Freelancers, here’s something to consider. If you’re not affiliated with a particular publication, are you still a journalist? If you self-publish investigative pieces, or really anything that could be deemed defamatory, are you protected by the law?
Crystal Cox, a Portland-based writer, is the target of a lawsuit from Obsidian Finance Group, reports a Seattle Weekly blog. The firm claimed the stories she posted about them and their co-founder on her blogs are defamatory. Cox says her work is a mixture of opinion and fact. When the case went to court, the judge said all but one post should be disregarded, but that post was defamatory because a reader could reasonably assume it was factual.
The rub is that Cox claims to have received the information in that post from a inside source. If the claims in the post were proven true, Cox would be off the hook. However, Cox refuses to reveal the source, assuming she, as a journalist, would be protected by Oregon’s media shield law. The judge, however, disagreed that Cox was acting as a journalist, because:
…The record fails to show that she is affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system. Thus, she is not entitled to the protections of the law.
If Cox lived in another jurisdiction, she might not find herself in hot water. A follow-up Seattle Weekly post notes that the language in Washington State’s shield law takes online media into account. In Canada, where we have no shield laws, cases involving the protection of sources are judged based on other criteria, says Iain MacKinnon of Chitiz Pathak LLP. He points to the case of R v. National Post, whether the Supreme Court of Canada’s judgement said that something called the Wigmore test should be used to determine whether an anonymous source can be protected. The SCC’s endorsement of the Wigmore criteria in this and another case involving a Globe and Mail reporter in 2009 established a means for protecting sources, but as this J-Source post notes, “the risk of non-persuasion rests at all four steps on the claimant of the privilege” (meaning: it’s up to the people trying to protect a source to convince the court that’s what should happen). MacKinnon, who acted as co-counsel on in the National Post case for the media coalition that intervened at the SCC, notes that the court did not say that bloggers couldn’t benefit from the Wigmore test in protecting a source.
Cox, who doesn’t have a lawyer and doesn’t plan to get one, says she will appeal the ruling and will prove her claims were true. It seems likely that things would have turned out differently for Cox had her case been heard in a Canadian court.
Update: December 12, 2011 David Carr of the New York Times did some digging and discovered that Crystal Cox might not deserve as much sympathy as we first suspected. While the issue discussed above—whether bloggers should have the same privilege to protect anonymous sources as journalists who work in mainstream media—is still an important one, it seems that in Cox’s case, that question is less relevant than why she wrote the stories she did about Obsidian Financial Group and Kevin Padrick. Carr suggests that Cox creates content online as a means of targeting individuals:
When she gets in a fight with someone, she frequently responds by creating a domain with their name, some allegation of corruption, or both. Many of the negative posts about Mr. Padrick appeared on obsidianfinancesucks.com and there are many more like it. In order to optimize visibility to Web crawlers, she often uses the full name and title of her target, and her Web sites are filled with links to her other sites to improve their search ranking. She has some 500 URLs at her disposal and she’s not afraid to use them.
People blog for all sorts of reasons, but if settling personal vendettas is an individual’s primary motive for writing online, good luck finding someone who would call that person a journalist. If that’s the case with Cox, the Oregon judge’s decision is a just one.