In a case of first impression, a New Jersey trial court judge ruled June 30, 2009 that a blogger and online commenter who was sued for defamation could not claim the state's journalist shield law to protect the confidential sources she used as a basis for publishing allegedly defamatory statements about a corporation.
Too Much Media, a computer software company that provides advertising programming for the online pornography industry, sued Shellee Hale, a Washington state-based blogger, licensed private investigator, and "life coach," for statements she made in an Internet forum that accused the company and two of its officers of engaging in criminal behavior, including making physical threats and profiting from a security breach that jeopardized the privacy of subscribers to pornography Web sites. The company said it plans to compel her to reveal her sources in a deposition.
Monmouth County Judge Louis Locascio ruled in Too Much Media LLC v. Hale, No. MON-L-2736-08 (N.J. Super. Ct. Law Div. Jun 30, 2009) that Hale could not claim the statutory privilege, N.J. Rev. Stat. sectionsection 2A:84A-21 to 21.8, because she did not show that she was "in any way involved with" any of the "news media" listed in the statute: "newspapers, magazines, press associations, news agencies, wire services, radio or television."
Moreover, Locascio ruled that Hale's online forum statements did not display accepted practices of journalism that the law was meant to protect. "There is no fact-checking required, no editorial review and so little accountability for the statements posted that it is virtually impossible to discern the author or source of the posts," Locascio wrote. "To extend the newsperson's privilege to such posters would mean anyone with an email address, with no connection to any legitimate news publication, could post anything on the internet and hide behind the Shield Law's protections. Certainly, this was not the intention of the Legislature in passing the statute." (For more on anonymous Web site commenters and whether state shield laws apply to them, see "Subpoenas to Unmask Anonymous Internet Users Continue to Challenge News Media and Courts" on page 1 of this issue of the Silha Bulletin.)
According to the opinion, Hale decided to investigate criminal activity in the pornography industry after she became aware of the practice of "cyber flashing," or exposing oneself to another person via a webcam. Hale uses a webcam - a web-based camera used for two-way communication on the Internet - as part of her work as a "life coach."
In January 2008, Too Much Media suffered a security breach of a product called NATS, which allows Web sites to collect commissions for linking to each other via hyperlinks. The security breach allegedly allowed a hacker to access the subscriber lists of several pornographic Web sites.
Hale made comments regarding the NATS security breach in an Internet forum called Oprano, accusing Too Much Media of fraud, "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, Charles Berrebbi and John Albright, "may threaten your life if you report any of the specifics." Hale told the court that she made the comments in order to "inform the public about [the] alleged misuse of technology and ... fraud and scams and to facilitate debate on these issues," the opinion said.
Hale also argued that she had launched a Web site, Pornafia, on which she intended to publish the results of her investigation into "technical and criminal activity in the adult entertainment industry." However, nothing was ever published on the Web site because Hale allegedly feared for her personal safety.
Locascio wrote that even if Hale's investigative findings existed "in final form," since they were never published "there is little evidence ... that Hale actually intended to disseminate anything newsworthy to the general public." Locascio added, "The fact that she never contacted Too Much Media's representatives, to hear their side of the story, certainly does not suggest the kind of journalistic objectivity and credibility that courts have found to qualify for the protections of the Shield Law."
Locascio also ruled that because Hale does not qualify as a journalist or "media defendant," New Jersey common law does not require Too Much Media to show that she made the allegedly defamatory statements with "actual malice, i.e. 'with knowledge that it was false or with reckless disregard of whether it was false or not.'"
"Hale is neither a journalist nor a member of the media; she is a private person with unexplained motives for her postings," Locascio wrote, adding that she was not in commercial competition with Too Much Media, nor does the issue of "membership in adult websites" rise to a sufficient level of "public concern" to require a showing of actual malice under New Jersey common law.
On July 22, Hale filed a motion for reconsideration in Monmouth County Court.
Sam Bayard, Assistant Director of the Citizen Media Law Project at Harvard's Berkman Center for Internet and Society, wrote in a July 9 blog post that it would be "a mistake ... to read Judge Locascio's opinion broadly as saying that New Jersey's shield law categorically does not protect bloggers."
Bayard pointed to several "peculiar facts" in Too Much Media LLC v. Hale, including the fact that Locascio appeared to discount some of Hale's testimony because she could not provide specifics about articles in newspapers and trade journals she claimed to have published, and because she apparently lied in a previous court document in the case.
Moreover, Bayard observed, "the court focused its analysis on Hale's message board posts, not her blog or her status as a blogger. This makes the court's expressed concern about opening the floodgates to those who 'shout from atop a digital soapbox' more understandable and less worrisome to bloggers with a bona fide news/commentary agenda."
- Patrick File
Silha Fellow and Bulletin Editor