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Blogger Sued For Defamation Can't Invoke Shield Law, Says N.J. Judge
New Jersey Law Journal
July 08, 2009
A blogger sued for her online criticism of a software company on a porn industry message board cannot invoke New Jersey's press shield law, a Monmouth County judge says in a case of first impression in the state.
Superior Court Judge Louis Locascio's June 30 ruling allows the company, Too Much Media, to ask blogger Shellee Hale the sources for comments she posted on Oprano, a Web site that proclaims itself the "Wall Street Journal of porn."
Locascio also made a second novel ruling in the case, Too Much Media LLC v. Hale, MON-L-2736-08, holding the company can pursue damages even without a showing of pecuniary loss, based on postings that accuse it of criminal conduct and business incompetence.
In denying Hale protection as a journalist, Locascio said courts "are now being faced with the task of evaluating a virtually limitless number of people who claim to be 'reporting' on issues, but who are, many times, doing little more than shouting from a digital soap box."
Hale, of Washington state, has a private investigator's license and a degree in respiratory therapy but not one in journalism. She operates two Web sites, camandago.com and coachshellee.com, on which she offers her services as a "life coach," fitness adviser and freelance investigative journalist, and also keeps a blog, shelleehale.net/blog.
The comments that led to the suit concerned a Too Much Media software product known as NATS, which helps businesses that link to each other keep track of click-generated commissions. Some software users are apparently porn sites, and Hale came across NATS while looking into criminal activity in the adult entertainment industry.
In early 2008, media reports noted a security breach that allowed hackers to break into the NATS database and access lists of subscribers to adult Web sites.
Hale weighed in on the subject, accusing Too Much Media of engaging in fraud and "illegal and unethical use of technology," violating New Jersey's Identity Theft Protection Act and profiting from stolen e-mail addresses. She also said the company's principals "may threaten your life if you report any of the specifics."
She claims her comments were meant to inform the public about alleged misuse of technology, and about frauds and scams in the online porn industry and to facilitate debate on the issues.
The company sued Hale for defamation and was planning to ask about her sources at deposition, when she moved for a protective order based on the shield law, N.J.S.A. 2A:84A-21.
Though calling New Jersey's shield law one of the nation's broadest, Locascio denied Hale's motion because she failed to make a prima facie case that she was connected with the news media. The law protects persons "engaged on, engaged in, connected with, or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public."
Locascio found no evidence Hale ever worked for a newspaper, magazine or media entity. He discounted as a "sham affidavit, entitled to no credence" her certification saying she had published articles in one newspaper and several trade journals because she did not provide specifics and she lied in a prior certification concerning a jurisdictional motion, when she denied any knowledge of the plaintiff's residence or domicile.
