Yelp Review Gets Reviewer Sued by Company Claiming Significant Damage From Single, Bad Online Review: Is This The Case That Sets the Precedent for Internet Defamation Suits Based on Bad Online Reviews?
(It's not that these bad reviews haven't been the subject of lawsuits filed by lawyers already: there's a Dallas law firm that has filed a $50,000 damage suit for a bad review on Google ("Ben Doe") and there's a Florida lawyer who sued for removal of a bad online review at a lawyer-review site and had the case settled pretty quickly.)
Why? I've already had more than one discussion with clients in different parts of the country that are angry and fretful about the opportunity offered to anyone out there to write a bad review of their work and have it published for all to see at Yelp or Avvo or whereever. There are lots and lots of review sites these days.
The calls that I've had regarding bad reviews are from lawyers in firms that practice in emotional areas: family law, criminal defense, etc. where someone is going to be upset. It's almost an old joke that no one likes their ex-spouse's divorce lawyer.
Most of my law firm clientele are concerned with how to deal with snarly reviews at these online sites, when they are prohibited or limited in publishing client testimonials from clients that are very pleased with the work the lawyers have done. They aren't so concerned with the single bad review as their perceived inability to balance that bad review out with the numerous client letters, cards, and testimonials that they have on file where clients offered stellar reviews of the firm and its work.
It isn't fair, granted. However, no one has brought up the idea of suing the bad reviewer. Yet. I'm thinking that those lawsuits may be coming. Consider this.
The $750,000 Internet Defamation Lawsuit Out of Virginia
Dietz Development is a small District of Columbia business owned by Christopher Dietz that Fairfax, Virginia resident Jane Perez contracted to do some work on her home last February. Seems Mr. Dietz and Ms.Perez are acquainted because they went to high school together, and that's why Dietz Development got the call.
Now, these two ex-students and former friends are on opposite sites of a defamation suit that is getting international attention (like this article in Great Britain's Daily Mail). Dietz Development is alleging a loss of $750,000 in lost profits and damage to the company's reputation (or business goodwill) because of one, single bad review posted on the Yelp site.
Read the complaint here (provided by The Washington Post). The Yelp review appears as Exhibit B (second post on page).
There was a similar review posted to membership review site Angie's List, which has been included in the complaint (see Exhibit A) but isn't getting the spotlight that the Yelp review has garnered, perhaps because the readers of Angie's List are not the general public but only those who pay a membership fee to access the Angie's List web site.
Judge Grants Restraining Order: Reviewer Must Edit The Online Review as Case Proceeds
This week, a judge granted Dietz's motion for a temporary order requiring Jane Perez to change the online review although the order does not require that the bad review be taken offline in its entirety. (Whether this is drawing a line on potential damages claims or giving the plaintiff a big hint that he's going to win this thing is too soon to tell.)
Media reports are that Perez has been ordered to remove her allegations that Mr. Dietz stole jewelry from her home. I haven't been able to find the actual court order online (yet).
What Was in the Yelp Review That Got Jane Perez Sued?
The lawsuit alleges that not only did the review complain about the quality of the work that was done, or not done, it also claims that Mr. Dietz stole jewelry from the home (theory: he was the only one with a key to the house aside from the home owner at the time that the jewelry went missing) and that Dietz was operating without the proper license to do business.
Of course, Mr. Dietz posted his own reply to her bad review. He's arguing that wasn't enough. From this single bad review, the plaintiff is claiming a huge amount of damage ($750,000).
And this case is proceeding through the courts. It's not being tossed. And the judge just made the review edit the review.
In my opinion, online reviews of businesses -- including law firms -- are going to be considered in a different manner than book reviews (where book reviewers are also facing the risk of being sued for a bad review).
These online business reviews may be able to hurt a business more than a single bad book review, also my opinion here. After all, a book review is understood to be the opinion of a work of fiction or non-fiction and the reader understands that what is poison to one may be meat to another. It's subjective.
An online review of a service provider, on the other hand, can be objectively judged. Was the work shoddy or not? Expert opinion and factual support can provide an answer. Was there a theft? Who did it? These are things that can be proven with facts in a courtroom. Same thing with the licensure issue. Maybe this is true for damages sustained from a bad review, as well.
Will more businesses sue for bad online reviews? Will law firms tee it up? I think so.
And where are the publishers in all this? They sure are quiet and I'm wondering if that's smart.
Here's my first big question: where is the responsibility of the publisher in these online review defamation cases? I'm wondering if the online web site that profits by building a review directory for the public isn't going to be held by a judge somewhere to have a corresponding duty regarding the reviews that are placed upon its site pages.
Surely there are going to be plaintiffs that include these sites in their pleadings; after all, these are probably deeper pockets than the individual reviewer. My little voice is asking, "if someone claims a criminal act like theft, then isn't that stepping across some sort of publisher duty line in an online review of a business?"
Another big question I have: what does this do to trustworthy reviews? Free speech is important and it's priceless in its value. Something that we may learn once it's gone (like privacy rights) in the near future.
I do read online reviews before making a purchase or inviting someone into my home for repairs. Will these suits simply insure that the bad reviews won't get published out of fear of reprisal and I won't be able to learn that the book or the plumber or the car is a bad deal?
If this litigation happens, then what's the value of the review site to me? Why bother reading CitiSearch for a restaurant to check out if all that CitiSearch can offer me is fluff stuff?
The Power and Purpose of Citizen Journalists: The Baltimore SWAT Standoff and the Belize Mystery Surrounding John McAfee as Two Examples of Why We Need Citizen Journalists
I've been watching and reading citizen journalism for awhile now, with growing respect. Why? Well, because some people are doing this at the risk of their lives - like citizen journalist Rami Ahmad Al-Sayed who died when he was only 27 years old, leaving behind a wife and young daughter, in order to spread the word over the internet about the military assault he was witnessing first hand in Homs, Syria.
Critics snub the idea of citizen journalists for various reasons: first, their work does not reach the same level of quality as the professional journalist. They are amateurs. Second, citizen journalists cannot be trusted to be objective. They are biased. Third, citizen journalists aren't regulated - they have no set of rules or ethical codes imposed upon them as do members of the main stream media. They are rogues.
I understand that professionals who have studied in their field for years and thereafter dedicated years of their lives to journalism as a career path aren't too happy with these interlopers. As an attorney who has seen the practice of law change to allow non-lawyers to practice law in some ways, I get it.
However, when it comes to citizen journalists, I don't care.
I don't trust the main stream media (MSM) much these days -- for one thing, the same finger pointing that is made against citizen journalists has been made much too often against members of the Fourth Estate in recent years for me to blindly trust today's news media.
