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Bloggers get a little R-E-S-P-E-C-T from the United States court system

An important ruling has been handed down in the federal court case of BidZirk v. Philip Smith.  The case posed a critical decision for bloggers across the internet.  At stake was their ability to publish editorial article in standard journalist fashion on their blog sites.

Journalists in the U.S. enjoy a degree of additional legal protection.  It is more difficult to legally charge writers with libel or slander, if the journalist is merely stating opinions.  Journalists can protect the confidentiality of their sources, according to many shield laws, though these rights do not always hold in federal court.

Journalists can obtain government documents via the Freedom of Information Act, although the government has the right to redact portions of its documents.  Most importantly, journalists are exempt to a degree from charges of invasion of privacy, if they can demonstrate that the person or group they were reporting on performed actions that cast itself into the public's eye.

Blogging, the practice of writing oft-opinionated internet editorials has become a booming Internet business, with some people becoming full time bloggers and writing on a broad array of topics.  DailyTech hosts a variety of lively blogs that deal with a broad array of science and technical issues.

While bloggers report news, whether they enjoy the legal status of other reporters is open to debate, especially given the ethical qualms of anonymity and bias.

Now a new Federal Court ruling has set the precedent that bloggers can, at least sometimes, be journalists.

The case revolved around blogger Phillip Smith and a scathing blog that he wrote about eBay listing company Bidzirk and its owner Daniel Schmidt.  The case revolved around three points.  First Phillip was was charged with using the Bidzirk logo on his blog, which Schmidt's lawyers labeled trademark dilution under the Lanham Act.  Second, Phillip's comments that Schmidt was a "yes man" were portrayed as defamation.  Finally, the blog's linked picture of Schmidt and his wife was, according to Schmidt's lawyers invasion of privacy.

Phillip Smith refused to hire an attorney and instead sought to defend himself in court.

Meanwhile Schmidt hired high-power attorney Kevin Elwell, who went on the offensive in October of last year by filing a lis pendens against Smith's condo.  This effectively prevented Smith from selling his condo, as a lis pendens informs potential buyers that the property is part of ongoing litigation and that sale would not diminish the plaintiff's potential ownership of the property.

Still, Smith weathered the storm and fought back moving in September for summary judgment, as he stated that their were no legitimate claims against him.

His use of the BidZirk logo was legal, he stated, as he was a journalist and his "yes man" comment was not a statement of fact. On the third charge, he pointed out that for the picture he had only linked to a community site, a common process that is legal.

The judge in a South Carolina Federal Court has just sided with Smith and ordered summary judgment.

The key part of the ruling was that the judge pointed out that it was impossible to determine in advanced, based on past precedent whether a blogger was a journalist, so instead a functional analysis was performed on Smith's writing to determine if was journalistic in quality.  The judge found that the article was well researched and written and consisted of both positive and negative statements of about the experience.  Its intention was clearly to inform, not to damage.

The judge stated, "The fact that Smith reports negatively about his experience with BidZirk does not dictate that the article's function or intent was not news reporting or news commentary."  He continued, "Some bloggers are without question journalists."

The plaintiff's attorney, Elwell, received the stick, being sanctioned for his actions and forced to pay $1,000 in damages to Smith.  As a "competent attorney," the judge stated, Elwell should have known better than to resort to such bullyish tactics against the blogger as his actions about Smith's real estate, considering that the case had nothing to do with real estate.

The case sets an important precedent that bloggers who construct well researched and carefully written work can be legally classified as journalists and be protected under applicable U.S. state and federal laws.  Bloggers of the world rejoice -- and keep writing!


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Good for the journalists but...
By Spivonious on 11/2/2007 2:23:53 PM , Rating: 2
If I post a blog about how my neighbor was a communist because he wouldn't let me borrow his toaster, does this not count as libel? According to this judgment, as long as my blog post was "well-researched" I can post anything I want to because I'm automatically a journalist.

I'm all for free speech but this is going a bit too far IMO.




RE: Good for the journalists but...
By FITCamaro on 11/2/2007 2:37:19 PM , Rating: 3
I dunno man. I almost agree with you, but then I thought about it. Blogs should just be where people spout their, sometimes retarded and completely unfounded, opinions. If I want to say that Hillary Clinton is the devil incarnate, one of the greatest threats to America in recent years, and looks like what would result if a train ran over ManBearPig, I should be able to.

I don't view bloggers as journalists to be sure. But as stupid as I think a blog is, I don't think you should be held legally liable for what you say on one. Now if you start posting pictures of me in my own home that you took because you're spying on me or something, I think I should be able to get a court order to have them removed.

