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Oregon Blogger Isn't a Journalist, Court Imposes $2.5M Judgement (seattleweekly.com)
134 points by privacyguru on Dec 6, 2011 | hide | past | favorite | 50 comments

The article (which rightfully provides the original decision) ignores the subsequent paragraph:

Second, even if she were otherwise entitled to those protections, O.R.S. 44.530(3)specifically provides that "[t]he provisions of O.R.S. 44.520(1) do not apply with respect to the content or source of allegedly defamatory information, in [a] civil action for defamation wherein the defendant asserts a defense based on the content or source of such information." Because this case is a civil action for defamation, defendant cannot rely on the media shield law.

This changes things somewhat. The article says "she's entitled to those protections." This says, even if she were, here's why it doesn't apply.

NB: I think the settlement sucks, but that doesn't mean the judge was the complete idiot the article made him out to be.

It's worth noting that the guy that wrote the corresponding law for the State of Washington explicitly blames obsolete laws for the nonapplicability of the shield law: "Oregon's law was probably written before blogging was accounted for." [1] He goes on to say that she probably would still have been judged against, since withholding the source means she can't prove her claims are factual, but that she still should have gotten that protection.

[1] http://blogs.seattleweekly.com/dailyweekly/2011/12/unlike_or...

I Did Provide My Source. The Court Threw It Out. http://www.obsidianfinancesucks.com/2011/12/in-obsidian-v-co... I was never asked to retract the post, and under Oregon Retraction Laws denied that law because I am a blog and not TV, or Traditional Broadcasting.

Should talk to the EFF and see if they'll take your case. Representing yourself in court is such a bad idea that even lawyers hire other lawyers to represent them.

http://www.citmedialaw.org/sites/citmedialaw.org/files/2011-... reads as if they asked you to remove the article and apologize and you rejected the proposal.

My understanding was that, in a defamation claim, the complainant must prove the statement is untrue, not that the defendant must prove that her statement is true. Is oregon law different?

It would be unfortunate if proving a negative were necessary to win such a case. IANAL so it indeed may be that the complainant must prove the statement is untrue. I would expect that a complaint such as this one would necessitate the writer proving that the statement is factual, accurate, or some other variation of truth.

Putting the burden of proof solely on the journalist leaves the press open to legal harassment, having to constantly prove in court every statement that a public figure doesn't like. That kind of law probably wouldn't pass a constitutional test, especially in front of a Supreme Court that has upheld the right of news organizations to lie on air.

Public figures can't win defamation cases based on truth alone. Public figures have to prove malice to win a defamation case. That is, not only was the statement untrue, but the journalist knew it was untrue, and wrote it with the purpose of defaming the public figure.

Private people don't have to prove malice.

It doesnt really matter. Whether this woman is liable for defamation or not, the judge's opinion on that law is important. Precedent now says bloggers are not journalists in Oregon.

So-called "actual malice" is really, really hard to prove.

If that bar was met in this case, then -- as you say -- regardless of journalistic status you've done something wrong.

When one names a web site so and sucks .com then they are obviously coming from a standpoint intent on malice. Adding to that that the blogger in this case has also been regularly accusing someone of a crime they have never even been indicted on she in no way should be considered a journalist.

The bar for "actual malice" is significantly higher than "has a grudge against". The plaintiff has to prove that the defendant made statements knowing that they were false, or made statements with reckless disregard for the truth. In other words, being mean was more important that being right.

If you are right or have good reason to believe that you are right, then it's not defamation to be mad and try to make your thoughts known.

Additionally, the fact that someone has not yet been charged or indicted can never be used as evidence that they are innocent or not guilty.

Actually, it does. If the judge was going to find the media shield law inapplicable because it's a civil action for defamation, he did not need to reach the much hairier question of whether her blog was a "medium of communication".

Judges are supposed to avoid making decisions that are broader than necessary to resolve a case. This judge has unnecessarily set a dangerous precedent.

"Representing herself in court, Cox had argued..."

Coders and bloggers are good at what they do and in those spheres it would generally be a good idea to defer to them for advice, however, in the sphere of law it's generally a good idea to defer to someone with expertise in that field.

> Coders and bloggers are good at what they do

Not this one. Read the blog post on which the decision is based (http://www.bankruptcycorruption.com/2010/12/kevin-padrick-of...). She sounds positively unhinged.

That doesn't mean she should owe this company $2.5 million. But this doesn't read like the work of a journalist or someone with a source. It reads like the ravings of a lunatic. I don't have near enough evidence to make a final judgment one way or another but this certainly smells more like defamation than whistle-blowing.

I particularly like have every single paragraph starts with, and most contain (in bold) the exact phrase "Kevin Padrick of Obsidian Finance Group".

I can only assume the blogger is going for that phrase in Google.

www.obsidianfinancesucks.com/ is #4 for that phrase.

It very much is for SEO. My first result for "Kevin Padrick" is http://www.obsidianfinancesucks.com/.

This blog post is so unreadable it's a wonder that they bothered suing her.

I'm betting her showing up prominently in search results for their company is what caused them to take action. They may never recover the judgement amount but they could get the domains as part of the liquidation of her assets.

It sounds like additionally there's a high likelihood that she's judgement proof.

I imagine sometimes defamation suits are more about the reputation than the money. Also, can't you get legally defamatory content removed from search engines? I honestly do not know.

Yeah, that court case must have been unbearable for all involved...

It says there she had blogs about the legal industry, so it is likely that she is a lawyer. Of course it is usually not a good idea to represent yourself even if you are a lawyer, but maybe she could not afford representation.