What? If you want to delve more into the sad failures of modern, professional journalism then I suggest you check out Joseph Campbell's 2010 book, Getting It Wrong: Ten of the Greatest Misreported Stories in American Journalism - which you can read for free at Google Books (at least you could when I typed this). Or read the witty column in today's Gawker by Hamilton Nolan, "Mainstream Media Attack Dogs Think We're Asking Too Many Questions About Orange Pie." It pretty much sums things up.
There's room in my world for both types of journalism, and maybe that's how things should be. Here are two examples of citizen journalists blogging online that I've been following this week.
The Baltimore SWAT Standoff Blogger
Frank James MacArthur considers himself to be a citizen journalist when he isn't driving a cab up in Baltimore and he writes a blog called "The Baltimore Spectator." Recently, after MacArthur didn't show in court for a violation of probation hearing on an old weapons charge, the police showed up at his house to issue a warrant.
MacArthur didn't cooperate, and it turned into a five hour standoff. SWAT was called, but things ended peacefully at 11 pm which MacArthur stated that he intended to coordinate with the evening television news.
Now, sure, MacArthur may have done some of this in order to spotlight his citizen journalist site. However, MacArthur also had a serious distrust of local law enforcement and chronicled the events as they transpired on the web for what he viewed as his own self-protection.
Belize Murder Investigation and The Mysterious John McAfee
Meanwhile, for a few weeks now the founder of a popular computer security software company, John McAfee, remains at large even though there were reports earlier today that he had been arrested at the Belize-Mexico border. John McAfee has been blogging his story on the internet as he remains out of the hands of Belize police who are seeking custody of Mr. McAfee as a person of interest in the murder of McAfee's next-door neighbor. McAfee's blog is "Who is McAfee?"
John McAfee is blogging about his successes in evading capture by the local authorities as well as his concerns that if he is taken by Belize police he will be harmed or killed - and this continuing story is making national news basically because of McAfee's own reporting of events thus far.
Belize police officials are calling McAfee "paranoid." John McAfee's blog posts, however, don't seem to be the rambling, irrational posts of someone who is mentally ill. His position is that he believed that if he had peacefully cooperated with police at the get-go, he might be killed.
I believe that blogging is important, but never more so than in situations like this, where individual citizens are sharing their stories - as they happen - with the public at large. Maybe they aren't the most objective reports; maybe they aren't written as well as they could be; and maybe there's no set of rules or guidelines applicable to their work.
However, in both of these blogging stories by citizen journalists, you have first-hand accounts of what local law enforcement is doing, or not doing, together with the interpretation of those events by the suspect of that police power action.
I want to read this. I think lots of people do. I think we need the citizen journalist and I hope that citizen journalism becomes more respected, and protected, over time.
Citizen journalists blogging on the internet (and I include micro-blogging at Twitter) bring information to the reader that professional journalists don't provide. Perhaps they can't provide it, I'll have to ponder that one.
As for the expansion of the police power through technological advances, and how privacy rights are endangered today and Big Brother scenarios are rapidly becoming reality, I'll write about that on my opinion blog soon enough.
Most everyone at this point considers LinkedIn as more than a site used by people looking for a job or those looking to hire. (Not that there's anything wrong with that, right?) Most everyone is also confused about what LinkedIn can do for them, and absolutely everyone that I have been chewing the fat with over LinkedIn is wary of the amount of time that needs to be invested into LinkedIn before results are seen.
Still, LinkedIn is a surprisingly hot topic here on the Planet Reba: people are pondering doing more on that site, it's just a question of what they will do and how much time it will require.
Of course, this is exactly what LinkedIn is working hard to achieve: just read a post or two at the LinkedIn blog and you'll catch the drift about LinkedIn's plans for the future. (Maybe it's not world domination, but I wouldn't discount the possibility.)
Should LinkedIn be a part of your future? I think so. I know that I plan on LinkedIn having more of a presence in my 2013 Schedule than ever before. How? Why?
I'll explore this in more detail in future posts; however, right now there is something that I think is worth noting now and worth your time to consider implementing on the LinkedIn networking site: it's their new company pages.
LinkedIn Company Pages
LinkedIn made their redesigned company pages available to everyone last month. LinkedIn has a nice set of pages to acquaint members with this new offering, as well:
- Overview of LinkedIn Re-Designed Company Pages
- Connecting: How to Find and Follow Other Companies on LinkedIn
- How To Set Up Your Own LinkedIn Company Page
- Money, Honey: Set Up Products and Services on Your Company Page
- Easy Peasy Status Updates to Your Company Page
And there's more. There's a widget so you can place a "follow" button for your LinkedIn Company page on your company's web site or blog. There's a nice FAQ section.
Best for last: LinkedIn also has everything here packaged in a set of instructional videos to make things even easier and more inviting to you.
And, yes -- it's all free. Free. (Take that, Facebook.)
Want to learn more about this? Check out this downloadable pdf from LinkedIn for those who would rather print something and read it instead of looking at a screen. (Dinosaurs do still roam the earth.) Also check out their case histories of companies who are happy with the results they've experienced with their LinkedIn company pages.
One of my clients is very concerned about this, since her kids love Twitter and Facebook and use her laptop routinely - and in doing so, they've already opened the door to one or more viruses which her tech support believes gained access through those shrunk links that appear on tweets and the like. It's called "clickjacking."
Which brings us to passwords. My client's biggest concern was protecting her financial sites as well as her blogging account. Could the virus circumvent her passwords? How do you create a strong password? How can you make passwords that are strong and that are also easy to use (and remember)?
Passwords need to be easy for you to remember and hard for those computer villains to figure out, even with their sneaky password finding software. Don't share them with anyone. Don't put them on sticky notes on your monitor. Remember to change them -- say on the 1st of every month.
Here are five (5) tips for creating strong, easy to use passwords:
1. Use a quote or a short sentence that is personal to you.
Carnegie Mellon's Computer Science Department recommends sentences such as "I have two kids: Jack and Jill." For sites that only allow a certain number of characters, they suggest you memorize a short version of this sentence and use it: "Ih2K:JaJ"
2. Use two unrelated words and then add some tweaks
Tweaks? They can be whatever works for you: like added punctuation and a capital letter or two which will be easy for you to remember.
Carnegie Mellon gives an example here of "book and goat" which then becomes "bo!ok29goat"
3. Use different passwords, and change them often.
PCMag recommends that you change your passwords as often as you change your underwear. PCMag also recommends that you use different passwords for different sites: never use the same password for different things. Don't use the same password for your online banking and your email account. That's just asking for trouble.
4. Move your hands on the keyboard.
PCMag has another good idea: once you have your secret password, move your hands on your keyboard so they are one row up or one column over -- then type.
