New Jersey Case Looks At Whether Bloggers Can Protect Sources

from the who's-the-media-these-days? dept

Fri, May 1st 2009 5:23am — Mike Masnick

There have been a number of cases recently that have tested whether various laws that protect journalists from having to give up their sources also apply to people publishing content online in forums, email groups or blogs. The latest, sent in by someone Anonymous, is taking place in New Jersey, where a woman who revealed a security breach in the software of a company called Too Much Media is being sued for slander in revealing the breach. There are numerous issues with the lawsuit, including the oddity that they're suing for slander for online comments, since slander is for spoken words, whereas libel is normally applied to the written word. It's also odd that they're suing considering the fact that they don't deny the security breach existed, but dispute the claim that customer info (including credit card details) were exposed, because they claim the security breach was brief and no info was compromised. That seems like a pretty weak defense.

However, the real battle seems to be over the attempt to determine how the woman, Shellee Hale, found out about the breach in the first place. She's refusing to give that up, claiming that she has a right to protect her sources, just like any journalist. And while Hale writes multiple different blogs, and has written for many mainstream publications (including the Wall Street Journal and Business Week), Too Much Media claims that she doesn't deserve protections afforded to journalists because she wasn't working for any real publication and is just a blogger. The article quotes someone who says that if the court sides with Hale:

"then everyone is a journalist and the privilege becomes meaningless."

I don't see how that's actually true. In fact, I'd argue the other way. It's not that it becomes meaningless, but that it becomes very, very meaningful -- especially in an era where we're looking for new ways to prop up investigative journalism. If everyone's a journalist, and everyone has a reasonable expectation that their sources are shielded, then we're much more likely to continue to root out corruption. If this protection is somehow reserved for some "special" credentialed people, then it becomes that much harder to expose corruption.

Unfortunately, it appears that the judge in the case is almost entirely computer and internet illiterate, needing to ask for explanations for a variety of things during the court proceedings. He seemed entirely confused by the very concept of people blogging for personal interest:

"Why would a guy put all this stuff on a blog? Does he have nothing better to do?" Locasio asked. "Does he get paid?"

The judge, who apparently is about to retire in a couple months, also didn't understand the difference between blogs, message boards and forums, and was apparently unfamiliar with instant messaging. It's difficult to see why someone entirely unfamiliar with the technology should be able to judge a case like this, where understanding what's happening online is crucial to understanding what the case is really about.

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Filed Under: bloggers, journalists, new jersey, shellee hale, sources
Companies: too much media

26 Comments

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Ima Fish, 1 May 2009 @ 5:28am

"It's difficult to see why someone entirely unfamiliar with the technology should be able to judge a case like this"

Justice is blind, and is quite often ignorant.
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Tor, 1 May 2009 @ 5:39am

Possibility to defend oneself
If the company is given a chance to defend itself in the comments on that blog, then why not just let everyone decide for themselves whose the most credible. That's how the net works - it's a credibility market.

It seems to me that this kind of laws are often intended for a situation where it's difficult for the affected party to respond to the facts/accusations. Shouldn't one take such aspects into account?
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Killer_Tofu (profile), 1 May 2009 @ 5:48am

Re: Possibility to defend oneself
But this is in America where people love to use lawyers first, ask questions or make rational thoughts later.
Stupid, I know.
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Shellee Hale, 1 May 2009 @ 6:07am

Blogger's Rights
This was an important issue for me to fight. To clarify, the security breach and the disclosure of it had been publicly discussed on several adult webmaster boards for over 5 months before I wrote my comments. It is easy to see the time-line by searching for the company + security breach. Thank you for writing this piece it has been really nice to have support.

