When Philip Smith took to his blog to describe his (negative) experience of working with an eBay listing company, he did not expect that he would end up representing himself in a federal defamation and trademark dilution lawsuit or that he would have difficulty selling his condo after a lawyer for the plaintiffs clouded his title to the property. Now, after winning the case in spectacular fashion, Smith has emerged as an unlikely hero for bloggers everywhere who hope to be regarded as journalists.
No US court has yet weighed in with authority on the debate about whether bloggers count as journalists, but the recent federal decision from South Carolina does indicate that at least some bloggers are journalists. It's not about the title, it's about the content, said Judge Henry Hurlong, Jr.; a journalist turns out to be anyone who does journalism, and bloggers who do so have the same rights and privileges under federal law as the "real" journalists.
The case began when Smith blogged about his experience working with an eBay listing company called BidZirk. He had a less than satisfactory experience working with the company, and he used his article as a chance to talk about eBay listing services in general, then closed with a checklist that potential users of such services should consider.
In the course of the article, he did three things that galled BidZirk's owner, Daniel Schmidt: he 1) used the BidZirk logo, 2) described Schmidt as a "yes man," and 3) linked to a picture of Schmidt and his wife. Those actions prompted claims for 1) trademark dilution under the Lanham Act, 2) defamation, and 3) invasion of privacy.
Despite the federal charges, Smith elected to defend himself in court against a lawyer hired by Schmidt. The case was filed in January 2006 and went through the usual round of complaints and responses and motions. Then, in October 2006, plantiffs' attorney Kevin Elwell filed a "lis pendens" against Smith's condo, making it difficult for him to sell it.
On September 17, 2007, Smith moved for summary judgment in the case and argued that the plaintiffs had no real claim against him. The BidZirk logo was protected by his status as a journalist, he argued, while the "yes man" comment was not a statement of fact. As for the picture, he had only linked to a community site.
The judge agreed, and last week issued summary judgment for Smith. The most important section of the ruling is the one dealing with Smith's status as a journalist. The court admitted that it was impossible to determine in advance whether a blogger was a journalist and so used a "functional analysis" that "examines the content of the material, not the format, to determine whether it is journalism."
The judge noted that Smith wrote the article in order to convey information, that he had done researchin preparing it, that he addressed both positive and negative aspects of his experience, and that he provided a checklist for others to use."The fact that Smith reports negatively about his experience with BidZirk does not dictate that the article's function or intent was not news reporting or news commentary," wrote the judge. Furthermore, he noted explicitly that "some bloggers are without question journalists."
Elwell, the attorney for the plaintiffs, was sanctioned for his actions. As a "competent attorney," the court found that he should have known that what he had done was totally improper, since the case in question was not about the title to any real estate, and lawyers can't simply go clouding up the title to people's homes to ensure they get paid at the end of a case. Elwell was forced to pay $1,000 in fines directly to Smith.