Many courts have agreed that a journalist who publishes only online can be a reporter for the purposes of shield laws, provided that he or she regularly gathers and disseminates news to the public.
For example, the California Court of Appeal in 2006 interpreted the term “magazine or other periodical publication” in the state’s shield law to include two websites devoted to news and information about Apple Macintosh computers and related products. In allowing the defendant-bloggers to invoke the shield law as protection from compelled disclosure of the identities of anonymous sources who leaked confidential trade secrets about soon-to-be-released Apple products, the court concluded that the online publishers’ activities “constitute[d] the gathering and dissemination of news, as that phrase must be understood and applied under our shield law.”8
Moreover, the New Hampshire Supreme Court found that the privilege derived from the state constitution’s guarantee of freedom of the press protected a website providing information about the mortgage industry.9 The court rejected an argument that the website was ineligible for protection under the privilege because it was neither an established media entity nor engaged in investigative reporting. Rather, because the website “serve[d] an informative function and contribute[d] to the flow of information to the public ... [it was] a reporter for purposes of the newsgathering privilege,” the court stated.
For the protection to apply to these online-only publishers, their intent to gather and report news must be evident. A panel of the New Jersey Appellate Division, in finding that a defendant — a website operator investigating the online adult entertainment industry — could not invoke the state shield law in relation to comments she posted on a pornography watchdog website, wrote that, “newmedia should not be confused with newsmedia. There is, of necessity, a distinction between, on the one hand, personal diaries, opinions, impressions and expressive writing and, on the other hand, news reporting.”10
Regardless of their performance of a news function, however, online-only reporters who work in states with shield laws that require reporters to be salaried employees of a traditional media organization may be less likely to qualify for the privilege.
A reporter’s obligation to a source
Subpoena battles often arise out of a journalist’s commitment to keep his or her source confidential. Many reporters consider their promises to confidential sources to be sacred, and routinely have faced jail to protect their sources.
In 1991, the Supreme Court was asked to decide whether a confidential source may sue a news organization that reveals its identity without its consent.11 The Supreme Court ruled that the First Amendment does not protect journalists from such suits, and left it to the states to decide whether media organizations would be subject to ordinary rules of contracts and “promissory estoppel” (in which a court enforces a promise made to a party who relied on it to his detriment).
Many news organizations have reexamined their policies on whether reporters have the authority to promise unconditional confidentiality to a source, or whether editors can overrule such promises. You should familiarize yourself with the policy in effect at your news organization.
Anonymous comments online:
Protecting newsgathering even for strangers
With the steady increase in online publishing, potential civil plaintiffs or prosecutors have been seeking the identities of anonymous online commenters on web stories. This is often done through a subpoena served on a news organization or on the publisher of a blog.
When faced with a subpoena for anonymous Internet comments or postings, a publication may choose to treat it like any other subpoena for newsgathering material, or it may decide that it has not promised commenters anonymity and therefore will comply with such subpoenas. The course of action you choose to take should depend on what you’ve promised your readers and commenters, and how willing you are to undertake a court fight over the subpoena.
In the legal context, websites or Internet providers can sometimes be the default gatekeepers between potential libel plaintiffs and their defendant commenters due to Section 230 of the Communications Decency Act, 47 U.S.C. § 230(c)(1). This federal law provides website and Internet service owners with tort immunity from comments posted by others, stating in relevant part, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Because the provider cannot be held liable, plaintiffs must find out the identity of the individual poster in order to file suit.
Some news organizations choose to fight commenter subpoenas pursuant to a local reporter’s privilege. Others do not. The New York Times in 2010 published an article discussing how major media outlets were questioning to what extent their online components should allow anonymous commenting in the future. The story noted the slow move away from widespread anonymity, which has been common on the Internet since its inception, sparked by lawsuits over anonymous comments.12
Regarding the use of shield laws to protect the identities of commenters, there is disagreement as to whether anonymous commenters are sufficiently analogous to sources that are promised anonymity or confidentiality in exchange for sensitive information. Such commenters play a less meaningful role in the newsgathering and reporting process, even if they are contributing relevant information, because they did not interact with the journalist reporting the story.
A few states have had rulings allowing shield laws to be used to protect anonymous speech on news organization’s websites, including Florida, Montana, Oregon and Texas.
Another factor that can instruct an organization’s decision is the nature of the comment itself.
The Cleveland Plain Dealer in March 2010 voluntarily unmasked the identity of an anonymous commenter after it learned that the account used was registered to a local judge who was hearing the case described in the article. The newspaper’s decision to voluntarily reveal the source of the online comments sparked debate between those who feared a chill on future posting and those who felt the public had a right to know.
In a 2009 case, theLas Vegas Review-Journal first resisted a subpoena for information about 100 comments, and then cooperated with a narrower version of the subpoena that requested information about only two of the anonymous commenters on one of its online articles. The ACLU fought against disclosure on behalf of the commenters themselves.
Furthermore, the strength of a potential plaintiff’s case can influence a publication’s decision whether to fight the subpoena or not. In many states, the party who requested the subpoena faces a challenging legal battle if he or she is unable to present a basic case for defamation against the author of the comments.
States have different standards as far as how much proof a plaintiff must show to compel disclosure of a commenter’s identity.
In New Jersey and Delaware, courts have found a strong First Amendment interest in anonymous speech and require the plaintiff to present a basic case of defamation before the identity can be revealed.
Dendrite International v. Doe No. 3,13 a New Jersey case, established a five-part test for courts to follow, allowing disclosure if (1) the plaintiff makes efforts to notify the anonymous poster and allow a reasonable time for him or her to respond; (2) the plaintiff identifies the exact statements made by the poster; (3) the complaint sets forth a basic cause of action; (4) the plaintiff presents sufficient evidence for each element of the claim; and (5) the court must balance the defendant’s First Amendment right of anonymous free speech against the plaintiff’s need for disclosure and the strength of the plaintiff’s case.
Other states, such as Virginia, have set a lower bar for plaintiffs, and ordered the release of the identities of anonymous commenters as long as the plaintiff believes in good faith that he or she has been a victim of defamation.14
Publishers should know their respective state’s governing law on disclosure of online identities, if there is one, to determine the standards of proof a plaintiff must show. This will allow for fully informed decision making. Online news sites that want to protect the identities of commenters should seek advice from an attorney, or contact the Reporters Committee.
8. O’Grady v. Superior Court, 44 Cal. Rptr. 3d 72 (Cal. Ct. App. 2006).
9. Mortgage-Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., 999 A.2d 184 (N.H. 2010).
10. Too Much Media, LLC v. Hale, 993 A.2d 845 (N.J. Super. Ct. App. Div. 2010), appeal docketed, 3 A.3d 1224 (N.J. 2010).
11. Cohen v. Cowles Media, 501 U.S. 663 (1991).
12. Richard Perez-Pena, Unmasking the Commenters, N.Y. Times, Apr. 12, 2010, at B1, available at 2010 WLNR 7526919.
13. Dendrite International v. Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001).
14. In re Subpoena Duces Tecum to America Online, Inc., No. 40570, 2000 WL 1210372, at *1 (Va. Cir. Ct. Jan. 31, 2000), rev’d on other grounds, 542 S.E.2d 377 (Va. 2001).