The Media Bloggers Association was founded four years ago, largely as the result of discussions among bloggers at BloggerCon II in April of 2004 about the need for bloggers to defend themselves against legal threats. The event was organized by Dave Winer of the Berkman Center for Internet & Society and held at the Harvard Law School in Cambridge, Massachussets. Many of the founding members of the MBA were participants at BloggerCon II: Dan Gillmor, Jeff Jarvis, Jay Rosen, Tom Biro, J.D. Lasica, Rebecca MacKinnon, Oliver Willis, Robert Cox. Other founding members of the MBA include Aaron Barnhart, Cory Bergman, Cori Dauber, Jonathan Dube, Patrick Frey, Liz Foreman, Henry Hanks, Terry Heaton, David Johnson, Bryan Keefer, Julie Moos, Brendan Nyhan, Richard Warner, Jason Clarke, Tim Porter, Steve Safran, Matthew Sheffield, Greg Sheffield, Matthew Sheffield, Ken Waight, and Ben Fritz.
The original idea of the MBA was as a sort of "mutual defense pact" through which bloggers would help each other by using their blogs to raise awareness when blogger speech was threatened by frivolous lawsuits, sometimes known as SLAPP suits, intended to suppress unpopular speech by bloggers. In the six months that followed BloggerCon II, the MBA was organized around the ideals embodied in its mission statement:
“The Media Bloggers Association is a nonpartisan non-profit organization dedicated to promoting, protecting and educating its members; supporting the development of "blogging" or "citizen journalism" as a distinct form of media; and helping to extend the power of the press, with all the rights and responsibilities that entails, to every citizen.”
The Media Bloggers Association advances its mission as follows:
* Promoting its members by advancing the grassroots media movement generally, showcasing exemplary instances of media blogging and citizen journalism, making members available for media appearances, and otherwise creating promotional opportunities for the MBA and its members.
* Protecting members by defending the rights of bloggers and citizen journalists generally, providing first-line legal advice to members, and partnering with organizations dedicated to promoting values enshrined in the First Amendment to the U.S. Constitution.
* Educating its members through mutual support and robust internal discussion, by partnering with organizations dedicated to education in the area of technology, methods and standards and otherwise creating educational opportunities for the MBA and its members.
In September 2004, the Media Bloggers Association went public went our web site at www.mediabloggers.org went live during BloggerCon III held at Stanford Law School in Palo Alto, California.
Between 2004 and 2006 the MBA advanced this mission through a variety of initiatives creating the MBA Legal Defense Project, Tsunami Video Hosting Initiative, BlogNashville, our then-secret "Radio Free Nepal" project , convening the first ever Anoniblogging roundtable, CARR journalism training, and many others. In 2005, a team of MBA members led by J.D. Lasica wrote the MBA issued its Statement of Principles; they were published in the fall of that year.
For its work in Nepal, the MBA was nominated for a Freedom Blog Award by Deutsche Welle, the German version of the BBC. Ironically, the MBA itself was also nominated in the same category as was MBA founding member Jay Rosen (Jay won the Award). BlogNashville, held at Belmont University and Vanderbilt University, over three days was, at the time, the largest gathering of bloggers ever. When a killer Tsunami struck in the area around the Indian Ocean, the MBA partnered with the Washington Post, Mirror Image and other leading content and web services providers to host, at no charge, home video of the event. Through the Tsunami Video Hosting Initiative, the MBA served up millions upon millions of videos to a global audience to raise awareness and support fund-raising efforts. The MBA organized a bi-partisan program of Computer-Aided Research & Reporting training with The Heritage Foundation and the Center for Budget and Policy Priorities at the First Amendment Center in Nashville and the National Press Club in Washington, DC. Throughout this period, the MBA provided assistance and obtained legal support services for over a hundred bloggers facing legal threats for what they published on their blogs and brought attention through the media to cases such as Batesline/Tulsa World, Maine Web Report/Maine Department of Tourism, and others which were featured in media accounts on CNN, Fox News, MSNBC, Boston Globe, Wall Street Journal, New York Times and many other media outlets.
