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October 31, 2007

Federal Court Says Bloggers Can Be Journalists

While Congress and the administration argue over whether bloggers should be part of a federal reporter's privilege (or even if there should be one at all) a federal court has defined a blogger as a journalist.  Ars Technica is reporting on a case out of South Carolina where a blogger was sued by a party on defamation and trademark issues.  Philip Smith was sued by his former boss, Daniel Schmidt, over negative statements Smith made on his blog concerning his former employer.  Smith did three things that prompted the action.  He used a copy of the company logo in the posting; he called Schmidt a "yes" man; and he linked to a picture of Schmidt and his wife.  The Court addressed each of the issues raised by the complaint.  However, the most interesting part of the opinion covered Smith's status as a writer.

The Court analyzed the content of the article Smith wrote on his blog and concluded that some bloggers, indeed, can be journalists. 

From the Court's opinion:

However, in determining whether Smith was engaged in news reporting or news commentating, the court has applied the functional analysis suggested by commentators and the Plaintiffs in their memorandum in support of a preliminary injunction, which examines the content of the material, not the format, to determine whether it is journalism. See David L. Hudson, Jr., Blogging, http:// www.firstamendmentcen ter.org//press/topic.aspx?topic=blogging; (Pls.' Mem. Supp. Preliminary Injunction Ex. 34 (Hudson on Blogging).). In addition, the court has considered the intent of Smith in writing the article. The court agrees that not all bloggers are journalists. However, some bloggers are without question journalists. See CNN BLOGS: YOUR SAY, http:// www.cnn.com/exchange/blogs/.

Upon review of the content of the article, the court finds that Smith's use of the BidZirk mark in the article was in the context of news reporting or news commentary. The article posted by Smith concerning the Plaintiffs is written for the purpose of conveying information to the public. In the four installments of the article, Smith describes his experience with BidZirk in great detail. (Pls.' Mem. Opp'n Summ. J. Ex. 2 (Article).) In addition, Smith addresses the positive and negative aspects, in his opinion, of dealing with a an eBay listing company, such as BidZirk. ( Id.) Further, Smith provides a checklist for using an eBay listing company and tips for selling items on eBay. ( Id.) Smith felt that what he learned from his experience with BidZirk would be helpful to others in dealing with an eBay listing company. 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.

In a side note, the Court also sanctioned the plaintiff's attorney for filing a lis pendens against the defendant's condominium, ostensibly to make sure the defendant could pay damages in the event he lost.  The Court said that the action was out of place as this was not a real estate case. File that one under some attorneys can be jerks.  The opinion is on Westlaw at 2007 WL 3119445.

October 31, 2007 | Permalink

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