Sometimes the challenges that new technologies present for legislators create absurd situations – like the farcical scenario we witnessed earlier this year in the UK whereby the prominent footballer, Ryan Giggs, was repeatedly named on twitter as the celebrity subject to a reporting super-injunction concerning some events in his private life, although ‘traditional’ media organisations continued to be gagged from mentioning his name as if it continued to be any kind of a secret whatsoever.

The confusion was a nightmare for journalists and judges and ultimately benefited nobody. Arguably the biggest victim was Ryan Giggs, although considering some of the details of his alleged extra-marital activities it’s hard to feel too sorry for the man.

But there’s a similarly confusing scenario playing itself out over in the US at the moment, which is far more troubling. First off, check out this blog post over at the bankruptcy corruption blog. Done it?

Good. Now consider this: that post is looking set to cost its author $2.5 million after an Oregon Judge decided it was defamatory and that blogger Crystal Cox should pay this ridiculous sum in damages.

Fair enough you might say – some of what she writes is pretty strongly worded, and not exactly flattering of its subject Kevin Padrick and Obsidian Finance. You might say that, until you learn on what grounds this fine has been issued.

The problem apparently is that Crystal Cox’s writing in this post has a very factual tone. If these negative statements were presented as trolling or simply wacko conspiracy opinion then that’d (probably) be fine according to the law. In fact, a number of other posts in the case were thrown out of consideration by the judge for precisely this reason – they weren’t as factual in tone.

Here’s where the problem arises: Cox’s blog is factual in tone precisely because it’s based on research and insider sources – she didn’t simply pluck these fantasies out of her head. A key aspect of why she has access to such information is that she protects her sources anonymity, something which many journalists of all types will recognise as standard practice. Those who work for a local newspaper would have done things exactly the same as Cox did – and would hence have faced no punishment from the very same judge. 

The problem for Cox is that, since the judge ruled her not to be a ‘real’ journalist, she couldn’t enjoy the same privilege that journalists enjoy of reporting factually based on evidence from sources without naming them. Cox must reveal the identity of her sources in order to prove her justification for writing so negatively about Obsidian finance in a factual manner – or she must pay damages for defamation.

So here are a few questions I have for Judge Marco Hernandez who presided over the case:

  • What if Crystal Cox wrote for a group edited blog like Techcrunch? Would she then be considered as affiliated with a media organisation, thus a ‘real’ journalist and ‘thus’ legally protected to do her work? If the answer is yes, then at what point does a blog become a media organisation? Is it a matter of pageviews? Or number of authors? Number of posts?
  • What if Crystal Cox reveals her earnings from such work, and the fact that her main income is from such activities? (n.b. I don’t know whether this is or isn’t the case). Is she then a journalist?
  • What if Crystal Cox tries to dress more ‘journalisty’ – could she then be considered a journalist?
  • What about the personal blog of a technical support worker employed by a major newspaper? They are ‘affiliated’ with an organisation, where does their blog stand? What about the personal blog of someone whose day job is to be a newspaper (or TV, or whatever) journalist? (Here’s an interesting example of this)

Ok so this is kinda flippant – the point is that to use a definition of ‘journalist’ that essentially belongs in the 1980’s is clearly not going to be workable in today’s media environment. And in the meantime people like Crystal Cox get fined ridiculous sums like $2.5 million for having the honour to do what a professional journalist would do – protecting a whistle-blower’s anonymity. Interestingly, Cox would probably have not received the fine had she been based in many of the other states of the US, since this legislation is put together at state level (perhaps a policy requiring re-consideration since the internet is a little bit less confined by state boundaries than abortion clinics are).

Until legislators catch up with how the web works today and not in 1999, it seems this potential confusion and chaos is here to stay for now. If you are a blogger, the best you can do right now is to try and inform yourself on the current state of play and hope you’re covered by good practice (since in law you possibly won’t be). If you are a US blogger your situation is unfortunately a little more perilous since libel and defamation laws are generally tighter than here in the UK. Here’s a great resource from the Electronic Frontiers Foundation which should help you inform yourself of the current legal state of play. Some of the points will also be useful for UK based bloggers, as will guides such as this one. (I am not very well informed on non-English language resources I’m afraid, Sorry for non-UK/US bloggers). Good luck!