By the end of 2006, as the MBA approached its third year, it had become apparent that our "ad hoc" approach to legal defense was not going to be sufficient to deal with the growing tide of legal threats to bloggers. We believed then that with the number of bloggers increasing exponentially each month and more people reading blogs than ever before, the amount of litigation - actual or threatened - would also increase at an exponential rate. In 2004, there were a dozen cases known to the MBA. By 2005 that figure had doubled and in 2006 doubled again. Today, Harvard Law School's Citizen Media Defense Project, an MBA partner, has tracked over 500 legal threats against bloggers - cease and desist letters, DMCA take down notices, and actual lawsuits. The Media Law Resource Center has reported on over $16 million in public judgments against bloggers and other online publishers and with most cases settled privately the figure is likely far higher.
Given the nature of our work over the past few years, we realized earlier than most that for all the excitement about the potential for blogging or "citizen media" or “networked journalism” or whatever you want to call it, there was serious problem hovering in the background. We had come to know first hand that there are many forces at work in our society that do not like the idea of a free and open media where anyone can publish and anyone can get access to information and disseminate it. These forces, whether they be government, corporations, individuals, or others groups or organization, manifest themselves as deep-pocketed litigants who can afford to use the threat of litigation to suppress speech they do not like.
Few bloggers have the financial resources to defend against such a threat and even if they did, few are willing to spend several years in court litigating over their blog which is, for most, a sideline. Having dealt with many such cases over those first three years, we knew that for most bloggers would simply remove a post or even shut down their blog entirely in the fact of what was often a baseless threat. The net effect has been a chilling effect on citizen media, which, left unchecked, would only further embolden litigants and encourage further efforts to encroach on blogger speech. We concluded that bloggers needed a reliable way to punch back, a credible threat, a way to access the same sorts of legal and financial resources being used in attempts to shut down their blogs. Whatever doubts many of us have with traditional media - and there are many – it was also clear that they had been dealing with the exact same sort of threats and learned how to defend themselves.
At one time it was possible to successfully beat back lawsuits and legal threats by generating "blogstorms" and embarrassing litigants into withdrawing legal action. Speaking as someone who has, arguably, more experience than anyone in doing this, let me assure you those days are over. As the novelty of blog lawsuits wore off, it became increasingly difficult to get old or new media to pay attention; more so as the number of cases skyrocketed. While the occasional case may get attention, most get little or none from bloggers or traditional media outlets. During the two-week period that the AP-Drudge Retort case was in the news the MBA received requests for help from a dozen other bloggers none of whom got even a sliver of the sort of attention given to Rogers Cadenhead of the Drudge Retort.
The simple fact is that attempting to bully plaintiffs with "bad publicity" generally does not work; it is certainly not a reliable legal strategy. There is a good reason why every media company in the United States has media liability insurance.
More broadly speaking, we came to believe that if "citizen media" were to become a sustainable institution within the broader media landscape then "citizen journalists" would need access to the same sorts of support infrastructure that traditional media organizations have had for many years. Bloggers would need an association like the Society for Professional Journalists, National Association of Broadcasters, Radio & Television News Directors Associations to help organize bloggers and to use the critical mass of the association to advocate for bloggers within the confines of its mission. Bloggers would need "free speech" advocacy groups like The First Amendment Center and the Reporters Committee for Freedom of the Press. They would need access to in-house legal resources as well as outside counsel. And they would need media liability insurance to pay for legal costs and judgments.
It is our view that the Media Bloggers Association has, within the confined of very limited resources, served the blogging community well by delivering services and support for bloggers while rigorously limiting its activities to advancing its mission without straying into areas such as advertising networks or political advocacy. The MBA has worked with organizations which defend blogger rights specifically like Harvard Law School's Berkman Center and its Citizen Media Law Project and generally like the Electronic Frontier Foundation and the Online News Association. The MBA has also worked with a wide variety of traditional journalism groups like SPJ, RTNDA, The Knight Center, and The Poynter Institute, and worked with organizations that support traditional media like the Reporters Committee and the First Amendment Center.
In the fall of 2006, USA TODAY published a front page story on the legal threats facing bloggers which highlighted the work of the Media Bloggers Association. That article was read by the CEO of Media/Pro Insurance, the largest media liability insurance company in the United States. In November 2006, I was invited to address the International Professional Liability Underwriting Society conference which included representatives from AON, AIG, Chubb, Allstate, Progressive and pretty much every major player in the liability underwriting business. At this conference, the MBA agreed to work with Media/Pro to develop a new product - a media liability insurance product for bloggers.
