N.J. judge rules blogger not protected by newspaper shield laws, can be sued for slander

"Courts are now being faced with the task of evaluating a virtually limitless number of people who claim to be ‘reporting’ on issues, but who are, many times, doing little more than shouting from atop a digital soapbox,"

by MaryAnn Spoto, The Star-Ledger

A judge in Freehold ruled today that a Washington State blogger who posted comments about the pornography industry is not covered by shield laws that protect newspaper reporters and can be sued for defamation.

"To say that everybody who blogs and is entitled to the shield nullifies what it’s there for,He understood the internet is just another means of communication. It doesn’t mean you can communicate anything you want-horrible things without checking them out."

Acknowledging that he was wading into largely uncharted legal waters, Superior Court Judge Louis Locascio said Shellee Hale’s message board postings last year about a Freehold-based computer software company were nothing more than the rants of "private person with unexplained motives for her postings" and cannot be given the same protections as information compiled though the process of news gathering.

"The rate at which the internet has grown and evolved into a universal source of news and information has left the legal community in its dust," Locascio wrote in his 19-page opinion. "The time has come for the law to begin establishing its place in this vast abyss."

Locascio said judges have had to distinguish between people who are engaged in the true dissemination of information and those who are expressing opinions.

"Courts are now being faced with the task of evaluating a virtually limitless number of people who claim to be ‘reporting’ on issues, but who are, many times, doing little more than shouting from atop a digital soapbox," Locascio said. "When New Jersey’s Legislature enacted the shield law, it could not have anticipated the instantaneity with which people can now transmit information."

The decision maintains the distinction between internet bloggers and journalists affiliated with news organizations, said Thomas Cafferty, counsel to the New Jersey Press Association.

Bloggers have always been subjected to defamation claims in New Jersey, Cafferty said, but this case shows they cannot use the Shield Law, which protects journalists from revealing their sources.

Cafferty said he was not surprised by Locascio’s ruling because New Jersey’s shield law specifically applies to those affiliated with the news media.

"Even though our courts have liberally construed the shield law, it clearly was not intended to apply to any person communicating to another person," he said. "To say that means everyone is protected by the privilege."

Hale, a mother of five who has four blogs, was sued last year by Too Much Media LLC, a Freehold firm that supplies computer software to online adult entertainment sites.

The company’s principals, John Albright and Charles Berrebbi, claimed Hale, in her postings on forums frequented by people in the adult entertainment industry, defamed them and their firm by writing, among other things, that they had threatened her life and violated New Jersey laws protecting consumers against identity theft.

Albright and Berrebbi demanded that Hale, a licensed private investigator, reveal her sources for the allegations. She refused, arguing that she was protected under the state’s shield law because she was in the process of writing a article about an internet security breach of TMM’s software.

In a hearing before Locascio in April, Hale said she never published the article because she feared for her safety.

Hale testified she had previous articles published in the Wall Street Journal and Business Week, but Locascio, quoting from the Shield Law, said he is ”unconvinced (Hale), a private investigator with a degree in respiratory therapy, is in any way involved with any ‘news media for the purpose of gathering or disseminating news for the general public.’"

He noted the distinctions between the electronic format of newspapers and magazines and the comments posted in response to articles on those sites.

"To extend the newsperson’s privilege to such posters would mean anyone with an email address, with no connection to any legitimate news publication, would post anything on the internet and hide behind the shield law’s protections," Locascio wrote.

Locascio also said TMM can pursue its suit for monetary damages against Hale. Her attorney, Jeffrey Pollock of Princeton, argued that because Hale’s comments were written, they should be considered by the libel standard, which is harder to prove than the slander standard TMM attorney Joel Kreizman of Ocean Township said applied in this case.

Pollock said he was disappointed with the decision and will likely ask the judge to reconsider his ruling or take the matter to the Appellate Division.

"The decision contains within it the seeds for its own reversal," he said. "I think what he really says is ‘I didn’t like her, I didn’t find her credible and therefore I won’t give her the shield.’"

Kreizman said Locascio correctly interpreted the shield law.

"To say that everybody who blogs and is entitled to the shield nullifies what it’s there for," he said. "He understood the internet is just another means of communication. It doesn’t mean you can communicate anything

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