Ok, let me back up and explain what's going on here. Shellee Hale runs a blog, operates a couple websites that offer her services as a "life coach", and has a private investigator's license. She was investigating criminal behavior in the porn industry when she discovered that many porn sites used a piece of software to keep track of money they earn through referrals from other sites. Around the beginning of 2008, media outlets began reporting on flaws in
the program that could allow malicious users to hack into the service's
database and obtain lists of porn subscribers.
Hale got involved
in the discussion on a website in which she accused the company that
made the software, Too Much Media, of commiting fraud and warned that
the heads of the company would threaten the life of anyone who reported
on the details of the vulnerability.
The company was not
pleased, and sued Hale for defamation. They were preparing to demand
her sources when she claimed the protection of the shield law.
Court Judge Louis Locascio, acknowledging that the issue was one of
first impression in the state, ruled that Hale hadn't made a prima
facie case that she qualified for the shield's protection as a member
of the new media.
It's a close case, but it seems like
Locascio may have made the right call. After all, if Hale had
published a full article with attributed sources and a full explanation
of the allegations, the case might have gone a different way. Instead,
she posted a few isolated statements on a blog's comment boards that
accused the company of some pretty foul behavior with nothing to back
it up, really. The comments weren't even on her own blog.
it seems like the judge just didn't think he could trust Hale's
assertion that she was reporting on the issue for the benefit of the
general public. The judge rejected her affidavit that claimed she had
written articles for a newspaper and trade journals because she failed
to offer any detailed proof, and he also pointed to false statement she
had given as part of a prior jurisdictional motion as a reason to
discount the affidavit.
All in all, the judgment seems to be
fairly narrow, and hopefully won't affect the news gathering abilities
of bloggers in any devastating way. Any blogger who conducts
investigations, writes reports that provide information for the general
public, and doesn't fudge the truth with a judge should be able to
claim the protection of the shield when someone tries to pry into their
Bloggers shouldn't have to prove that they were part
of some newspaper or magazine to benefit from the shield, though. Just
because a blogger doesn't work for the New York Times doesn't mean that
they aren't capable of some truly groundbreaking investigative
journalism. The danger with this decision is that judges in future
cases might see it as a blanket rule that bloggers do not qualify for
the shield, regardless of the nature of their work.
See Also: N.J. judge rules blogger not protected by newspaper shield laws (NJ.com)