Shellee Hale
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Monica, 1 May 2009 @ 6:17am

I would absolutely love it if "journalistic integrity" became synonymous with "blogger," but we're a long ways away from that yet in my opinion. My challenge with cases like this, is that the definition of "blogger" is too vast and too confusing. Additionally, the blog's reputation shouldn't be based on traffic or popularity, but rather the quality of the information. That's a very challenging thing to define, especially if the sources that are cited aren't reputable to begin with.
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Tgeigs, 1 May 2009 @ 6:49am

Hmm
I kind of see the point of restricting the protection, otherwise people could specifically create/write a blog/post in order to afford themselves the protection.

How about a rewrite of the source protection into something else, where it's not about whether you're a journalist, it just stands that if you want to provide source information to ANYONE but do not want to be named, it is up to the journalist/blogger/whoever to independently corroborate the information, and the without corroboration of at least one additional named source, you hedge the verbage of the story/post so that you don't fall under libel/slander offenses?
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Zubin, 1 May 2009 @ 6:59am

The Judge
The judge need not have a prior understanding of the technologies involved to do their job correctly. It may lengthen the case, but a good judge will make sure they understand everything relevant. Let's just hope this is a good judge.
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Tgeigs, 1 May 2009 @ 7:04am

Re: The Judge
Agreed. Personally, I hope it's Judge Reinhold. He seemed pretty fair in Beverly Hills Cop.
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Daivd, 1 May 2009 @ 7:19am

Question
I'm asking this honestly because I don't really know the law that well. If I were to tell Joe smith the same info via word of mouth and the company found out (I don't work for the company in this situation). Can that company hunt me down and demand I tell them how I found out? Seems a bit odd seeing a police officer could arrest me but not force me to say something due to my right to remain silent. It kind of suggests that a company is above the law. Theoretically, if I were a government and wanted to know something, I would send a company after a person instead of arresting them. Pretty big loophole if you ask me...
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Anonymous Coward, 1 May 2009 @ 7:25am

Re: Question
The 5th amendment protects you from having to testify against yourself, but says nothing about testifying against others. That's where the law gets interesting I presume.
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Comboman, 1 May 2009 @ 7:26am

Re:
My challenge with cases like this, is that the definition of "blogger" is too vast and too confusing. Additionally, the blog's reputation shouldn't be based on traffic or popularity, but rather the quality of the information. That's a very challenging thing to define, especially if the sources that are cited aren't reputable to begin with.

Why should the blog's reputation have anything to do with legal protection? If "journalists" from the National Inquirer get the same protection as those from the New York Times, then why should protection for bloggers be tied to their reputation?
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Azrael, 1 May 2009 @ 7:36am

" the judge in the case is almost entirely computer and internet illiterate "

In that case it should be declared incompetent and recused.
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Joe, 1 May 2009 @ 7:47am

Why is it so important to protect "anonymous sources"? How would feel if you owned a business and a blogger was offering up customer lists, trade secrets, etc. and hiding behind the "well-placed source". Nonsense. In this country we have a right to face our accusers and those who will cause us harm.
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Sean Henry, 1 May 2009 @ 7:49am

Re:
The judge not being familiar with technology could actually help. I'm sure that he feels published journalists can protect their sources. Shellee Hale has been published.

If the judge is thinking the blog is actually different since its online and not print, here is what to do ask what news papers he reads. After he answers get out a laptop and pull up an online edition of a major news paper. Ask if this is still a publication.

publication –noun
1. the act of publishing a book, periodical, map, piece of music, engraving, or the like.
2. the act of bringing before the public; announcement.
[Dictionary.com Unabridged]

Next when he says yes but that it is different since they have printed versions.(If he said no that ruling could possibly take away the right to protect sources for any paper that is published online depending on the ruling.)

Pull out a printer proceed to print out an article from the "news paper" then print the blog.

Now present this "evidence" of print to the judge and ask what the difference is other than the web address.

Further more if an argument is brought forth that since a version is not printed by the company and distributed it does not count just argue from a business perspective (less overhead) and for environmental(less trees cut down, less fuel use from transportation).

