back to article ‘Blogger not a journalist’ says Oregon court

An Oregon court has denied a blogger protection under that state’s “shield laws” because she isn’t employed by a media organization – a distinction which has cost her $2.5 million in a lost defamation suit. Blogger Crystal Cox was accused of defaming Obsidian Finance Group in blog posts critical of the company’s founder Kevin …

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  1. David Kelly 2

    Rights of the Established Media?

    So, if a newspaper or even The Register was paying her even a trivial sum then they could have bestowed immunity to her? Thats not right, the law stinks.

    1. FozzyBear Silver badge

      It not only stinks

      It's deaf, dumb and blind. It also has the frequent ability to contradict itself. In ol’ OZ we have self-referencing sub sections and machinery sections that basically enter you into an infinite loop. Yep, the laws’ a fuckin’ ass. But what do you expect from a bunch of friggin’ idiots who are typically in a drunken stupor or half asleep when they ratify these things into law

    2. Ian Michael Gumby Silver badge
      Boffin

      @david kelly2

      I think you miss the purpose of the shield law...

      The law was designed to protect the journalist from being sued under defamation law as an effort to get to their inside source. If the journalist could not protect their confidential informant, then less people would be willing to speak out. Same too for the police's confidential informant.

      What's at issue is how do you classify a blogger? Do all bloggers meet the requirements of being a journalist just because they post their blogs?

      Suppose my real name was Seymour Butts and I post a blog under the title 'Kitty Liter Daily Journal'.

      Now since I have a regular blog does that make me a journalist? Suppose I write rants about the Brit Royals getting randy in Buckingham Palace, citing an unnamed source. Clearly its not true, and when the Brit Royals sue me, can I hide behind my unnamed source?

      And thats the point. Anyone can blog about anything. In the US they have limited protection under the first amendment. That doesn't make them a journalist.

      Now had the blogger actually had an article picked up by a journal or some other publication, then she could have been protected as a freelance journalist.

      Sorry you don't like the shield law.

  2. Anonymous Coward
    Anonymous Coward

    so...

    "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"

    if she printed out some of her blog posts and handed them out at random, then she would qualify?

    or posted stuff on youtube? or had self published or POD'd a collection posts?

    assuming that the articles *are* factual, and she ends up revealing her source, does that then entitle her to counter sue? or will that then open her up to another lawsuit for betraying (under court order) her source?

    Presumably if her source is an employee, so the consequences of being a whistle blower are rather high...

    sorry for lowering the tone, but her name sounds like a sex toy.

    1. btone
      Happy

      Duke

      'sorry for lowering the tone, but her name sounds like a sex toy'...

      ...actually it makes her sound like a Fox News botoxbabe...oh, wait, sry, same thing really...

  3. EngineersAnon
    WTF?

    Um...

    I get the majority of my news from twitter and bloggers. Where do I send an amicus brief for her appeal?

    1. Anonymous Coward
      Anonymous Coward

      I heard on twitter you can send them to: Santa Claus, Reindeer Land, SAN TA1

      1. Shakje

        SAN TA1

        Seriously, what are the odds?

      2. Mike Row

        Wrong address - Canada IS a Canadian but his postal code is H0H 0H0

        Santa's address is:

        SANTA CLAUS

        NORTH POLE HOH OHO CANADA

        By the way you will see he can also be reached by email.

        http://www.canadapost.ca/dec/santa/writesanta/

    2. Tim of the Win
      Thumb Down

      May I suggest that what you believe to be 'news' is really just rumour and gossip?

      1. peter 45

        So..

        May I suggest that what you believe to be 'news' is really just rumour and gossip?

        So employees of Heat, OK etc magazines are no longer journalists ? Right?

        1. Anonymous Coward
          Anonymous Coward

          "So employees of Heat, OK etc magazines are no longer journalists ? Right?"

          They never were IMHO

        2. asiaseen

          Were

          they ever?

      2. Graham Dawson

        tim, this is different from the self-proclaimed "media" how?

        1. Tim of the Win
          Facepalm

          I'm not defending all the media, but some of them do actually fact check their articles. Plus they have the risk of being sued for libel which keeps them partially in line. Twitter contains 75% nonsense.

          1. Graham Dawson

            75% eh? I'd say that compares well to the Daily Mail (80%), Independent (82%), Mirror (90%) and Sun (102%)*

            Twitter is mostly full of noise, it's true.But, so is the rest of the mainstream media, which these days seems to largely rely on what's trending on twitter when it isn't copy-pasting Reuters and AP straight from the wire. Given that they're acting largely as a relay of what the public are nattering about, why do we need them any more?

            And given that newspaper circulation figures are nosediving, and television news figures are in similar decline, it seems evident to me that a great many people agree with my stance.

            *Like you I am, of course, making all of that up...

