The statutory privilege is limited to "reporters," who are defined as any journalist, scholar, educator, polemicist, or other individual." 10 Del. C. § 4320 (4). To fall under the definition, these individuals must meet one of two additional criteria. First, at the time he obtained the information, she must either earn her "principal livelihood" through her reporting, or for 3 weeks prior, or 4 of the 8 previous weeks, worked at least 20 hours as a reporter ("obtaining or preparing information for dissemination with the aid of facilities for the mass reproduction of words, sounds, or images"). Id. Second, one may qualify as a reporter under the statute by having received the information "while serving in the capacity of an agent, assistant, employee, or supervisor or a reporter." Id. Thus, traditional news gatherers, such as reporters, editors, news, photojournalists, and news organizations are covered by the statute. See State v. Rogers, 820 A.2d 1171 (Del. Super. 2003) (applying the privilege to a reporter); Fuester v. Conrail, 22 Media L. Rep. (BNA) 2376 (Del. Super.1994) (applying the privilege to a photographer).
Miscellaneous: The reporter's privilege does not apply to news media members outside of Maryland. In re State of California for the County of Los Angeles, Grand Jury Investigation, 471 A.2d 1141 (Md. Ct. Spec. App. 1984) (appellant could not rely on Maryland's Shield Law to argue that the matters about which he would testify were protected because Maryland's Press Shield law has no extraterritorial application.)
While the Minnesota Free Flow of Information Act refers to the "news media," it extends protection to any "person who is or has been directly engaged in the gathering, procuring, compiling, editing, or publishing of information for the purpose of transmission, dissemination or publication to the public."
There are no definitions in statutes or case law. The Court has rejected the argument that the privilege only applies to established media entities or entities that are engaged in investigative reporting. See Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., 160 N.H. 227, 233 (2010). According to the Court:
Freedom of the press is a fundamental personal right which is not confined to newspapers and periodicals . . . The press in its historical connotation comprehends every sort of publication which affords a vehicle of information and opinion. The informative function asserted by representatives of the organized press . . . is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists. Almost any author may quite accurately assert that he is contributing to the flow of information to the public, that he relies on confidential sources of information, and that these sources will be silenced if he is forced to make disclosures.
The Vermont Shield Law contains broad definitions of “journalist” and “journalism.” The statute applies to “journalists,” and defines a journalist as “an individual or organization engaging in journalism or assisting an individual or organization engaging in journalism at the time the news or information sought to be compelled . . . was obtained” or “or any supervisor, employer, parent company, subsidiary, or affiliate of an individual or organization engaging in journalism . . . .” 12 V.S.A. § 1615(a)(1). The Shield Law then defines “journalism” as:
(a) investigating issues or events of public interest for the primary purpose of reporting, publishing, or distributing news or information to the public, whether or not the news or information is ultimately published or distributed; or
(b) preparing news or information concerning issues or events of public interest for publishing or distributing to the public, whether or not the news or information is ultimately published or distributed.
Id. at (a)(2).
The Vermont Shield Law also extends the reporter’s privilege to “a person other than a journalist,” where a subpoena seeks “news or information obtained or received from a journalist if a journalist could not be compelled to disclose the news or information” pursuant to the statute. 12 V.S.A. §§ 1615(b)(1)(B), 1615(b)(2)(B). This applies to both confidential and non-confidential information. Id.
In Senear and Rinaldo, the "newspaper" successfully claimed the confidential source privilege. Clampitt involved a reporter's confidential source privilege.
Section 5 of the shield statute defines the "news media" as: "(a) Any newspaper, magazine or other periodical, book publisher, news agency, wire service, radio or television station or network, cable or satellite station or network, or audio or audiovisual production company, or any entity that is in the regular business of news gathering and disseminating news or information to the public by any means, including, but not limited to, print, broadcast, photographic, mechanical, internet, or electronic distribution; (b) Any person who is or has been an employee, agent, or independent contractor of any entity listed in (a) this subsection, who is or has been engaged in bona fide news gathering for such entity, and who obtained or prepared the news or information that is sought while serving in that capacity; or (c) Any parent, subsidiary, or affiliate of the entities listed in (a) or (b) of this subsection to the extent that the subpoena or other compulsory process seeks news or information described in subsection." SeeRCW 5.68.010(5).