Are We Curators or Duck Hunters?: The Emerging Role of Blawgers as Legal Journalists

Steve Rosenbaum at the Business Insider |Silicon Valley Insider in “Media Curation Is Now Consumer-Generated”, writes:

“There’s a new world order emerging around media and publishing. Producing original content is simply too expensive to sustain alone for all but the largest media companies. New models are essential — and emerging.  

The solution that is emerging is known as curation. There’s been plenty said about the emergence of professional curation. These are content hunters and gatherers who are increasingly scouring the web for contextual content to publish and amplify…

We’re rapidly becoming a Curation Nation, a world where abundance is assumed in the world of content — there’s no shortage of content makers of all shapes and sizes. But the avalanche of content makes finding the content you’re looking for significantly harder.

In a similar vein, David Armano in We Are The Media. Do We Trust Media? reflects on the issue of waning trust in mainstream media and the role of peer-to-peer social media news gathering:

“At a recent client presentation, colleague Steve Rubel said something which I found to be very insightful. Essentially, we are all media. We act like the media, espousing opinions—reporting from the field (Iran etc.) and in turn media has begun to act like us (blogging, tweeting and becoming more opinionated vs. hard news oriented. The barometer had this to say about trust in the media:

‘The only institution to lose trust around the globe is media. Over the last three years, trust in media has fallen from 48 to 45 percent among older informed publics. With the dispersion of traditional media’s authority and the rise of opinion journalism, trust in the institution as a whole has waned.’ 

So with ‘peers’ acting more like media and media acting more like peers, I’d put forth the observation that it’s logical for people to take a step back and ask the question “who can I trust”? The blurring of lines here is likely causing some confusion. Also the speed at which media spreads. We’ve seen several examples of social media being “first on the scene” but also inaccurate. On the flipside as mainstream media becomes more opinionated, they may be perceived as less of an authority. Some pretty interesting dynamics here—but I think it’s fundamentally true that we are all media now. So who do you trust when trust in media has fallen?”

The convergence of the issues of blawgers as curators and trust is highlighted over at Defending People, where Mark Bennett discusses a recent news story by Brian Rogers of the Houston Chronicle reporting that Judge Kevin Fine of the Texas 177th District Court “declared the death penalty unconstitutional.” In Bennett’s own words “they report, I explain”:

“This caused the Chronicle’s anonymous commenters to gibber ignorantly in righteous indignation like a cage full of unusually stupid monkeys. Which is always fun.  

Paul Kennedy was immediately on the story, for which Jeff Gamso gave him kudos. The Houston Press posted on it, complete with quotes from Brian Wice, Casey Kiernan, and Pat Lykos.

Unfortunately, Brian Rogers’s report is not quite accurate. In fact, it’s far enough from accurate to be totally false. Judge Fine did not declare the death penalty unconstitutional.”

Thankfully, Mark Bennett took the time to expose this canard before the inaccurate story went viral. As James Whitcomb Riley said: “When I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck.”

Mark Bennett’s timely reporting and due diligence are not only commendable, but also commentable by raising a couple of issues worth exploring:

(1) Are blawgers (law bloggers) proto, quasi or real journalists? and  

(2) Should blawgers be subject to a responsible journalism standard?

Are blawgers (law bloggers) proto, quasi or real journalists?

The answer is like a full adult diaper: it depends. Reading a lot of the dreckblogs and inanities in the blawgosphere, I would not go as far as suggesting that “we are all media”. Many lawyers and law firms have blawgs, but do not take on controversial or politically sensitive issues. There are others who consider blawging more than a social media legal marketing tool and discuss substantive issues affecting the legal profession—Mark Bennett, Scott Greenfield, Brian Tannebaum, Dan Hull and CharonQC immediately come to mind, but there are others. I have no quarrel with law firms or lawyers who blog about legal developments in their areas of practice or to comment on notable cases; in fact, a lot of my content falls under this rubric. I am, on occasion; interested in analyzing developing news stories which have a legal significance, but I do not suffer under any cognitive illusion that I am a “journalist”. I simply do not have the training or expertise to write compelling news stories about law. My Trials & Tribulations column in the Canadian Lawyer magazine ( is more like an op-ed.

That said, with the bandwagon effect comes a glut of new blawgs; all trying to be real-time disseminators of legal stories gleaned from RSS feeds and news aggregators. Breaking a developing law news story has it internet cache. Do we all succumb to a “blog first, ask questions later” mentality? Obviously not. We are lawyers. As a profession, we are bound by rules of ethics that transcends the Fifth Estate. We are not about the public’s “need to know” but, rather the public’s “need to understand”.
The question then is: what are “blawging standards” and are they universal?

It is instructive to consider the differing approaches to online intermediary liability in Canada and the U.S. in the law of defamation. In some sense, norms or standards of conduct may be self-imposed, autonomous or based upon community standards.

