Wednesday, July 8, 2009

Judge Rules NJ Shield Law No Help to Blogger

In a case of first impression, a Superior Court judge in Monmouth County, NJ, has ruled that New Jersey's shield law (N.J. Stat. sec. 2A: 84A-21 to 21.8), which protects against disclosure of confidential information to the government, only applies to persons affiliated with the news media and offers no solace to a private individual blogging from Washington.

Presiding over the defamation, false light, trade libel action, Too Much Media, LLC, John Albright and Charles Berrebbi v. Shellee Hale and John Does 1-13 (Case No. L2736-08), Judge Louis Locascio wrote in a 19-page opinion that Hale, a licensed private investigator, is not a journalist engaged in disseminating information eligible for shield law coverage, but rather, a "private person with unexplained motives for her postings." Though characterizing the Garden State's shield law as broad, Judge Locascio said legislators who passed the measure "could not have anticipated the instaneity with which people can now transmit information."

Because she is not a journalist, Judge Locascio held that Hale not only cannot avail herself of the shield law, but also that she could be found liable for defamation if the plaintiffs prove her postings critical of them were merely negligent, rather than requiring the plaintiffs to satisfy the higher standard of proving the postings were made with "actual malice" mandated in cases involving media defendants. Moreover, because Hale's posts accuse the plaintiffs of engaging in criminal conduct and question their competence as businesspeople, Judge Locascio ruled the plaintiffs can seek damages against the defendant without having to demonstrate they suffered actual financial loss.

"Too Much," a computer software supplier that services the online adult entertainment industry, allege that Hale blogged postings on a pornography industry message board accusing the plaintiffs of threatening her life and violating New Jersey's identity theft statute. Hale focused on NATS, a "Too Much" product that facilitates businesses linked to one another in tracking click-generated commissions. Faced with having to reveal the sources of her allegations in a deposition, Hale sought shield law protection.

Judge Locascio wrote that Hale's posts did not undergo editorial review or rigorous fact-checking, and likened them, not to journalistic writing, but rather to anonymous public comments that follow news articles on journalism Web sites. To extend shield law protection to Hale, Judge Locascio wrote, "would mean anyone with an email address, with no connection to any legitimate news publication, would post anything on the Internet and hide behind the shield law's protections."

If the decision is appealed as expected, and subsequently upheld, online amateur journalists who want the comfort of shield law protection had better shore up their news media connection before venturing down New Jersey's virtual turnpike.

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