    3. Anonymous Coward
      Anonymous Coward

      Well done!

      You've confirmed my suspicions about why "da yoof" of today are so asinine.

      I would advise you to try doing some proper research and locating a few trusted media outlets staffed by proper journalists and leave the blogs to continue pumping out half-arsed opinions parading as fact.

  4. Cheshire Cat
    WTF?

    Why can't she be a media in her own right?

    She publishes a blog, surely that makes her blog a periodical publication. Why the need to be employed by a newspaper? Did they not consider that her blog is a publication in its own right?

    1. Edwin
      Devil

      Because

      ...then any loud-mouthed idiot with a blog could claim protection under journalist protection laws. I'm sure the US has an association of journalists. Maybe membership of that body should be the litmus test.

    2. Anonymous Coward
      Anonymous Coward

      Because the law says so

      The relevant Oregon media shield law lists various forms of media communication, including newspapers and TV, but makes no mention of the internet or online distribution. So independent bloggers are not considered journalists (n.b. laws in other states are different). Arguably this is a flaw in the law that should be fixed, and she could probably win on appeal with the help of a decent lawyer.

      On the other hand, taking a look at some of these blogs, the quality falls rather short of what I'm accustomed to from investigatory journalists. Long on outrage and hysteria, rather short on clear and reasoned arguments, and desperate for attention. I've seen better writing in high school student newspapers. It would be much easier to call her a 'journalist' if the posts read like something out of the New York Times instead.

      1. Tom 13

        And if she weren't a fool*

        the verdict of the Oregon court would be overturned in a heart-beat because the law does not offer equal protection to all citizens.

        I'm strongly against shield laws because they create privileged classes in society. Journalist should be held to the same standards as anybody else who says something in a public forum.

        *from the common knowledge quote "only a fool represents himself in a court of law."

  5. chris lively

    The RealWTF

    Quite frankly, she probably could have won if she had decent counsel.

    I'm sure there are plenty of attorney groups out there that would have done it pro bono.

  6. Anonymous Coward
    Anonymous Coward

    Damn you could have asked me for a dollar and said you work for a news organization. You could have got a friend to give you a dollar and they could say they employed you.

    On the other hand, this is a BAD LAW which needs to be nullified. Too bad I wasn't on her jury pool.

    Maybe she could wait a year or so, and the DOD will replace the DOJ and then she can be indefinitely detained, tortured and killed by this fascist system of bullshit.

    Bottom line, U.S. District Judge Marco A. Hernandez is an oath breaking domestic terrorist.

    1. westlake

      The jury nullifies you.

      "On the other hand, this is a BAD LAW which needs to be nullified. Too bad I wasn't on her jury pool."

      The way jury nullification works in the real world is that the jury cuts some slack for the home town boy and hangs the outsider:

      the nerd, the dork and the geek, among others.

      Oregon doesn't requre a unaminous verdict even in a murder trial. (11/12) If you want to play the lone hold-out, get a job in dinner theater,

      The judge does not want to exclude any relevant evidence.

      He does not want to hear that your only defense to --- any --- charge is a witness who cannot be brought into court.

      To re-imagine the printing press as a "license to libel" can do enormous damge to the innocent. That is why shield laws are construed narrowly.

  7. Silent but Deadly

    Media is plural.

    Medium is the singular. If she was a real medium she would have seen this comming.

    1. heyrick Silver badge

      "Comming"?

      Remember - grammar nazis are held to higher standards than normal people...

    2. heyrick Silver badge
      Headmaster

      "Comming"?

      Remember - grammar nazis are held to higher standards than normal people...

      1. Red Bren
        Joke

        Double posting?

        Remember - "grammar nazi" nazis are held to an even higher standard than grammar nazis...

        1. jake Silver badge

          @Red Bren: Web site management's ebbs & flows?

          Remember, "paying attention to the a site's ebbs & flows" nazis are held to an even higher standard than double posting nazis ...

          Seriously, ElReg, what's going on? Let us (TINU) know ... There are many here who are probably more than happy to provide hints & tips.

          I probably missed the Elreg self-implicating article ... I'm good at that. ;-)

  8. Yet Another Anonymous coward Silver badge

    Not a journalist

    I think that's the problem - if she had been a journalist the nobody would have believed anything she wrote and so the comments would have done no harm.

    But by not being associated with any of Murdoch's mighty organs - she automatically achieved a higher level of trust and so the comments had so much more potential to inflict damage,

    1. James O'Brien
      Meh

      Murdoch's mighty organs

      *looks at title of post*

      *looks at blogger name*

      It is way to early for me. I need to get my mind out of the gutter.

  9. Arrrggghh-otron

    No new media?

    So the decision is basically saying that there can be no new media organisations? I mean, where do these things start if not with an individual?

