The Ninth Circuit has extended an additional level of protection for company publications that take the form of blogs. In reference to the level of fault required to prove liability for an allegedly defamatory posting, the court explained that it is irrelevant whether a blogger is a member of an institutional press corps or a private entity.

In Obsidian Finance Group, LLC v. Cox, Nos. 12-35238 & 35319 (9th Cir., Jan. 17, 2014), the Ninth Circuit considered a defamation suit brought by a bankruptcy trustee against a blogger who falsely accused the trustee of failing to pay taxes owed by the company in bankruptcy.

Cox, the blogger, sought protection under the First Amendment, raising two standards in defense. First, citing the Supreme Court’s New York Times Co. v. Sullivan, 376 U.S. 254 (1964) decision, she argued that, because the bankruptcy was a matter of public concern, Obsidian must prove actual malice on the part of Cox.

In the alternative, Cox relied on the Court’s Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) decision that identified the negligence standard for private defamation actions.

The district court denied both arguments because Cox failed to prove her status as a journalist. The court also rejected the contention that the matter was of public concern, relegating Cox to either prove the statements were true or that they did not harm the defendant. Cox appealed.

During appeal, Obsidian argued for a narrow interpretation that the Gertz standard applies only to journalists because of the need to shield “the press and broadcast media from the rigors of strict liability for defamation.”  418 U.S. at 348. According to Obsidian, because Cox was not a member of the press, she was not afforded the Gertz protection.

But the Ninth Circuit disagreed. “The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story.”  Obsidian Finance, 12-35238 at II.B.1.

Instead, in defamation cases, the First Amendment standards turn on the public importance of the statement, not the identity of the speaker.

In addition, the court pointed out that, even assuming Gertz is limited to matters of public concern, the blog post from Cox qualified because public allegations that someone is involved in a crime generally satisfy the requirement.

As a reminder, the protections described above relate to blog posts made on behalf of the blog owner. Posts made as third-party comments to the post may fall under the Communications Decency Act Section 230.

Seth Jaffe ( / +1 713 651 5370) is an associate in Norton Rose Fulbright’s Intellectual Property Practice Group.