And a communist would lend you his toaster.


RE: Good for the journalists but...
By Ringold on 11/2/2007 2:53:30 PM , Rating: 5
quote:
And a communist would lend you his toaster.


Not his toaster, the peoples toaster!

Just the party members are trusted to keep all the really nice toasters.

Anyway, I agree in that I think it'd be rather lame to sue somebody for such a thing regardless of if they're a "journalist" or not.


RE: Good for the journalists but...
By Samus on 11/2/2007 5:18:48 PM , Rating: 2
Toaster=Cylon

He's lending you his Cylon.


By FITCamaro on 11/2/2007 5:24:40 PM , Rating: 4
.......Please go outside.....


RE: Good for the journalists but...
By truk007 on 11/3/2007 3:22:09 PM , Rating: 2
Are Cylons considered communists?

Can my Cylon post harshly critical blogs?


RE: Good for the journalists but...
By CryptoQuick on 11/3/2007 2:13:21 PM , Rating: 2
Perhaps they would have done better if they had adopted the slogan...

Toastmaster: The People's Toaster


RE: Good for the journalists but...
By noirsoft on 11/3/2007 4:13:39 PM , Rating: 2
In Soviet Russia, toast masters YOU


RE: Good for the journalists but...
By sj420 on 11/3/2007 9:35:50 PM , Rating: 1
More like:

In Soviet Russia - Toast Eats You.


RE: Good for the journalists but...
By Spivonious on 11/2/2007 3:08:37 PM , Rating: 2
But a blog is quite different from a personal journal. If I write that entry about Hilary and a photo of her mating with ManBearPig while Gore watches, that's my business and causes no harm. If I take the same entry and post it on a public, freely-accessible website, then I would have my pants sued off.


RE: Good for the journalists but...
By FITCamaro on 11/2/2007 3:24:24 PM , Rating: 3
quote:
a photo of her mating with ManBearPig while Gore watches


Excuse me while I vomit and then cut out the portion of my brain where that mental image is now stored.


By Spivonious on 11/2/2007 3:26:56 PM , Rating: 2
My work here is done.


RE: Good for the journalists but...
By KristopherKubicki (blog) on 11/2/2007 4:46:33 PM , Rating: 2
quote:
If I take the same entry and post it on a public, freely-accessible website, then I would have my pants sued off.

Likely not, if it was satire. More likely is that Viacomm (Comedy Central) would sue you for using the likeness of ManBearPig without their permission. Go figure.


By omnicronx on 11/3/2007 4:11:10 PM , Rating: 2
Or they will offer you money to turn it into a sitcom.. they did create power rangers you know ;)


RE: Good for the journalists but...
By Marlin1975 on 11/2/2007 2:41:52 PM , Rating: 2
If the information you post is false and you know it then you would not be protected.
As you can see he posted info that was based on his direct experience and based on fact. The picture he used was placed out in the public domain. As such there was little case here. Hence why the lawyer put notice on his property. To try and bully him to settle and/or drop his part and admit defeat. I am glad he stood up.


RE: Good for the journalists but...
By KristopherKubicki (blog) on 11/2/2007 3:02:02 PM , Rating: 4
Libel/Slander is a very funny animal, and regardless of how many Boston Legal episodes you've seen, it's almost impossible to prosecute people on these cases. Google for my full name and you'll know what I mean.

Generally you have to prove:
* The party knowningly provided a false portrayal
* This portrayal caused you damages
* The party knew this portrayal was going to cause you damages

Finding the smoking gun for all three of these is not trivial.


RE: Good for the journalists but...
By Bioniccrackmonk on 11/2/2007 4:09:50 PM , Rating: 2
I gooogled you and this was one of the quotes to come up:

"Kubicki has publicly stated to me, and I have witnesses, that he is only in this business for the money and has no care about the hardware community "


By masher2 (blog) on 11/2/2007 4:12:49 PM , Rating: 2
I lent Kris a fiver once, and he laughed and refused to pay it back...


RE: Good for the journalists but...
By KristopherKubicki (blog) on 11/2/2007 4:47:32 PM , Rating: 2
LOL, while a fun quote, that wasn't the one I was talking about.

http://omid.tomshardware.com/2006/02/kubickis_horm...


By FITCamaro on 11/2/2007 5:23:13 PM , Rating: 2
That was funny.


RE: Good for the journalists but...
By Gnoad on 11/2/2007 6:55:20 PM , Rating: 2
That was hilarious! But now I'm confused....people still go to Tom's hardware? Weird.


