New Jersey Court Rules Against Journalistic Protection for Bloggers

June 9, 2011 By Harrison Painter Leave a Comment

Judge says shield laws don’t apply on message boards

New Jersey’s state Supreme Court ruled Tuesday that legal protections allowing journalists to keep sources confidential do not apply to individuals posting to online message boards. This decision is the latest development in an ongoing debate over the blurring lines between mainstream journalists and the growing number of bloggers who are sharing their opinions and reporting news via the Internet.

The court’s decision is online at http://www.judiciary.state.nj.us/opinions/supreme/A710TooMuchMediavHale.pdf

“To ensure that the privilege does not apply to every self-appointed newsperson, the legislature requires that other means of disseminating news be ‘similar’ to traditional news sources to qualify for the law’s coverage,” Chief Justice Stuart Rabner wrote for the court. “We do not find that online message boards are similar to the types of news entities listed in the statute.”

Chief Justice Staurt Rabner

In this case, blogger Shellee Hale posted comments about pornography software company, Too Much Media, in a message board on her website, Pornafia.com. In the comments, Hale accused TMM of threatening her sources and failing to report a security breach because they were profiting from stolen email addresses. TMM responded to the online allegations with a defamation lawsuit, and Hale in turn sought protection from the shield law. She maintains the comments were made in preparation for a story she was composing about the infiltration of pornography on the web. TMM claimed that Hale was not actually a journalist, and had misrepresented the purpose of Pornafia to gain the shield law protection.

Shellee Hale

 

In 2009, a Superior Court judge ruled that the protection did not apply to Hale, and also set a strict set of guidelines to be used to define who is – and isn’t – a journalist. This decision was not popular amongst many bloggers and media outlets, especially with respect to the proposed criteria for journalists to qualify for shield law protection. The Supreme Court upheld the decision that Hale did not qualify for protection, but overturned the criteria outlined by the Superior Court. According to the Supreme Court, the test should require a connection to news media if the purpose of the report is to gather or disseminate news and if the information was obtained during professional newsgathering activities.

 

Although many bloggers are concerned with the decision, a closer look at the facts should give online pundits some relief. First, Shellee Hale never even had a news section on her site. Despite her claims that the comments were in preparation for a story she was set to run, no newsworthy story was ever published by her online. More importantly, Hale’s defamatory statements were delivered exclusively over a message board, which certainly has no connection to news media whatsoever.

The rise of the blogger and the numerous examples of news reports originating from personal sites and social networking platforms like Twitter and Facebook have sparked discussions about who journalists really are in the technologically advanced world we live in today. It’s difficult to argue that bloggers don’t deserve protections similar to traditional journalists, but the trick is fairly determining which online voices actually have some journalistic merit. Many bloggers have expressed outrage regarding Tuesday’s decision in New Jersey, but the Supreme Court made the right call – a call that actually benefits bloggers that truly report with credibility.

Every individual who spouts off over the Internet should NOT benefit from protections that were originally created to protect journalists. However, those writers who report professionally over the web SHOULD. Tuesday’s decision denied protection to a woman who popped off with defamatory remarks on a porn site’s message board.Had Shellee Hale taken the time to research and write a newsworthy story, and published it in a professional and newsworthy manner, this decision might be completely different. The fact is, Shellee Hale didn’t deserve the protection that has been reserved for journalists because her behavior was absolutely not journalistic.

What does this decision mean for bloggers in New Jersey? It’s difficult to say, but clearly care must be taken. For one, nobody should expect to be protected by a shield law if they are commenting in a chat room or on a message board; the New Jersey courts have made it clear that people can be sued for such remarks. Moving across state lines won’t do much either; the Internet doesn’t have state lines. Hale’s comments were made from Washington; she ended up dealing with New Jersey courts because Too Much Media is based in the Garden State.

The lesson here is this: if you want protection designed for journalists, you had better do your best to act like a journalist. If you’re reporting the news, follow journalistic protocol even if you’re only posting to your personal blog. And lastly, be prepared for a battle like the one Shellee Hale is fighting. Until more cases like this appear in courts across the country, the issue will remain muddy. Credible bloggers across the web DO deserve protection, and will likely get it – at least someday.

What are your thoughts on this hot topic?

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Harrison Painter