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When does a blogger become a journalist?

Citizen journalists everywhere should be checking the fine print of media shield laws, after a US District Court judge in Oregon ruled that self-styled investigative blogger Crystal Cox was not a journalist…

Journalist or blogger? It’s a thin line. See-ming Lee 李思明 SML

Citizen journalists everywhere should be checking the fine print of media shield laws, after a US District Court judge in Oregon ruled that self-styled investigative blogger Crystal Cox was not a journalist. This meant she was not professionally entitled to protect her source’s identity during a defamation action.

The ruling has sparked debates about the limits of free speech and the status of bloggers as media workers. In Australia, federal shield law has been changed to put bloggers and journalists on an equal standing, but state law has not yet caught up. Several states do not recognise bloggers' rights to maintain journalistic source confidentiality - leaving the Media Alliance and online journalists campaigning for legal reform.

The letter of the law

From a black and white legal perspective, the recent US case is a straightforward one. Oregon shield law does not recognise the internet or blogging as media work, so Crystal Cox cannot be a media worker.

Cox, who publishes three tendentious legal commentary sites, including judicialhellhole.com, was taken to court by Kevin D. Padrick, co-founder of Obsidian Finance, and was ordered to pay $2.5 million in damages to that investment company, which she claimed was involved in fraud.

The judge found she had defamed the company in a single post, which is still visible on her blog obsidianfinancesucks.com despite the ruling against her and the fact that none of the allegations she made were ever substantiated.

As a defence, Cox argued she could prove the facts in the offending post were true, and the defamation suit invalid, as the information had come from an insider source. But she would not divulge the source’s identity, and instead invoked the state’s shield law.

Judge Marco A. Hernandez followed that law to the letter in his ruling.

As the Oregon statute only refers to legacy media – not the internet, blogs, tweets or email newsletters – and Cox is not employed by any legacy media company, the judge found she was not a media professional.

That ruling is ground for legal reform, as other US states do protect online journalists.

US Blogger Crystal Cox has started a debate about where the legal lines should be drawn between bloggers and journalists. crystalcox.com

Same but different?

In Australia, our new federal shield law is more attuned to new media work. The Commonwealth Evidence Amendment (Journalists’ Privilege) Act 2011 passed in March this year applies to anyone who is “engaged and active in the publication of news”, including bloggers, tweeters, aggregators, and email campaigners.

This law also protects those publishing in a “news medium”, defined as “any” medium of dissemination to the public - which would include blogs.

At a state level, however, current Liberal governments have shown little enthusiasm for such broad descriptions.

The NSW Evidence Amendment (Journalist Privilege) Bill 2011, passed in July, restricts the definition of a journalist to a person “engaged in the profession or occupation of journalism.”

How this professional identity might be interpreted in state courts is a moot point.

Blurred lines

These days it can be difficult to differentiate professional bloggers from online journalists. In the Cox case for example, one could argue that establishing web domains, mastering search engine optimisation and generating Google ad income are indicators of her professionalism.

But if expertise in spelling, grammar, punctuation, accuracy and argument were also prerequisites, she wouldn’t qualify.

Then again, if knowledge of media ethics was a mark of professionalism, many seasoned hacks wouldn’t make the grade. As Iain Gillespie proved in the documentary Fear or Favour quite a few prominent Australian journalists had not read, or couldn’t remember, their own code of ethics.

So trying to confine shield protection to “professionals” has its demarcation traps.

Ratbags or reporters?

Lawyer and blogger Peter Timmins writes that in Western Australia the Attorney-General Christian Porter has introduced the Evidence and Public Interest Disclosure Legislation Amendment Bill, which emulates NSW’s narrow definition of journalism and excludes protection for bloggers and other social media users. Victoria also may follow NSW’s suit.

In defending the scope of the NSW legislation before a budget estimates committee, Attorney-General Greg Smith has argued he is not going to give journalistic privileges to bloggers, who may be “ratbags”.

“I think the problem is that there is very little sanction against those [bloggers],” he said, noting journalists who work for mainstream companies can at least get sacked if they write something inappropriate.

Smith has even suggested that Crikey.com, a flag carrier for journalism standards, is not worthy of shield law coverage.

