How much media is Too Much Media?

by: Jeff Gardner

Wed Jun 08, 2011 at 12:48:28 PM EDT

Btw, tune in to NJN tonight at 6p for my interview on the subject. Special bonus (for those who haven't been): it was filmed at my office. :) -JG

Yesterday, the NJ Supreme Court ruled that a self-described journalist who posted comments on an internet message board was not covered by NJ's Shield Law. (The Shield Law allows news reporters to protect the confidentially of sources and news or information gathered during the course of their work.)

The case, Too Much Media v. Hale, involved a New Jersey company that manufactures software known as NATS, which pornographic websites use to keep track of access to affiliated websites and determine what commissions are due the referring sites (talk about niche marketing!) and a woman in Washington State who accused TMM of violating New Jersey law. When TMM sued for defamation, Hale claimed she did not have to submit to a deposition because she was a news reporter protected by the Shield Law. The issue of whether Hale was entitled to that protection made it's way to our state Supreme Court.

The Star Ledger reported on the decision with the scary headline: "NJ Supreme Court says blogger not protected from revealing her sources" and other media followed repeating the theme that "bloggers" do not enjoy NJ Shield Law protection. But, that's not what the court said. In fact, the Court made it clear that a blogger would be protected if he/she met the 3 requirements expected of anyone seeking to invoke the Shield Law's protections. More on the flip.

Jeff Gardner :: How much media is Too Much Media?

Specifically, the Court requires invokers of the privilege to demonstrate that:

(1) they have the requisite connection with news media, (2) they have the necessary purpose to gather or disseminate news, and (3) the materials sobpoenaed were obtained in the ordinary course of pursuing professional newsgathering activities.

I think any characterization that the NJ Supreme Court has completely excluded bloggers from Shield Law protections is not accurate, and may betray a lack of understanding of what a blogger is. Indeed, the Court specifically distinguished a news-oriented website that gathered and published news from chatrooms, bulletin boards and discussion groups.

Most blogs are not "online message boards." The Court found that "online message boards" are little more than forums for discussion and so therefore don't fit the definition of "news media" as described by the law. And, while that may be correct, it should not be read to mean that "bloggers" as a class are not protected by the Shield Law.

Ultimately, whether or not the protection extends to a particular blogger will be determined by meeting those 3 criteria. But, the problem is that the decision has the likelihood to chill some bloggers and citizen journalists from doing what they do. And more importantly, it has the potential to discourage sources from speaking to bloggers and other citizen journalists because the bloggers will not be able to assure the sources with the same certainty that their identities will remain confidential. That would be a shame.