By Scrogneugneu on 11/4/2007 2:36:28 PM , Rating: 2
Only when DT links one of their pages.


RE: Good for the journalists but...
By Ard on 11/2/2007 5:33:52 PM , Rating: 2
That only pertains to public figures. Private citizens have a much lower threshold in proving defamation, particularly with libelous statements, as damages are not required to be shown. All that needs to be shown is that the person's reputation was harmed and that the statement was heard/seen by at least one other person.


By KristopherKubicki (blog) on 11/2/2007 5:35:16 PM , Rating: 2
There still has to be an intention of malice though.


RE: Good for the journalists but...
By NicePants42 on 11/2/2007 3:04:28 PM , Rating: 3
quote:
The judge found that the article was well researched and written and consisted of both positive and negative statements of about the experience. Its intention was clearly to inform, not to damage.


If you read that whole paragraph, it appears that in order to be considered a journalist, your work must contain quality (read: accurate/correct/relevant) research, quality writing, and objectivity.

This article did not lead me to believe that bloggers can get away with libel or slander simply because they did good research.


RE: Good for the journalists but...
By KristopherKubicki (blog) on 11/2/2007 3:08:01 PM , Rating: 2
Yep good observation, although check out my other post about the nature of libel/slander cases.

The strongest case against Smith was the logo infringement, at least in my opinion. It seemed like the judge disregarded that pretty quickly, although there is this 800lb gorilla called the DMCA that could have been used against him.


By Chernobyl68 on 11/2/2007 3:30:20 PM , Rating: 2
there's Libel, and then there's Satire.
People vs Larry Flynt.


RE: Good for the journalists but...
By Ard on 11/2/2007 5:37:35 PM , Rating: 2
The DMCA wouldn't have been of any use. They were alleging trademark dilution/infringement under the Lanham Act. The DMCA is part of the Copyright Act.


RE: Good for the journalists but...
By Drexial on 11/2/2007 4:03:29 PM , Rating: 2
I feel that as general public with no credited affiliates, we should be allowed to spew what ever crap we want. But as a paid affiliated journalist, THEY should be restricted from the use of opinions. they are the ones in the spot light on TV and in papers. but when someone with 100 readers says something horrible about someone that is completely unfounded, they will get threatened with a lawsuit for slander.

this is where i don't understand that we are supposed to get our facts from people that have every legal right to feed us BS, because they aren't held legally responsible for what they say. Am I the only one that sees the disturbing irony in this?


RE: Good for the journalists but...
By Gnoad on 11/3/2007 3:03:03 PM , Rating: 2
Good point. Although it is important to have opinionated talk shows here and there, the news really should be just the news.


By masher2 (blog) on 11/2/2007 4:11:03 PM , Rating: 2
> "If I post a blog about how my neighbor was a communist because he wouldn't let me borrow his toaster, does this not count as libel?"

Your neighbor is not a public figure, however, nor have his actions have not cast him into the public eye. Thus a different standard applies.

If you blog about how President Bush is a fascist, though, because he wouldn't lend Hugo Chaves his toaster-- you're protected.


RE: Good for the journalists but...
By Ard on 11/2/2007 5:28:59 PM , Rating: 2
It's not quite that simple. A libelous or slanderous statement has to be something more than a mere insult. It has to go directly to a person's character and reputation. While years ago calling someone a communist would rise to such a level, it is highly unlikely that would be the case today.

Moreover, the ruling doesn't say that all bloggers are automatically journalists, nor does it create any bright-line rules. It simply creates precedent that a blogger can be a journalist if, upon analysis, their writing possesses journalistic characteristics, such as research. Your blog would not fall under that category.


By crystal clear on 11/3/2007 7:34:32 AM , Rating: 2
You forget carefully written work remenber !
not that easy as it sounds.

Remember the guy who took on DELL ......

Yes you can post anything as long its within the framewrok of the laws.


Too bad.
By masherII on 11/2/2007 2:49:21 PM , Rating: 5
I was hoping this case would go the other way and my dad would stop blogging. Maybe then he would get away from his computer and come play catch with me. =(




RE: Too bad.
By masher2 (blog) on 11/2/2007 4:11:17 PM , Rating: 2
Who is this person?


RE: Too bad.
By jmn2519 on 11/2/2007 4:17:48 PM , Rating: 2
Maybe he's the masher in an alternate universe. With a goatee.


RE: Too bad.
By JasonMick (blog) on 11/2/2007 4:18:02 PM , Rating: 2
Well I think he's known to you as the "little accident" =P

Haha I couldn't resist, sorry Mike.