Hopefully the ACLU would take up her cause on appeal.

As they say, the lawyer who represents himself has a fool for a client.

Yup, even if you're a rockstar lawyer, it's always good to have one because your lawyer views the case in a more impartial manner with out the emotional attachments that you may have to the case.

It's pretty easy to get blinders on if you're representing yourself.

It's not just that; AIUI if you represent yourself, you can get in a lot more trouble for saying something later decided to be false, or making a statement not supported by evidence. There are explicit bonuses built into the system for those who have a representative.

EFF would be more likely, I think. The ACLU's focus is mostly government-related, they don't step into a lot of private lawsuits.

I would think that the ACLU would have an interest in the ruling though.

_Especially_ when going up against a law firm in court!

It was an investment firm and not a law firm.

By representing herself and appearing largely ignorant to the law she not only lost the case but essentially made it so that the judge could rule no other way. Ignoring the sensationalist article and looking closer at the actual trial documents as linked http://www.citmedialaw.org/threats/obsidian-finance-group-v-... You can see that in many of her responses instead of trying to make a legal argument she just rants about how much she hates the plaintiffs and thinks they are idiots and states things like "This connection is further reason as to why Defendant [sic] Crystal L. Cox Feels [sic] that Kevin Padrick of Obsidian Finance is involved in a plot to kill her."

In addition, she replies to the platiniff "So I want to Let you know and Obsidian Finance that I am now offering PR Services and Search Engine Management Services starting at $2500 a month to promote Law Firms... Finance Companies.. and to protect online reputations and promote businesses.." Which the legal firm didn't take kindly to, "It could hardly be clearer that Ms. Cox is attempting to use her outrageous and utterly false payments about plantiffs as leverage to extort a payment from them."

Also, she ignored a deposition in Montana for which the plaintiffs are requesting the court place sanctions on her which if she didn't would also have made it trivial to move the case to another district court where some weird wording in the Oregon shield law wouldn't have mattered.

The Judge probably wanted to hang himself after reading her motions.

Is it illegal for a judge to think? If one side presents a really bad case, do they have to lose even if they are right?

I've experienced this myself, so maybe my comments should be thrown out as biased.

When you essentially don't try to defend yourself but instead insult and berate the court and opposing council in the legal documents you submit to the court you open up a very large window for the judge to side against you when there is any sort of leeway...

From a programmer point of view it makes as much sense as deleting a file if it fails to load. Not sure why poor argumentation skills should be the cause to a 2.4M fine. They are unrelated. The woman is not to blame, the system is for not managing situations like this. Like I am to blame if I don't manage exceptions in my code.

Trials are to be judged on the evidence presented in court. This is notoriously not always the case, but it is the way the law is supposed to be.

That's what I was saying. It is not justice. It doesn't matter if this is the definition of a trial. Invent a word for something better... And invent that something too. Until then, law is flawed.

If one side presents a really bad case, do they have to lose even if they are right?

In most cases, the only indication the judge has as to who is right or wrong are what is presented to him.

This seems to be a case of a judge ignoring a few words in order to be able to misinterpret a law. Oregon's media shield law applies to people who are "connected with, employed by or engaged in any medium of communication to the public", and defines "any medium of communication" thus:

“Medium of communication” has its ordinary meaning and includes, but is 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.

Apparently, the judge didn't spot the "but is not limited to" part of that definition.

(The text of the relevant laws: http://www.leg.state.or.us/ors/044.html)

As kevinalexbrown noted, this also seems to be a case of people ignoring the next paragraph of the decision.

I don't really think the second paragraph matters so much. If he is saying "bloggers aren't 'the media'" or that you essentially have to be employed by a big name media agency in order to get protections, that is a big deal.

He could have easily said that she is part of the media, but that the law doesn't protect those in the media from these types of lawsuits. Reading the law, I think blogging does fall into the category that gives it protection, even if those protections wouldn't have made a difference in this case.

Yep. This is not a limitation of the law, this is a deeply unimaginative judge. The "ordinary meaning" of "medium of communication" is extremely broad, and even if implicitly narrowed to the general context of the statute, easily includes most bloggers.

Regardless of shield laws, you absolutely cannot commit libel in public writing.

There is a reason why Journalism Law is a first-semester course at any respectable j-school.

"...you absolutely cannot commit libel in public writing..."

Does that mean that it's absolutely impossible to commit libel in public writing?

Or does it mean that one "cannot" because there are dire consequences?

A la "you can never put too much water in a nuclear reactor."

Yeah, "absolutely cannot" is a strange substitute for "shouldn't" in this case. I'd further restrict it to "...in public writing that has a decent chance of gaining a large audience", and possibly adding "...and which is against a party likely to notice and sue". Libel laws don't seem to deter most of the online-based libel happening all the time.

Regardless of any particular case, in my opinion, civil law is a complete farce everywhere in the world (as far as I know).

The problem is that the risk of litigation is sometimes totally disproportionate. While one side may risk a small budget overrun in their legal department, the other side might find their life in ruins for decades, including things like paying for their children's education.

I think this needs a constitutional amendment urgently.

If this is upheld, the existing 'old world' media organisations just became gatekeepers to a very useful status.

We need to start a Bloggers Media Network.

> but because she wasn't employed by an official media establishment.

What the hell is "official" media establishment? It seems that the judge is saying thet there are separate "official" and "unofficial" establisments but if that is the case, who decides what is official and what is not?

It's determined by the opinions they present. For instance, if the journalist is saying there is a conspiracy, then they're a conspiracy theorist.


The decision says nothing about being unable to create a new network. It says a network consisting of one person is not a network.

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