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Last week, blogger Crystal Cox was found liable for defamation in a trial before a federal judge in Portland, Oregon. The civil award was based on a blog post Cox posted, accusing Obsidian Financial Group and Kevin D. Padrick, a bankruptcy trustee, of corruption. The court awarded the plaintiffs $2.5 million dollars.
What does this mean for other bloggers?
Unfortunately, the answer is not simple. There are a number of factors bloggers need to consider.
First Issue: Is Cox a Journalist? One of the things the judge had to consider was whether or not Cox was a journalist. She claimed that she was, and that she had an inside source for her corruption allegations, but that she should not have to provide information about that source as a journalist. Cox claimed protection as a journalist under Oregon's "media shield" law.
Cox identifies herself on her site as an "investigative blogger." She runs a large number of blogs and web sites on topics ranging from whistleblowing in the real estate industry, to corruption in Montana, to alternative medicine, to nature photography.
Unfortunately for Cox, Oregon's media shield law was written before the rise of blogs as news publications, and whether bloggers are included or not is a matter of interpretation. Taken together, Oregon Revised Statutes, 44.510(2) and 44.520(1), would seem to include bloggers, but bloggers are not listed explicitly.
Those statutes read, in part, "No person connected with, employed by or engaged in any medium of communication to the public," can be compelled to disclose a source. The statute defines "medium of communication" as having "its ordinary meaning and includes, but is not limited to, any newspaper, magazine or other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system."
The judge in this case found that because Cox was not employed by any of those specific types of journalistic entities, she was not a journalist.
This Means: Only 40 states have media shield laws. While the author of those laws in Washington state, Bruce Johnson, was quoted as saying that he believes the media shield law would be applied to a blogger in that state, the language clearly varies from state to state -- if your state even has one. If you consider yourself a journalist, you should look into the laws in your state.
Second Issue: Defamation: The judge addressed three important items in discussing the claim of defamation.
- First, he noted that the Oregon media shield law does not apply in the case of defamation claims, so even if Cox were a journalist, she could not claim to be protected by the media shield law.
- Next, he considered Cox's claim that the plaintiffs were "public figures" and therefore required to prove that the defendant acted with "actual malice," in other words, did Cox publish her claims with knowledge that the statements were false or in reckless disregard of whether or not they were false? The judge found that although there was some media coverage of the issues leading to Cox's accusations of corruption, the plaintiffs were not public figures, so the level of proof required to show that Cox's publications were defamation is a lower one.
- Finally, the judge considered the distinction between publishing one's opinions vs. publishing something that portrays an alleged fact. For those blog posts Cox published about the plaintiffs, which were clearly expressions of her opinions, the judge found that they were not defamatory. However, he found that one of the posts was presented as statements of fact about the plaintiffs, not qualified as the blogger's opinion.
This Means: IF you are making strong accusations about someone's bad behavior in your blog, and the accusations do not, for example, reflect something they have already been convicted of doing, making sure that you explain that those accusations are YOUR OPINION is your safest bet if you do not want to be sued for -- or lose a lawsuit in which you were sued for -- defamation.
This Also Means: Public officials, who are real public officials -- not just people who happen to be lawyers or whose businesses are discussed in a newspaper article -- are fair game, and held to the stricter standard of proof of "actual malice." Governors, mayors, members of Congress, are all clearly fair game.
Last Issue: Crystal Cox did not hire
