NJ Supreme Court Can't Comprehend That Everyone Can Be A Journalist

from the journalists-are-special dept

We've covered the case of Shellee Hale for a few years now. She was sued for defamation over some comments she left in an online forum concerning a software company for the porn industry, Too Much Media LLC. Hale claimed that she got the information from a source as part of an investigation she was doing for a website which she had not yet opened. However, she posted some of that info on this forum, and upon being sued, tried to claim journalistic privilege in protecting her sources under New Jersey's journalist shield law. Both the district court and the appeals court ruled against her, suggesting that because the online forum was not an appropriate venue for journalism, there was no journalism shield. She appealed to the New Jersey Supreme Court, which has tragically upheld the lower court rulings, once again taking issue with the venue:

We do not find that online message boards are similar to the types of news entities listed in the statute, and do not believe that the Legislature intended to provide an absolute privilege in defamation cases to people who post comments on message boards.

But I don't think that's what anyone was trying to claim. This isn't about the venue, but about the action. Journalism is not a venue, it's a process. If the information was acquired in the course of journalism, it shouldn't matter where it was published. Yet all three courts seemed to miss this key point and focus mainly on the venue issue. So, even if you're doing journalism, but publish it somewhere the judges don't like, suddenly, you're not doing journalism. This is quite strange and I don't buy the court's explanation here. They even note that the law itself is written broadly to protect "all significant news-gathering activities." And yet it still says that venue of publication is a key factor in determining what is journalism. This is an outdated and, frankly, troubling view of journalism. The court even goes on a bit of a screed about "unfiltered, unedited" forums as being this anarchy of the internet that does not resemble journalism.

Once again, that's totally irrelevant. What others do on forums is meaningless. The entire question should have been whether or not Hale was engaged in the action of journalism. The court warns that if Hale's argument is accepted than "anyone with a Facebook account, could try to assert the privilege." But, what's wrong with that? If the person is actually engaged in journalism, than what's the problem? Nothing in what Hale was claiming would mean that everyone with a Facebook page was automatically protected by the shield law. The person would still need to prove that they were engaged in journalism. It's really too bad that the New Jersey Courts couldn't see this.

Filed Under: journalism, new jersey, shellee hale, shield law

Appeals Court Upholds Ruling That Blog Commenter Was Not A Journalist

from the too-bad dept

While lots of attention was paid to the claims that the confiscation of Gizmodo reporter Jason Chen's computer's would "settle" whether bloggers are considered journalists, the details in that case suggest otherwise. However, a much more important case on that particular question was decided late last week. It's the case of Shellee Hale, which we've covered in the past. Basically, Hale posted some information claiming a security breach at another company. She revealed this information as a comment on another site -- and when she was sued, the company demanded she reveal where she got that information from. She claimed that her sources were protected, as she was a journalist.

The court ruled against her, saying that because she had "no connection to any legitimate news publication," her own investigations weren't journalism. That's troubling for a variety of reasons, especially given the wide latitude in determining what constitutes a "legitimate news publication." Hale appealed, and unfortunately, the ruling last week from the appeals court upheld the lower court's ruling:

"Simply put, new media should not be confused with news media," wrote Superior Court Appellate Judge Anthony J. Parrillo.

The court also claimed that her activities were not journalism because they "exhibited none of the recognized qualities or characteristics traditionally associated with the news process, nor has she demonstrated an established connection or affiliation with any news entity."

Again, this is problematic. In an age of participatory journalism, people who do journalism don't need "an established connection or affiliation with any news entity." They can easily establish one with various sites, or they can simply set themselves up as a "news organization" on their own. Furthermore, as technology has changed the whole process of journalism, there's an awful lot about journalism today that "exhibits none of the recognized qualities or characteristics traditionally associated with the news process." That's because the news process is constantly changing -- such as its expansion into participatory efforts these days. This ruling is troubling in that it looks backwards, not forward. It's also a reminder that rather than various broken state laws that shield journalists, it really is time for a federal shield law to protect journalists.

Filed Under: bloggers, journalists, lawsuits, shellee hale

Judge Says Blogs Not Legitimate News Source; No Shield Protections

from the seems-to-leave-a-lot-of-leeway dept

Back in May we wrote about a lawsuit questioning whether or not a blogger could use journalism shield laws to protect a source who sent her info she used for a blog post. The company the info was about is suing her for slander (which is odd, since slander is usually spoken, while libel is written). The woman, Shellee Hale tried to claim that she was protected under New Jersey's shield law, which allows a journalist to protect sources. In writing about this case originally, we pointed out that the judge in question clearly did not know much about the internet, and via his questions seemed positively perplexed that anyone would blog at all: "Why would a guy put all this stuff on a blog? Does he have nothing better to do?"

Thus, it should come as no surprise that the judge has now ruled that Hale is not protected by shield laws because she has "no connection to any legitimate news publication." This is troubling for a variety of reasons. First, it leaves open entirely to interpretation what exactly is a "legitimate news publication." The judge seems to think it only applies to old school media, saying: "Even though our courts have liberally construed the shield law, it clearly was not intended to apply to any person communicating to another person." Sure, but that doesn't mean that an individual who posts something in the pursuit of reporting isn't media as well. It looks like Hale will appeal this decision, and hopefully other courts will recognize that you don't have to work for a big media organization to be a reporter any more.

Filed Under: bloggers, journalists, shellee hale

New Jersey Case Looks At Whether Bloggers Can Protect Sources

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

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.

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