5. Make things easier to remember by having your own password themes.
ComputerWorld suggests having a personal theme to your passwords that relate to a personal life event, such as the birth of a child. OneMorePush and IceChips were given as some of their examples here.
What I'm Doing With My Passwords These Days.
Not too long ago, I was hit by an evildoer that did get one of my email account passwords. However, the damage wasn't too bad -- it was an account I had set up to receive all those newsletters, daily quotes, etc. and not my personal or professional stuff. Still, it was scary enough that I spent most of a workday setting up all new passwords and a password-changing schedule (not on the 1st). I feel safer for it, and I think you will, too.
Another thing I did: I stopped opening those shrunken links. If the tweet doesn't give me enough info for me to google the site, and if I'm not interested enough to do a Google search, then so be it. Turns out to be a nice time saving tool as well as a security strategy.
Microsoft suggestions on passwords.
Microsoft Password Strength Checker (input your password for evaluation).
Are Westlaw and Lexis Violating Lawyer Copyrights By Publishing Legal Briefs and Memoranda In Their Databases? New York Lawsuit Filed for Damages Under U.S. Copyright Law
However, two lawyers up in New York are suing both West Publishing Company and LexisNexis for having the audacity of taking documents like briefs and legal memoranda, copying them, and placing them on their databases. That's right. The lawyers are arguing that they are due actual and punitive damages for a violation of federal copyright laws because West and Lexis have digitally collected and sold these public records to their clients.
Oh my, oh my.
The lawsuit isn't new. It was filed as White v. West Publishing Company & Reed Elsevier Inc. in the Southern District of New York back on February 22, 2012. You can read the complaint here.
UCLA Law Professor Eugene Volokh wasted no time in writing about this, and his blog post is worth your time to read.
From Professor Volokh's perspective, the issue here isn't the existence of a copyright -- he argues that the briefs are copyrighted material of the lawyers who wrote them (or maybe the law firm, or maybe the client, too - but this is a rabbit trail and Prof. V argues work for hire doesn't extend this far) -- it's the question of whether or not the fair use doctrine will apply here to allow the two big legal research companies the ability to share these briefs for their own profit under the fair use defense to copyright infringement under federal law.
Meanwhile, up in Canada there's another case dealing with a similar issue of copyright violation of lawyers whose briefs have been copied and then placed into legal software databases and it's been certified as a class action. More on that case here.
Another law professor shares his take on things over at the Law Librarian Blog; it comforted me to read that he thought this to be a little silly, too.
Twitter Cuts LinkedIn App - So How Does Your LinkedIn Account Look Now? Are You Now More Interested in LinkedIn Account Than UR Twitter Page?
Chances are your teenager isn't on LinkedIn; chances are you're not reading nor are you considering writing about your summer vacation plans on LinkedIn. LinkedIn is different.
LinkedIn is a place where more and more professional discussion happens. Another client has been having lots of networking success by beginning some discussions and contributing to others via LinkedIn Groups that are filled with members in niches in which she has an interest. She's found that even though some people don't go to the LinkedIn site to read the Discussion itself, they do catch her name in their email notification of the Group's Discussion and this has resulted in one or more email or phone one-on-one chat with referrals and clients.
Which means that I have had more than one phone call to complain about Tweets disappearing from LinkedIn because Twitter has blocked the old LinkedIn application. No more automatic sharing of tweets over on the LinkedIn account. (You can tweet on LinkedIn and have it appear on Twitter; just not vice versa.)
There's been lots of discussion on why Twitter has done this. Some good reads if you want to delve into this further include:
- ZDNet's article, "Twitter mimics Facebook, kills own ecosystem," where writer Stilgherrian wonders if Twitter has hit its own self-destruct button by blocking LinkedIn.
- Fortune has an interesting piece with a consumer vs business discussion by HootSuite CEO Ryan Holmes, "Inside the LinkedIn Twitter Divorce."
- Business Insider has Owen Thomas take on things with his piece, "Twitter Gives LinkedIn the Bird," where Thomas points out that with one hand, Twitter abandons LinkedIn while recently allowing Facebook to do exactly what it's now forbidden to LinkedIn.
What does this mean to you and me?
I don't know of any client that goes directly to Twitter.com to tweet. Or to LinkedIn for that matter. They use other sites like HootSuite or MyYahoo or Google+ to coordinate their social media. (Not Tweetdeck, since it dropped everything but Facebook after Twitter bought it last fall. Guess that was a hint of things to come, huh?)
So, this news isn't impacting how they tweet. It is impacting their consideration of LinkedIn - more than one lawyer has voiced more interest in communicating at a site that has a "professional demeanor" (to quote one client) than to be concerned with Twitter. It's actually made some take a closer look at LinkedIn, and how to become more involved there in a proactive way.
They want a way to get around the Twitter block because they want to build their presence on LinkedIn. Not Twitter. Not Facebook. Facebook is for their personal stuff.
It's too soon to tell, but from what I'm hearing right now, many pros are discovering a loyalty and curiosity in LinkedIn that they didn't know they had before Twitter decided to dis LinkedIn. We'll see what happens... after all, Facebook has decided to compete with LinkedIn in the near future ....
Supreme Court Justices Will Issue ObamaCare Opinion and Exit the Building for Summer Break: My Prediction and Here's Why and What It Means to Your Law Blog
Seems there was a bunch of folk that thought we'd have their decision long before now, and I have to wonder why ... ratings? over-eager? never met a judge (much less been one)? Now, things are getting fever-pitched.
Here's the thing: this is going to bring a big, huge spotlight shining on those Justices and don't think for a minute that those Legal Brainiacs are not fully aware of this upcoming scrunity. Which means that they aren't going to issue that ruling until they are ready to zip out for the summer break.
That's this week. We should have the Obamacare ruling this week -- unless they decide to hold off until right before the Presidential Election (which they can). The U.S. Supreme Court will be on vacation for the next few months.
It's the smart thing to do, issue the opinion right before the break, and not for the cameras. Though there is that - and it's a valid reason.
It's also somewhat savvy to hold off on the opinion until after the hiatus, though you can spin that argument either way, politically speaking. I'm thinking they'll issue their opinion this week, if they're done with it.
Here's the United States Supreme Court Docket Page on Obamacare -- it's actually a series of cases that are being considered regarding the constitutionality of the Patient Protection and Affordable Care Act.
It's the smart thing to do because the opinion (and its inevitable concurrences and dissents in all or in part) should stand on its own. It is the opinion that should get the spotlight, it is the opinion that should be read and reread and discussed by the Talking Heads.
