business to be “established?” Does print equal “established?” What does this mean for ezines or for those periodicals that have stopped their print versions and gone solely online?
Or does “established” and “journalist” mean that money has exchanged hands for the article? If that’s the case, what if a large company starts up an industry ezine where their employees post news tidbits? How long before the company is considered “media” and their employees “journalists?”
Is it the “blog” software that should be the defining factor? Here’s one for you. Did you know that news.cnet.com uses blog software (or a content management system that behaves like a blog) to power their online presence? Any smart news media does because it’s easy for their journalists to input their own content, it organizes the content easily and intuitively, and displays the most recent articles first, automatically archiving older content. For journalists and news media like, what’s not to love about blogging software?
An attorney who drafted Washington state’s 2006 shield laws, Bruce E. H. Johnson, says that the Oregon shield law appears to have been written before blogging was accounted for and that Washington state’s laws would have protected the blogger.
Would they? Oregon’s law includes in its definition of a “medium of communication,” the words, “includes, but is not limited to…” and then a long list of examples. That is not limited to should have covered a blog. I think in this case they’re missing the point. Telling damaging lies about people or companies isn’t legal and if you can’t back up what you said you’re going to pay for it.
Needless to say, the blogger is appealing the ruling so there will be more on this from a higher court.
What does it mean for bloggers and ezines? Honestly, it’s too soon to tell. The writing and publishing industry is in flux with ebooks, POD, and self-publishing in direct competition with traditional publishing houses. Bloggers are competing with established media and any legal precedent can have lasting ramifications from protection of sources up to and including what constitutes a reprint. A federal ruling on what a “journalist” or a “media” is will be huge.