Tuesday, April 10, 2012


In December 2011, United States District Court Judge Marco A. Hernandez created a stir by seeming to suggest that bloggers are not journalists as defined by Oregon’s shield law protecting the famed 'freedom of the press'. The ruling came in a case involving a self-described “investigative blogger,” Crystal L. Cox. She was sued by Kevin Padrick of a Finance Group for defamation because she had written that he and his company had engaged in a wholesale fraud in a bankruptcy case. In his ruling denying the appeal for a new trial, the judge said that he never intended to suggest that bloggers can’t be journalists, only that Ms. Cox did not fit the definition: “In my discussion, I did not state that a person who ‘blogs’ could never be considered ‘media.’ I also did not state that to be considered ‘media,’ one had to possess all or most of the characteristics I recited.”... “The suggestion was that defendant offered to repair the very damage she caused for a small but tasteful monthly fee. This feature, along with the absence of other media features, led me to conclude that defendant was not media.”
I must say I am relieved. My status as a journalist is finally established! What I lack is the Press Card to flaunt and peddle influence with. In retrospect I regret the opportunity to have one slip from my reach in the nineties by sheer petulance. Well, that is an old story.
I agree with many others in the view that Judge Hernandez was indeed right to draw a line, and where he drew it leaves a lot of room for even the most casual blogger to find protection. Hernandez’s ruling does not say that bloggers are not journalists; it merely opines that Crystal L Cox is not a journalist. But being a journalist with ample protection under the freedom of the press laws do not always take away the danger involved in libellous reporting or writing. To the best of my knowledge, freedom of the press is not specifically mentioned in the Chapter on Fundamental Rights in the Indian Constitution. But Dr. Ambedkar emphasised during the debates in the Constituent Assembly that it was included in the guarantee of freedom of speech and expression and therefore it was hardly necessary to provide for it specifically. Subsequent Supreme Court rulings have ratified the view. However, no fundamental right guaranteed by the Constitution of India is absolute. Freedom of the press also can be restricted as specified in Article 19(2), namely, (a) security of the State, (b) sovereignty and integrity of India, (c) friendly relations with foreign States, (d) public order, (e) decency or morality, (f) contempt of court, (g) defamation or (h) incitement to an offence. I do not think Indian freedom of expression provides the defence of truth coupled with public interest as it does in some other countries. Well it does not also seem to provide for imposition of stiff civil and criminal penalties upon a person who fails to substantiate his/her allegations too!
I had picked up some details of LIBEL when I was a broadcaster for a few years and sort of guide, and philosopher for our news team (they would never consider me their friend though!) – 1) It is slander when it is oral in broadcast. 2) It is direct libel when you report someone as child-abuser, gangster, corrupt or any other undesirable type. 3) It is libel by propagation when you repeat something nasty that someone says about a person or a group without giving the person a chance to respond. 4) To escape from libel suit one could use anti-libel wordings such as ‘say’, ‘alleged’, ‘reputed’, ‘suspected’, ‘claimed’; or use attributions: nearby residents say… police claimed; or paraphrase: “He said that if A Raja wanted to prove himself innocent, he might have to go through the Biblical eye of the needle...” 5) In the US they say, successful libel suits against media are as rare as penguins in Arizona.
Going back to electronic/social media, let us take the case of Lalit Modi who was indicted by a London Court recently and ordered him to pay Pounds Stg. 90000 as damages and another sum of Pounds Stg. 400000 on account of legal costs to former New Zealand cricket captain Chris Cairns for a Tweet in January 2010 alleging that an earlier match-fixing was reason for not including him in IPL. Modi wouldn’t have perhaps made a public speech mentioning the same allegation, because it is generally known to end up in defamation/libel suits. But in legal reality a public speech would have been difficult to prove in a court that needs corroboration of Cairns’ version though. In this case, while tweeting, Modi put the material on electronic media, where it could be proved easily using technology that it was shared, joked about, and debated in public domain, causing obvious mental stress, pain and loss of reputation. A tweet about an issue involving the most popular game in India is read by lakhs of people in India alone.
Pavan Duggal, a Supreme Court advocate says that a tweet, a Facebook post or a blog post is data in electronic form, which has been granted legal status under Section 4 of the Information Technology Act, 2000. They can be used in an Indian Court as evidence, once it is proved that it represents accurate information.
I understand rather belatedly that no online content is truly private though like many people I too had this false sense of security when I communicate online, in seeming anonymity of the amorphous zone of Internet. Knowledgeable people tell me now that if my idea is registering a complaint or protest, it is safer to use the e-mail instead of going to a public forum like Facebook, Twitter or even a blogsite. Professor (a media law and ethics researcher and teacher at Bond University in Queensland, Australia) Mark Pearson’s book ‘Blogging and Tweeting without getting Sued’ says that you make somebody’s mistake your own by just re-tweeting it. It appears that every time you blog or tweet you may be subject to the laws of more than 200 jurisdictions around the world! In recent history many bloggers and tweeters have discovered that they could be sued in their own country, or arrested in a foreign airport they were heading off on vacation - just for writing something that wouldn't raise an eyebrow if they had said the same stuff in a bar or a cafe anywhere in the world.  An information put on a website remains, even if it is altered or deleted later too. One’s rant against an individual is available to the posterity while it is in the public domain. That is likely to create some unpleasantness for some of us.

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