Why? Because the opinion is what counts. It is the law and it is written to be analyzed, discussed, and used in the years to come. The rationale for their decision (the "why") will be addressed in those paragraphs, and this should be the only answer we need.
Also, there's the fact that Justices don't give press conferences. Not that they aren't smart to get the heck out of Dodge as this thing hits the media. I'd go escape to some pretty place with a water view, too.
If you're really interested in all this, SCOTUS blog is live blogging the events this week. Go here for details.
What This Means to Your Law Blog
Jumping down from my soapbox, here's my second point which I will be sharing with my consulting clients this week: reading the comments to various news stories, it's clear that lots of people do not understand the impact of precedent upon their lives. They get that they vote on people to go to Congress or the state house and vote on laws. They get that the President can order things to happen. Many understand the impact of agencies on their lives (particularly workers' compensation).
One thing ObamaCare does is bring an opportunity for lawyers to discuss how the judiciary works - not just in Washington, but in their own neck of the woods.
And not in legalese. I would suggest NOT writing your posts in a lawyer-to-lawyer manner. Write about the importance of courts and what power they exert in the vocabulary and sentence structure most clients will appreciate.
- Court cases, not legal precedent
- Decision, not opinion
- Sent for reconsideration by a higher court, not sent up for review
You get the idea.
Sounded so good.
However, my Twitter account never loaded; neither did GMail. LinkedIn did, but those accounts never seemed to full organize themselves on the site. So, I decided to back out of Mingly.
It took awhile.
I found that tweeting about Mingly got a response. I don't know that email ever did; I know that my phone message was never acknowledged or returned. I revoked access at Google.com and LinkedIn.com and it appeared that Twitter never gave access in order to allow revocation.
It's in Beta.
Mingly is still working out the kinks. I hope they do, because I think they've got a great idea. However, I won't be using Mingly until it's a proven commodity out there. Till then, I'll make due with HootSuite etc. and just keep my fingers crossed that Mingly gets things ironed out soon.
Here's what the dashboard looks like:
I've been instructed that this will take a bit of time - seems that I have lots of stuff to sort - and that I shouldn't worry, this stuff is private (my personal stuff isn't on here anyway). Meanwhile, anxious to get this going and write this post, I've already used the Mingly Dashboard to send James R. Marsh of the Marsh Law Firm up in New York a Happy Birthday e-message.
JRM and I are LinkedIn friends. I've promised him that I'm no stalker, but I hope he's not too creeped out. I mean, how often do your LinkedIn connections send you happy birthday greetings?
Well, maybe they'll do it a lot more often now that Mingly is on the scene. We'll see. I read about this over at MediaBistro and decided it sounded fabulous.
I'm testing it out now - the free version. Just email me or comment if you have questions about Mingly. I'm a pretty happy guinea pig right now.
Here's the MediaBistro scoop on Mingly; there's also an article explaining Mingly on Business 2 Community you might find interesting. Caveat: it's written by Mingly.
1. Google Penguin - Wikipedia's article.
2. "Act Natural. The Penguin is Looking," by Business 2 Community.
3. "3 Hard Lessons to Learn From Penguin: Be Relevant, Be Balanced, Keep it Real" at SearchEngineWatch.
Yes, Google just announced a Penguin update. There's no need to panic - if you're not doing "black hat" search engine optimization tricks to try and maneuver your stuff to the top of Google's search results.
Penguin in a Nutshell.
Once again: Google is trying to give its customers the best service it can, and this means putting the most accurate, on-point sites in the top of search results when a Google client surfs Google for information. After all, if Google doesn't do this well - if Yahoo or Bing do this better, in other words - then Google will lose business.
Penguin and Panda before it and whatever animal comes next -- all are ways that Google is trying to insure the quality of its service in a world where lots of folks spend lots of time and money trying to game the system ("black hats") to get their links into the top of search results.
It's fine to try and write your content in a way that helps your readers find your stuff. It's not okay to do things like stuffing sites with links just to sway the Googlebot.
Help Google Help You.
Bloggers should keep their intended reader in mind as they write their blog posts. They should also keep Google in mind as they write those short blog articles. Do the best for your readers and for Google, and you'll be fine.
Image from FreeClipArtNow.com.
Over the past week, I’ve been reading about Elizabeth Warren, currently a candidate in Massachusetts for the United States Senate and former head of the Consumer Financial Protection Bureau and apparently, NOT an American Indian.
I remember Elizabeth Warren as my law school professor at UT-Austin, long ago: she taught me one-half of the two semester long UCC course. Can’t remember which one.
I do remember visiting with Elizabeth Warren in her office several times; she and I shared the unique (masochistic?) resume builder of driving 3 hours a day to attend law school (me, back and forth from San Antonio to Austin in a refurbished 68 VW Bug; I can’t remember what she drove, but I do remember it was some place with lots of snow in the winter).
I do not remember any American Indian references then; I have no recollection of tribal artifacts in her small office, nor do I remember anyone at UT thinking of Elizabeth Warren as a “woman of color.” I thought we were two blonde, blue-eyed women sharing the difficulties of commuting to a top law school while being married and living on a shoestring budget. She had me beat: she did one year of her commute while pregnant.
I admired her then. Now, I wonder how much that young, scared, law student believed was true and what may have been stretched. Especially after reading the Wikipedia bio. But I digress.
Of course, no one really references her time in Austin, because why would they if she moved on to Harvard. Yeah, I know.
Somewhere between then and now it seems that Elizabeth Warren acknowledged an American Indian Heritage and with it, apparently, the desire to contribute to an American Indian cookbook entitled “Pow Wow Chow.”
What a name. I cannot wait for Saturday Night Live on this one.
Okay, here’s my point. Elizabeth Warren is being accused of copyright infringement of RECIPES if not downright plagiarism because she submitted several recipes for publication as her own, and which were published in Pow Wow Chow – but seem to have an eerie similarity to some pretty high-falutin’ recipe sources.
And by “eerie similarity” I mean they look exactly the same. But you knew that.
Recipe Copyright Infringement and Plagiarism Claims Are Tricky
There are just so many ways you can cook some things, and the U.S. Copyright Office recognizes this. You don’t violate a recipe copyright by listing ingredients for a dish, or by itemizing how those ingredients are to be put together and cooked into a finished product.
You violate a recipe copyright by grabbing up the actual language used in the recipe as your own. The description, the know-how stuff, that goes into the recipe along with the ingredients list and the amount of time it needs to bake at 350 degrees.
It’s a hard case to prove, sure. But recipe copyright infringement claims are real.
- Remember the lawsuit filed against Jerry Seinfeld’s wife over her cookbook with recipes on how to get kids to eat their veggies (key – hide them with other stuff kids like)?