Indeed the Crystal Cox defamation judgement complicates shield law debates unnecessarily. Shield laws do not protect journalists from defamation actions, or even from having to reveal their sources if they are arguing truth as a defence.

Their purpose is to give judges the discretion to decide whether it’s in the public interest to disclose or protect the identity of a source and when to sanction that media privilege.

The real concern is how equitably judges might apply that discretion when it comes to more adept practitioners of online reportage and citizens' media than Cox.

Join the conversation

8 Comments sorted by

  1. Robert Barnes

    logged in via Twitter

    What's strange about this episode is that journalists have reported so much on the question of bloggers having different legal protection to journalists, but to my knowledge only one, David Carr from the NY Times, seems to have dug into the trial, the blogger, and her writings. You really should check out his story - http://www.nytimes.com/2011/12/12/business/media/when-truth-survives-free-speech.html?pagewanted=all

    And then, see what she has now created - http://www.davidcarrsucks.com/

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    1. Fiona Martin

      Senior Lecturer in Convergent and Online Media at University of Sydney

      In reply to Robert Barnes

      I had read Carr's article before I wrote this Robert - and had also given Cox's writing and modus operandi a serve in an earlier draft. The Conversation editors cut that bit out.
      They decided it was more useful to focus on the legal implications - and so it is.
      Cox is a distraction from the main game, which is, as Mr Denmore notes, politicians trying to control the growth of dissent and critique online.

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  2. Tim Scanlon

    Author and Scientist

    I'm a little surprised by this article. Journalists have standards? That is news to me.

    If the concern is for accuracy in media reporting or some set of standards then you only have to look at recent court cases and ACMA charges leveled at various 'journalists'. These charges have found wrong-doing, and yet the people involved are unrepentant, have continued to work in the industry and are somewhat revered.

    One part of social commentary that is rarely touched upon is that once a comment is made in the media it is assumed to be true. So allegations, no matter how false, are believed. The two line retraction buried somewhere 6 months later after the court case do little to clean the slate in the public sphere.

    Bloggers have this same responsibility and need to be accountable, but I'd question the wider media as well. They are largely unaccountable and often unethical.

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    1. Fiona Martin

      Senior Lecturer in Convergent and Online Media at University of Sydney

      In reply to Tim Scanlon

      I'm sure I have a box of standards someone gave me last Christmas Tim...under the bed...or in the garage maybe? I certainly wish there was a flat-pack accountability kit on sale this week - a few editors could do with that under their tree.

      I do sympathise with your cynicism about the journalistic enterprise and accountability mechanisms but may be audiences and advertisers have a largish role in demanding better behaviour too?

      Also it's easy to fixate on the prominent bad boys and girls of the media and forget the thousands who struggle to make good decisions about how they report. This includes those who don't qualify for the maligned label 'journalist' because they aren't paid or don't publish in the mainstream. Academics, for example, or professionals like yourself.

      If they do the same things as journalists, with the same aims and standards, should they regarded differently in law?

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    2. Tim Scanlon

      Author and Scientist

      In reply to Fiona Martin

      We're definitely on the same page Fiona.

      The companies that employ various journalists will often defend their journalist or program simply because it attracts audiences (or sensation) and advertisers. To me it often feels like I'm watching re-runs of Frontline when I watch media watch dog inquiries. So I agree, the audiences and advertisers have to stop supporting them and demand better behaviour. But of course, some have deliberately targeted an audience to play to.

      In terms of external professionals…

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  3. Lucy Mae Mirren

    logged in via Facebook

    My understanding was that the national shield laws don't differentiate between the journalist and any member of the public? (Any means of dissemination to the public would include a public meeting, wouldn't it?) And in my view, nor they should. I can't see any reason for singling journalists out for special laws at all.
    If, let's say, I am an employee of the local community-owned nursing home and I suspect the CEO has been, for example, embezzling money, and someone passes me proof that I can take to the community board of management - or even to its annual meeting - is there any good reason why my source does not deserve the same protection as a journalist's?
    Defamation law, the public interest, confidentiality law, qualified privilege ... all these and more are of vital interest to every citizen who attends a public meeting or otherwise takes part in their civic affairs ... yet the poor old public seems to have dropped out of consideration.

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  4. Frank Israel

    logged in via Facebook

    Well, the first thing someone has to do is wade through one of her blogs... I dare you.

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