Trawling the depths and finding trouble.

datePosted on 10:05, December 2nd, 2013 by Pablo

The decision by a district court judge to deny a rightwing blogger the right to protect his sources because he is not a “news medium” under the definition of the Evidence Act has been greeted with glee by many on the Left but is utterly wrong. The judge clearly does not understand what blogging has become, and has failed to distinguish between freedom of the press and defamation.

There are many types of blogging, and some of it is clearly news-focused in nature. The Huffington Post, Daily Beast, Foreign Policy blog and many others of that type are news outlets, sometimes with editorial content. Blogs like The Onion are clearly satirical and should be treated as such. Blogs like David Farrar’s are personal, partisan and cut and paste editorial in nature. Blogs like this one are personal and opinion focused, not news breaking. There are tons of personal, music, cinema, food and other types of blog that are not news mediums but it should be obvious that there are also many news-breaking and news focused blogs that fall well within the definition of “news medium.”

Blogs that are news focused can have a heavy editorial or partisan content. When evaluating stories on such outlets one has to distinguish whether the author wrote in a news breaking capacity or as an editorial or partisan opinion. That really is not that hard.

When considering either capacity, one should focus on whether what is said on a blog is a lie, untrue or otherwise deliberately false in nature. If what is said is injurious to another party, then it can be considered defamatory.

Although I am no fan of sociopathic bullying bigots with partisan agendas and populist delusions, I think that the particular blog in question can be rightly considered to be a news medium with overt editorial content. Much like Fox News or RT and the blogs they operate.

The plaintiff in the defamation case against the blogger in question only need demonstrate what parts of the blogposts authored by the defendant are untrue or deliberately misleading. I have not read the entire opinion but it seems to me that being called a “cocksmoker” may be insulting depending on one’s perspective, but not necessarily defamatory. Ascertaining the source of the leaks to the blogger is immaterial: either what was posted was false and deliberately written to harm the plaintiff or it was not. Seeking to identify the source only serves punitive purposes and does not assist in establishing malicious intent (which is what the plaintiff is claiming is his objective under discovery).

Given who the blogger is, malicious intent is pretty much a given. The question is: was what he wrote a lie or deliberately misleading so as to harm the reputation of the plaintiff?

The district court decision should be appealed and overruled. That is important because it protects the sources of that part of the electronic media, including social media, that has a news-generating orientation. Doing so in no way prevents defamation cases from being brought because the proof of such cases is what was deliberately said or written, not the source for what was said or written.

If the source was consciously involved in deliberately disseminating false and misleading content via the blogger, then the latter has to decide whether to reveal the source or shoulder sole responsibility. That should be enough to make even citizen journalists and news bloggers cautious.

The point is that with news source protection privileges comes the journalistic responsibility to ascertain that the information provided from a source is not deliberately false or malicious. If that responsibility is shirked, then the news outlet, be it a blog, newspaper, radio or television program can be held accountable for disseminating falsehoods that are defamatory or libelous. If the blogger in this case used material that he knew to be false and damaging, then he should be liable. If he did not know the information was false and damaging and published without verifying, he is liable anyway. Whether or not he choses to reveal his source, he ultimately is responsible for what was written on his blog and therefore accountable for what was written. That is how journalism operates.

The bottom line is that the district court judge’s decision is very poorly thought out and wrong. As many have mentioned, it establishes a dangerous precedent with a chilling effect on freedoms of speech and press in electronic media.

The Left should not be so gleeful because the silencing of one opens the door to the silencing of many.

 

6 Responses to “Trawling the depths and finding trouble.”

  1. Edward Main on December 2nd, 2013 at 17:39

    So if this decision by this judge is considered’ enlightened ‘ by his peers in the judiciary, then what do they call ‘dumbed down’?

    My point. That given the Judge’s station in life, we the populace should expect better.

  2. Tiger Mountain on December 3rd, 2013 at 11:52

    While pontification is ever of little use whilst Whalespew is wallowing about it may be a matter of “taking one for the team” here.

    Underwear sniffing is our modern day Quasimodo’s forte–forgive me but who does that apart from home maintenance and appliance repairers? Watching brief really, no pun etc. and leave it to the lawyers guns ’n money sector for now.

  3. Michael on December 3rd, 2013 at 19:33

    Good to have someone read it and summarize it for me to read. The Herald didnt explain it as clearly as this. Thanks. I look forward to Whaleoils appeal to see what happens there. Id say calling someone a cocksmoker is indicative of being malicious whether or not that person is gay and minds being called gay or not

  4. HP on December 3rd, 2013 at 23:14

    May the wings of liberty never lose a feather.

  5. Pablo on December 6th, 2013 at 09:19

    The last two posts (one by HP and one by Ntshingwayo Khoza) have been sent to the spam bin because they have no relevance to the post. Please desist.

  6. paul scott on January 14th, 2014 at 17:30

    yes, silence. try to write to the Standard as Paul Scott or Lolita brother and see how you get on.
    Biggest censor The Standard and then the insane Bradbury at Daily Blog

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