- Or the Food Network show that got cancelled after its recipes were said to be plagarism of icons like Ina Garten and Martha Stewart?
Read the details here.
As for the claim to be an American Indian, I leave the commentary on that infringement to an American Indian, who wrote this open letter to Elizabeth Warren on the blog Polly’s Granddaughter, which I discovered while reading Michael Graham’s piece in the Boston Herald this week.
Still, I rarely used it.
A geek friend explained to me that netbooks actually should last longer than laptops because heat doesn't mess with them as much. Plus, I had an extra monitor I could stick on that baby and have another writing spot.
Powered up the netbook, and voila. An evildoer invaded my life.
At first, I didn't know it. However, as I added the netbook to my antivirus account, things began to happen. Bad things. Slowly but surely, the malware gutted program files so only shells were left, including programs like Chrome and Firefox and IE that allowed me to access the internet.
The antivirus folk were no help. Well, some help. They got their software installed enough that it flashed a warning about discovering a trojan on the machine before the antivirus got blasted by the malware.
Finally, the Geeks got my netbook and after 7 hours of cleaning up things, they got the bad juju off the netbook and I finally had the weekend to reinstall all my software on the netbook ....
Scary part? I had installed my cloud connection on the netbook - had they read my files? I use online banking for some stuff. Could they gain access somehow?
Geeks have assured me that nope, no identity theft here. Still, I've changed all my passwords and I'm monitoring my accounts for anything fishy. I've disabled Java, done some other stuff too.
So, if you're reading this post then stop right now and make sure that you've got your computer protected, and that you've got the latest updates downloaded for your security software.
Because the other thing the Geeks told me was that there's a lot of bad stuff happening right now - lots of attacks like this, with others not escaping exposure like I did. Don't know why there isn't more media coverage about this, but the Geeks would know about this upsurge and they're serious about evildoing computer attacks on the rise right now.
Off Page SEO, succinctly, is everything else. Some of the off page factors include: linkage on the site, both internal links and external linkage; writing the text of internal links themselves; building site popularity through tweeting, commenting on forums and blogs, press releases, submitting to directories, etc.
There's a lot that goes into search engine optimization - and there's lots of stuff out there on the web for you to read about SEO, if you're interested. (Read Google's SEO overview here.) There's also lots of people out there claiming to know all about SEO. Maybe they do, maybe they don't. Ask for examples of their accomplishments before you pay them anything.
Meanwhile, consider this. The purpose behind optimizing content is to get your content noticed and highly ranked in search results on its themes or topics by the search engines. Which for most folk mainly means Google. You're competing with other content to get into the top spots.
Google is in the business of competing with other search engines to provide the more informative and on-target results to its reader's search requests. If Yahoo could give you better results (and you should compare them often -- Yahoo gives better locator information IMHO, for example) then you'll switch to Yahoo, right?
It's really not rocket science. Write the best content possible for your topic. Think of your reader, and help them here. Give them your expertise. Give them links. Give them information in easy to follow language.
Help Google beat its competition, in other words. Do this, and do this well, and you've achieve your SEO goals automatically.
1. Google's description of the latest changes in how it does things.
2. A good post explaining what this means.
And that's great.
What isn't so great, though perfectly understandable, is taking a section of writing from another source (another post, a magazine article, a book) and then cutting and pasting the guts of that writing into a blog post with a brief introduction, "I really liked this [insert name of source material] because it's so on point! It's so true!"
Or something like that. Why is this bad?
Well, as my client points out this might (or might not) be within the fair use doctrine and therefore not any kind of copyright infringement and it's clearly not plagiarism because she's giving credit where credit is due (she's not trying to claim the stuff as her own).
However, substitute the cut and paste for a hyperlink and the post becomes a sentence or two. Insufficient original word count.
True, it's great to find something that you want to share from a book (or magazine article or blog post) that someone else has written and use it as the basis for a blog post. There's also the time-saving benefit (as my client pointed out, these types of posts are helpful on days where posts are scheduled and there's a time crunch).
But what are you really sharing of yourself here? And, without going into geek-talk (my client hates going down this road), Google will not appreciate these kinds of blog posts. At all.
Here's what I think needs to happen.
I think that when you share something, you need to give your reader more than "lookie." I think you need to comment and give your opinion on why you are sharing this writing with them.
If you don't have time for that, then go for a link list ... something like a Top Ten list, ten great sources of inspiration when you're dieting; ten great recipe sites; ten great med mal blogs, whatever. That's pretty fast blogging and it's giving your reader more of you than one of these "lookie" posts does.
Well, don't jump on that Pinterest bandwagon too fast, folks. I admit that I was invited to join Pinterest in some long-ago email and I accepted the invitation ... but I never used the site. Just put it on the To Do List, to check out in the future.
You acknowledge and agree that you are solely responsible for all Member Content that you make available through the Site, Application and Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available through the Site, Application and Services or you have all rights, licenses, consents and releases that are necessary to grant to Cold Brew Labs the rights in such Member Content, as contemplated under these Terms; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or Cold Brew Labs’ use of the Member Content (or any portion thereof) on, through or by means of the Site, Application and the Services will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. ...
You agree to defend, indemnify, and hold Cold Brew Labs, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the Site, Application, Services or Site Content, (ii) your Member Content, or (iii) your violation of these Terms.
Now, from what I understand, the reason to use Pinterest is to grab images from various websites and "pin" them on your Pinterest page to share with others. Different from bookmarking them, or Stumbling them and not the same as OneNoting them.
There are copyrights floating around in there, and I'm not going to mess with it.
I'm not the only one concerned about what's going on here. Check out here and here.
So, thought I would share my article published in the Winter 2012 issue of the Florida Defender entitled, "Twitter at Trial: Tweets and Messages as Evidence in 2011."
The Florida Defender is a quarterly publication provided to a readership of lawyers and judges by the Florida Association of Criminal Defense Lawyers and as always, I am honored to be included in their magazine.
You can read it online here, or download the pdf.
Last November, I wrote about Google Alerts, Social Mention, etc. and they are also nice. However, I am particularly happy with how Yahoo!Alerts is popping up with information for me.
Now, admittedly I am only using one aspect of Yahoo! Alerts: their News Alerts, where I choose keywords and then receive summaries in email of top news stories that correspond to those keywords. For example, I have Yahoo! Alerts set up for "copyright infringement" and "blogging."
However, the service offers a lot of options, and you may find other things more to your liking. Check it out.
Interestingly, once I have notice of the news story or blog post via Yahoo! Alerts, I still tend to pop over into Google to investigate what's up and find more information for what I'm writing.
