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Blogger Not Covered By Journalists' Legal Protection: Fined $2.5 Million

 3:59 pm on Dec 7, 2011 (gmt 0)

Blogger Not Covered By Journalists' Legal Protection: Fined $2.5 Million [guardian.co.uk]
A blogger in the US state of Oregon has just been ordered by a court to pay $2.5m (1.6m) to an investment company because of a defamatory posting.

Crystal Cox was sued by investment firm Obsidian Finance Group for writing several blog posts that were highly critical of the firm and its co-founder Kevin Padrick.

She argued in Portland district court that she should have the same legal protection that is afforded to journalists.

"Although [the] defendant is a self-proclaimed 'investigative blogger' and defines herself as 'media,' the record fails to show that she is affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system. Thus, she is not entitled to the protections of the law."



 12:19 am on Dec 8, 2011 (gmt 0)

Yes, but what should the standard be? Explain, please.

I am not about to write laws outlining what is and isn't allowed within the realm of journalism, those law exist and are on the books.

I am saying it aught to be a higher standard than is used at the Enquirer, what ever that is I don't know.

FWIW, the folks who award the Pulitzer prizes have historically considered the Enquirer not to be eligible.

Great bit of trivia there, but the courts of America do consider them a news agency and their reporters to be protected as jounalists, and since it is a court who ruled this women isn't a journalist then it is the court whom I will be discussing here.

If the current standard allows a journalist to report what a source told them without some basic fact checking then that is the standard by which this women should be judged. If people disagree with that standard then they need to have that law changed but if courts are going to allow publications like the Enquirer to do this without punishment then they should allow this women to do it without punishment.

If courts are going to start punishing people then they should start punishing companies for the exact same thing.

This is a clear case of a company having more rights than an individual. How can it be that simply having an association with a company makes your actions legal?

The court outright said if she was associated with a company she would have been protected, but since she has no association with a company then her actions are illegal.

I find it hard to swallow that what transpired has no bearing when determining her guilt. She could have done the exact same thing but worked for the Enquirer and the ruling goes in her favour. Take out that association and her actions sudden become actionable.

Company backing = innocent
No company backing = guilty

It is stupid that what determines guilt or innocence is a company, company or no company her actions are the same either way, why does the presence of a company absolve her of her actions?

"Well if you worked for a company we would let you off the hook for what you did, but since you are a just a person trying to do the independent thing we are going to bend you over."


 12:35 am on Dec 8, 2011 (gmt 0)

Lucy, I invite you to peruse the judge's instructions to the jury: [citmedialaw.org...]

And the jury's verdict: [citmedialaw.org...]

The jury was instructed to consider the charge of defamation. The Judge ruled that Cox couldn't be protected as a journalist. The Jury were not asked this question.

There are really three points here.

1. Was the defendant guilty of defamation

2. Can the defendant protect her source as a journalist

3. Had Cox created a company responsible for the blog she would have had a limited liabilty


 1:05 am on Dec 8, 2011 (gmt 0)

I guess if everyone who tweets or blogs something is a "journalist", then there's no point to having a separate legal standard for journalists and non-journalists.


 1:39 am on Dec 8, 2011 (gmt 0)

I invite you to peruse the judge's instructions to the jury:

OK, I'll concede the jury. And oops, yes, I did miss the direct link. But not "convicted" and "guilty": those apply strictly to criminal cases, and the documentation confirms that this was a civil case. Hence the wording "liable for". (Incidentally, where did the word "fine" in the OP come from? I thought it was the newspaper headline but now can't find it. That's just as well, since it would have made the Guardian itself guilty of bad journalism.)

The judge also described Cox's language -- "a fanciful diatribe" -- as undercutting a reader's expectation of factual information. And while certain statements from Cox's post could, in isolation, be seen as arguably factual, when "the content and context of the surrounding statements are considered," they would not be understood as assertions of fact.

What the ###? That whole line of reasoning would seem to argue against finding the defendant liable for anything.

The jury instructions for the case make no mention of a negligence or other fault requirement for defamation in Oregon, specifically stating that the defendant's knowledge of the statement's truth or falsity was irrelevant to the determination.

Double what the ###. Is the judge single-handedly trying to redefine libel and defamation?

But anyway...

If you define a journalist as someone making statements that are intended to be read by strangers-- which is essentially what the word "publication" means-- then how on earth do you exclude bloggers while including tabloids?


 3:04 am on Dec 8, 2011 (gmt 0)

It's surprisingly difficult to define "journalist" or "journalism".

Some definitions focus on the process and craft of news gathering, some focus on who the journalist works for, and some focus on the medium which delivers the news.

It's worth noting that Cox was unable to provide credible evidence of sound process and craft in her "journalism", not even about such reportorial basics as keeping notes of her interviews.


 9:15 am on Dec 8, 2011 (gmt 0)

obsidianfinancesucks headline:

"Was My Writings, Postings on Obsidian Finance Group, Kevin Padrick of Public Concern or Just of My Own Personal Concern? "

With grammar like that, I wouldn't call her a journalist either.

Disturbing precedent, however.


