Bloggers In New Jersey Are Not Journalists And Are Not Entitled To Invoke The Newsperson's Privilege

Last week, in Too Much Media v. Hale, the Superior Court of New Jersey, Appellate Division, held that New Jersey’s newsperson’s privilege, which protects journalists from being compelled by subpoena to disclose their sources, applies to online news reporters but not to bloggers who merely claim to be reporters. The decision was the first N.J. appellate ruling on the subject and only the second in the country to address whether bloggers can invoke the newsperson’s privilege to protect the identity of their sources.

Defendant, Shelle Hale, a former Microsoft employee and owner of a computer consulting company, investigated alleged criminal activity in the online “adult entertainment” industry. Hale’s investigation ultimately focused on plaintiffs John Albright and Charles Berrebbi and their company Too Much Media.  Too Much Media is a Freehold, NJ company that provides software used by Internet pornography providers.

One of the primary means Hale utilized for collecting and communicating information was through porn industry weblogs (blogs) and message boards. The case involved comments she posted on the website (Oprano), a website which described itself as the “Wall Street Journal for the online adult entertainment industry.” On Oprano, Hale accused Too Much Media of engaging in fraud and “illegal and unethical use of technology,” thereby violating New Jersey’s Identity Theft Protection Act. She also wrote that the company’s principals “may threaten your life if you report any of the specifics.”

Too Much Media sued for defamation and was planning to depose Hale about her sources when she filed a motion for a protective order based on the newsperson’s privilege, N.J.S.A. 2A:84A-21, which protects reporters from being forced to disclose their sources in court proceedings. Hale claimed that she was an online news reporter and that her comments, made in the course of investigating criminal activity in the Internet porn industry, were meant to inform the public about the issue.

Hale’s motion for a protective order was denied. The trial judge determined that Hale was not entitled to the protections of the newsperson’s privilege because she was not a journalist. Hale’s subsequent motion for reconsideration was also rejected. The Appellate Division then granted leave to appeal.

On appeal, the Appellate Division affirmed the trial court’s decision, concluding that the privilege was not available because Hale had not exhibited any of the qualities or characteristics traditionally associated with a journalist engaged in the news process:

[T]he individual claiming the privilege must demonstrate, through competent evidence, the intent to use the material in order to disseminate information for the public, and such intent must have existed at the inception of the newsgathering process. … [T]he privilege not limited to reporters employed in the traditional print or broadcast media … [A]n individual may successfully claim the journalist’s privilege if she is … involved in any aspect of the news process, including ‘gather[ing], procur[ing], transmitt[ing], compil[ing], edit[ing,] or disseminat[ing]’ regardless of the manner of dissemination, be it print, broadcast, mechanical, electronic or other means[,] even though she may not ordinarily be a member of the institutionalized press … .

The court noted that, unlike a true journalist, Hale took no notes of conversations, meetings or interviews with contacts or sources, never questioned company officials about her claims, and did not check any of the information she obtained for factual accuracy. Most significant to the court was that fact that Hale “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.”

Interestingly, the court took a stab at giving a legal definition to the word “blog” in footnotes in the opinion. Actually, the court provided a number of definitions of the term:

The term “blog” has a “rapidly evolving and currently amorphous meaning.”… Generally speaking, a “blog” is a Web or Internet log that contains information, typically in the form of dated entries or postings.

*  *  *

Blogging is the act of writing or maintaining a “blog.” A web log or simply a blog … is a website containing, at a minimum, posted entries often around a particular area of interest and that are typically time-stamped by blogging software. . . . . [T]here are blogs of many kinds and addressing many topics.

*  *  *

One court described a “blog” as “an internet website where users interested in a particular topic can post messages for other users interested in the same topic to read and answer if they wish. When users post information on a blog, they often do so using a pseudonym referred to as a ‘user name.’

*  *  *

It is estimated that in 2006, around the time plaintiff’s cause of action developed, there were over 60 million blogs on the Internet.

UPDATED ON SEPTEMBER 17, 2010: The NJ Supreme Court agreed on Sept. 8 to hear Hale’s interlocutory appeal, “limited only to those issues relating to the New Jersey Shield Law and the First Amendment of the United States Constitution.” Thus, the Court will decide weather blogger Shellee Hale, sued for defamation over her postings on an Internet bulletin board, can raise New Jersey’s statutory protection of news reporters’ sources and editorial processes.

UPDATED ON JUNE 8, 2011: In its decision issued on June 7, 2011, the N.J. Supreme Court affirmed but modified the Appellate Division’s decision.  The opinion and my blog post about it can be found here.