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Court Refuses to Grant Shield Protection to Blogger

(Photo: Garret Voight / Flickr)

Bloggers who post messages on Internet forums are not protected by the New Jersey press shield law, which allows journalists to keep their confidential sources secret, the state Supreme Court ruled on Tuesday.

Software company Too Much Media LLC (TMM) sued blogger Shellee Hale for defamation in 2009 for comments she had made in an online forum about the firm's business conduct. Writing on a message board on pornography industry forum, Hale said that TMM, which sells software to adult web sites, had profited from a 2007 security breach that revealed customers' data. TMM's lawsuit against Hale asked her to reveal her sources in the industry – but Hale, who said that the company's owners also threatened her life, argued that she was protected by the press shield and did not have to name names.

Hale's lawyer, Jeffrey Pollock, said that if the shield law did not apply, Hale was still protected under the First Amendment, which guarantees the right to anonymous free speech and “cannot be overcome by plaintiffs who admittedly sustained no economic damages.”

The court disagreed. Judge C.J. Rabner wrote that the law did not apply in Hale's case because she did not have “a connection to 'news media' and a purpose to gather or disseminate news.” Online message boards did not suffice as news media, Rabner said, meaning Hale could not claim protection under the press shield law.

Rabner also noted that Hale never showed that she was seeking information against TMM for professional purposes. While Hale began creating a web site in 2007 that would publish pornography industry news, she never completed the front-end “news magazine” portion, with all of the comments relevant to the case appearing only on Oprano – where the content was “open to anyone with Internet access,” Rabner said.

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A 2010 State of the Blogosphere report, released by BlogPulse, put the number of active blog operators at 150 million. As citizen journalism becomes a more widely read source of news, TMM's case against Hale marks one of the first times a court has had to discuss what protections are available to “nontraditional” media. The New Jersey Supreme Court's decision affirmed previous rulings by both the trial and appellate courts, which the case moved through over the past two years

In 2010, Appellate Judge Anthony J. Parrillo said that “new media should not be confused with news media,” a statement that was immediately disputed by prominent bloggers. Mike Masnick of TechCrunch called the appellate ruling “troubling for a variety of reasons … it looks backwards, not forward.”

“We … do not believe that the legislature intended to provide an absolute privilege in defamation cases to people who post comments on message boards,” Rabner stated. But the state Supreme Court also disagreed somewhat with the appellate court's previous ruling, noting that “[maintaining] particular credentials or adhering to professional standards of journalism – like disclosing conflicts of interest or note taking – is also not required by the shield law.”

The court's opinion emphasized that other online posters could qualify for journalistic protection, as long as their comments are posted on web sites that clearly edit their content for publication – such as in the case of Matt Drudge, creator of the Drudge Report, who qualified for the privilege under the First Amendment because his web site, “though not a conventional news outlet … has evolved into a forum that shared similarities to traditional media.”

The case will now resume before the trial court after being delayed for two years by Hale's shield law claim.

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