No Reporter Shield for Mere Blogger, N.J. Appeals Court Says

Mary Pat Gallagher

New Jersey Law Journal

New Jersey's press shield law applies to online news reporters but not to bloggers merely claiming to be journalists, a state appeals court ruled on Thursday.

"Simply put, new media should not be confused with news media," the judges said in Too Much Media v. Hale, A-0964-09, the first N.J. appellate ruling and only the second in any state to address whether bloggers can invoke the newspersons' privilege to protect the identity of their sources.

The blogger's sources were not protected because she "exhibited none of the recognized qualities or characteristics traditionally associated with the news process, nor has she demonstrated an established connection or affiliation with any news entity," the court said.

Shelle Hale, of Washington State, was sued for defamation over statements she posted on Oprano.com, a website self-described as the "Wall Street Journal for the online adult entertainment industry." The statements were critical of Too Much Media, a Freehold company that provides software chiefly used by Internet pornography providers.

Hale accused 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 the theft of e-mail addresses stolen by hackers in a 2007 security breach.

Discussing a competitor's lawsuit against Too Much Media, she wrote that the company's principals "may threaten your life if you report any of the specifics."

Hale claimed her comments were made in the course of investigating criminal activity in the Internet porn industry and were meant to inform the public and facilitate debate about frauds, scams and misuse of technology.

Hale set up a website, Pornafia.com, to apprise the public of her findings, issued a press release and even let the attorney general of Washington know what she was up to.

Too Much Media sued for defamation and was planning to depose Hale about her sources when she moved for a protective order based on the shield law, N.J.S.A. 2A:84A-21, which generally allows reporters to refuse to disclose their sources in court proceedings.

Ocean County Superior Court Judge Louis Locascio denied the motion on June 30, 2009, finding Hale failed to show she was connected with news media as the statute requires.

And because Hale was not a journalist, malice was not required for liability, Locascio found. He also refused to dismiss the case based on the absence of pecuniary damages, holding that the case involved slander per se.

Appellate Division Judges Anthony Parrillo, Philip Carchman and Marie Lihotz agreed with Locascio that Hale didn't meet the shield law's definition of a journalist.

She took no notes of conversations, meetings or interviews with contacts or sources, never asked the company principals for their version of the security breach incident and did not provide details about any fact-checking on information she collected, Parrillo wrote.

Most significantly, she "never identified herself to any of her so-called sources as a reporter or journalist so as to assure them their identify would remain anonymous and confidential, a key factor in the application of the newsperson's privilege."

Though Hale claimed she hired writers for the "online magazine" section of her site, she did not reveal the identities of contributors or actually publish anything on it. The evidence indicated at best that she was assembling the writings and postings of others rather than creating independent product of her own or making a "material substantive contribution" to others' work, the panel said.

While actual publication is not a prerequisite for the privilege, it does show an intent to publish news, which is required, Parrillo said. It is also not necessary to be actively engaged in news gathering; transmitting or compiling information may suffice, he added.

The court also noted that the Oprano.com site, where Hale posted her allegedly defamatory comments, was a message board where anyone could post. By analogy, if Oprano was a newspaper, then Hale's comments were in the nature of letters to the editor, Parrillo said.

The panel reversed Locascio's holding that the malice standard did not apply, finding it was premature and made without a full record or opportunity to be heard on the issue after he had told the parties he would hold off deciding it.

On the damages issue, the appeals court disagreed with Locascio's view that defamation via the Internet was a type of slander per se for which damages are presumed. Parrillo said it was a libel claim that Too Much Media could pursue based on alleged harm to its reputation.

The company's attorney, Joel Kreizman, of Evans, Osborne & Kreizman in Ocean, says his biggest fear was reversal on the libel-versus-slander issue because he might have been left without a cause of action.

Kreizman says he looks forward to deposing Hale about her sources. "Some people regard the Internet as the Wild West but there are some rules that apply," he says. "The shield law is limited to members of the media, not pretenders or wannabes."

Hale's lawyer, Jeffrey Pollock, of Fox Rothschild in Princeton, says he respectfully disagrees and is mulling an appeal. The court correctly defined who should be treated as a journalist but erred in concluding Hale did not meet the definition, he says. He thinks the court was too concerned with her lack of association and affiliation and its decision raises concerns for emerging electronic media.

NBC, The New York Times , North Jersey Media Group and the New Jersey Press Association weighed in as amici to dispute Locascio's determination that defamation on the Internet counted as slander per se rather than libel.

Their lawyer, Bruce Rosen, of McCusker Anselmi, Rosen & Carvelli in Florham Park, agrees with the outcome, saying "you can't possibly allow everybody to be under the shield law" because it would be misused and provoke a backlash.

Rosen says, however, that the court put too much emphasis on Hale's failure to identify herself as a journalist, which he sees as more related to journalistic ethics. The privilege applies even in situations when reporters do not identify themselves -- such as when they overhear something or somebody slips them a stolen document.

Jonathan Hart, counsel to the Online News Association, which was not a party to the case, says the court's treatment of the reporter's privilege issue is no cause for alarm. "The court merely found, on the peculiar facts before it, that the defendant had not exhibited any of the characteristics traditionally associated with the news process, nor had she demonstrated any connection with any news entity," says Hart, of Dow Lohnes in Washington, D.C. "Journalists gathering news for publication on the Internet need not lose sleep over this decision."

In the only other state court case to consider whether bloggers are protected as journalists, O'Grady v. Superior Court , 44 Cal. Rptr. 3d 72 (2006), the California Court of Appeals denied enforcement of a subpoena seeking the names of confidential sources from two Internet-only publications to whom suspected Apple Computer insiders leaked confidential trade secrets about soon-to-be-released Apple products.