I fully think that with the right agreements and TEACHING the judge about the series of tubes we call the internet, this case will be ruled in favor of Shellee Hale.
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Tgeigs, 1 May 2009 @ 7:50am

Re:
Yes, you have the right to face your ACCUSER, but not necessarily the REVEALER. Plus, that only applies to the law, not to the court of the press, nor the court of public opinion.
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Felix Pleșoianu, 1 May 2009 @ 7:52am

It's frightening that a man of such responsibility (a judge, no less) can be so ignorant of technology well into the 21st century. But to his credit, this man is asking questions. He's trying to understand (or so it seems). It's the least I expect from a rational human being. If a majority of people did the same, I wouldn't be worried about the future. Unfortunately, very few do.
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Anonymous Coward, 1 May 2009 @ 8:06am

Re:
Also frequently drunk or incontinent. I don't understand where the saying sober as a judge came from. All the judges I've met you want to stand upwind of to avoid becoming intoxicated.
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Sean Henry, 1 May 2009 @ 8:24am

Re: Question
They would have to have Joe Smith testify against you if they tried to use someone else against you it would be heresy and not submissable in court.
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Christian, 1 May 2009 @ 8:29am

Root out Corruption? Not likely.
If everyone's a journalist, and everyone has a reasonable expectation that their sources are shielded, then we're much more likely to continue to root out corruption. That's actually not true. As a journalist, I'm a staunch supporter of privilege. But it’s foolhardy to believe that allowing everyone to have journalistic privilege will root out corruption. It doesn’t do that now, when journalists of all calibers use that to cover up that fact that sometimes they don’t even have a source. Offer this to the world at large, and you’ll find yourself deluged with unsubstantiated claims, and those who truly do seek the truth will be drowned the in fury of those who can say what they want with no obligation to justify themselves or cite their sources. There’s no foolproof way to truly judge who should be endowed with the privilege of protected sources. I don’t think working for an established title publication—whether print or online—is sufficient. But at least, in that case, you can hope that a series of publishers and editors whose reputations may be at stake will work to ensure their reporters are doing legitimate work. It’s not a perfect system, and we’ve seen it fail numerous times in the past, and will continue to see it fail. But it’s something. Take it away and you’ll have chaos. Further, no matter who wins this, you will never make it easier to root out corruption. It’s an aspect of human society that has always been there, and always will be. As there will always be those who seek truth.
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joe, 1 May 2009 @ 9:14am

legal attack on blogger nothing new, but always serious issue
Back before the word "blog" was common, there were freelance writers publishing things on the net that made others unhappy and provoked attempts to shut them up. I was peripherally involved in one such case.

At the time, about 6 years ago, I was the Chairman of the Journalism Division for the NY Local of the National Writers Union. The NWU (UAW - AFL/CIO) was then, and is even today, this nation's only labor union (as opposed to a club, guild or self-help) for freelance writers.

Some personal background may explain my passion on this issue. 19 years ago this week, I was arrested off the street and held in a concrete box for four days, then in a military prison for three weeks, in a third world country, as a journalist, because I would not give up legally acquired information that exposed high-level corruption. Unlike Ms. Hale or Mr. Trummel - but perhaps like Roxana Saberi, the young woman now in an Iranian prison, I was physically and mentally abused. Unless you have been the object of such abuse, you have no idea how painful it is. Only my burning anger sustained me in a three-week hunger strike that eventually lead to my release and flight from that country.

But to continue my point, around 6 years ago, an NWU member, one Paul Trummel, had been arrested and put in jail, charged with, among other things, contempt of court for refusing to take down his web site that contained allegations against certain people in Seattle. As with many First Amendment cases, Mr. Trummel was not the most appealing person to work with. He was - and for all I know may still be - cantankerous, confusing, often irrational and even nasty. Some of his writings include anti-semitism.

The rights I rise to defend are not his, but yours and mine. Keep in mind, I am not defending his actions towards others, his opinions, his behavior, his words or his way of dealing with other people. I only was, and still am concerned, about freedom of speech for everyone, regardless of employment or lack of it.

