Given the more stringent test the press must pass when faced with a defamation claim, bloggers should be cautious before claiming the controversial title "citizen journalists".

The tremendous increase in the number of blogs in recent years has, to a degree, given rise to a call for bloggers to be recognised as an extension of or part of the press. After all, so one argument goes, bloggers report on events, express opinions on those events and otherwise conduct themselves as pseudo-journalists. Therefore they should be granted the same recognition and access as the press. To a degree this argument has merit and there are a number of bloggers who function as journalists, often despite not being formally trained as such. Bloggers often specialise in specific areas of interest and may be in a better position to report on relevant issues. We have even seen tremendously popular and effective group blogs emerge on the Web which arguably produce more relevant and engaging news than traditional media. These sites include The Huffington Post and Om Malik's network of blogs. Sites like these present high quality content and are frequently not bound by the production schedules that hamper traditional media production so they are more nimble and report on current events faster than their traditional counterparts.

The one challenge facing these sites is that their bloggers may be unfamiliar with the norms and rules that govern and guide journalists. These norms and rules deal with fact checking, multiple sources and so on. These norms and rules serve a valuable purpose and, theoretically, help keep stories objective and accurate. The press is position to exercise a fair degree of influence on the public in general and this position of influence was one of the factors guiding the courts' approach to the press' liability for such things as defamation. As blogs become more prominent and influential themselves (in many respects blogs are more influential than the traditional press), the same considerations would surely apply to bloggers. Bloggers could be found liable for defamation where they are negligent in their reporting and this means that bloggers should take the same (if not more) care as their traditional journalist counterparts in researching, writing and publishing their stories.

Newspapers who have bloggers posting to their websites are already blurring the lines between bloggers as amateur writers and professional or quasi-professional journalists. In these case there is likely to be little doubt that these bloggers will be held to the same test as the journalists they share the spotlight with. On the other extreme will be those bloggers who post purely for personal reasons and express personal opinions. Hopefully we will see a test emerge from our courts to cater for the range of influence bloggers exert and the tests they should meet when determining liability.

One thing to bear in mind is that the law of defamation is probably well developed enough to address this issue and what we need is a more creative application of the law to the new circumstances bloggers present.

Blogs are conversational tools. In my mind, the blogging movement's philosophical parent is the groundbreaking work, The Cluetrain Manifesto which pointed out that markets are conversations. A blog is designed to facilitate conversations. Most blogs have certain common elements which have come to be regarded as defining characteristics of what blogs are. These include comments and trackbacks which have been used to continue and spread conversations that started with one post and which have encompassed many more blogs than were initially contemplated.

There is a barrier to a really free conversation using blogs as the medium and this is the tendency to reserve all rights to published posts. The problem with this is that, without the copyright owner's permission, other people may not copy from that blog post or otherwise reproduce and publish that content. A common practice in the blogopshere is to quote from other blogs or sources when publishing a new post and this becomes problematic where those quotes are from content in respect of which all rights have been reserved by the copyright owner. These rights primarily comprise the rights which are protected under the Copyright Act which, in the case of a blog post (which would likely be classified as a "literary work"), the copyright holder retains the rights to:

• reproduce the content in any manner or form;
• publish the content if it wasn't published previously;
• perform the work in public;
• broadcast that content; and
• make an adaptation of the work.

This of course means that if a blogger has reserved all his/her rights to the content in that blog post, other people generally do not have the right to quote from it in your own blog post or in anyway, misappropriate the rights that are reserved. The only legal basis on which another person may, for example, republish an extract from that blog post is if to obtain permission from the copyright owner (which need not be the author of the post) or to take advantage of an exception to copyright infringement (these are set out in the Copyright Act although they don't grant blanket permission to unlicensed use of material protected by copyright). This stifles conversations about the subject matter of those protected blog posts and frustrates the purpose of blogs in general, particularly if you accept that they are conversational tools.

Asserting copyright closes off the flow of the conversation because one of the more effective ways of getting your content out there is by having other bloggers reproduce portions of your content and combining it with their take on the subject matter of your post. There is a good reason for copyright and this shouldn't be discounted altogether. Copyright exists to protect the content creator and that content creator's right to make a living from his/her content. The question should rather be what you, as a content creator, are seeking to achieve and whether reserving all your rights to your published content serves that purpose. We mentioned exceptions to copyright infringement earlier in this post and while they do provide an option to other people who want to make use of protected content, the exceptions set out in the Copyright Act are not always well known or understood and may even require legal advice on whether they apply in a given set of circumstances.

