[Infowarrior] - Can bloggers be journalists? Federal court says yes

[Richard Forno]

Can bloggers be journalists? Federal court says yes

By Nate Anderson | Published: October 31, 2007 - 10:32AM CT

http://arstechnica.com/news.ars/post/20071031-can-bloggers-be-journalists-fe
deral-court-says-yes.html

When Philip Smith took to his blog to describe his (negative) experience of
working with an eBay listing company, he did not expect that he would end up
representing himself in a federal defamation and trademark dilution lawsuit
or that he would have difficulty selling his condo after a lawyer for the
plaintiffs clouded his title to the property. Now, after winning the case in
spectacular fashion, Smith has emerged as an unlikely hero for bloggers
everywhere who hope to be regarded as journalists.

No US court has yet weighed in with authority on the debate about whether
bloggers count as journalists, but the recent federal decision from South
Carolina does indicate that at least some bloggers are journalists. It's not
about the title, it's about the content, said Judge Henry Hurlong, Jr.; a
journalist turns out to be anyone who does journalism, and bloggers who do
so have the same rights and privileges under federal law as the "real"
journalists.

The case began when Smith blogged about his experience working with an eBay
listing company called BidZirk. He had a less than satisfactory experience
working with the company, and he used his article as a chance to talk about
eBay listing services in general, then closed with a checklist that
potential users of such services should consider.

In the course of the article, he did three things that galled BidZirk's
owner, Daniel Schmidt: he 1) used the BidZirk logo, 2) described Schmidt as
a "yes man," and 3) linked to a picture of Schmidt and his wife. Those
actions prompted claims for 1) trademark dilution under the Lanham Act, 2)
defamation, and 3) invasion of privacy.

Despite the federal charges, Smith elected to defend himself in court
against a lawyer hired by Schmidt. The case was filed in January 2006 and
went through the usual round of complaints and responses and motions. Then,
in October 2006, plantiffs' attorney Kevin Elwell filed a "lis pendens"
against Smith's condo, making it difficult for him to sell it.

On September 17, 2007, Smith moved for summary judgment in the case and
argued that the plaintiffs had no real claim against him. The BidZirk logo
was protected by his status as a journalist, he argued, while the "yes man"
comment was not a statement of fact. As for the picture, he had only linked
to a community site.

The judge agreed, and last week issued summary judgment for Smith. 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."

Elwell, the attorney for the plaintiffs, was sanctioned for his actions. As
a "competent attorney," the court found that he should have known that what
he had done was totally improper, since the case in question was not about
the title to any real estate, and lawyers can't simply go clouding up the
title to people's homes to ensure they get paid at the end of a case. Elwell
was forced to pay $1,000 in fines directly to Smith.