Blogger v. Journalist (Part IV)
Is Nick Robinson a blogger? Is Guido Fawkes a journalist? The Question has been hotly debated on the internet. Last week, for the first time, a New Jersey Judge dipped his toe into these turbulent waters, and arrived at a conclusion that is likely to reach accord with the judiciary on this side of the Atlantic.
In the case of ‘Too Much Media’ LCC v Hale the judge was being asked to decide whether a journalist, whilst acting as a blogger, was entitled to rely on journalistic privilege, specifically the right to protect sources, and further whether someone defamed under these circumstances could reclaim damages without having to prove pecuniary loss.
Shellee Hale, the defendant, is a published author and a member of Society of Professional Journalism, The National Writers Union and maintains a corporate account with PR Newswire. The issue was not whether she was a journalist, but whether she was entitled to the privileges and protection (called the Shield Law in the case report) accorded to that profession when blogging on her own account.
“Courts are now being faced with the task of evaluating a virtually limitless number of people who claim to be reporting on issues, but who are, many times, doing little more than shouting from atop a digital soapbox. When New Jersey’s legislature enacted the Shield Law, it could not have anticipated the instantaneity with which people now transmit information. (Here at page 7)
There is no fact-checking required, no editorial review, and so little accountability for the statements posted that it is virtually impossible to discern the author or source of the posts. To extend the newsperson’s privilege to such posters would mean anyone with an email address, with no connection to any legitimate news publication, could post anything on the internet and hide behind the Shield Law’s protections. Certainly, this was not the intention of the Legislature in passing the statute.” (Here at page 9).
The judges decision, whilst not binding in the UK, will send a shiver down the spine of many a journalist who blogs in addition to his main employment, or perhaps following redundancy. The decision, as always, turns on its own facts, and cannot be taken as a blanket ruling that bloggers are not journalists unless employed by a bonafide news organization and are not then covered by New Jersey’s Shield Law, which legally protects reporters from disclosing their sources. However, taken in conjunction with the recent case of Nightjack (The author of a blog v Times newspaper [2009] EWHC 1358 (QB) where Mr Justice Eady refused to protect the anonymity of a blogger, it is an indication of how the judiciary on both sides of the Atlantic are attempting to draw a firm line between the rights and privileges accorded to those who work for the accredited establishment media, and the voices of the citizens that ‘shout from atop the digital soapbox’.
The second part of the decision is interesting, in that not only was the defamation suit bought under a head of Slander rather than Libel, which accords with Mr Justice Eady’s ruling in Smith v ADVFN & Others [2008] All ER (D) 335 (Jul) that in the context of defamation law, postings and communications of this kind are more “akin to slanders”. Mr Justice Eady said that such comments are “contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) which people simply note before moving on; they are often uninhibited, casual and ill thought out.” The distinction between the two causes of action is important because slander is only actionable if the claimant can prove special (monetary) damage caused by the imputation – however injurious to reputation, however malicious the motive of the defendant.
In the Hale case the Judge ruled that where she had alleged that the plaintiffs had ‘threatened someones life’ and ‘committed theft’ (of e-mail addresses) this came under the heading of:
One who publishes a slander that imputes to another conduct constituting a criminal offense is subject to liability to the other without proof of special harm if the offense imputed is of a type which, if committed in the place of publication would be (a) punishable by imprisonment in a state or federal institution, or (b) regarded by public opinion as involving moral turpitude.
[Restatement (Second) of Torts §571 (1977)]
and thus, because ‘the defendant’s message board postings allege that plaintiff’s have engaged in criminal conduct and are incompetent with respect to their business practices, the complaint is actionable without proof of pecuniary damages’.
In plain English, at the moment, this ruling only applies to those within the Washington jurisdiction, but if the cross fertilisation continues between the US and UK judiciary, as seems likely, and a similar set of circumstances is brought before a UK court, then bloggers will find that even if they are journalists ‘in real life’, then they are not covered by journalistic privilege when blogging or commenting on message boards, and furthermore those who comment on message boards are liable for comments such as ‘I will kill her’ or ‘he’s a thieving git’, even where no financial loss can be proved.
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July 12, 2009 at 12:54 -
(Part IV)
Is this going to be like Star Wars, episode IV coming first?
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July 12, 2009 at 14:00 -
I don’t think in English law journalists have any particular privileges just because they’re journos.
(I’ll sound out some hacks I know on this).
Any anyway, why should they? The idea of officially recognised media outlets sounds a bit to statist for my liking. -
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July 12, 2009 at 14:47 -
Good post Anna. And what about citizen journalists?
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July 12, 2009 at 15:00
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July 12, 2009 at 15:48 -
As a blogger par-excellence I take issue with being compared to journalists, particularly those cowardly bastards in the UK. These cretins, who for years have dined at the establishment table for bonuses of no particular merit, are not fit to hold a pen to me or several others including this blog’s champion, for their wit, talent, unscrupulous endeavour and constant moaning.
Journalists, also known as failed teachers and local government jobsworths, do not have any respect from me towards their pandering towards fascist governments in the UK and US. Mst of them wouldn’t get in my joined up writing school for misunderstood human fodder (no sheep allowed)!
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July 12, 2009 at 15:53 -
No sheep allowed?
Have you Baaad them all?
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July 12, 2009 at 17:18
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July 12, 2009 at 17:49 -
typical journos, they want there cake and eat it. They like blogland and want to join in the fun then when they get caught they scream – but I’m speical. I guess half the BNP people who infest comjments are really journos who cant say what they think at work.
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July 12, 2009 at 18:51 -
What about the MP’s who are Journo’s and bloggers, where do they stand ?
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July 12, 2009 at 19:36 -
bloggers have a much better name in the uk.
main stream journalists are seen as lying lowlife,who have pandered to new labour for knighthoods and posh meals.the whole system is rotten.
now new labour have bankrupted britain they have no where to go.
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July 12, 2009 at 21:39 -
all you have to say is ……Michael White …….says it all
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July 13, 2009 at 00:12 -
Is it swine flu or sheep flu, they want to vaccinate every one for ?
I’m not a sheep or a pig, what happened to BIRD flu ?
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July 13, 2009 at 13:24 -
It is a measure of the impact of bloggin’ that so many vested interests have cajoled the judiciary into poking their nose where it is not really called for.
The tide is out for journalists , and their expensive communist/commentator betters.
The cowardly retreat from investigatory journalism in the Mcsham case has turned off so many people of independent thought that they would rather quiz the world themselves than rely on paid employees of lowest common denominator publicaitons.
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July 13, 2009 at 13:24 -
Been freelancing for some 50 years and never asked anybody to verify my journalistic background! Get a good story and flog it has always been my motto.
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