Should your common, every-day blogger be afforded the same libel protection as professional journalists?
Yea, sure, we know there are no “common, every-day bloggers.” You are all special in your own way. That’s not sarcasm, it’s true: everyone writing online today should be treated as having something worthy to say (often, far more worthy that many professional journalists posting in the Internetzez these days).
So, then, the question arises: should bloggers be afforded the same libel protection as professional journalists who are generally shielded from defamation suits except in cases of provable falsehoods when coupled with provable malicious intent and/or complete disregard for anything even barely resembling truth.
The good news is an appellate court judge in Oregon decided last week bloggers should, indeed, be afforded the same libel protections as professional journalists.
The bad news is the case on which the ruling was made is – by all reports – a difficult case because it may very well involve a false accusation made with malice.
The Verge reported last last week Oregon Appellate Court Judge Marco Hernandez ruled it did not matter if the blogger/defendant in a libel suit was working on her own or as a paid, trained journalist.
“The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story,” the judge wrote, as reported by The Verge. “As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable.
“In defamation cases, the public-figure status of a plaintiff and the public importance of the statement at issue — not the identity of the speaker — provide the First Amendment touchstones,” he continued.
This is very good news – and a just and rational view leading to a substantive, affirming judicial rendering.
The ruling may very well be appealed further up the judicial ladder and higher courts also have a say: to affirm or reverse. But for the meantime, the ruling is good news for all who value a free and open exchange of ideas on a free and open Internet. (See piece on wounded net neutrality from last week.)
The problem with the particular case on which the Oregon appellate judge ruled is its flawed nature.
The defamation suit was brought by Obsidian Financial Group in 2011 which claimed a blogger defamed the company by posting it was guilty of tax fraud. The trail court agreed the blogger libeled the company and awarded Obsidian $2.5 million. The blogger appealed the trial court verdict leading to the appellate review.
But according to sources, including the New York Times, evidence may exist which could prove the blogger was indeed acting maliciously with reckless disregard for the truth – or worse.
It would be ironic, indeed, if the appellate court ruling stands additional judicial review and all bloggers are shielded from libel suits based on a case in which a blogger may find herself ultimately guilty of libel.
Oh…what a world, what a world.