Bloggers Beware!
News Reporter’s Privilege May Not Protect Posts On Message Boards
In today’s digital world, blogs, discussion boards, and message boards are becoming increasingly more popular and accessible. These media are used not only for socializing, but also, for many of us, a means of acquiring and disseminating “news.”
Recently, in Too Much Media v. Shellee Hale, the Supreme Court of New Jersey considered whether the state’s Shield Law– which allows news reporters to protect the confidentiality of their sources and the news or information gathered during their investigations – applied to an individual who posted several allegedly defamatory message board entries.
Defendant, a self-described journalist, contended that she was investigating and reporting on corruption in the adult entertainment industry. In particular, she focused on Too Much Media, LLC (TMM), a company that produces software used in the adult entertainment industry. Defendant posted Internet messages alleging that a breach in TMM’s software exposed the personal information of TMM customers who believed they were accessing pornographic websites anonymously. Claiming she had conducted a probe on the alleged breach, defendant posted that TMM violated New Jersey’s identity theft protection act, threatened people who questioned its conduct, and profited from the alleged breach.
TMM sued, alleging that her posts were defamatory and made in a false light. When TMM sought to depose her during discovery, Defendant moved for a protective order, asserting she was a reporter entitled to the protections of New Jersey’s Shield Law.
Addressing whether defendant could invoke the Shield Law to protect the identity of her sources, the court explained that the law affords broad protections to news media, defined as “newspapers, magazines, press associations, news agencies, wire services, radio, television or other similar, printed, photographic, mechanical or electronic means of disseminating news to the general public.” Thus, the Shield Law’s protections are not limited to traditional news outlets such as newspapers and magazines. However, the court noted that “[t]he existence of new technology merely broadens the possible spectrum of what the Shield Law mightencompass ….Form alone does not tell us whether a particular method of dissemination qualifies as ‘news media’ under the statute.”
In other words, information delivered electronically might qualify as news, but that is not necessarily the case. A self-appointed newsperson is not necessarily a reporter entitled to Shield Law protections. “The person seeking to invoke the privilege must demonstrate that the means by which he or she is disseminating the news is similar to traditional news sources, such as newspapers, magazines, and the like.”
With this standard in mind, the court described Internet message boards as “virtual forums for people to communicate with each other about topics of interest.” In the context of news media, the Court likened message board posts to letters to the editor, but with this limitation: “[M]essage-board posts are actually one step removed from letters that are printed in a newspaper because letters are first reviewed and approved for publication by an editor or employee whose thought processes would be covered by the privilege.”
Defendant’s entries were posted on Oprano, a message board regarding the adult entertainment industry, which allowed users to post comments and participate in discussions, without filtering or prescreening. Attempting to demonstrate that her posts did disseminate news, defendant claimed that she had conducted a probe about the alleged breach of TMM’s database, had spoken with government officials, and had attended trade shows as part of her investigation of the pornography industry.
While noting that some media outlets screen comments and edit or delete certain posts, the court said that by contrast, “defendant’s comments on an online message board would resemble a pamphlet full of unfiltered, unscreened letters to the editor submitted for publication – or, in modern-day terms, unedited, unscreened comments posted by readers on NJ.com.”
The court did not believe that the Legislature “intended to provide everyone who posts a comment on Oprano or a response to an article on NJ.com an absolute reporter’s privilege under the Shield Law.” Thus, despite defendant’s claims, the court found she had failed to show that she was entitled to the law’s protection.
However, the court, did acknowledge that in certain instances, statements on a website could qualify for the privilege. For example, a California court found that the reporter’s privilege (under both state statute and federal case law) was applicable to an individual claiming to operate an online news magazine devoted to publishing information about Apple computers and compatible software. That site was “conceptually indistinguishable from publishing a newspaper” and was unlike “the deposit of information, opinion, or fabrication by a casual visitor to an open forum such as a newsgroup, chat room, bulletin board system, or discussion group.”
Similarly, a Washington, D.C. federal court found that Matt Drudge, the creator of the Drudge Report, qualified for the reporter’s privilege under the First Amendment. Although the website had started as a gossip column covering Hollywood and Washington, D.C., it “now contain[ed] breaking news items and links to various articles.” While not a conventional news outlet from the start, the Drudge Report has since evolved into a forum sharing characteristics similar to traditional news media. In contrast to defendant’s posts on Oprano, these websites demonstrated that they were recognized as means of disseminating information to the public.
Too Much Media provides a cautionary tale for any blogger who believes claiming to be a reporter provides Shield Law protection, and as a result, an unlimited license to express himself or herself on the Internet. The apparent anonymity of using the Internet often fuels people to speak off-the-cuff. Users of message boards, however, such as users of any form of electronic communication, must be careful about what they say. Before you launch into your next online rant, pause to consider the consequences. Remember that you may find yourself as a defendant in a defamation lawsuit and will not be able to avail yourself of the Shield Law unless your blog or message board has a sufficient nexus to traditional news media.
This article’s primary purpose is to educate and inform readers and provide them with a general overview of the topics discussed. The information contained herein should not be construed as providing legal advice and should not be relied on for that purpose. If you have specific legal questions, the author suggests seeking the advice of a qualified attorney.
Fernando M. Pinguelo, a Partner at Norris, McLaughlin & Marcus, P.A. and Chair of its Entertainment Law and Cyber Security & Data Protection groups, is a trial lawyer who devotes his practice to complex business lawsuits and employment matters. Fernando represents TV news anchors, reporters, meteorologists, and sports casters, including Emmy Award-winning talent, concerning employment and agency agreements, contract disputes, and cyber security/privacy issues concerning talent’s Internet reputation. His representative clients include on-air talent who broadcast out of local and affiliate TV stations across the U.S., including in Boston, Chicago, Los Angeles, New York, and Philadelphia. To learn more about Mr. Pinguelo, visit www.NYLocalLaw.com or email him at info@NYLocalLaw.com. Andrew D. Linden, an associate lawyer with the firm, practices in the Litigation and Appellate practice groups.