Nov. 15, 2011
Law school analysis suggests legal protection for blogger/journalists
The line between journalist and blogger keeps getting thinner, and a University of Iowa College of Law legal analyst believes courts need to develop a way to determine which bloggers should have the legal protections afforded traditional journalists.
The analysis, by third-year law student Benjamin Wischnowski, notes that current judicial tests fail to properly identify those bloggers who should be protected by state shield laws that guard journalists in their news gathering.
"The concern is that shield laws present the risk of being under-inclusive by failing to protect bloggers who are legitimate news gatherers, but that they might also be over-inclusive and protect too many bloggers based on a vague, undefined notion of investigative reporting," Wischnowski says. "The fact that courts could reach these two contrary results leads me to conclude that courts need more concrete tests for dealing specifically with bloggers."
All states have shield laws designed to protect journalists as they gather and distribute the news, especially when it comes to providing a defense against libel suits or protecting anonymous sources for controversial stories. Some state courts have extended these protections to bloggers, but others have remained silent and some have expressly denied those protections to bloggers.
Considering that more and more news gathering is happening online by independent journalist/bloggers, Wischnowski believes that shield laws need to be interpreted in a way that specifically protects them. As read now, many laws that protect traditional print or broadcast journalists from lawsuits aren't adequate to protect bloggers.
"By conditioning protection on how closely their work resembles institutional journalism, courts fail to address the nuances of the blogosphere, focusing on the characteristics of the reporter rather than on the reporting itself," said Wischnowski.
Instead, he suggests courts adopt a test that determines whether a blogger's work can be considered legitimate journalism by how well it capitalizes on the blog as a medium. Namely, whether the blogger makes her story available for online editing by readers -- a form of crowd-sourcing -- and whether she collaborates with other bloggers or readers, for instance, through a comments section.
The court would then determine whether that level of interaction is enough for a reader to understand that the blogger is practicing journalism and disseminating legitimate journalism, or is merely publishing libelous or defamatory statements about another person or organization. Shield law protections can then be extended if the blogger's work is considered legitimate news reporting.
"Unlike the journalistic standards test, which threatens the viability of bloggers to remain competitive with traditional news sources, this kind of blogger-specific inquiry preserves bloggers' independence and acknowledges the nuances of the internet's investigative reporting," he says.
Wischnowski's paper, "Bloggers With Shields," is published in the current issue of the Iowa Law Review.
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