  10. JimC

    As Iunderstand it

    The purpose of a shield law is to give journalists cover when the actions would otherwise be illegal. If you allow everyone to be decribed as a journalist on their own say so, then effectively you are making those actions legal for anyone who can talk fast enough.

    So if its desirable that these actions should generally be illegal *and* its appropriate that journalists should have an exemption, then the lack of protection for amateur "journalists" follows logically.

    If on the other hand you don't think what she did should be illegal at all, then that's an entirely different topic and absolutely nothing to do with the workings of the shield law.

  11. James Micallef Silver badge
    Thumb Down

    Moronic

    There is no substantive difference between a blog and a " newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system."

    This judge is barely up to speed with the 20th century, let alone the 21st

  12. dotdavid
    WTF?

    Pamplet

    "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"

    Pamplet? So, er, to get journalistic protection all she has to do is print out a couple of copies of each blog entry and give them to a few people, then?

    What an idiotic ruling.

    1. Danny 14 Silver badge

      appeal

      I imagine she would be best appealing that a blog is effectively an online pamplet. That overturns the previous ruling.

  13. Ragarath Silver badge
    WTF?

    How did the newspapers and other organisations start?

    Did they all of a sudden pop into existence or was it one or two people starting a business?

    Just because one was on paper and the other is electronic why does it matter?

    Seems to me that this judge may have been getting extra benefits from this ruling!

  14. geekclick
    Thumb Down

    Shouldn't have represented herself!

    That law is bullshit and I assume a decent council would have pulled the other side to pieces but by representing herself she made an easy target!

    The judge also sounds like an utter bellend!

  15. haroldo
    Go

    Actually the law makes sense on one level..

    Think about it: If every 'blogger' (easily extended to include anyone who posts anything online at all) counts as a journalist in the eyes of the law, then you might as well scrap defamation laws completely, since you could say anything you like about any person or organisation, and when they sue you for libel, you just argue that the piece was factually accurate and that you have a source who you're entitled to not reveal..

    1. Ru
      Holmes

      Wrong

      Because you can trivially set yourself up as a media company; pay a few bucks, fill in a form and you're done. Incidentally, a person familiar with the matter told "haroldo is a big gay bear media llc" that haroldo was, in fact, a big gay bear. Naturally, HIABGBM will not be revealing their source.

      The reporter's shield and general freedom of speech that's so often trumpeted by the yanks only goes so far in protecting you from the consequences of your actions.

    2. Ragarath Silver badge

      The had better get on with the law that states all reports / media types should be registered then. Otherwise anything any of them print is not protected either.

      Why is it news if a red top prints it but defamation if it comes from another source?

    3. Peter H. Coffin

      The usual challenge to "factually accurate" is to in fact prove that the "factually accurate" is factually inaccurate in some sense as part of the libel suit. But apparently Mr Bigwig COULDN'T prove that any of the things blogged about were materially wrong, and was therefore required to fall back on intimidation and "deep pockets" attacks.

  16. John Tserkezis

    This is why Wikileaks was created. No problems then.

    No wait...

  17. Richard 15

    I would think that if she can demonstrate any kind of history of publishing that she could obtain protection.

  18. Anonymous Coward
    Anonymous Coward

    Presumably

    ... she could have marked the piece as 'opinion' rather than fact and got away with it. Or is that too simplistic.

    Defending yourself never seems to work out well, unless you happen to be a lawyer. Even then, a dispassionate set of eyes on a case is rarely a bad idea.

  19. jake Silver badge

    Either ...

    ... web pages are "published", or they are not.

    Methinks hizzonner screwed the pooch on this one.

    (Please note I'm not commenting on the published article ...)

  20. Anonymous Coward
    Anonymous Coward

    I lived in Oregon

    And that was not a very Oregonian decision.

  21. Flugal

    As if hacks didn't have an overblown sense of their own importance as it is (present company excepted, obviously).

  22. Anonymous Coward
    Anonymous Coward

    Saw a video of Ms Cox once

    It was Mexican and had donkeys on it.

    Source? Can't tell you.

    Ps: I have a blog, also known as "get out of defamation suit free" card.

  23. Anonymous Coward
    Anonymous Coward

    Let me get this right

    If not for for this legal inconvenience, I could defamate anyone or anything I wished (or maybe even get paid to) - with no real proof - and then just claim to be protected as a blogger?

    Sorry to say but I kind of see how the court has a point...

    1. Tom 13

      Except that your point ought also

      invalidate the shield law for journalists too. Because it is, as you correctly point out, a license to defame, at least here in the States. I understand Brits have different rules, and have to pay a bit more attention to defamation issues.

  24. Anonymous Coward
    Anonymous Coward

    This is going to get appealed so hard. The US constitution doesn't provide for "freedom of journalists linked to known media organisations". Freedom of the press isn't meant to create a special class of protected people, it means simply the freedom to print. The judge's definition of what constitutes a "journalist" or "media" is simply bullshit.