However, as I've discussed here before on more than one occasion, if a lawyer pulls that story or that video and puts it on the firm's website willy-nilly, then copyright infringement may occur. Those media stories (including photos and videos and audio interviews) are all the copyrighted work of these media outlets and should be respected.
What to do? First things first, just ask. Call or email the media source (this is really easy if you have the contact information of the reporter who just did your interview) and ask permission. Alternatively, surf their site for words like "reprint" or "permission" and you will find things like this:
San Antonio Express News
Dallas Morning News
The Associated Press.
Will you have to pay? Maybe. It's called a "licensing fee." Balance that cost against dealing with a cease and desist letter (if you get one, Righthaven never bothered) or a claim for copyright infringement by the media's IP litigators.
Lawyers Understand the Professional Frustration Felt by Traditional Journalists
As a lawyer, I understand the professional frustration: it's a complex reaction to technological advances that seem to make years of advanced education and professional experience unimportant and unnecessary. Lawyers compete with RocketLawyer, LegalZoom, and local streamlined legal processes in many jurisdictions.
That's a lot to bear even before considering outsourcing to India. Where's the unauthorized practice of law hatchet? What about the need to consider an individual's circumstances, the personal expertise that the attorney brings to the table?
No matter. Times are changing and lawyers are having to deal with those changes.
Journalists are going to have to do this, too. Which brings me to this citizen journalist thing.
Today's news brings with it the sad report that a blogger operating out of Syria named Rami Ahmad Al-Sayed, who posted videos and messages online to share with the world what was is happening right now in Syria, has died. (Check out his YouTube offerings here.)
Blogger Rami Ahmad Al-Sayed was 27 years old, and leaves behind a wife and tiny daughter. This young man risked his life in order to report (and yes, that is what he was doing) on the military assault that is happening right now in Homs, Syria.
He brought news to the world in the same way that those crusty, courageous journalists do that we recognize with pride here in America: those that risk their lives to get the story out as "war correspondents."
The story is this: Syria is killing thousands of people right now and Syria is blocking all outside communications as best it can. No internet, no cell phones, you get the idea.
Al-Sayed was brave and bold and because of him, we know some of what is going on in Syria today. That's reporting. That's journalism.
Still, read the news of his passing today and the best you'll see is coverage of his death and the label "citizen journalist" or "video blogger" ... and in one main stream media story, he gets the bottom couple of paragraphs in a story covering the death of a traditional journalist who also died this week.
God bless Rami Ahmad Al-Sayed for his work, condolences to his family. A journalist died this week trying to share truth - and that's the bottom line, folks.
There's lots of chatter right now about adding books (eBooks, booklets) to blogs - particularly law firm blogs. Usually, this talk is accompanied with a discussion of coordinating those publications with an offer for the book at no charge in exchange for the reader signing up to a service like Aweber.
More and more law firms are doing this. A nice book cover image appears in the sidebar; it's a free offer for in-depth information on an important topic like tips on avoiding foreclosure; tips on making end of life decisions; ways to limit risk in alternative investments, etc. Click on the image and the reader usually has to provide an email address in order to get the freebie, and afterwards that email address may receive a series of follow-ups: more free information, etc.
Choosing to Build a Book for Your Blog or Web Site
Along with the chatter about books on blogs comes lots of confusion and I've had several calls from clients and colleagues that are overwhelmed about the process (or options) once they start investigating this stuff. Once they understand their state's bar regulations on the issue, and they've got a game plan on what they want to accomplish, then comes the practical decisions to be made. How to get this done - it's not as easy as it may first appear.
Offering a free book on your blog is not a bad idea -- it's a good idea -- but you need to know at the get-go that it isn't all that easy to get from start to finish.
Right now, self-publishing eBooks are trendy. These are coded documents that can be read on specific devices (e-Readers) like Kindles, Nooks, Sony eReaders, as well as IPads, Kindle Fires, etc.
This is usually the first kind of document that the lawyer envisions. Maybe the only one, because many aren't considering PDF formatted documents as something that can create snazzy books for their sidebar. All this talk about self-publishing means many lawyers don't understand the different options open to them.
PDF Books for Your Sidebar
For lots of lawyers and law firms, the formatted eBook alternative of using a .pdf document, formatted both for security and for a professional appearance, is the preferred option. Surf around and you will find that PDF documents are appearing quite often in blog and site sidebars as the chosen format for that free book offering.
What Google has done is create a platform to share emergency news (public safety, big storms like earthquakes and hurricanes, etc.) over a big huge Google Map of the world. The map flags the spot, information is provided in the margin with links, of course.
Go here to check it out.
Google plans on adding more as time goes on, of course. Speaking for advocates against child abuse and child neglect, having Google Public Alerts of Amber Alerts in the future would be a good thing. Presumably, Google will also be adding these emergency notifications to places like its Everything Search, maybe even gMail for the area affected.
This new Google Alert system is specifically for emergency situations and, in fact, is being run by the "Google Crisis Response team."
They are asking for feedback, so feel free to provide them some. I would think that attorneys might have lots of input here - as well as emergency personnel, etc. - on how Google can provide better and broader information for those in the midst of an emergency situation.
To share a thought or comment, go to their "Feedback" tab at the lower right corner of the Public Alerts page.
U.S. Supreme Court Throws Public Domain Under the Bus: Copyrights Can Be Applied to Longstanding Public Domain Works Under Berne Convention
Until now, because that bright line just got fuzzy. The United States Supreme Court has just ruled that Congress can take works in the public domain and slap them with a copyright. Again. This is true even if the work has been floating around in the public domain for years and years.
Golan v Holder
Read the full opinion in Cause No. 10-545 before the United States Supreme Court, Golan et al v. Holder, -- U.S. -- (2012) here. It's a six to two decision; Ginsburg writes for the majority; Breyer and Alito dissent; Kagan recused herself.
Berne Convention Implementation Act of 1988
Why? Seems the High Court believes that the United States of America must comply with a trade agreement entered into at The Convention for the Protection of Literary and Artistic Works, and signed at Berne, Switzerland on September 9, 1886. You can read that treaty online here.
That's because Congress already passed a federal law (the Berne Convention Implementation Act of 1988), stating that the United States must comply with "all acts, protocols, and revisions" of the Berne Convention. The Uruguay Round Agreements Act of 1984 amends 17 U.S.C. 104A, 109(b), and adds chapter 11 to title 17 and section 2319(a) to title 18.
If you check the deal that is known as "the Berne Convention," you will find an agreement (treaty) between several nations around the world, copyrights are to be respected as long as a copyright legally exists in any of the countries that are signatories to the Berne Convention.
