The New Jersey Superior Court recently determined that an individual commenting on a blogged news story was not entitled to the protection of the state’s shield laws that allow reporters to refuse to disclose their sources. This case is very interesting because it provides real insight into the difficulty courts have applying laws based on physical media to the virtual world. It is also interesting to hosts since it discusses allegations of defamation – which hosts must deal with on a daily basis.
While the facts of the matter are not clearly set out in the decision, it appears that the defendant was a participant in a message board, and allegedly defamed the plaintiff in several of her posts on the board. She then invoked the journalist shield law to avoid disclosing her sources. The court was forced to analyze whether her conduct fell within a law written with traditional media in mind.
It’s this analysis that I find fascinating. The logic the court uses to reach its decision is among the most tortured I’ve ever read. While recognizing that the New Jersey legislature, and courts interpreting the statute, have expanded the scope of the shield law beyond traditional media, the court does not seem to understand how blogs, newsgroups and other user driven content forums operate. Instead, the court focuses on the more salacious aspects of the dispute: the fact that the alleged defamation took place on a website used by pornography actors.
What is missing from this decision is a true analysis of what makes an internet journalist. Basically, this decision should have turned on two issues: when does a writer become a news gatherer; and will the purposes of the shield law be served by extending its protection to citizen journalists.
While I can’t answer either of these questions, here are some questions I think are pertinent:
- What is the context of the writing?
- Is the writing based on personally observed, or personally researched, matters?
- Is the author detached from the issue?
- Does extending the shield law encourage factual reporting?
- Does extending the shield law facilitate dialogue on issues thought to be important by the readers of the publication?
In my opinion, user driven content more closely resembles the issue driven content of the turn of the century. At that time newspapers, broadsheets and other forms of media were not considered to be unbiased and completely impartial. Decisions based on a mid to late 20th century understanding of the role of media in our lives will continue need to employ convoluted logic to fit that understanding within contemporary journalism.
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