For those who don't know about this sort of thing, it turns out that developing a brand new insurance product for an entirely new market with no actuarial history is extremely complex. That is, of course, an understatement. There were pricing issues, insurance regulator issues, underwriting guideline issues, marketing issues, technical issues and more, each with their own details that needed to sort out to the most minute degree. One of the major goals of the MBA was to push the cost down below $50 a month for the most basic policy on the premise that almost all blogs would qualify for the basic policy and that these blogs could cover a cost of less than $2.00 a day through Google Ads, Amazon Associate programs, Text-Link Ads, BlogAds or other types of programs. The first price we got back from the insurance company came out to more than $200 a month so we knew we had a lot of intense negotiations to do to get the price down.
A key component of reducing the price offered to bloggers was to get the insurance company to agree to "price out on the curve" - to offer the product at a price that would be profitable for them if they had a large number of bloggers as customers while recognizing that the actual number of customers would have to build up to that point over time. Another key component was for the MBA to help reduce their cost which means making it inexpensive for them to acquire new customers and to limit their risk by helping them identify bloggers that are "low-risk" relative to the general population of bloggers.
Obviously, these twin goals of attracting as many bloggers as possible and limiting the number of bloggers to only those deemed "low-risk" are contradictory. If we cannot figure out a way to reconcile those two goals, the insurance company will not find it worthwhile to offer a media liability product for bloggers and blogger speech will be undermined as a result. This, then, became the single most important objective of the MBA over the last year.
Our solution is to abandon the policy whereby each member had to be referred by another member and every blog received a review by a membership committee. Instead, we came up with a solution that is infinitely scalable thus allowing us to grow the membership to be very large and screens out bloggers who are not serious-minded by placing a speed-bump in the way of actually becoming a member without creating work for the MBA and its volunteers.
We have partnered with News University, Media/Pro Insurance, Harvard Law School and the City of New York Graduate School of Journalism to create an online course on the basics of media law for bloggers. The course outline was developed by the Media Bloggers Association and based directly on the type of legal issues the insurance product is intended to address - defamation, copyright and privacy law. The core content on these topics was then written by First Amendment lawyers at Media/Pro. The case studies were provided by the Citizen Media Law Project at Harvard Law School and the CUNY J. School. The course was put online - web development, all the interactive components, the assessment piece, the glossary and integration into the MBA application process was done by producers at News University, located at the Poynter Institute and funded by The Knight Foundation. IT support for the project was provided by Zubr Communications which hosts the MBA web site.
All MBA applicants will now have to first take the course, complete an assessment section and "pass" the course before they can even apply for membership in the MBA. By making the course a prerequisite for membership, we hope we discourage bloggers who are not serious-minded from applying for MBA membership in the first place and for those that do become members they will have demonstrated a basic competency in media law as it applies to bloggers. Because the entire application process including the online course is automated it is infinitely scalable. As a result, the Media Bloggers Association can open its doors to any blogger who wants to apply without regard to how long they've been blogging, how often they post, how many readers they have or who they know. At the same time, taking the course represents a "time cost" to bloggers that is designed to be very large for frivolous applicants (spammers and their ilk) but small for anyone genuinely interested in joining the MBA and supporting its mission. Even better, that time cost comes in the form of an online course that will teach bloggers the basic of media law which will help them avoid needlessly exposing themselves to legitimate legal threats and put them in the best possible posture in the event of SLAPP suits and other forms of illegitimate threats intended to suppress blogger speech. All of this gives greater comfort to the insurance company, which becomes the basis for their offering MBA members a very large discount for those who wish to purchase insurance.
To again address some of the expected criticism, keep in mind that passing the online course is required to become a member of the MBA, becoming a member of the MBA is required to purchase insurance through the MBA Program at Media/Pro but no one is required to join the MBA, no one is required to join the MBA to take the online course, no one is required to buy the insurance, no MBA member is required to buy the insurance. The online course, the insurance and MBA membership itself are there for people who want it; not taking the course, not joining the MBA or not getting the insurance is an individual choice that neither confers nor takes away the "legitimacy" of the work of any blogger.
