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Jan 8, 2015

Yes, Bloggers Can Be Covered by Oregon's Shield Law

Back in late 2011, there was much hand-wringing over a decision by a federal judge in Oregon that a blogger could not invoke the state's reporters' shield law in a libel case against her because, in that particular situation, the blogger was not acting as a journalist.

The judge clarified this in a later decision denying a motion for a new trial:
In my discussion, I did not state that a person who "blogs" could never be considered "media." I also did not state that to be considered "media," one had to possess all or most of the characteristics I recited. Rather, I confined my conclusion to the record defendant created in this case and noted that defendant had presented no evidence as to any single one of the characteristics which would tend to establish oneself as a member of the "media."
In an appeal, the Ninth Circuit held that regarding a different issue -- the standard the plaintiff had to show to win damages -- it did not matter that the defendant was a blogger rather than a form of traditional media. (I should note that Cox has criticized my interpretations of these rulings.)

But the judge's ruling regarding the shield law held: while a blogger could be covered by the Oregon shield law, but this particular blogger was not.

Now, an Oregon state trial court has held that a web site is, indeed, protected from revealing confidential sources -- in this case, anonymous commenters -- under the state's shield law.

The decision -- issued in October, but not reported until last week -- came in a case brought by the Ashley Inn, a hotel in Lincoln City, Oregon, against an anonymous reviewer with the pseudonym "12Kelly"  on TripAdvisor.com. In order to proceed with the lawsuit, the hotel sought to force the web site to reveal information that could unmask 12Kelly's identity. The site refused, citing Oregon's shield law, which explicitly covers "any medium of communication to the public."

And the court agreed.

This makes sense. Journalists -- those who collect and collate factual information and present it to the public -- should be able to obtain information from confidential sources, and be able to protect those sources when necessary.

Not everyone who claims to be a journalist actually is one, as the prior decision shows. But when a website is serving a journalistic function -- as TripAdvisor.com was in the recent case -- it should receive shield law protection like any other medium.

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