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New Jersey high court rules bloggers cannot use shield law to protect sources

The New Jersey Supreme Court ruled [opinion, PDF] unaimously Tuesday that a blogger does not have the same privilege to protect her sources as other journalists in traditional media. The court found that a New Jersey "shield law" [NJSA 2A:84A-21–21.8] allowing reporters to protect the confidentiality of their sources could not be invoked by a blogger who posted comments on an Internet message board. Shellee Hale founded a website called Pornafia.com in which she intended to reveal alleged illegal activity of the Internet pornography industry. The website did not get off the ground but instead she decided to post comments on Oprano.com, a message board for the pornography industry. She posted multiple entries accusing the plaintiff Too Much Media (TMM) [corporate website], which provides a service for adult entertainment sites to keep track of affiliated sites for commission purposes, of data breaches revealing anonymous user count information. Hale claims to have learned this through confidential sources, including one source who was threatened by TMM. She also claims that to make her posts she interviewed government officials, attended industry trade shows and collected information from other Internet blogs. TMM filed a defamation suit against Hale and during discovery tried to learn the names of her confidential sources. Hale tried to invoke the shield law to protect her sources' identities. The court, however, found that Hale's protection of her confidential sources was not protected by the First Amendment and did not fall within New Jersey's shield law. The court said since the message boards were different from traditional journalism reporting the shield law could not apply:

Those forums allow people a chance to express their thoughts about matters of interest. But they are not the functional equivalent of the types of news media outlets outlined in the Shield Law. Neither writing a letter to the editor nor posting a comment on an online message board establishes the connection with "news media" required by the statute. Therefore, even under the most liberal interpretation of the statute, defendant's use of a message board to post her comments is not covered under the Shield Law. We do 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.
Hale was support by amici from freedom of the press and civil rights organizations including the American Civil Liberties Union [advocacy website], which argued that the privilege depends on the individual's intent to gather and disseminate news, and read the New Jersey shield law statute to provide protection for either someone employed in the news media or someone connected with the gathering of news.

Protection for journalists [JURIST news archive] and their sources continues to be a worldwide concern. In October, the Supreme Court of Canada [official website] expanded journalists' rights to protect sources [JURIST report] while testifying. In April 2010, Germany announced plans to enact legislation [JURIST report] meant to increase freedom of the press. Also in 2010, the Icelandic Parliament [official website, in Icelandic] began considering measures [JURIST report] aimed at increasing protections for journalists and promoting freedom of speech and transparency in government. In December 2009, the US Senate Judiciary Committee [official website] approved a bill [JURIST report] that would protect journalists' abilities to shield sources in federal court proceedings.

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