  25. TheGift73

    Future....

    I can understand a company wanting to protect themselves against deliberate slander, but from what I have read, she was found guilty of defamation only because she refused to name her source, which is very common as protecting a source of information is very important. The fact that she isn't affiliated with any known media outlet shouldn't come into play.

    If indeed she was lying and deliberately in order to cause the company harm, then yes, she should be fined.

    The worry thing though that I get from the article is whether this is going to spread to other bloggers and how much should they be on their guards? Even if they report the truth, but the offended company/ corporation dislikes the article can they also take similar action against the blogger who has no official media affiliated?

    1. Peter H. Coffin

      Especially since a Federal judge so recently ruled that videoing police at work IS covered by 1st Amendment protections (the freedom of speech and press one), even if John Public is the one doing the recording. There just has to be a reasonable assumption it is in the public's interest to know.

      Really, though the merits of THIS PARTICULAR decision are thin, if you dig up the post in question, you'd suppose the decision was made on the merits of Ms Cox being an idiot and she should be fined the $2.5 million for an undefined number of assaults on grammar and egregious Abuse of Capitalization. I cannot help but think that were I in the position of the judge and had I been thus forced to read and reread Cox's writing, I'd be disinclined to rule in her favor from the start. It's a good thing I'm not a judge, I suppose.

  26. Harry

    "broadcast station or network"

    A web site -- any network, even if it has only one user -- is part of a network.

    If the web site has two or more users then that probably makes it a *broadcast* network..

  27. disgruntled yank Silver badge

    She who is her own lawyer...

    Without reading more of the decision it is hard to make sense of this all. However, suppose that I were to write on line that The Register's hacks eat bean sprouts, wear Mormon underwear, and use IBM 3270 green-screen terminals, and they were then to haul me into court for defamation. It would be up to me to prove that I have evidence to back up my statements. Saying "a little bird told me" might not impress the jury. Saying "an inside source told me, but I swore a mighty oath not to disclose his name, and I'm a journalist so I don't have to" is not significantly different.

    Shield laws are not enacted to cover such cases, but to keep journalists from being held in contempt of court when they refuse to disclose sources' names.

    1. Gannon (J.) Dick
      Go

      Just Right

      I think. If she was able to prove an allegation true after the fact, say in a counter-suit, then the problem for the Plaintiff's Lawyers is that they abetted a fraud and the counter-suit against both them and the Plaintiff should have treble damages. However her source would not be engaged in fraud if they made a little side agreement to split the treble damages 50/50. So if she and her source could have their honor satisfied for $3.75m each, everybody would be happy.

      A journalist can't run this scam, hence the protection.

  28. Keep Refrigerated
    Angel

    Fair and Balanced

    She should have taken a leaf out of that other well known reputable news organisations', some people say™, rather loose approach to journalism.

  29. Andrew Punch
    Childcatcher

    Abandon logic all ye who enter

    I think the biggest problem is this statement "Cox had chosen to represent herself in this case". At face value it would appear that if an electronic publication has a wide enough reach for suing for defamation then it should have a pretty good argument that it should be big enough to qualify under the shield laws.

    But the question is whether the shield laws should even be invoked. Cox should have proof - emails, documents etc. - that her source provided. Did she state both sides of the story and request a response to the allegations from the company involved (as any reputable journalist would do)?

    Also the judges may have stuck by the letter of the law - do Oregon shield laws specifically list the types of media which are covered?

    All these things seem to point to the fact that Cox needs a solicitor, rather than just making a mess herself.

  30. Grease Monkey

    This makes sense to me. In English law it is the publisher who is liable in a case of libel. That is to say if you wanted to sue for libel over a newspaper article you would sue the publisher of the paper, not the author of the piece. In those terms the Blogger is both author and publisher and therefore liable in their role as publisher.

    There is no way being a blogger should give you any protection. After all you have no protection against a suit for slander if you say something slanderous as a private individual, so why should you get protection just because you do the same thing online?

    Those who think this is somehow an issue under a right to free speech need to pull their heads out of their collective arse. You are indeed free to say, write or publish whatever you want, however with that right comes responsibility. As such you must face the legal consequences. Nobody should have the right to defame anybody without their facing the consequences.

    And if you support the blogger in this case consider this: What would you do if a blogger accused you of being a paedo?

    1. diodesign (Written by Reg staff) Silver badge

      Re:

      FWIW in UK law, anyone who handled the copy can be sued: the writer, the news editor, the sub-editor and the editor as well as the management. Usually, plaintiffs go after the money (the publisher) or the publisher is contractually obliged to defend its employees.

      I've seen people name hacks, editors and publishers in defamation writs in order to scare the heck out of them.

      C.

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