December 12, 2011
Blogger Smacked With $2.5 Million Fine in Defamation Suit; Are Bloggers at Risk?
First published on Technorati.com by Carole Ditosti.
If you are a blogger and heard about THE BAD LAWSUIT AGAINST A BLOGGER, you are probably concerned to know what is going on and are wondering if you are at risk doing what you love to do.
Well, it depends upon a few things. The answer may be, perhaps, perhaps, perhaps: 1) if you are up front, in your face defamatory (must be proven in a court of law); 2) if the state where you live hasn’t updated its journalism laws; 3)if you do not cite your sources (But journalists are at risk for this as well and some of the finer ones have been caught passing off another’s ideas and not giving credit for it.) 4) if you create out of thin air stories…extensive ones… that have no basis in fact and pass them off as fact, i.e. as in Shattered Glass, the film, based on a true story, or Frey’s A Million Little Pieces,). But even then the idea of court is anathema for both sides and not entered into lightly.
Now about this blogger lawsuit. A Montana blogger, Crystal Cox, who styled herself as an investigative journalist was not afforded media shield protection for sources under Oregon law. The judge determined that she was not a “journalist” working for a “bona fide” news organization, according to a number of online reports.
As noted in Seattle Weekly, Judge Marco A. Hernandez said Cox, who runs a few blogs, wasn’t “affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system.”
In a number of blog posts, Cox was critical of The Obsidian Finance Group and co-founder Kevin Padrick. Obsidian Finance Group sued Cox in January for $10 million stating that the writing was defamatory. Not hiring a lawyer, Cox went Pro Se and represented herself in court.
The judge used only one blog post which he determined to be more (this one), factual in tone than her other posts which were essentially opinion pieces. According to press reports, Cox was being “fed information from an inside source” who she didn’t name. However, the crux of the issue was defamation. And it was the one post that the jury unanimously ruled was defamatory and which led to a judgment against Cox for $2.5 million.
Cox, herself, states in a video she uploaded on her website, that The Seattle Weekly didn’t get the information correct. In the video she claims that she never said she had a human source. Cox holds up a heavy binder of information which she states is her source and which she said was revealed, but to no avail.
According to reports because she couldn’t prove the information in the post was true, she didn’t qualify for Oregon’s media shield law since she wasn’t employed by a media establishment. In the court’s eyes, she was a blogger, not a journalist. However, according to Padrick, the case was won on defamation, not on whether Cox was a journalist or blogger. For the Seattle Weekly Padrick stated,
“Let me reiterate that our case did not turn in any way on the Oregon Shield Law. And even if Cox was entitled to heightened First Amendment protection we are confident the jury would have found in our favor using a higher standard given the lack of any proof of the truthfulness of Cox’s statements.”
For a defamation suit, truth is an absolute defense. Cox could not prove the truthfulness of her claims. That is why she lost, not because she was a blogger.
However, Cox disputes the judge’s finding for Padrick and says that she provided the detailed information in the binder, proving that what she claimed about Padrick and the company was accurate and true. She has indicated that future posts on her blog will deal with presenting specific whistleblower information that reveals the truth about Obsidian Finance Group.
This defamation suit has heightened the tension between journalists and bloggers to a stretching point, because the question of whether a journalist is a professional and a blogger isn’t can lead to spurious arguments, as can the debate of whether a blogger is a. journalist. This controversy which has been going on for years has been settled in states that have updated their protective shield laws. Washington’s shield law is technologically neutral and it relies on the definition of “news media as any news media, including Internet.” So under Washington state, Cox would have been deemed media, but might have lost if she couldn’t prove the truth of her claim against Kevin Padrick and Obsidian.
In the meantime, Cox has put out a call to bloggers, capitalizing upon the blogger vs. journalist controversy, asking for bloggers to come forward and investigate The Obsidian Financial Group and Kevin Padrick. She encourages bloggers to prove that they are deeper more investigatory researchers than traditional journalists because bloggers are not beholden to corporate media boards, editors and advertisers..
On her site Cox posts, “We Demand Transparency in the US Courts, Bankruptcy Courts, and we demand that Attorneys not be above the Law just because the {sic} know the process, the game better then the ones they wish to silence.”
“Stay Tuned, I will Prove My Case Against Obsidian Finance Group, no matter how long it takes and if they kill me, I Hope you will continue to {sic} your Investigation into all dealings of Obsidian Finance Group based in Portland Oregon,” she has posted.
Cox plans to return to court in an appeal and again represent herself Pro Se. Others have suggested she contact a legal group who specializes in electronic media and represents individuals pro bono.
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