In defiance of the judge who put him in jail, Paul Trummel moved his site to a server in Sweden and refused to take it down, even after many weeks behind bars. Some published reports said he did take it down, ignoring the fact that he had simply moved it out of the US. He eventually spent 111 days in jail, including 25 days, incommunicado on solitary confinement.

Meanwhile, I was in a unique position, as owner of a web site building and hosting company, to replicate his web site on my own servers based in the US. I wrote to the judge and invited him to mail me a summons and said if he did, I would come to his Seattle court at my own expense and dare him to jail me, too for posting the same material that offended him. Of course the judge was both too smart and too much of a coward to take up that offer.

The legal defense that Paul relied on was simply that the Bill of Rights does not say that one must be an employed journalist to claim their protection. Nor does being a journalist, self-proclaimed or not, shield one from libel where someone believes they have been libeled.

Thomas Paine was not a journalist, nor was John Adams, Thomas Jefferson, nor almost any of the signers of the Declaration of independence and the US Constitution.

You can see the "offending" web site and Trummel's various public appearances and commentary by many others, in this Google search:

http://www.google.com/search?rlz=1C1GGLS_enUS306US306&sourceid=chrome&ie=UTF-8&am p;q="Paul+Trummel"

Be prepared - as regards his own web site (ContraCabal.Org)- for a jumbled, confusing mess of long-winded, discursive, winding, argumentative, poorly organized and totally wild pages and links. But hold on to this simple fact. He was within his rights - and yours and mine - to say whatever he wishes as long he can defend it as truth. And if he did not tell the truth, there are legal remedies that punish malicious or careless false allegations.

Eventually, after many others rallied to the issue (if not the man) the Washington State Supreme Court ruled totally in his favor. I have no contact with him since then, so can't say what else may have transpired but, given that his web site is still online, I can only assume he is still alive and as obstinate and noisy as ever.

BTW - TechDirt did comment on Trummel back in 2006 (http://ww.techdirt.com/articles/20020620/2226202.shtml), but apparently was not informed of subsequent developments.
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Tgeigs, 1 May 2009 @ 9:21am

Re: Re: Question
"it would be heresy and not submissable in court"

Typo of the day!!! I'm sure you meant hearsay, but I immediately thought of Salem...
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Thomo, 1 May 2009 @ 10:56am

Louis Locasio is a fine judge and was a very able trial attorney. Just because he's spent his time reading something other than blogs, or seeking something other than technical details about software used for 'adult' internet sites, hardly is reason to slam him as you've done here.
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Cipher-0, 1 May 2009 @ 2:40pm

Re:
I would absolutely love it if "journalistic integrity" became synonymous with "blogger,"
I would absolutely love it if "journalistic integrity" became synonymous with journalism in general again, but that's not gonna happen.
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Sneeje, 1 May 2009 @ 4:59pm

Re: Root out Corruption? Not likely.
You make a compelling point. What is not clear to me, however, is how being credentialed, being a formal journalist, being qualified, licensed, etc. would make any difference. The abuse of the journalistic protection stems from weak character which is a potential flaw in any human being, regardless of their role.

Said more colloquially, having a college degree doesn't make you smart.

And besides, what is also not clear is how you would ever define who deserves the protection and who doesn't in any sort of fair, repeatable way.
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Shellee Hale, 14 May 2009 @ 9:27am

Journalistic Privilege
I have enjoyed reading all of your comments and appreciate the time each of you have taken to weigh in on this case. I thank each of you for your interest and opinions.

Shellee
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SJ Mills, 18 May 2009 @ 5:13pm

Another Blogger Case In New Jersey Fighting Public Entity/Debt Collector
anyone interested should learn about SJ Mills and CAIPNJ. I am currently involved in a suit with the NJ Debt Collector Sheldon Pressler of Pressler & Pressler who is suing me for alledged defamation concerning articles exposing their tactics.

SJ Mills
caipnj.org
caipnj.blogspot.com
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