"Medium of communication" is defined as including (but not limited to) "any newspaper, magazine or other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system."

"I just spent the morning studying Obsidian Finance v. Cox (CV-11-57-HZ), the instantly famous case involving Crystal Cox. I have concluded the news stories focus on the wrong part of the case. It is the second portion that bloggers (and other writers) should be concerned about.

Crystal Cox is a blogger. She was sued for defamation by an attorney named Kevin Padrick, who had been appointed as a bankruptcy trustee, after Cox called Padrick a thug and a thief in one of her posts."

...

"Medium of communication" is defined as including (but not limited to) "any newspaper, magazine or other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system." (O.R.S. 44.510(2).)

Judge Hernandez found that although Cox was 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, news or feature syndicate, broadcast station or network, or cable television system."

..

"It is the actual holding of the case, and how Judge Hernandez got there, that is of concern. He held "that plaintiffs are not public figures, defendant is not 'media,' and the statements at issue were not made on an issue of public concern. Thus, there are no First Amendment implications."

Cox had asserted that she was "media," so the plaintiff would have had to prove she was negligent in her publication. Judge Hernandez ruled that Cox had not presented any evidence that a "self-proclaimed 'investigative blogger' is considered 'media' for the purposes of applying a negligence standard in a defamation claim, citing Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 347 and Bank of Oregon v. Independent News (1985) 298 Or. 434, 445-446.

The judge found that Cox failed to introduce evidence of "her status as a journalist."

For example, there is no evidence 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 disclosure 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. Without evidence of this nature, defendant is not "media."

...

"..according to Obsidian Finance v. Cox (CV-11-57-HZ) if the defendant cannot prove she is a member of the media, and the plaintiff is a private person, and the publication does not involve a question of public concern (which is what Judge Hernandez found), the publication does not have First Amendment protection.

The bottom line is that regardless of the medium, when you start accusing people of committing crimes, you may get sued. And if you do get sued, you may not be able to require the plaintiff to prove you were negligent unless you are prepared to prove that you are at least as careful as a mainstream journalist."


Source of Post and Full Article
http://electriclawyer.typepad.com/electriclaw/2011/12/obsidian-finance-v-cox-the-oregon-blogging-case.html