Are bloggers journalists and part of the media?

7 December 2011

A few people have shared the above-mentioned story, and I was intrigued by it, since it raised interesting, and perhaps awkward, questions about bloggers’ position within the media landscape. Problems start, as it were, with the term blogger, because it can be applied to so many different types of people: some bloggers are professional bloggers who make a living from their blogs, and there are others who are blogging for fun, friends and family, which basically is a hobby.

Ms Cox, a blogger, was taken to court for defamatory remarks she made on her blog. My interest is not the amount of damages (which I think is somewhat obscene), or interpreting Oregon’s statutes, or legal arguments per se, but a passage in the judge’s opinion:

Defendant next argues that she is "media" and thus, plaintiffs cannot recover damages without proof that defendant was at least negligent and may not recover presumed damages absent proof of "actual malice." [...]

Defendant cites no cases indicating that a self-proclaimed "investigative blogger" is considered "media" for the purposes of applying a negligence standard in a defamation claim. Without any controlling or persuasive authority on the issue, I decline to conclude that defendant in this case is "media," triggering the negligence standard.

Defendant fails to bring forth any evidence suggestive of her status as a journalist. For example, there is no evidence of (1) any education in journalism; (2) any credentials or proof of any affiliation with any recognized news entity; (3) proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest; (4) keeping notes of conversations and interviews conducted; (5) mutual understanding or agreement of confidentiality between the defendant and his/her sources; (6) creation of an independent product rather than assembling writings and postings of others; or (7) contacting "the other side" to get both sides of a story. Without evidence of this nature, defendant is not "media."

I am not a lawyer, so I am not sure Ms Cox would have won the case had she been able to convince the judge that she was a journalist or media as this relates to the application of the negligence standard, but this list of 7 factors that would be suggestive of someone’s status as a journalist is interesting. The first two factors are educational and formal: to be a journalist means studying journalism and being employed by or affiliated to an established media outlet. However the subsequent 5 factors are what may be termed as good practices that journalists are expected to abide by. It’s unclear if one has to satisfy all, or only a few, or if there are some necessary factors, to be considered a bona fide journalist. The judge did not necessarily state that no blogger can ever be considered a journalist: the judge decided that Ms Cox did not demonstrate the attributes of being a journalist to a sufficient degree.

It would be inappropriate if all bloggers, by the virtue of blogging, were given the same kind of protection as afforded to journalists by the law. I think it’s fair to say that we all have come across, at some point, a blog that was nonsensical, defamatory or really, really weird. Yet, it’s also true to say that there are indeed good investigative bloggers who ought to enjoy the protection of the law.

So, the question this raises is: how would it be possible to give investigative bloggers who adhere to the good practices of journalism the protection afforded to journalists? It would be unsatisfactory, if it were decided on a case-by-case basis, in which the courts and judges decide who is and who is not a journalist. The burden of proof would likely to fall on the blogger to prove him or herself as a journalist. Would, for example, attending a two-hour course titled journalism for bloggers evening course be sufficient to call oneself a journalist? Then anyone who attends could claim to be a journalist, which I doubt is particularly satisfying.

There does not seem to be an easy, one-size-fits-all definition that can cover those bloggers who ought to be protected. Some bloggers would and should be considered as journalists, and bloggers, whether journalist or otherwise, will have increasingly visible and vocal presence on the online media landscape. The problem is that the whole media structure, including the law, is unprepared for that change.