Print 53 comment(s) - last by KristopherKubi.. on Nov 6 at 10:57 AM

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!

Comments     Threshold

This article is over a month old, voting and posting comments is disabled

RE: Good for the journalists but...
By KristopherKubicki 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 "

RE: Good for the journalists but...
By masher2 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 on 11/2/2007 4:47:32 PM , Rating: 2
LOL, while a fun quote, that wasn't the one I was talking about.

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

"So if you want to save the planet, feel free to drive your Hummer. Just avoid the drive thru line at McDonalds." -- Michael Asher
Related Articles

Most Popular Articles5 Cases for iPhone 7 and 7 iPhone Plus
September 18, 2016, 10:08 AM
No More Turtlenecks - Try Snakables
September 19, 2016, 7:44 AM
ADHD Diagnosis and Treatment in Children: Problem or Paranoia?
September 19, 2016, 5:30 AM
Walmart may get "Robot Shopping Carts?"
September 17, 2016, 6:01 AM
Automaker Porsche may expand range of Panamera Coupe design.
September 18, 2016, 11:00 AM

Copyright 2016 DailyTech LLC. - RSS Feed | Advertise | About Us | Ethics | FAQ | Terms, Conditions & Privacy Information | Kristopher Kubicki