We've covered the case of Shellee Hale
for a few years now. She was sued for defamation over some comments she left in an online forum concerning a software company for the porn industry, Too Much Media LLC. Hale claimed that she got the information from a source as part of an investigation she was doing for a website which she had not yet opened. However, she posted some of that info on this forum, and upon being sued, tried to claim journalistic privilege in protecting her sources under New Jersey's journalist shield law. Both the district court
and the appeals court
ruled against her, suggesting that because the online forum was not an appropriate venue for journalism, there was no journalism shield. She appealed to the New Jersey Supreme Court, which has tragically upheld the lower court rulings
, once again taking issue with the venue:
We do not find that online message boards are similar to the types
of news entities listed in the statute, and do not believe that
the Legislature intended to provide an absolute privilege in
defamation cases to people who post comments on message boards.
But I don't think that's what anyone was trying to claim. This isn't about the venue
, but about the action
. Journalism is not a venue, it's a process. If the information was acquired in the course of journalism, it shouldn't matter where it was published
. Yet all three courts seemed to miss this key point and focus mainly on the venue issue. So, even if you're doing journalism, but publish it somewhere the judges don't like, suddenly, you're not doing journalism. This is quite strange and I don't buy the court's explanation here. They even note that the law itself is written broadly to protect "all significant news-gathering activities." And yet it still says that venue of publication is a key factor in determining what is journalism. This is an outdated and, frankly, troubling view of journalism. The court even goes on a bit of a screed about "unfiltered, unedited" forums as being this anarchy of the internet that does not resemble journalism.
Once again, that's totally irrelevant. What others do on forums is meaningless. The entire question should have been whether or not Hale was engaged in the action of journalism. The court warns that if Hale's argument is accepted than "anyone with a Facebook
account, could try to assert the privilege." But, what's wrong with that? If the person is actually engaged in journalism, than what's the problem? Nothing in what Hale was claiming would mean that everyone with a Facebook page was automatically protected by the shield law. The person would still need to prove that they were engaged in journalism. It's really too bad that the New Jersey Courts couldn't see this. Permalink
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