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Update: Judge in Shellee Hale Case: “new media should not be confused with news media”

New Jersey- from www.wired.com – An aspiring blogger who says she was investigating a company for possible fraud must reveal the sources behind statements she posted online, a New Jersey appellate court ruled last week, in a rare case examining who has the right to legal protections extended to journalists.

The court ruled that Shellee Hale, who has been sued for defamation, is not a journalist and is therefore not protected by the state’s shield law.

“Simply put, new media should not be confused with news media,” wrote Superior Court Appellate Judge Anthony J. Parrillo.

The case involves a high-profile 2007 computer security breach at a software company called Too Much Media. Following the breach, Hale accused the company or an employee of fraudulent acts against its customers within the online adult entertainment business. TMM sued Hale for defamation, and sought to depose her to identify the sources she claimed were behind her allegations.

Hale countered that she was a journalist, and asserted protection under New Jersey’s shield law, which generally protects reporters from being forced to identify their sources.

The claim was unusual since Hale’s accusations were posted to the comments section of a message board, and not her own blog. But she was in the process of setting up her own website, which she said would offer the public information about “scams, fraud, technological issues” in the adult entertainment industry.

Hale argued that her accusations were based on interviews and extensive research she’d conducted, and therefore her sources should be protected. A judge denied her application for a protective order, and Hale appealed.

A three-judge appellate panel upheld the lower-court ruling (.pdf) on Friday, saying that merely claiming one is a reporter or journalist is not sufficient to gain protection under the shield law.

In order to receive the protection privilege, Hale must have been “actively affiliated with and engaged in any of the ‘aspects of the news process,’” the court noted, quoting the state law.

Contrary to her claims, Hale had “produced no notes of conversations, meetings or interviews with contacts or sources,” the court found. And contrary to her assertions that she was producing news, evidence showed she was merely assembling the writings and postings of others for her website.

She also failed to demonstrate an “adherenece to any standard of professional responsibility,” such as editing or fact-checking, and didn’t identify herself as a journalist to people she spoke with and assure them their identity would remain confidential, “a key factor in the application of the newsperson’s privilege,” Parrillo wrote.

The decision is the second state appellate case to examine whether a blogger should have the same protection as a traditional journalist. In 2004, Apple filed a complaint alleging that Apple Insider and another blog operated by Jason O’Grady had illegally obtained and published trade secrets about an upcoming product. Apple sought to obtain e-mail that would help determine the identity of the blogger’s source.

O’Grady filed a motion for protection against discovery, but the court denied the motion, saying the site had involved itself in the unlawful appropriation of trade secrets. But an appeals court ruled in 2006 that the blogger was protected under California’s reporter shield law, though the case ultimately turned on a federal law that protects stored communications.

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