RE: Too bad.
By thestereotype on 11/2/2007 5:19:29 PM , Rating: 2
If we are assuming offspringship, wouldn't masher2II make more sense?


RE: Too bad.
By masherII on 11/2/2007 4:26:38 PM , Rating: 2
You remember the idyllic summer some years back?


RE: Too bad.
By crystal clear on 11/3/2007 6:57:12 AM , Rating: 2
Somebody who likes to take a free ride on your name-

like Soony for Sony-Macrosoft for Microsoft-Apple computers for Apple records,etc etc.

No copyrights on USERNAMES ??????


Uhh
By thejez on 11/2/2007 2:21:52 PM , Rating: 2
"Journalists can obtain government documents via the Freedom of Information Act"

huh? ANY citizen can do this... i know because i've done it.. and im no journalist.

And i hope now that bloggers have these rights that they are held to the same ethical standard as well...




RE: Uhh
By Chernobyl68 on 11/2/2007 3:32:47 PM , Rating: 2
wouldn't really be Free if only Journalists could do it would it?


hmmmmm
By andrewrocks on 11/3/2007 11:21:49 AM , Rating: 2
suppose someone works for a company

suppose this someone had signed several NDAs

suppose this person wrote about what the NDAs covered in his blog

is that illegal?




RE: hmmmmm
By FastLaneTX on 11/4/2007 4:15:28 PM , Rating: 2
That's breach of contract, which is a civil matter, not criminal.


Wait, did I read this article correctly?
By bersl2 on 11/3/2007 6:46:37 PM , Rating: 2
Somebody actually won a case pro se?




By KristopherKubicki (blog) on 11/6/2007 10:57:12 AM , Rating: 2
It happens from time to time :)

Judges and juries are way more likely to favor a pro se case if the person is actually competent. Cases like this are huge injections of faith into our legal system, in my opinion.


Re ognition or Respect
By crystal clear on 11/3/2007 7:16:44 AM , Rating: 2

Bloggers get a little R-E-S-P-E-C-T from the United States court system


Correction ! Jason -I think it should be...


Bloggers get a little RECOGNITION from the United States court system


At last Bloggers have been recognized just a good as Journalist-if not on the same level.

Bloggers organize set up Blggers Society/association with a code of Ethics.

A code of conduct that enables you get the respectability & RECOGNITION.




RE: Re ognition or Respect
By Christopher1 on 11/3/2007 6:34:18 PM , Rating: 1
That is what comes next, in most people's minds. A code of conduct for bloggers that says that what you post has to be factually accurate as best you are able to tell, unless you are writing an 'opinion' piece.


FOIA act not solely limited to journalists.
By edfcmc on 11/3/2007 6:06:12 PM , Rating: 2
"Journalists can obtain government documents via the Freedom of Information Act."

The Freedom of Information Act (FOIA), which can be found in Title 5 of the United States Code, section 552(1), was enacted in 1966 and generally provides that any person has the right to request access to federal agency records or information. This isn't solely limited to journalists. Anybody can ask for documents.




By Christopher1 on 11/3/2007 6:36:59 PM , Rating: 1
True. That law even says that you do not have to have a 'compelling reason' for requesting the papers. They just have to be non-classified, and then you are allowed to get them, with no limits.


Are all bloggers journalist ?
By crystal clear on 11/3/2007 8:59:34 AM , Rating: 2
The core of this issue is-

The most important section of the ruling is the one dealing with Smith's status as a journalist. The court admitted that it was impossible to determine in advance whether a blogger was a journalist and so used a "functional analysis" that "examines the content of the material, not the format, to determine whether it is journalism."

The judge noted that Smith wrote the article in order to convey information, that he had done research in preparing it, that he addressed both positive and negative aspects of his experience, and that he provided a checklist for others to use. "The fact that Smith reports negatively about his experience with BidZirk does not dictate that the article's function or intent was not news reporting or news commentary," wrote the judge. Furthermore, he noted explicitly that "some bloggers are without question journalists."


http://arstechnica.com/news.ars/post/20071031-can-...

Note this-

The court admitted that it was impossible to determine in advance whether a blogger was a journalist and so used a "functional analysis" that "examines the content of the material, not the format, to determine whether it is journalism."

Special Report: You Gotta Be Berserk To Use An eBay Listing Company! The Whole Story


http://jackwhispers.blogspot.com/2005/12/special-r...




Thumbnail
By GhandiInstinct on 11/2/07, Rating: 0
"So, I think the same thing of the music industry. They can't say that they're losing money, you know what I'm saying. They just probably don't have the same surplus that they had." -- Wu-Tang Clan founder RZA

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