A blogger who wrote for the purpose of conveying information to the public is a journalist under federal trademark law, a South Carolina federal court recently ruled. (BidZirk, LLC v. Smith, Oct. 22, 2007.) This issue before the court parallels a similar question currently faced by Congress in deciding who should be protected by a federal shield law.
The case decided last month arose from a four-part article posted by Philip Smith on his blog in 2005. Smith wrote about his experience using BidZirk, a company that takes items on consignment and sells them on eBay.
In the articles, Smith discussed the positive and negative aspects of using eBay auction companies and voiced some complaints about BidZirk and its president. Smith illustrated the articles with BidZirk’s logo.
The company sued Smith for defamation, invasion of privacy and violating a federal law that protects trademarks from being used in a misleading way.
The federal law, however, does not apply to most forms of “news reporting and news commentary.” Smith argued that his blog fell under the exception, and the court agreed.
The court applied a “functional analysis” to the question and based its decision on the “content of the material, not the format” in which it is presented to the public.
Smith conducted background research on eBay auction companies and provided readers with a checklist for choosing one, the court said, which demonstrated his intent “to report what he believed was a newsworthy story for consumers.”
Simply because he complained about his experience with BidZirk “does not dictate that the article’s function or intent was not news reporting or news commentary,” the court concluded.
The issue of who the law considers to be a journalist also is facing Congress in its efforts to pass a federal shield law.
The original versions of the bills introduced in the House and the Senate contained broad definitions of “journalist” and “journalism” which would have covered almost all bloggers and non-traditional journalists.
However, the bill that passed the House in October somewhat narrowed the definition. This version would limit the protections to people who are regularly involved with reporting the news “for a substantial portion of the person’s livelihood or for substantial financial gain.”
The full Senate has yet to take up the legislation, but the bill that passed the Senate Judiciary Committee in October contained the broader definition.
The Internet increasingly makes it possible for people outside the traditional and professional world of journalism to disseminate information to the public. The debate over the shield law in Congress reflects questions about whether, and to what degree, the law should provide these individuals the same protections and benefits as professional journalists. As the South Carolina case demonstrates, regardless of how a federal shield law defines a journalist covered by its protections, these issues likely will be played out in the courts as well.
Ther are a lot of implications here. Keep a close eye.
It will be interesting in Ohio where some open access laws allow some documents and information to be available only to journalists and not the general public. The most controversial is holders of concealed weapons permits. A couple of mouse clicks and we’re all journalists.