New Jersey Attorney Law Review Blog

New Jersey Supreme Court says bloggers are not journalists!   Unless a blogger is connected to a traditional media outlet, there is no protecting a blogger's sources. 

In a February 9, 2011 post  I discussed the case of Too Much Media LLC v. Hale which was argued before the New Jersey Supreme Court concerning the issue of whether a blogger is protected by New Jersey’s shield law from revealing her sources for her allegedly defamatory Internet postings about a Freehold, NJ software company.

Several weeks ago, the NJ Supreme Court unanimously held against the blogger, concluding that bloggers do not fall within the definition of "journalists" entitled to a privilege against revealing their sources.   Finding that Hale's blogging comments to be synonymous to online message boards, Chief Justice Stewart Rabner did not find legislative intent to provide an absolute privilege in these circumstances:

"We do not find that online message boards are similar to those types of news entities listed in the statute, and do not believe that the Legislature intended to provide an absolute privilege in defamation cases to people who post comments on message boards," Justice Rabner commented. 

Explaining further, Justice Rabner noted that "Internet bulletin boards are not news organizations, but rather public forums that provide a 'looser, more relaxed communications style.'"  "In essence, message boards are little more than forums for conversations.  Those forums allow people a chance to express their thoughts on matters of interest. But they are not the functional equivalent of the types of news media outlets outlined in the Shield Law," said Justice Rabner.

The Court did, however, find disagreement with the lower court's decisions requiring that a full evidentiary  hearing should be held to determine whether a report is covered by the privilege.  The Court explained that in most cases, a simple certification (or affidavit as is sometimes referred to) stating the reporter's connection to a news outlet, his or her purpose in gathering information and a clarification stating that the information was gathered in the course of his or her professional activities should suffice. "However, self-appointed journalists or entities with little track record who claim the privilege require more scrutiny,"  the Court remarked.

The American Civil Liberties Union of New Jersey joined with Hale on the appeal, urging the Court to adopt an "intent test," by which Hale would be able to show that she intended to publish news stories about the subject matter.

Hale maintained that she was in the course of investigating criminal activity in the Internet porn industry and that her comments, made on Oprano.com, were meant to inform the public about frauds, scans and misuse of technology.

Hale accused Too Much Media of 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 suit against Too Much Media, she said the company's principals "may threaten your life if you report any of the specifics."

Too Much Media filed suit against Hale in the Superior Court of New Jersey in Ocean County and was intending to take Hale's deposition when Hale unsuccessfully filed for a protective order.   The trial court found that she was simply posting her messages on a bulletin board and rejected Hale's claim that she was investigating Too Much Media for her own website, Pornmafia.com which hadn't even been launched at the time.

The Appellate Division agreed, as did the NJ Supreme Court, that Hale exhibited none of the recognized qualities or characteristics traditionally associated with the news process, nor demonstrated an established connection or affiliation with any news entity.

As Justice Rabner observed, ". . . the popularity of the Internet has resulted in millions of bloggers who have no connection to traditional media.  Any of the, as well as anyone with a Facebook account, could try to assert the privilege." 

Being a blogger myself, I suppose I am not entitled to any protection from disclosing my sources unless the source is my client.    After all, the last time I checked the attorney-client privilege is alive and kicking in New Jersey!

Labels: New Jersey Supreme Court blogging case, NJ blogger case, Too Much Media v. Hale blog case