 10:39 am on Dec 8, 2011 (gmt 0)

freedom of speech? hmm aint you allow to write what you want anymore as long it dont get personal


 12:39 pm on Dec 8, 2011 (gmt 0)

You can write what you want but make sure you're prepared for the consequences. If you're planning to say things that are harmful and defamatory, make sure you can prove them.

With grammar like that, I wouldn't call her a journalist either.

Substandard command of the language could be overlooked if the underlying processes for gathering news were demonstrably sound, and the reporting was accurate, balanced and fair.

Spelling or grammar problems can be fixed, but there are no easy remedies for sloppy thinking.


 1:38 pm on Dec 8, 2011 (gmt 0)

From a brief read, I got that she was mixing facts with her opinion, and too many opinions at that. Often I saw the use of the words "I believe" in her comments. To make a comment, especially a negative one and then preface with "I believe" kills the factual reporting aspect and can push it into defamation.


 4:24 pm on Dec 8, 2011 (gmt 0)

"In the law of torts, "harm" is generally treated as physical invasion of person or property. The outlawing of defamation (libel and slander) has always been a glaring anomaly in tort law. Words and opinions are not physical invasions. Analogous to the loss of property value from a better product or a shift in consumer demand, no one has a property right in his "reputation." Reputation is strictly a function of the subjective opinions of other minds, and they have the absolute right to their own opinions whatever they may be. Hence, outlawing defamation is itself a gross invasion of the defamer's right of freedom of speech, which is a subset of his property right in his own person." -- Murray Rothbard


 4:58 pm on Dec 8, 2011 (gmt 0)


The Enquirer has a long history of breaking stories - albeit celebrity focused stories - before many mainstream rags.

A recent example was an extramarital affair that then-presidential candidate John Edwards was having.

Many people dismissed the claims because it was reported in the Enquirer first, only to have egg on their face when more mainstream publications began to cover it as well and witnesses came forth.

If memory serves, I think the Enquirer was also the first to cover that the LAPD's suspicions that OJ had murdered his ex-wife and her then boyfriend (and the possible issue at that time of a warrant for his arrest).

Of course, O.J. was found not guilty by a jury of his peers, so it just goes to show that even the Enquirer gets it wrong sometimes...

I am not really interested in celebrity news all that much myself, but if I were, I would definitely read the Enquirer.


 6:33 pm on Dec 8, 2011 (gmt 0)

You can't defame someone presenting opinions as facts. If sued for this, and you can't back up your "facts", you lose. This is a GOOD thing.


 7:43 pm on Dec 8, 2011 (gmt 0)

Journalism does not need to be balanced or fair, but it has to be accurate. The defense to defamation is the truth. That said, bloggers beware, this case establishes a precedent, unless overturned.


 9:20 pm on Dec 8, 2011 (gmt 0)

Journalism does not need to be balanced or fair, but it has to be accurate.

And what idealistic world do you live in?

Hopefully this will be overturned as the precedent set is dangerous to all digital media.


 9:52 pm on Dec 8, 2011 (gmt 0)

Journalism does not need to be balanced or fair

On my planet it does.

Accuracy on its own is not enough.

The defense to defamation is the truth.

It's not always that simple.

It's entirely possible to present facts which are true in themselves but which nonetheless create a seriously distorted impression of something.

Suppose I wrote a story which reported that Tangor had grabbed a woman, picked her up bodily and carried her out of the room screaming. She was later treated for extensive injuries, and the police were looking for Tangor.

Would you consider it sufficient for good journalism that everything I said was true and could be verified?

How would a story like that affect Tangor's reputation? If he had in fact done everything I said he did, would he deserve to have people start thinking he was some kind of thug?


Is it okay for me to leave out the fact that Tangor was carrying the woman out of a burning building, at great risk to his own safety?


 10:47 pm on Dec 8, 2011 (gmt 0)

And what idealistic world do you live in?

Might ask the same back at ya... (those who think journalism must be balanced and fair). Maybe 40 years ago that might have been said, but not before that, or after that. Every media/journalism is biased these days, and if one is honest, they realize that... and if honest, also is one of the few who make sure they get their info from both sides of the biased reporting. :)


 2:50 pm on Dec 14, 2011 (gmt 0)

Hmmm...bloggers are not journalists. It takes a degree in journalism to be one, and journalists investigate and corroborate what they unearth. Just posting your ideas online does not make you a journalist.


 1:14 am on Apr 27, 2012 (gmt 0)

I make my money writing articles and posting them to my websites. I've been doing it for years, and sometimes I've been read by more than 250,000 people per month. Sometimes my articles get picked up by Google news and other sites, and my website's been mentioned on a ton of sites.

So, I'm definitely a web publisher... Does that make me a journalist?

I don't think so. I think I have to be reporting on something news worthy to be an actual journalist/reporter. What I'm doing is editorializing. I'm airing my bents and biases on things I see and hear, but I'm not reporting on actual happening events, which is what I think of as the quintessential requirement to being a reporter. (You're actually reporting on something, not editorializing.)

What are your thoughts on this?

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