TRENTON —New Jersey’s legal protections allowing journalists to keep their sources secret do not apply to those who post to online message boards, the state Supreme Court ruled Tuesday. The court, clarifying an area of law that has not kept up with advances on the internet, said bloggers must have some connection to "news media" to invoke New Jersey’s...
TRENTON —New Jersey’s legal protections allowing journalists to keep their sources secret do not apply to those who post to online message boards, the state Supreme Court ruled Tuesday.
The court, clarifying an area of law that has not kept up with advances on the internet, said bloggers must have some connection to "news media" to invoke New Jersey’s shield law protecting journalists from revealing their confidential sources.
"To ensure that the privilege does not apply to every self-appointed newsperson, the legislature requires that other means of disseminating news be ‘similar’ to traditional news sources to qualify for the law’s coverage," Chief Justice Stuart Rabner wrote for the 5-0 court. "We do not find that online message boards are similar to the types of news entities listed in the statute ..."
The long-awaited decision, which included arguments from media groups and the state ACLU, overturned part of an appellate court ruling that would have established stricter criteria for journalists to qualify for the protection.
"This is just a beginning to this conversation," said Bruce Rosen, a Florham Park attorney representing the New Jersey Press Association. "This conversation is going to go on for years, but it’s a good place to start."
Courts have already ruled people can be sued for comments they post on message boards, but this case addressed what protections "nontraditional" media have in an era when newspapers, magazines, television and radio are no longer the only sources of news.
The ruling was made in the case of a blogger from Washington State who posted alleged defamatory statements about a Marlboro-based software company.
In comments she posted to a message board about an online security breach, Shellee Hale claimed Too Much Media LLC’s owners had threatened her sources and failed to report the breach because they profited from the stolen email addresses. TMM, which helps online adult entertainment companies track sales, sued for defamation and Hale sought protection of shield law.
A former Microsoft employee and a private investigator, Hale argued she was preparing an article for her website, Pornafia.com, about the infiltration of pornography on the internet when she posted her comments about TMM in 2008.
TMM argued Hale is not a journalist and fabricated the purpose of her website to seek the protection.
A Superior Court judge in Monmouth County ruled in 2009 that the protection did not apply to Hale. An appellate panel later that year upheld that decision but also set very specific criteria for journalists to qualify for the protection.
But the Supreme Court — to the delight of a group of media outlets invited into the arguments — shot down the appeals court’s criteria. It said the test is whether there is a connection to news media, if the purpose of the report is to gather or disseminate news and if the information was obtained during professional newsgathering activities.
In her case, Hale insisted Pornafia was a legitimate medium. But the court noted she never launched the news magazine portion of the website. The court also noted her alleged defamatory statements appeared exclusively on the message board, which the court said was one step removed from the electronic equivalent of a letter to the editor in a newspaper.
TMM attorney Joel Kreizman of Ocean Township welcomed the decision because he said the lawsuit can finally proceed.
"We’ve been stuck on this issue for over two years. This case normally would have gone to trial by now. We’re almost basically starting from scratch," he said.
Hale’s attorney, Jeffrey Pollock of Princeton, said he will ask the Supreme Court to reconsider its ruling that the decision applies retroactively to his client.
He said the decision narrows the scope of people who qualify for the protection to keep sources confidential, a sentiment echoed by the Heartland Institute, a Chicago-based policy research group.
"Putting aside the wisdom of shield laws, they should not exist to protect only certain classes of Americans a court defines as ‘journalists.’ Freedom of the press is not truly free if the definition of ‘press’ is left up to the whim of a judge," said Jim Lakely, co-director of the institute’s Center on the Digital Economy.