Bloggers and Shield Laws

Timothy B. Lee for Ars Technica:

An Oregon judge has ruled that a Montana blogger is not eligible for the legal protections afforded to journalists, letting stand a $2.5 million defamation verdict.

This case draws a clear line between people who write for traditional media outlets and for blogs. Judge Marco Hernandez wrote:

Although defendant is a self-proclaimed ‘investigative blogger’ and defines herself as ‘media,’ 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 [Oregon journalist shield] law.

Shield laws protect journalists who do not wish to testify about their sources of information. By not extending this protection to “bloggers,” this case could potentially cause problems for bloggers all over the county. Judge Hernandez’s ruling ties shield law protection to being employed by a traditional media company. I believe that’s outdated and wrong; just because a newspaper doesn’t own my site doesn’t mean I’m not working as a journalist when I write it.

Again, Timothy Lee:

But Hernandez once again ruled that Cox was not a journalist. He noted the lack 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.”

While the blogger in this case acted without “adherence to journalistic standards,” “real” journalists don’t have to prove that they do to gain protection from shield laws.

Shield laws are handled on the state level, with a total of 40 states having them in place.

A federal shield law failed to pass in the Senate in 2009.

This is a serious issue for those of us who write on the web, working for ourselves. If other states view the Oregon case as a precedent to start following, bloggers will have very little protection against companies and other agencies in court.