When news broke last week about the Blogger having to pay out 2.5 million dollars in a lawsuit, you can just imagine the online buzz that ensued.
It stemmed from a case where a federal judge said the Blogger would have to be working for a mainstream media organization in order to qualify for protections given to Journalists. Many Bloggers were outraged at that statement, but should they be?
Here are some personal thoughts (and I promise not to use a lot of legalese.)
Let’s look at the general Merriam-Webster definition of a journalist and journalism:
a : a person engaged in journalism; especially : a writer or editor for a news medium b : a writer who aims at a mass audience.
1a : the collection and editing of news for presentation through the media b : the public press c : an academic study concerned with the collection and editing of news or the management of a news medium.
2a : writing designed for publication in a newspaper or magazine b : writing characterized by a direct presentation of facts or description of events without an attempt at interpretation c : writing designed to appeal to current popular taste or public interest.
As you can see from these definitions, it leans toward defining a Journalist as one working for a newspaper, magazine or otherwise providing stories that are factual and not personal opinion. Both definitions do have sections that favor Bloggers. Specifically the phrases “popular taste or public interest or “a writer who aims at a mass audience”. Sounds Blogger-like, right? Many would argue, however, that it is in the context of the definition as a whole, which clearly is news and data-source focused. Yet, it does provide food for thought.
While I cannot comment specifically to the actual facts as I have not read the brief or decision in this case, or whether the Judge relied on common dictionary definitions like the one above, I will respond to the general media points. Specifically, the Judge’s decision, which found that there was no evidence that defendant had any journalism education; kept notes of conversations and interviews; created an independent work product rather than assembling writing and postings of others; was affiliated with a recognized news entity; adhered to journalistic standards such as editing and fact-checking; had a mutual understanding or agreement of confidentiality with her sources; or contacted both sides of a story. (Source)
Furthermore, under Oregon law, where all of this went down, in a private defamation suit, the person defamed must prove that a defamer published the allegedly defamatory material negligently in order to receive damages. In other words, did she post false information and as a result, harm a business or person? Since the judge found that she did not fact check, didn’t keep notes, didn’t create independent work or contact different sides of the issue, as a journalist is apparently required to do in that state, she was found to have posted false information (since she did not take those steps) that harmed another.
What does this mean for bloggers generally? I don’t know, since I am sure this is not the last of this case (with appeals and such). Plus, it was very specific to Oregon law and each state has a different set of laws and definitions. So would the outcome have been the same in another state? Maybe. Maybe not. Will the case hold if it gets appealed? I don’t know. What is means is:
1. Bloggers beware: Unless you follow journalistic credentials (are you citing your sources, do you belong to a journalism organization), you are probably not going to be considered a Journalist under most state laws as they currently stand. Why? Because you are a Blogger. That is why we are called Bloggers and why Journalists are called Journalists. We have more freedom in our writing, but that does potentially open us up for more exposure. Honestly, we can’t have it both ways. If you would like to be considered a “Digital Journalist”, rather than a Blogger, your writing style and how you hold yourself out to the public should be different than your average Blogger.
2. Be a Change Agent: Since most state laws don’t recognize Bloggers in various protections afforded to Journalists (i.e. the Shield Law as claimed by the defendant), then you are legally exposed. What should happen, and what many Bloggers should get involved in, is changing our local laws to recognize the growth of social media. Facebook contests, Twitter parties, and blog posts all are shaping the ‘digital journalism’ realm and more people are ‘writing’ then ever before, whether is it just a personal blog with pictures of your kids, to a professional blog with reviews and giveaways, or if you have published an e-book. Lawsuits like these often shape local laws, but local laws themselves can be changed, and we have the opportunity to shape that change. While I personally don’t think we should be afforded the same things as Journalists since, again, we are not Journalists but are Bloggers, I think there should some legal expansion to recognize the changes in the online world.
3. Yes, you have free speech, but only so far: People throw around free speech claims all the time or claim certain ‘authority’ in their ability to do whatever they want online, but you can still be held accountable because there are a variety of laws. In other words, the first amendment or, say, the terms of service with YouTube are not the end-all-be-all to your legal protections. Because really, if it were, would there be so many lawyers in the world? I think not.
4. Protect yourself: This is a very volitle time, legally, in the world of social media, but it doesn’t mean you have to be exposed. Reach out to your local insurance agent and see about purchasing liability insurance. It can range from $200 a year to $1000+ a year, which depends on your blogging exposure, your own personal assets, and what kind of coverage you want. All in all, anyone can sue anybody these days. A liability policy, at a minimum, would cover the cost of a lawyer to defend a claim, whether it is a legitimate claim or not.
All in all, this case is interesting because of the continual changes it (and other cases) will have in the realm of social media. What we do today will shape the online world for our kids and grandkids. Personally, I want to a more active role in shaping it, rather than it shaping me. If you are in social media and want to be in it too, it is going to be a bumpy ride. But as pioneers, it is expected. Buckle up.
Disclosure: While I am a lawyer, I am not your lawyer. Nor should this post be construed as providing legal advice, legal claims or legal opinions in any form or on any matter. Furthermore, I received no compensation for this post.
Image Credit: sqback via stock.xchng.com
Hmmm… I don’t believe that bloggers, by definition, can’t be journalists. Nor do I believe that bloggers, by definition, are journalists. I think it’s the approach you take to your content that determines whether or not you are a journalist. The blog is simply a medium for expression. It’s how you use the medium that defines you. It’s like being a “painter.” Do you paint houses? Portraits? Toys? Fingernails (ok, that’s a stretch)? Cars? They all use paint, but they don’t all have the same skills, qualifications or results. The challenge is that we keep trying group everyone together based on the medium without there being any restrictions in place to control the medium.
What I do agree with wholeheartedly is that you “can’t have it both ways.” If you want to be treated like a journalist, you have to adopt a set of ethics, treat your content and your site with respect, check your facts and your spelling, and behave in a professional manner. It’s something I’m striving for on at least two of my blogs, although I don’t always achieve it!
Great post, Charlene. I know everyone was very outraged at not being called “journalists,” but only a small percentage of bloggers really function as journalists and I doubt they’d have much trouble getting that recognition.
Plus, this is really an extreme case where a blogger worked with the seeming sole purpose of creating negative content against a particular company. Obviously it’s not a typical blog. But I’d never dream of calling my blog “journalism” and I doubt most of us would.
Now, if we start writing for Pro Publica, that would be another story.
Thanks Jessica. Yes, this was a very particular case so many bloggers shouldn’t be too worried, but it is interesting to see the rise in legal claims against Bloggers now. Inevitable with all growth!
Totally agree. Even the basic dictionary definition shows how Bloggers aren’t Journalists. Let alone the facts of the case showing how the Judge showed the difference between a Blogger and a Journalist. Basic knowledge most of us know from school. From a legal perspective, it is interesting to see how Bloggers will be treated in the legal system in the future since it really is a new ‘class’ of people and writing. (And p.s. – you do a great job!)
I would rather not be considered a journalist and be safe under the current lack of laws surrounding the blogging world. I’m sure in 5 years from now there will be more restrictions on what we post.
Emily. So true! It is amazing how many rules have been implemented for bloggers just in the past 2 years alone. FTC disclosures, can’t run contests on Facebook, can’t require people to like you on Facebook for a contest entry, #spon hashtag when you have a sponsored tweet. The list is growing.