What Is the Media in the Age of the Internet? Defamation Law and the Blogosphere

• Publication year: 2013

Washington Journal of Law, Technology and Arts Volume 8, Issue 5 Spring 2013

What Is the Media in the Age of the Internet? Defamation Law and the Blogosphere

Lauren Guicheteau(fn*)© Lauren Guicheteau

ABSTRACT

As more people turn to blogs as a source of news and information, the distinction between blogs and traditional media sources has become more complex for courts dealing with First Amendment issues. In the recent case, obsidian Finance Group, LLC v. Cox, the United States District Court for the District of Oregon held that the defendant, a blogger, was not a member of the media for the purposes of a defamation claim. The court held that media defendants must be at least negligent to be liable for defamatory publications, but because the blogger was a non-media defendant, she was strictly liable for her defamatory comments. This controversial opinion highlights the importance of the lines courts have created around the definition of "the media." This Article will examine how courts treat bloggers in the context of special media protections. It will consider how the definition of media is being expanded to include some forms of blogging and how this affects defamation law.

TABLE OF CONTENTS

Introduction.................................................................................574

I.Blogs Compared to Traditional Media.................................575

II.The First Amendment and the Elements of Defamation......577

III.The Media/Non-media Distinction in Defamation Law.......579

A.Why the Definition of Media Matters............................579

B.Sources for the Definition of Media in

Defamation Law..............................................................580

IV.Recent Incorporation of Bloggers as Journalists and Media..............................................................................581

A.Content............................................................................582

B.Format.............................................................................583

C.Creator.............................................................................584

Conclusion..................................................................................586

INTRODUCTION

While blogs have become a popular source of information and commentary, the content of many blogs is subject to little oversight or accountability. When defamatory information is posted on a blog, courts must determine whether bloggers are akin to members of the media with respect to First Amendment and state law protections. Recently, the U.S. District Court for the District of Oregon ruled in Obsidian Finance Group, LLC v. Cox that the defendant, Crystal Cox, a self-described "investigative blogger," was not considered a member of the media for purposes of a defamation claim.(fn1) Cox ran a website, www.obsidianfinancesucks.com, on which she published statements critical of plaintiffs Obsidian Finance Group and Kevin Padrick.(fn2) These statements accused the plaintiffs of theft, tax fraud, and lies. While many of her statements were seen as opinions, the court found a few to be potentially defamatory.(fn3) When a case involves a media defendant and a plaintiff who is a private figure,(fn4) the plaintiff must show that the publication of defamatory material was at least negligent. However, the Obsidian court concluded that non-media defendants are held to a standard of strict liability for defamation. When the court found that the defendant was not part of the media, the blogger became subject to strictly liability for her statements to the cost of $2.5 million in damages. This situation highlights the impact the definition of "media" can have on a defamation defendant.

This Article will examine how courts classify bloggers as either media or non-media entities, and the application of this distinction in defamation law. This Article will begin with a brief account of the development of blogging and how comparisons with traditional news sources create confusion for modern courts dealing with defamation claims. This Article will then describe the elements of defamation, constitutional protections for defendants, and the media/non-media distinction for standards of liability acknowledged by some courts. Looking to various legal sources for the definition of media, this Article will examine the new trend in court cases that is expanding this definition to include certain types of websites, including certain blogs. This inclusion of websites within the definition of the media is based on the general content of a website, how closely the website tracks the format of traditional print media sources, and the journalistic status of the website's creator.

I. BLOGS COMPARED TO TRADITIONAL MEDIA

Blogs are websites that consist of a series of dated entries, called posts, which are usually displayed in reverse chronological order. Posts often contain hyperlinks that connect to other websites to support the content of the post or to provide further information on the topic. One person or a group of people can write the posts for a blog, and these writers are known as "bloggers." Bloggers often have a personal and subjective writing style. Originally, blogs started out as online versions of a personal journal or log, and the word "blog" is actually a portmanteau of the phrase "web log." Now blogs cover a wide range of topics from cute animals to parenting to recent developments in technology law.(fn5) Blogs provide anyone a fast and cheap way to publicly share ideas.

Blogs have also expanded to cover topics previously within the realm of traditional journalism, such as political commentary and news reporting. Many bloggers critique news coverage from other media outlets or put forth their opinionated interpretations of the news. Some of these blogs have gained public credibility by holding journalists accountable by checking facts and exposing scandals that the mainstream media later picked up.(fn6) In some cases, blogs have become independent sources of news. The format of blogs allows material to be posted quickly, allowing breaking news to be published before traditional media.(fn7) Bloggers at the scene of current events, such as war zones or natural disasters, are able to broadcast their...