Writers are baptized many times over throughout their careers with experiences that serve as reminders of how to avoid career-ending mistakes. One of them is defamation of character. Media law is a place writers must revisit from time to time in order to refresh themselves on the rules that apply to everyday writing. The recent court decision that found a blogger guilty of defamation should serve as a swift slap to the back of the head, reminding us that writing the truth over merely spewing opinions is by far the best choice.
As a young journalist, I was threatened with a lawsuit when I paraphrased a quote, causing readers to question the character of a private citizen. Writers usually experience disgruntled readers sometime during their careers. Luckily, I had recorded the interview and nothing came of the threats. In today’s fast-paced blogosphere and Internet media, writing down or recording an interview may be considered old school, but the same rules still apply. Not much has changed for journalists or bloggers who overstep legal boundaries by publishing unproven statements as facts.
In December, a federal judge in Oregon ruled that bloggers are not allowed protection under the “shield law” that journalists have been guaranteed for years. Independent bloggers work as their own publishers, working without the net of a million dollar legal department paid to go to bat for them. Nor can bloggers evoke the same protection that allows journalists to quote from anonymous sources. This ruling should serve as a reminder of how powerful our written words can be, and how easy it is to be guilty of defamation. Times have changed, but the rules are much the same as when I paraphrased a quote that landed me in, what could have become, some real hot water.
The courts decided in the case of Obsidian Finance Group vs. Cox, Crystal L. Cox was working as an independent blogger, not a journalist, when she accused Kevin Padrick of criminal activity. Padrick was hired as an attorney for Obsidian Finance Group. U.S. District Judge Marco Hernandez ordered Cox to pay $2.5 million in damages for defamation.
With the birth of Internet blogging and the number of freelance writers growing daily, writers must write what they know to be true, or make darn sure their readers know when an opinion is just that. Sometimes, writing an opinion does not free us from liability within the courts. While freedom of speech is certainly a guaranteed right for all, it is not a legal leg when you use any publishing format to hurt a person’s reputation or to claim what is not proven fact.
Cox sought protection under the shield law, claiming she was working for the people as an independent investigative journalist. Cox is a real estate agent in Montana and said she was blogging to keep the public informed about a local bankruptcy case, as well as improve her SEO rankings. The blogs accused Padrick and Obsidian Finance Group of bribery, money laundering, tax fraud and theft. The judge believed the long series of posts were effective in damaging Padrick’s legal career and reputation.
The grand jury had previously handed up three federal indictments against Obsidian company executives for conspiracy. Padrick, an Oregon attorney, was appointed as a legal trustee during company bankruptcy proceedings. The blog posts suggested that Padrick was using illegal measures to control what was left of the company. Padrick, a member of the state bar in four states and who had never been disciplined or investigated, felt he had been wrongfully accused and his reputation damaged.
Protection for writers who express their opinions were set in place by the Supreme Court in 1964, New York Times vs. Sullivan. All writers should possess a hunger to pursue the truth, but many modern-day bloggers have no academic training in media law. Since many blogs compete in mainstream media daily, readers have come to trust blog postings as expert news sources.
This case raises concerns for all bloggers who write through non-traditional media methods. Judge Hernandez stated that Cox had no professional qualifications as a journalist, no journalism education or credentials, never been recognized as a published journalist, and offered no proof of what she claimed to be facts. Representing herself, Cox argued that she is an investigative journalist having written more than 400 blogs, with a talent for SEO that places her posts at the top of search engines and in the middle of main-stream publishing.
Judges in future cases will likely re-visit many of the same points made in this case to decide whether bloggers should be allowed the same entitlements as journalists. To determine the answer for yourself, ask if your experience as a writer includes these characteristics: (1) journalism experience, (2) news entity affiliations, (3) fact-checking standards, (4) interview or research notes, (5) source confidentiality knowledge, (6) working independently to create your own work, (7) obtaining necessary facts to write all sides of an issue fairly.
To be guilty of defamation, a plaintiff must prove that the writer represented an untrue statement as fact and harmed the reputation. The statement must be published, which by law is regarded as any written statement read by one or more people. After this, it gets a little more complicated. If the person the comments are about is a public figure or entity paid by tax dollars, the plaintiff must prove that the statements were not true and the writer recklessly ignored the truth. If they are private citizens or businesses, they must prove only that the writer was negligent.
Bloggers will continue to be scrutinized by readers, giving us all the more reason to hold ourselves to the highest of publishing standards. Meanwhile, Cox is appealing her verdict. It leaves me to wonder that if just anyone is allowed to be a member of the media as a self-publisher, then isn’t the concept, integrity and importance of the published word diminished?
The First Amendment was written for all Americans, not just journalists with established credentials. While we celebrate how technology and SEO rankings have made millionaires out of many entrepreneurs, all writers must remain cautious not to trade what we know to be right for algorithms that have no way of measuring the truth.
RHONDA D is a freelance writer available on WriterAccess, a marketplace where clients and expert writers connect for assignments.