Bloggers Beware: Lessons from the Crystal Cox Case

92/365: Done? by PlayfulLibrarian

92/365: Done? by PlayfulLibrarian

This post was originally published on The Undeniable Ruth in December 2011. 

Many of us got into blogging because we like having a proverbial soapbox we can jump on to share our thoughts with the universe. The recent Crystal Cox case has made me wonder how many bloggers know the legal risk they take when they share their views.

For those of you who missed it, Crystal Cox is an “investigative blogger” in Montana who writes a blog called Bankruptcy Corruption. In one of her posts, she called Kevin Padrick, an attorney in Oregon, “a thug, a thief, and a liar.” Padrick sued Cox for defamation and won . . . $2.5 million!

The interesting thing for bloggers to note is that Cox lives and writes in Montana but she was sued in Oregon and Oregon law applied to the case.

If you write about other people, you open yourself up to the possibility of being sued for defamation or invasion of privacy. These cases are generally based on state laws. The good news is that there isn’t much variation between the laws. The bad news is that there are exceptions.

The really bad news is that the person who claims to have been injured by your blog gets to sue you in the state where they were injured, which is usually their home state. And it’s their home state law that applies. So, if you’re a blogger in Mississippi, and you write about someone in Alaska, and they sue you for defamation, you have to go to Alaska to defend yourself and hire an attorney who can defend you in Alaska. (Another lesson from the Crystal Cox case: don’t be your own attorney!)

Let’s look at the shield law, one of the laws Cox tried to use to defend herself. This is the law journalists invoke to prevent a court from forcing them to reveal an information source. There isn’t one national shield law. There are 40 different state shield laws, and some states don’t have a shield law. Cox tried to use the shield law to defend herself; and in another state, her argument may have held water. But unfortunately for her, the Oregon shield law specifically states that you can’t use the law as a defense in a civil defamation case.

Another challenge surrounding the legalities of blogging is that sometimes the laws are old, really old, as in the-internet-wasn’t-invented-when-the-law-was-written old. In a lot of these cases, the court has to decide how the laws apply to these new situations didn’t exist before we had the internet. You and the other side can propose your interpretation of the law, but there’s no guarantee that the court will accept your interpretation. And you might get really lucky and get a judge who barely knows how to turn on their computer and has no concept of what a blog is.

Someday the laws will be updated to account for the internet and blogging practices. Even when that happens, we will still have to be conscientious of the fact that each state has its own laws, and that we run the risk of being sued in any of the 50 states depending on who and what we write about.

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  • Carolyn Elefant

    I’m not a defamation expert but I’m not so sure that it’s settled law that a defendant-blogger can always be hauled into court in another jurisdiction to defend against a defamation action.  At least one jurisdiction, New York (and possibly others?) have long arm statutes that expressly exclude defamation by an out of state resident as a basis for jurisdiction.  This is a huge issue in the Rakofsky case where I am a defendant.  And I thought that there are also courts that have held that an isolated incident of defamation that takes place online may not be sufficient to trigger jurisdiction over a blogger.  In any event, lack of personal jurisdiction may not always prevent a blogger from having to defend in a foreign jurisdiction, but it’s a powerful enough shield (of another type), that it’s worth noting.

    • http://www.CarterLawAz.com/ Ruth Carter

      Thanks for sharing! None of the cases we covered in cyberspace law involved state laws that disallowed the long arm statute from applying. I hope bloggers don’t come to depend on those laws as license to say whatever they want.

      • Carolyn Elefant

        Yes, I agree with you there – not a wise strategy to depend upon lack of long arm strategy as a get out of jail (or in defamation cases, avoid liability) card.  All we can do is educate ourselves on the risks, try to make informed decisions and cross our fingers. And probably a good insurance policy helps too!