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A recent post considered the perspectives journalists themselves held regarding the definition of a blog, and bloggers, specifically citizen journalists, and the difference between their own articles, and ‘blogs’, often within the same publication. [see: Blogs and Journalism. A Matter of Tone?]. While the post did briefly consider legal aspects on defining a blogger vs a journalist, those same considerations became news on December 6th, 2011, with a judgment by U.S. District Judge Marco A. Hernandez in a case involving a blogger, Crystal Cox, vs Obsidian Finance Group, over defamation.

Without going into the actual merits of the US legal case, points immediately became clear in both the judgment, and following commentary:

The US District court judge held for the plaintiff, Obsidian Finance Group, against Crystal Cox in part by defining a journalist as:

affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system.

The Oregon ruling against Crystal Cox seems to limit legal protection within the US only to media content producers within traditional networks, and who can produce a contract of employment. Yet there are plenty of examples of networks and syndicates which would seemingly deserve the same protection, and individual news sources, who through their own efforts, have similar broadcast influence. The court’s definition, on it’s own merits, seems extremely 20th century. The proliferation of online media channels, where anyone can create a ‘news’ network – YouTube Channels, WordPress.com, Blogger and more – as free platforms, begs the definition, as the each could be included in the ruling. In fact, they might in any followup appeals.

What was interesting was the almost immediate followup in The Seattle Weekly, with an opinion, that had the case been judged in Washington State, rather than Oregon, the outcome would have been the opposite – although both states, among 40 others, have agreed to a ‘shield law‘.

Washington State defines news media as: [from Washington State Legislature]

Any newspaper, magazine or other periodical, book publisher, news agency, wire service, radio or television station or network, cable or satellite station or network, or audio or audiovisual production company, or any entity that is in the regular business of news gathering and disseminating news or information to the public by any means, including, but not limited to, print, broadcast, photographic, mechanical, internet, or electronic distribution;

and even that definition is limiting as, while it goes further than Oregon to somewhat protect solely online articles, the inclusion of ‘regular’ implies that a one off article, or someone who posts on their blog (or through another network) irregularly, is somehow not deserving the same protection. Frankly, the time frame, or platform, should not matter. It is the content that counts.

Many opinions on this particular topic, weighing in on the US centric implications:

David Carr, New York Times – “When Truth Survives Free Speech”  [Twitter @carr2n]

In the pre-Web days, someone like Ms. Cox might have been one more obsessive in the lobby of a newspaper, waiting to show a reporter a stack of documents that proved the biggest story never told. The Web has allowed Ms. Cox to cut out the middleman; various blogs give voice to her every theory, and search algorithms give her work prominence.

and check the continually updated opinion articles through Google on this particular case…

The problem with the Cox case is not only a poor example for case law of a citizen seeking truth to power, but one who herself looks to define the online platforms as her playgrounds:

“I have a gift for getting on top of search engines and I want to give voice to victims of the corrupt judicial system,” she said in an interview by phone. “The system wants to shut me up and they have been trying to for years.”

“I’m glad I lost the case, because it gives attention to what I have been doing,” she added, saying she doesn’t have money to hire an attorney — she represented herself in the defamation case — let alone $2.5 million to pay in damages. She plans to appeal.

As one who tries to empower people, journalists or not, to be brave – to research, write, and publish thoughtfully using online tools, that rich available online democracy, I would agree citizen journalists should adhere to a code of best practices. In many examples where blogs and social media have combined to create a meme for or against an authority, there is a moderation factor in numbers: not so in this case. Crystal Cox might be correct, might not, but her example should not be the legal precedent to judge all others.

Of course, the Cox case is US law, and will likely be appealed. Canada does not have a ‘shield law’ per se, nor do most countries. In fact journalists, especially citizen bloggers, have been targeted in 2010/2011 around the world. [Reporters without Borders] In Canada, courts do not differentiate between a journalist and citizen in terms of access to information, or offer particular protection under law. Each are equally liable especially in terms of defamation and libel.

