Bloggers vs. Journalists: Defamation lawsuit is a threat

http://64.19.142.11/cdn2-b.examiner.com/sites/default/files/styles/profile_small/hash/a3/96/a3965b564c703040ed53457684eddcb9.JPG Marv Dumon International Sports Examiner December 9, 2011 Sports Journalism - There's an unwritten rule in sportswriting. You never, ever cheer from press row. Earlier this year, a young noob with Sports Illustrated lost his job for cheering during a thrilling competition. There's a second, more pragmatic, one. You always confirm facts. If you can't, use qualifying terms such as "claim" or "allegedly" next to your statements because there's plenty of fee-hungry attorneys swimming in the shark tank. In sports, some of us have read blog and/or news headlines that could be interpreted by a judge as a statement of fact: 1. Floyd Mayweather agrees/refuses fight with Manny Pacquiao 2. Penn State assistant football coach sexually abused boys 3. Antonio Margarito was guilty in handwrap controversy 4. Advisor fired by Manny Pacquiao 5. Michael Jordan and his gambling addiction 6. "Pacroid" boxer is a steroid abuser 7. Syracuse basketball coach sexually abused teen boys 8. Santa Claus will give you a free bike for Christmas (I wept heavily when I found out the truth). Quebec, Canada and Brazil are considering passing legislation that would issue licenses to journalists. If successful, that would make a distinction between citizen bloggers and licensed media professionals with mainstream affiliations. Read why. Journalists vs. Bloggers > Earlier this week, a U.S. District Court judge in Oregon made the distinction between a "journalist" and "blogger". Crystal Cox, an internet blogger, wrote sustained negative attack pieces on Obsidian Finance Group and its co-founder (accusing the latter of fraud). The investment firm retaliated by filing a $10 million defamation lawsuit on Cox. Judge Marco A. Hernandez ruled that Cox's blog posts were factual in tone, and the woman is being ordered to pay $2.5 million in damages. Crystal Cox did not hire a lawyer and represented herself in court. The judge ruled that, although Cox's posts were a mixture of facts and opinion, a reasonable person could conclude was factual given the nature of her presentation. Why? Crystal Cox claimed an insider source as a source of her information, and this approach gave her entries a factual tone. She cited media shield laws (which exist in 40 U.S. states) that give her immunity from divulging the identity of her source. Factual Tone > Judge Hernandez ruled that Cox is not protected by media shield laws because she is not employed by an official media establishment. Here's the court's opinion: . . . although 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. Conclusion: Journalists, like any ordinary citizen, are still subject to defamation prosecution in the U.S. What's new here is the Oregon's court's assertion that freedom of the press protections only apply to traditional forms of media. There has always been legal risk for all of us. If you post text or video online that says "Dennis Rodman is a prick," that's clearly an opinion. Most personal expressions are protected under the First Amendment. If however you say, "Manny Pacquiao has been using steroids," that's a statement of fact. What if you make that assertion on YouTube and get 10 million views? That's plenty of damage (assuming the allegation is false). Washington and California > State law in neighboring Washington is different, where freedom of the press protections are extended beyond the mainstream media. Their state's shield law defines "news media" to include internet, or electronic distribution. In 2006 and 2007, legislators in the state of Washington drafted and passed their version of a bill after learning of the results of a related case in California. In the mid-2000s, Apple sued a blogger who published leaked information about the company's secret plans for a new product. (Uhh, iPhone?) In O'Grady vs. Superior Court, the defendant refused to reveal the source of information, citing media shield laws. However, the 6th District U.S. Court ruled that the internet writer was in fact a media member, and therefore, enjoyed shield-law protection. Here's a takeaway: Oregon does not recognize internet sources or electronic distribution as legitimate news, therefore, bloggers (and YouTubers) don't enjoy freedom of the press protections. Other jurisdictions have different statutes and court rulings. Conclusion: Be careful when you make statements of fact online.... ...Who determines what journalism is anymore? Government laws have not kept up with social transformation. What is considered protected information? What data can flow to the public? Are you forced to disclose anonymous sources? In a different case earlier this year, a court ruled that a random man who videotaped a police beating is entitled the same protections as those of the mainstream press. Federal judge Kermit Lipez stated that "news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper." Lipez added this new dynamic " clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status." Critics argue that there is a big flaw in the Washington state law and California case. Anyone can get protected under shield law. Just spend 10 minutes creating a blog. And voila! You're a journalist in the eyes of the law, enjoying all the conferred benefits to the same. Panera Bread having free wi-fi access for customers just saved you $2.5 million in damages. What about every Occupy Wall Street protester that owns a camera phone? They can claim they are journalists, and therefore, are entitled to the same protections (and access) enjoyed by traditional journalists. Sample Headlines > People are desensitized because we are bombarded with data from every which way direction. Any of these - statements of fact - headlines look familiar? 1. Mayweather-Pacquiao fight set for 2012 2. Lindsey Lohan had sex with manager 3. Alec Baldwin thrown off American Airlines flight 4. Alex Ariza shot steroids through a boxer's ass cheek 5. Doctor: Lance Armstrong's balls fell off on Monday 6. Scottie Pippen caught picking his booger at fundraiser 7. Santa Claus will give you a free bike for Christmas Differences between Journalists and Bloggers > Aside from legal implications, readers should just beware of sensationalist headlines in general. There are pros and cons, similarities and differences, to each approach: 1.) the formal, employed journalists, and 2.) the unconstrained, coffee shop bloggers. Both types of social influencers are motivated by page views, flattery of fame, advertising dollars; and some, driven by the idealistic longing for truth (not much of these anymore). Many employed reporters have gone through formal journalism school pedigree. They have been trained on media ethics and best practices. On the down side, they're also mostly generalists and not subject matter experts in the topics they cover. And they are constrained by regulatory restrictions imposed on publicly-traded companies. Finally, down-sizing in media networks prevent extensive coverage of events... ...Social Bullhorns > Shock value is not new. Propaganda bullhorns have lived among us before we were born. In the ancient world, mystics proclaimed themselves to be descendants of deity. In medieval times, know-it-all scientists announced that the Earth was at the center of the universe. American muckrakers sensationalized political intrigue during the industrial revolution. The next time you read a headline, consider the source of the information. Is there an agenda? Is there a benefit to spreading that information? Who does it benefit? Marv's rant: This development reminds me of a conversation I had with a Filipino elected politician in 2010 (at a boxing event) when he said many journalists in the Philippines - in his own words - are really just paid attack dogs working for rivals. According to the official, they wear credentialed badges, walking around with no qualifications. (Yeah, and they also get gunned down or beheaded routinely.) ]... http://www.examiner.com/international-sports-in-national/bloggers-vs-journalists-defamation-lawsuit-is-a-threat