Read the list of countries that have signed the Berne Convention here. Right now, there are 165 nations participating in the treaty.
Which means that work you may have used legally on your blog - say, an excerpt from something written by Tolkein - may no longer be free for your use as public domain and now, subject to copyright.
First of all, it's fine to share news releases. They are written to be distributed -- the intent of that release is to get that message out. So, sharing these cuts and paste excerpts in a blog post with an intro "news from Acme site this week" is not a bad, horrible (and by that I mean illegal) thing to do.
Second, it's fine to share information provided on government sites, for example in their "frequently asked questions" section. Intro the cut and paste excerpt with something like "the [name of agency] recommends the following" and you're fine.
Third, it's okay to share your own stuff. Excerpts from your firm website in a firm blog post isn't violating anything. Example: the post is discussing a major product recall and you provide an excerpt from the site that discusses your state's products liability law.
Here's where it's not okay. It is not okay to take content from other sites - especially news sites - and cut and paste them into your blog post, wham bam. My client, excited about coverage in the media, plugged media coverage into the blog without getting any okay from the media source.
Not to mention not checking with the news source to determine how much they wanted in payment for the use of their news story. And its photos.
Luckily, that post was not published online before someone checked with me and I pointed out that this was copyright infringement of the copyright held by the media source.
Newspapers and television news departments publish news with photos and videos online because that is how they generate revenue. They will share that content and those images with you, but they may want payment for the use. Maybe it's a lot. Maybe it's a little.
Point is: news stories and television videos - even if you are prominently a part of the story - should not be duplicated on your web site or blog without the permission of the copyright owner.
Sure, you may think I am nit-picking. After all, aren't you helping that news source by publicizing its work? Sorry, but I don't know that the owner of the copyright will agree with that argument. And, after all, isn't the story all about you and your victorious win, so don't you have some sort of indirect ownership right in the news article anyway? No. No you don't.
Go ahead if you want to risk it. Lots of sites do this, true. However, now that NewsRight is out of the box, my nit-picking today may seem prophetical tomorrow.
Better safe than sorry, folks. Plus, it's the right thing to do. Don't just plug those news articles into a blog post, even if you or your firm is the star of the story.
NewsRight: Has Main Stream Media Found a Bigger and Better Righthaven Model? Many Think So. Bloggers, Beware.
This past month, concern has grown over NewsRight, which has many of Main Stream Media's biggest companies (Associated Press is its shareholder, others include the New York Times), working together in their fight to stop various web sites (bloggers, news aggregators) from profiting off their words.
You'll remember my post from long ago, where AP was wanting to be paid per word for its content. If you quoted - or cut and pasted - over five words from one of its stories, AP expected to be paid. Five words, fork over $12.50.
That didn't work, apparently. And now, these MSM folk have banded together to form NewsRight. You can read what they want you to know about this new venture on their website.
Meanwhile, consider what others are thinking.
MediaPost hat tips to Righthaven as it discusses NewsRight as an attempt to stop "scrapping" of news stories by web sites. Techdirt considers NewsRight to be "Righthaven Lite," since they don't appear to be as sue-happy as Righthaven was (Righthaven would sue without any advance cease and desist notice). At least one media law professor seems to agree - we won't see lots of lawsuits being filed (yet).
And, for an different perspective, consider Nieman Labs optimistic take on things: NewsRight is a good thing. Really.
More and more, it appears that blogging will gain the respect that it deserves not from appreciation of its content, its growth as a solid, accepted social media outlet, nor its ability to share breaking news, but because bloggers have become parties to litigation in various forms.
Alongside copyright infringement and shield law cases popping up all over the country, consider this: the Children's Online Privacy Protection Act (COPPA) was passed by Congress to protect kids from online skulduggery.
In sum, COPPA regulates how personal information is gathered and used when it's kids who are inputting the stuff. It requires things like parental consent for purchasing info, for example.
Last spring, Disney got hit big time with a fine by the Federal Trade Commission to the tune of $3,000,000.00 for collecting info from kids at its Playdom, Inc. site without parents' okay.
However, here's the point I'm making. Bloggers must adhere to the COPPA regulations just like Disney Corporation and other Big Kahunas.
Xanga.com, for example, is a blogging service that was sued for COPPA violations awhile back. Xanga offered MySpace-like services to kids and got hit with a $1 million fine (the biggest COPPA fine at that time, according to MSNBC).
Seems Xanga was allowing kids under 13 years of age set up blogs in its "blogging community" and the Federal Trade Commission found this did not comport with COPPA requirements.
True, Xanga isn't a blog itself -- it's a blogging service. However, it's still within that blogging realm and its story is a part of the path to blogging's respectability.
Nevertheless, a Chicago court has set a precedent on how Illinois will apply its shield law in the case of a blog out of California, TechnoBuffalo, which has been sued by an Illinois printing company, Johns-Byrne Co., in a lawsuit asking the court to force the blogger to reveal its source for an image of a Motorola cellphone (the Droid Bionic).
John-Byrne argued that it needs the name of the blog’s source in order to seek legal remedies against what it believes to be an evildoing employee who violated John-Byrne’s legal rights by sharing the images.
TechnoBuffalo responded by arguing the state shield law, and claiming that it was acting in the same role as a traditional media source reporting on the cellphone industry.
What is the big deal? TechnoBuffalo published the pix on its blog before the cellphone was actually available for sale.
Some would call that a “scoop.”
Nevertheless, the Cook County Circuit Court Judge ruled that the blog is not the same as Main Stream Media and shield laws of Illinois (and presumably California? though how the Chicago judge could rule on Cali law escapes me) and ordered the name of the blog’s confidential source to be released.
Let’s see if the appellate court agrees.
Which doesn’t mean that they can’t bring a personal touch to their informational blog, although most of these bloggers don’t want to start writing posts about their football team’s latest victory or where they are taking the kids on vacation this summer.
Here are some tips on how to infuse an informational blog with some of your individual personality (which readers do like to see):
Post regularly on books you have read and recommend to others. Easy to do, the fastest way to do this is just insert the image of the book with a link to Amazon or BN or Powells or whatever and title the post “I Recommend This Book” or “Recommended: [insert title']”.
Post photos regularly, with a short caption beneath them. Choose pix that you have taken, or grab something from the public domain. Images are great for informational blogs, both visually and from an SEO perspective (Google likes this). Try tying the image to your blog’s theme or to related news.
A public domain photo of Abe Lincoln on President’s Day, for example. Another: your photo of the old historic building downtown right before it was torn down. With that one, your title could simply be: Acme Building, 1932-2012. Something like that.
Post quotes that you like on a routine basis. There are sites that organize quotes, in case you cannot remember the exact wording. These can be words of wisdom or they be related to your blog’s theme or set of topics.
