When is a blogger not a journalist? Where does legitimate criticism end and pure slander begin? Is that shiny red can filled with floor wax or dessert topping?
These are the hard questions we face in these trying times. A federal judge in Oregon just weighed in on the first of those, and the news is sending a chill through the blogosphere.
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Crystal Cox, an "investigative blogger" in Oregon, may soon be $2.5 million poorer thanks to a ruling that appears to cut a sharp line between journalists who enjoy a scosh more legal protection than most civilians under the law and the bloggers who don't.
On sites like industrywhistleblower.com, judicialhellhole.com, and obsidianfinancesucks.com, Cox went out of her way to smear investment firm Obsidian Finance Group and its co-founder Kevin Padrick. Check out this choice nugget from BankruptcyCorruption.com (her stylistic choices intact):
There are Many Reasons Why I Claim that Kevin Padrick, Obsidian Finance LLC is a Thug, Thief and a Liar.. Many More Will Continue to Post.. in Detail .. as Oregon Attorney David Aman of Tonkon Torp LLP Law Firm sent me a Cease and Desist Requesting that I Stop saying such Facts about his Client Oregon Attorney Kevin Padrick for Obsidian Finance Portland Oregon.
A disclaimer for any Obsidian lawyers in the audience: Quoting Cox here does not constitute an endorsement of her claims. A corrupt investment banker? Who'd believe that?
Not surprisingly, Obsidian sued. Cox decided to forgo an attorney, relying on a number of Oregon state laws that protect people who have a legitimate interest in exposing corruption or corporate malfeasance. For example, it has a shield law for journalists and an anti-SLAPP (strategic lawsuit against public participation) statute to keep corporations from squelching consumer complaints by suing them. Cox tried to invoke both of those. The judge said no dice.
Representing herself in court, Cox had argued that her writing was a mixture of facts, commentary and opinion (like a million other blogs on the web) and moved to have the case dismissed. Dismissed it wasn't, however, and after throwing out all but one of the blog posts cited by Obsidian Financial, the judge ruled that this single post was indeed defamatory because it was presented, essentially, as more factual in tone than her other posts, and therefore a reasonable person could conclude it was factual.
I am not a lawyer (despite the fact that I look really quite stylish in a three-piece suit). But I have talked to a few lawyers over the years about libel and defamation, and what Cox did in her post sounds like a textbook definition of it.
As evidenced by that little snippet I quoted above -- and the multiple copycat sites Cox created -- it's clear she was trying to use cheap SEO tricks to build a Google bomb out of "Padrick" and "Obsidian." And it worked. Google "Kevin Padrick" and the first results page is full of extremely similar sites with names like BankruptcyTrusteeFraud, OregonShyster, and RealEstateHoax.