The curious case of self-styled “Investigatory Blogger” Crystal Cox has received much attention in the blogosphere. Last month, a federal court jury in Oregon returned a $2.5 million defamation verdict against Cox as a result of a series of defamatory blog posts she wrote about a local lawyer and his company, Obsidian Finance. A $2.5 million judgment is certainly enough to get most people’s attention, which is not entirely a bad thing given the sort of vile, personal attacks that are all too common on the Internet.
Cox’s defamatory posts (for example, on her blog named “obsidianfinancesucks”) would be difficult for even the most skilled advocate to defend. Indeed, those who use the word “sucks” in the name of their blog should not be surprised when people seriously doubt their objectivity. It certainly did not help matters that Cox represented herself in the trial.
In light of the circumstances, I’m hard-pressed to imagine that Cox’s case is going to establish any significant precedent or cause injustice to other bloggers. Nevertheless, the Court’s decision to apply a strict liability standard to Cox’s blogs because she was not a professional journalist is troubling. Strict liability means that even if Cox had used an extreme level of care in writing her blogs (there was certainly no evidence she did, indeed quite the contrary), she’d nonetheless be liable if what she wrote was untrue. Strict liability has no place in defamation law, particularly where the matters being written or spoken about are matters of public concern. Though the Judge concluded otherwise, it does not take such a generous view of Cox’s blogs to describe them as addressing a matter of public concern — namely, alleged misconduct by a lawyer acting in the role of bankruptcy trustee of a failed financial company.
Bad cases can and do make bad law. I just hope that the Cox case never raises its ugly head to bite another blogger with an inappropriate strict liability standard.