The text of Martin Luther King’s “I Have a Dream” speech could be placed on your blog for MLK Day, for example.
Not more than once a week, I would suggest. However, having one of these quick posts on a weekly basis brings a two post a week blog to the three post a week blog, and that can be a big difference to readers and to the search engines.
Great article in Corporate Counsel discussing the risks of social media these days. Etrouble, they call it.
I read it via Law.com: “From the Experts: Your Company Tweeting its Way into Trouble? Four Steps to Safely Engage in Social Media,” by Judah Lifschitz and Laura Fraher.
Now, this article is written from the perspective of the corporation and the risks of social media upon the company when Twitter, Facebook, etc. is used by employees, etc.
Worth your time to read, even if you read it as the lawyer for The Man pondering the impact of free speech among the little people.
Employers do have a right to wonder what their exposure is legally when their employees do things like the Starbucks guy who tweeted about “…shoot[ing] everyone.”
More on Shield Laws: Will Congress Pass the Free Flow of Information Act – And Will This Hurt Bloggers?
More on bloggers and the extent to which legal protections provided to traditional journalists will be extended to them: right now, there is a bill moving through the House of Representatives that seeks to extend establishing journalistic protections in the law to only those writers who write "for a substantial portion of [their] livelihood or for substantial financial gain."
This might cover some non-traditional journalists. It’s not going to cover lots of other bloggers who are crusaders or whistleblowers or other bloggers who are collectively being labeled “citizen journalists.”
New Jersey has ruled that its shield law can cover these citizen journalists. So has California. Will the federal shield law be deemed to be less welcoming to these activist bloggers?
From the bill’s summary description:
Prohibits a federal entity (an entity or employee of the judicial or executive branch or an administrative agency of the federal government), in any matter arising under federal law, from compelling a covered person to testify or produce any document related to information obtained or created as part of engaging in journalism unless a court makes specified determinations by a preponderance of the evidence, including determinations that: (1) alternative sources have been exhausted; (2) the testimony or document sought is critical to the investigation, prosecution, or defense of a crime or the successful completion of a noncriminal matter; (3) disclosure of an information source's identity is necessary to prevent an act of terrorism, harm to national security, imminent death, significant bodily harm or to identify a person who has disclosed a trade secret, individually identifiable health information, or certain nonpublic personal information; and (4) the public interest in compelling disclosure of the information or document involved outweighs the public interest in gathering or disseminating news or information. Allows a court, in making the last of those determinations, to consider the extent of any harm to national security.
Defines "covered person" as a person who regularly gathers, photographs, records, writes, edits, reports, or publishes information concerning matters of public interest for dissemination to the public for a substantial portion of the person's livelihood or substantial financial gain, including a supervisor, employer, parent, subsidiary, or affiliate of such a person. Excludes from that definition foreign powers and their agents and certain terrorist organizations and individuals.
Requires the content of compelled testimony or documents to be limited and narrowly tailored.
Prohibits this Act from being construed as applying to civil defamation, slander, or libel claims or defenses under state law.
Exempts certain criminal or tortious conduct.
Applies this Act to communications service providers with regard to testimony or any record, information, or other communication that relates to a business transaction between such providers and covered persons. Sets forth notice requirements. Permits a court to delay notice to a covered person upon determining that such notice would pose a substantial threat to the integrity of a criminal investigation.
It’s entitled The Free Flow of Information Act of 2011.
Can Bloggers Be Protected Like Traditional Journalists Via State Shield Laws? Recent Court Rulings Say No.
Oregon Shield Law - No to Bloggers
The latest ruling is an opinion that came down from a federal trial judge presiding over a defamation case filed against an blogger up in Oregon, and it’s an opinion issued right before trial began against blogger Crystal Cox.
Read the Oregon federal judge’s ruling here.
In the Oregon case, U.S. District Judge Marco Hernandez heard Cox’s argument that as an “investigative blogger” she was protected by the state’s shield law from revealing her sources to requests for their identity from plaintiff Obsidian Finance Group. Cox’s claims had a confidential informant as the cornerstone of her claims which she published on her blog.
Judge Hernandez ruled against Cox. His rationale? Shield law is limited in its application to “traditional media” and blogging isn’t traditional media.
Cox, he opined, had no traditional education in journalism. She had no street creds from a “recognized news entity.”
Result: the crusading blogger risks a huge defamation judgment against her to the tune of $ 2.5 million.
New Jersey Shield Law - Maybe to Bloggers
If you’re following this stuff, this opinion may sound familiar. There was a similar stance taken by the Supreme Court of New Jersey regarding their state’s shield law and online forum posts by another “investigative blogger.”
Read the New Jersey Supreme Court opinion regarding bloggers and their state shield law here.
In the New Jersey case, Washington State resident Shellee Hale argued that she investigates and reports on corruption in the online adult entertainment industry, although admittedly she is not a traditional journalist (no journalism degree, no connection to a “recognized news entity”).
Hale was sued by Too Much Media, LLC, a company that makes “adult entertainment” related software, for defamation and false light for comments about the company that she posted online in a forum. Hale argued she was protected by the New Jersey Shield Law and lost - although the opinion was a victory for bloggers, overall. (To read her posts as well as the lengthy opinion giving four bases for its decision, go to the opinion itself.)
The New Jersey Supreme Court’s rationale? From the opinion:
New Jersey's Shield Law provides broad protection to the news media and is not limited to traditional news outlets like newspapers and magazines. But to ensure that the privilege does not apply to every self-appointed newsperson, the Legislature requires that other means of disseminating news be "similar" to traditional news sources to qualify for the law's coverage. We do not find that online message boards are similar to the types of news entities listed in the statute, and do not believe that the Legislature intended to provide an absolute privilege in defamation cases to people who post comments on message boards.California Shield Law - Maybe to Bloggers
Meanwhile, the California courts have also ruled on the application of shield laws to the publications of bloggers. In O'Grady v. Superior Court, a California appellate court ruled several years ago that its state shield law could encompass the work of non-traditional journalists, or citizen bloggers.
We decline the implicit invitation to embroil ourselves in questions of what constitutes "legitimate journalis[m]." The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here. We can think of no workable test or principle that would distinguish "legitimate" from "illegitimate" news. Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment, which is to identify the best, most important, and most valuable ideas not by any sociological or economic formula, rule of law, or process of government, but through the rough and tumble competition of the memetic marketplace.
Here’s something to think about: if Cox had been interviewed on television, or by a “traditional journalist” for a printed publication with an online presence that is a “recognized news entity” and told her tale – would her confidential source be protected by the shield law? I think so.