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US: Blogger can be forced to reveal confidential sources, rules NJ judge

Posted by Liz Webber on July 9, 2009 at 3:25 PM

A New Jersey superior court judge has ruled that a blogger who posted negative comments on a message board about a software company and was subsequently sued for defamation is not protected by the state’s press shield law and may be forced to name her confidential sources. In his ruling, Judge Louis Locascio stated that blogger Shellee Hale did not provide sufficient evidence that she worked for a “legitimate” news publication and thus should not be considered a journalist.

The real issue here – as expressed by Jonathan Hart, a lawyer for the Online News Association – is not whether bloggers are journalists, but whether Hale’s comments amount to a veritable journalistic work. On this point, Locascio presents several valid arguments for how he reached his decision.

Hale first got into trouble for writing on the pornography industry site Oprano, billed as the “Wall Street Journal of porn,” that software company Too Much Media illegally used one of its products to harvest email addresses from adult websites and that company executives “may threaten your life if you report any of the specifics.” As Too Much Media planned to ask for Hale’s sources as part of the defamation hearings, the blogger sought protection under the New Jersey shield law.

To prove her status as a journalist, Hale submitted a document to the court asserting she had written stories for a newspaper and multiple trade publications. However, Judge Locascio dismissed this claim because Hale failed to back up her assertions. It also came to light that Hale had previously lied during the court proceedings when she claimed not to know anything about her accuser’s place of residence.

Furthermore, Locascio noted that Hale did not contact Too Much Media for comment when she was writing her allegations, a basic principle of newsgathering. In her analysis of the case, Mary Pat Gallagher of the New Jersey Law Journal pointed out Hale does not have a degree in journalism, but that does not necessarily have any bearing on her legitimacy because many newspaper reporters never went to j-school either.

The judge generalized his argument by contending that journalistic protection cannot be granted to anyone and everyone who posts information on the Internet.

Hale is expected to appeal the decision.

In her sweeping defense of Hale and bloggers’ rights, MediaPost‘s Wendy Davis fails to mention that New Jersey Press Association general counsel Thomas Cafferty agreed with Locascio’s assessment. According to Cafferty, there has to be some criteria for distinguishing between journalists and non-journalists on the web otherwise the term would apply to everyone.

Davis, however, insists that “news reporting is news reporting” and automatically deserves the protection of the shield law. Yet, does Hale’s work qualify as such? Writing for a blog is one thing, but commenting on a message board seems questionable at best.

There are precedents for courts siding with bloggers who refused to name confidential sources, as Davis notes. A 2006 case in California saw a judge uphold the rights of web writers who declined to cough up their sources for stories written about Apple.

In the ever-evolving definition of “journalist” who deserves coverage under the law becomes more and more a gray area. What about the rights of citizen journalists, who often lack formal training or experience in journalism ethics? It is clear from the case of blogger Shellee Hale that not everyone can claim to be a journalist, but where to draw the line is open to debate.

Source: Law.com, MediaPost

 Ends

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July 10, 2009 - Posted by | Uncategorized | , , , , , ,

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