In the US, the 1964 case of New York Times vs Sullivan defined defamation laws:

The Court held that the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity). Under this new standard, Sullivan’s case collapsed.

Protecting sources is another matter entirely. Journalists employed by legacy media usually work under an editor, and within guidelines and standards. Before publishing using anonymous sources there is often a conversation with an editor to receive final approval – is the source trust worthy, is anonymity a requirement? Citizen Journalists often do not have the luxury – or some would say the limitations – of an editor, yet individually published blogs have broken news, especially on celebrities and technology using insider and anonymous sources. The lead up to any gadget launch creates a wealth of speculation, and sometimes lawsuits – see Wired, Think Belligerent

Much like the Oregon ruling, the disparity in applying the US Shield Law to cases applies in Canada. On one hand the Canadian Supreme Court has ruled in favour of hyperlinking vs potential defamation – yet in two other judgements ruled in the first that sources were not protected [National Post, et al. v. Her Majesty the Queen], and in the second, that protecting sources was the rule: [Daniel LeBlanc case]

Where does this leave citizen journalists? Not much difference than a year, two years ago or since the beginning of the internet. Legality always takes time to catch up with technology, and legacy media the same time frame to meet, and attempt to match, those who feel mainstream media are not reporting the news that matters. Read Kayt Davies article on Activist Media

If the only journalists are the ones employed by networks, mastheads and agencies, this makes it fairly easy for tyrants and wrongdoers to hide their activities from the eyes of the world. Only the latter are likely to come poking around uninvited and throwing up a simple media ban can keep them out, as even they are not well enough resourced to put up a fight, and without access they struggle to assert that there is something wrong going on that they should be allowed to report on.

The flies in the ointment of this sinister scenario are the philanthropic social media activists who are all about going into trouble spots to teach ordinary people the difference between journalism, blogging and propaganda; and sharing how to do journalism basics (such as WWWWWH and inverted pyramid writing style please, watch your tenses, and a fact isn’t a fact until you have it confirmed by three sources). Some, such as WestPapuaMedia.info, also teach how to use phones and cameras to maximum effect, and how to minimise chances of being arrested, killed and/or having footage confiscated. Other examples are NarcoNews and BurmaVJ.

Corporate media, and publicly funded publications cannot, will not fill the entire demand for information. For both it might not be in their interest or mandate; time and publication space constraints limit output. Especially at the hyper-local level and niche interest, citizen media amply fills that role. Recognizing that, there is far more collaboration now between established media, paid journalists and citizen reporters – with that, there is also a teaching moment.

Comments: This post was written over a few days, talking to a number of journalists, bloggers, and commentators. The following are a few of the comments received:

From Tom Hawthorn (Twitter: @TomHawthorn): who I have to thank as being very proactive and helpful with links, and thoughts.

(From Twitter) I’d like 1st Amendment type wording, plus a Sullivan v. NYT type libel ruling, plus better FOIA, plus shield law for all citizens.

Not my area of expertise, but whistleblower/shield law might be beneficial for Cdn society.

Via Sean Eckford on Facebook

And a point worth making Mat, is that citizens, or bloggers, are not subject to the same rules on defamation or libel as journalists… but that journalists are subject to the sames LAWS on defamation and libel as every Canadian citizen. Period. On this one the phrasing does matter!

and: As for privilege etc… to me a key distinction is who do you answer to? I’ll agree any blogger or citizen journalist an be considered as a member of the profession if they are bound by a recognizable and enforceable code of conduct – such as the CBC’s standards and practices or those in the broadcast industry etc. After all, to use an extreme example, I can’t set up as “citizen doctor” just because I have the ability to attract patients and even cure one or two. If you’re a blogger and you’ve got a page on your blog that outlines the code of conduct you work under, with consequences and a way for the reader to tigger those consequences – welcome!

With thanks to Tom Hawthorn, Sean Eckford, Emmett Macfarlane, Ross Crockford, Kate Gardiner, Gillian Shaw

as always, comments are welcome…

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