The concept of "fair dealing" which was introduced into the Copyright Act through a 1992 amendment to the Copyright Act. Although somewhat vague, the basic idea is that certain acts, while constituting infringements of copyright, are excused because they constitute fair dealing. Fair dealing is one of the exceptions to copyright infringement and it means that, for example, a portion or whole of a blog post may be copied in certain circumstances. These parameters are set out in section 12 of the Copyright Act and are as follows (the parameters which probably apply more to blogging are highlighted in italics):

• for the purposes of research or private study by, or the personal private use of, the person using the work;
• for the purposes of criticism or review of that work or of another work; or
• for the purposes of reporting current events -
  • in a newspaper, magazine or similar periodical; or
  • by means of broadcasting in a cinematograph film.

It is important to remember that fair dealing only applies to literary, musical and artistic works. It does not apply to sound recordings or other works that don't fall into these categories. Just how much you can copy is a balancing act. There is an argument that our concept of fair dealing should be interpreted in line with the American concept of "fair use" which many people mistakenly applies in South African law too. Certainly this is the approach taken in Australia with their concept of "fair dealing". In the United States the following factors are taken into account when determining what constitutes fair use:

• the purpose and the character of the use;
• the nature of the copyrighted work;
• the amount and substantiality of the portion used;
• the effect on the other party's potential market.

So again it comes down to how much you use. At the very least you must acknowledge your source when you reproduce some of that content. From there you must consider the proportionality of the content use. If you copy whole posts without attributing them and start impacting on the traffic to the other blog, you will likely run into problems. We recommend you seek the author's permission before reproducing content when in doubt. It is also a good idea to check the terms and conditions on the site concerned, if they exist. Some sites prohibit any form of reproduction and this may negate the opportunity afforded by fair dealing.

If your intention, as a blogger, is to have your content and your thoughts distributed as widely as possible, then reserving all your rights to your content is counterproductive. A more effective way of distributing your content and still retaining some control over how your content is distributed is using a combination of Creative Commons licenses. Creative Commons licenses can be used to permit certain uses of your content and while enabling you to retain the rights that are most valuable to you. For example, you could license your blog's content using the Attribution Non-commercial No Derivatives (by-nc-nd) license which entails the following:

This license is the most restrictive of our six main licenses, allowing redistribution. This license is often called the "free advertising" license because it allows others to download your works and share them with others as long as they mention you and link back to you, but they can't change them in any way or use them commercially.

This license scheme enables you to reserve the rights to exploit your content commercially and to have your content shared in the same form you published it in - pretty much what many bloggers would like to do and with the proviso that you are credited as the source of the content. You arguably retain the most valuable rights and still allow the conversation to flow.

It is important to point out that it is still possible to make a living by publishing content under Creative Commons licenses. The key is to select the correct combination of licenses for your specific needs and strike the balance between publishing your content as widely as is possible and still protecting your rights to exploit your content in ways that are most important to you. A goood example of a person who started to publish his content under Creative Commons licences is Andrew Heavens, an Ethiopian photojournalist who decided to publish his photos on his Flickr site under a Creative Commons Attribution-NonCommercial-NoDerivs license (the one described above). When he did this, he discovered something remarkable:

One of the most frustrating things about press photography is the short lifespan of your photographs,¯ says Andrew. You put yourself in a risky situation to record what you consider to be an important, newsworthy event. The resulting pictures flash up on newspaper pages, TV screens and Yahoo! news for a day or so. And then they disappear. The greatest thing that Creative Commons does is give you work an extra lease of life. After the news event has passed on, the photographs are still out there, waiting for someone else to pick up on them, give them a new meaning and use them in a different setting.¯

(Source: iCommons.org)

Creative Commons licenses provide a simpler way to keep conversations going in a truly meaningful way. Reserving all rights to content may seem beneficial in the short term but all it does is to potentially starve the blogosphere of that original and vital content. Using Creative Commons licenses requires is that people think a little differently about licensing schemes and realise that allowing content to be published more widely and legitimately serves a more valuable purpose than holding it all close. There may well be content that should be fully protected. The question is whether your content should be so carefully protected or whether you couldn't, perhaps, let it out to play with the other posts in the blogosphere?