In the US case of Stratton Oakmont v Prodigy 1995 WL 323710 (NY Sup Ct 1995), Prodigy, an online intermediary, deliberately chose to exercise editorial control over its online content and was held to be liable for defamatory statements posted on the defendant’s website. While control over content is laudable, it is arguable that the benefits of maintaining community standards and keeping the peace online are offset against a concomitant increase in the potential for liability. As Christopher K. Sandberg points out, to avoid this Catch-22, the Stratton Oakmont case was effectively overturned by the passage of the Telecommunications Act of 1996, which provides (codified in (47 U.S.C. §230):



`(1) TREATMENT OF PUBLISHER OR SPEAKER- No provider or user of an interactive computer service shall be treated as the

publisher or speaker of any information provided by another information content provider.

`(2) CIVIL LIABILITY- No provider or user of an interactive computer service shall be held liable on account of–

`(A) any action voluntarily taken in good faith to restrict access to or availability of material that the

provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise

objectionable, whether or not such material is constitutionally protected; or

`(B) any action taken to enable or make available to information content providers or others the technical means

to restrict access to material described in paragraph (1).

Should blawgers be subject to a responsible journalism standard?

In the U.S., the more active, rather than passive, an intermediary is, the greater the likelihood that liability will attach to the intermediary as a publisher or re-publisher (see, Cubby Inc v CompuServe Inc 776 F Supp 135 (SDNY 1991) on the issue of when a website owner may establish that it did not have actual knowledge of the defamatory content). In New York Times Co. v. Sullivan, 376 U.S. 254 (1964, the United States Supreme Court applied the First Amendment’s free speech guarantee to hold that a “public official” could not recover in defamation absent proof that the defendant acted with “actual malice”; namely knowledge of falsity or reckless indifference to truth. In subsequent cases, the “actual malice” rule was extended to apply to all “public figures”, not only those officially in government or politics. In the U.S., free speech prevails. Outside the context of defamation law, blawgers are for the most part left to their own devices, unless others within the legal community take issue with an inaccurate or misleading reportage of a legal story.

By contrast, in the recent decision of Grant v. Torstar Corp., 2009 SCC 61 (“Grant”) and its companion case, Quan v. Cusson, 2009 SCC 62 a (“Quan”), (see my previous post here) the Supreme Court of Canada recognized the “Defence of Responsible Communication on Matters of Public Interest” (also referred to as the “responsible journalism” defence” and preferable short-hand) into the law of defamation in Canada. The “responsible journalism” defence was held to apply to both traditional news journalists and non-journalist bloggers alike:

“[T]he traditional media are rapidly being complemented by new ways of communicating on matters of public interest, many of them online, which do not involve journalists. These new disseminators of news and information should, absent good reasons for exclusion, be subject to the same laws as established media outlets. I agree …that the new defence is “available to anyone who publishes material of public interest in any medium”…  

[97] A review of recent defamation case law suggests that many actions now concern blog postings and other online media which are potentially both more ephemeral and more ubiquitous than traditional print media. While established journalistic standards provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike, the applicable standards will necessarily evolve to keep pace with the norms of new communications media. For this reason, it is more accurate to refer to the new defence as responsible communication on matters of public interest.”

The Chief Justice readily identifies the emerging role of bloggers as quasi-journalists, stating:

“[62] The protection offered by a new defence based on conduct is meaningful for both the publisher and those whose reputations are at stake. If the publisher fails to take appropriate steps having regard to all the circumstances, it will be liable. The press and others engaged in public communication on matters of public interest, like bloggers, must act carefully, having regard to the injury to reputation that a false statement can cause. A defence based on responsible conduct reflects the social concern that the media should be held accountable through the law of defamation.[emphasis added]”  

The required elements for the responsible journalism defence are summarized as follows:

1. The publication is on a matter of public interest  


2. The publisher was diligent in trying to verify the allegation, having regard to:

(a) the seriousness of the allegation;

(b) the public importance of the matter;

(c) the urgency of the matter;

(d) the status and reliability of the source;

(e) whether the plaintiff’s side of the story was sought and accurately reported;

(f) whether the inclusion of the defamatory statement was justifiable;

(g) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”); and

(h) any other relevant circumstances.

While I agree with the Chief Justice that “[t]he legal requirement to verify accuracy should not unduly hamstring the timely reporting of important news”, ultimately trust in the blawgosphere is not a fungible commodity that can be “monetized” or auctioned to the highest bidder hoping for higher SEO rank status. Trust is earned over time by establishing a professional reputation—both in the real and virtual worlds.  “Trust but verify” is  a motto to follow in an age of instantaneous, unfiltered, legal information. Trust requires  two elements: (1) authentication (the ability to confirm the identity and credentials of the blawg author) and (2) verification (the ability to confirm the reputation for accuracy and due dilgence in disseminating the legal information).

Trust me. I’m a lawyer and I read this on the internet.

2 Responses to “Are We Curators or Duck Hunters?: The Emerging Role of Blawgers as Legal Journalists”

  1. Mark Bennett Says:

    Thanks, Antonin.Curators gather, care for, and explain collections of rare, unusual, or otherwise special stuff. "Curation" is an odd metaphor for online media, where all of the "stuff" is available everywhere.I don't see myself as a journalist, but when I can break a story or even contribute to people's understanding of the story, I'll seize the chance.Mark

  2. Antonin Pribetic Says:

    Mark,If only other blawgers followed your example, then we would all be the wiser. "In the field of observation, chance favors only the prepared mind."- Louis Pasteur

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