Later On

A blog written for those whose interests more or less match mine.

Risk for blogs vs. risk for mainstream media

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Interesting note by Julie Hilden, who graduated from Yale Law School and practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. (Hilden is also a novelist. In reviewing Hilden’s novel, 3, Kirkus Reviews praised Hilden’s “rather uncanny abilities,” and Counterpunch called it “a must read…. a work of art.” Hilden’s website,, includes free MP3 and text downloads of the novel’s first chapter.)

Increasingly, print journalism is struggling, as advertising dollars move to the Internet, subscriptions decrease, and newspapers find themselves competing with their own websites – which offer much of the same content the print editions do, free of charge – as well as other websites and blogs. Ironically, too, one common way in which newspapers have responded to money pressures is to make cuts in newsroom staff – and thus to decrease their comparative advantage vis-à-vis bloggers when it comes to offering high-quality content. As a result, it is now quite easy to imagine a near-future world in which print newspapers do not exist at all.

In this column, I’ll focus on one aspect of this important trend: the way in which it will likely alter the legal landscape regarding defamation and, in turn, affect free speech.

The Advantage of Shallow-Pocketed Blogs Versus Deep-Pocketed Media Companies

It used to be the case that news organizations faced essentially no competition at all from individual writers. However, with the advent of the Internet and of blogs – especially blogs written by those with expertise in a particular subject matter – that has changed dramatically. Moreover, blogs have a major financial and free-speech edge over both newspapers and online news sites funded by major media companies: It is generally not worth suing a blog for defamation.

If you sue the New York Times (online or offline) for defamation, the only effective caps on the amount you recover will be, first, the amount of the verdict a jury is willing to give you, and, second, the portion of that verdict that an appellate court feels is not too excessive under the circumstances. Moreover, if your case is a strong one, it may be essentially risk-free for you to bring it, since a contingency-fee attorney will pay the expenses, in exchange for taking a portion of the verdict if you do win.

In contrast, if you sue a shallow-pocketed individual blogger, you probably will not be able to find a contingency-fee attorney who is interested in your case. You’ll also find that – unless your attorney settles the case quickly, which usually means settling for a low amount — your attorneys’ fees will almost instantly hit five figures, then move toward high five figures. (Let’s suppose the blogger does nothing at all to defend himself or herself. Even so, you will have to pay for your attorney to draft the complaint, propound discovery, prepare to depose witnesses, and then depose them. Also, if there’s an issue as to the writer’s state of mind – which there almost always is, in a defamation case – then the case will go to trial, because a jury is required to determine whether it finds the blogger credible when he or she testifies on the state-of-mind issue.)

This dynamic will likely mean that bloggers will be more cutting-edge and speculative in their coverage than major media sites – and simply faster in getting the news out there – because they don’t have as much reason to live in fear of defamation suits as major media companies do. This reality may make some bloggers cavalier, but it may make others fearless in the best way – willing to run stories in which they have solid confidence, despite the legal risk.

Frequently, a risky story at a newspaper won’t be run until in-house legal counsel checks it over, and if serious concerns are raised, there may be a lengthy debate about whether to run the story at all. In such a case, bloggers might not only have a speed edge, but also a news edge: They can go with stories that major media companies, whether online or offline, simply can’t afford to take the risk of printing.

How can media companies compete? I think there is an answer, but it will require their decentralizing significantly and altering their contractual arrangements with reporters.

How Media Companies Can Gain the Legal Advantage Bloggers Enjoy: More Independent Contractor Arrangements

The key way media companies can address their vulnerability to defamation suits is to stop hiring employees, and begin to embark upon relationships with independent contractors.

But, there is a cost to doing so: …

Continue reading.

Written by Leisureguy

24 July 2008 at 8:04 am

Posted in Daily life, Media

Tagged with

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