Copyright Law

Blogger Invokes New Jersey Shield Law To Protect Sources

By Sam Bayard

NJ.com reports that blogger Shellee Hale is asking a Monmouth County Superior Court judge to protect the identity of her anonymous sources, claiming that she is entitled to the same protection as a professional journalist. Hale was sued for defamation by New Jersey-based Too Much Media, LLC, a software company that services the online adult entertainment business.  According to NJ.com:

Hale's legal troubles began last year when she posted comments relating to a software security breach at the Monmouth County company on a message board frequented by those in the adult entertainment industry. She said the breach potentially could have given hackers access to names and addresses of account holders. Company officials said consumer information, including credit card numbers, was never compromised. 

The record is not entirely clear from the press accounts, but it appears that Too Much Media is seeking the identity of Hale's sources as part of its lawsuit against her, and that Hale has invoked New Jersey's journalist shield law to block disclosure. Among state shield laws, New Jersey's statute is relatively favorable for bloggers like Hale.  As explained more fully in our legal guide page on New Jersey Protections for Sources and Source Material, a reasonable reading of the New Jersey shield law suggests that it covers most people who bring news to the public, including amateur and non-traditional journalists publishing through online media.

Specifically, the statute covers a "person engaged on, engaged in, connected with, or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public." N.J. Stat. § 2A:84A-21. "News media" is defined expansively and explicitly contemplates electronic dissemination of news.  It includes "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." N.J. Stat. § 2A:84A-21a.  In addition, it doesn't look like the person invoking the shield law must be formally "employed by" a media organization because this is just one of four possible relationships mentioned by the statute; it is sufficient to be "engaged on," "engaged in," or simply "connected with" a news media platform. 

Not having seen the court papers, it is difficult to say what Hale's chances are for successful invocation of the shield law.  The NJ.com article says that Hale "writes four blogs" and "has been writing on internet safety for five years and contributing to such publications as the Wall Street Journal and Business Week."  If the defamation case revolved around her day-to-day blogging, she might have a very good case for shield law coverage. 

But, Hale made the allegedly defamatory statements on a forum, and the court might see her comments as purely personal or unconnected to her regular "journalistic" work.  The specific medium shouldn't make all the difference under the shield law, but most judges probably don't see forums as accepted means of disseminating news to the public (perhaps rightfully so).  Then again, Hale might have contacted her sources as part of her blogging or other journalistic work, in which case it should not necessarily matter where the statements at issue were published. Regardless of the specific answers to these questions, the case shows again how commonplace online practices continually challenge the law to grow and adapt.

Full post as published by Citizen Media Law Project on April 23, 2009 (boomark / email).