The New Jersey Supreme Court held that a message board poster is not entitled to protection under that state’s reporter’s privilege statute. Such “shield laws” protect reporters from compelled disclosure of sources and other newsgathering information.
“The popularity of the Internet has resulted in millions of bloggers who have no connection to traditional media . . . Any of them, as well as anyone with a Facebook account, could try to assert the privilege,” the court noted.
The defendant in Too Much Media, LLC v. Hale (.pdf) was on online life-coach who “claims to have fallen victim to ‘cyber flashers’ who feigned interest in her life-coaching classes so that they could expose themselves to her using web-cameras.” Although said cyber flashers have likely moved on to either Chatroulette or Congress, they apparently motivated the defendant to investigate perceived “criminal activity in the online adult entertainment industry.”
She took an interest in an alleged security breach into databases maintained by the plaintiff company, which manufactures software that adult websites use to keep track of referrers. She posted on a message board that the plaintiff had violated state law and threatened critics – including her confidential sources. The company sued for defamation and false light and sought to depose the defendant, who then asserted the privilege.
The court noted that the New Jersey shield law requires some connection to “news media”, defined as “newspapers, magazines, press associations, news agencies, wire services, radio, television, or other similar . . . means of disseminating news to the general public.” The court held that the defendant’s plan to launch a website was not sufficient and declined to follow some federal courts’ lead by focusing only on the defendant’s “intent” to gather and disseminate news.
Citing a case applying the privilege to the Drudge Report, the court left open the possibility that online outlets, including “single blogger[s]”, could raise the privilege, but not message board posters. “In essence, message boards are little more than forums for conversation. In the context of news media, posts and comments on message boards can be compared to letters to the editor . . . Neither writing a letter to the editor nor posting a comment on an online message board establishes the connection with the ‘news media’ required by the statute.”
Compare this case to the New Hampshire Supreme Court’s holding last year that the reporter’s privilege protected a website covering the mortgage industry from having to disclose a source who leaked financial documents.
A related question concerns whether a blogger may raise the privilege when subpoenaed for the identities of anonymous commenters (in addition to the Constitutional protections courts have granted anonymous commenters), even if the commenters cannot raise it themselves. A Hawaii newspaper publisher reportedly asserted that state’s privilege statute after a grand jury subpoenaed commenters’ identities but the case has yet to be resolved.