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Bloggers Beware: Appellate Court Rules Against Shellee Hale in Porn Defamation Case

Freehold, N.J. from www.nj.com — An appellate court ruled today a blogger who wrote about the online pornography industry is not protected under New Jersey’s shield law in a defamation lawsuit brought by a Freehold-based software company.

In a 48-page ruling authored by Appellate Court Judge Anthony Parrillo, the court said Shellee Hale was not working as a journalist or a reporter when she posted comments about Too Much Media LLC to an online website.

Hale, a former Microsoft employee and a mother of five from Washington State, contended she was acting as a journalist when she posted comments about a security breach at TMM and allegations its principals threatened her. She claimed the postings were part of her research into a larger story about the online pornography industry.

TMM, which supplies software to several online pornography websites, sued for damages. The company claimed Hale was not working as a journalist and was not covered by the shield law protecting journalists from revealing the identity of their sources.

At a hearing in Freehold last year, Hale told Superior Court Judge Louis Locascio she wrote comments on the message board of Oprano.com, the self-described Wall Street Journal of the pornography industry, as a way to cultivate sources and gather information.

Locascio ruled Hale, who said she intended to publish her findings on her website Pornafia.com, was not a member of the news media because she was not affiliated with a media organization and had not performed roles of a journalist, such as fact-checking.

If Hale considered Oprano to be a newspaper, the court said in today’s decision, then Hale’s comments on Oprano’s message board “amount to no more than a letter to the editor comment on an article published by the ‘newspaper.'”

Hale contended her comments, if considered defamatory, would be considered libel written defamation, rather than slander, which is spoken defamation.

The legal standard for proving slander is less rigorous than for libel.

The appellate court said defamatory internet postings are considered libel because they remain on the site for an indefinite period, and can be copied and forwarded.

“While the image of ‘town crier’ standing and speaking on his soap box has literary appeal, the Internet is more akin to the town crier handing out printed papers,” the court said.

Saying Locascio had ruled on the issue prematurely, the appellate court reversed Locascio’s finding that TMM did not have to show Hale acted with malice to seek monetary damaged. It sent that issue back to the trial level for a determination.

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