After reading a tweet and blog post by @DeeDennis regarding a U.S. District Court judge’s decision to penalize a blogger $2.5 million for her blogging activity about an investment firm, I got rather rankled and investigated further.  The article @DeeDennis cited was by Harold Mandel of the Examiner (article here) that focused on the blogger’s fine and asks the question of whether a blogger is a journalist, which is one of the questions asked by the Court. This same question was posed by other online media such as Reuters, The Atlantic, and PC Magazine. The answer appears to be, at least based on the judge’s decision that, in this case, a blogger is not always a journalist.  And, in this case, it appears there was quite a bit of evidence that showed really a very aggressive approach that a typical blogger would not take in order to share their thoughts or position.  I say this based on an article written by David Carr in the NY Times (article here). Carr points out a number of things not readily available in the other articles.

According to Carr’s report, the blogger, Crystal Cox, engaged in activities such as creating new websites with new blogs to keep her attack from being stymied.  If Cox were simply a blogger without any specific journalistic support, such as through a freelance contract or something along those lines, as seem to be part of the criteria for the judge’s decision to identify Cox as a non-journalist, then it does beg the question why she would be so aggressive in these varied behaviors if it wasn’t for some nefarious attack on her subject. This attack led to a defamation suit and resulted in her penalty of $2.5 million.  I must state here that Carr’s article felt very protection-istic to me.  It felt like an opportunity for a journalist to attempt to protect the integrity of journalists versus bloggers.  I only say: get over yourself.  That horse is way out of the barn.

The question of whether Cox is a journalist seems to be the wrong question.  No, she wasn’t under contract or freelancing her information in a known business sense.  Rather she was blogging her opinion and thoughts that, as it turns out, had an impact on a real person’s business.  By the historic definition of a journalist it certainly would appear that she is not a journalist per se.  It should be stated that such laws were written in a time not like ours where electronic media is changing journalism at its core.  Laws are behind the times.  Look into gene patenting with the U.S. Patent & Trademark Office if you’re unsure about my position.

If she’s not a journalist, then she’s someone publicly attacking a company and/or individuals operating a business.  For this, there is responsibility under U.S. law through defamation laws.  So bloggers do need to express some level of resistance saying anything and thinking there won’t be the potential for backlash; especially, as in this case, if the business person loses business because of the allegations.  Freedom of speech does have some restrictions and bloggers must educate themselves on this when using their blog to pursue business entities.

So what’s a blogger to do to avoid this problem?

  1. Take a look at journalism ethics whether you view yourself as a journalist or not. It’s the responsible thing to do.
  2.  Consider forming a company for your blog. I’m not even close to being an attorney but this seems, from my uneducated position, to strengthen one’s position that your company is responsible for the content versus you individually.  Plus the company could be established as a media organization and your its employee.  This might provide different protection.  Again, I’m not an attorney and you should check this thought out before pursuing; it just seems logical.
  3. If you’re attacking a company, person, or some legal entity through your blog, then you really are taking a risk for defamation.  Be aware of your protections under the law, the goal of your blog, and what the consequences of your statements may have.
  4. If you don’t give a fuck, then you might have to write a big-ass check.

Not all bloggers are journalists and not all journalists are bloggers.  Blanket laws and protections for bloggers might not apply in all circumstances.  The real question, for bloggers, needs to be what category do you believe you should belong and build a business model, if appropriate. If you’re not a journalist, then avoid going after businesses, persons, or other legal entities.  The law needs to catch up with the times and only through such awareness of these types of cases will those changes occur.