Should the court consider Gizmodo editor a journalist?

By Eriq Gardner

There's been a lot of discussion recently about whether press shield laws protect online journalists. 

When the San Mateo County police department raided Gizmodo editor Jason Chen's home this week and seized hardware, his bosses at Gawker sent an angry letter arguing that police had violated California's strong shield law. Others also believed the police had gone too far.

With that in mind, we find a decision last week by the appellate division of the New Jersey Superior Court to be especially pertinent. A three-judge panel noted that "few cases around the country have discussed who, beyond the traditional news media, has status to raise the newsperson's privilege."

The New Jersey panel then promptly became one of the few discuss the issue. 

The case involved a woman, Shellee Hale, who became so sick of naked people flashing themselves to her in her cyberspace that she started an online news website, Pornafia.com, to expose scams, frauds, and technological issues in the adult entertainment industry.

Hale came across a great target for investigation, Too Much Media, which had experienced a security breach when hackers compromised the company's sensitive subscriber database. She also reviewed litigation between TMM and a competitor, and reported information about TMM's various misdeeds on message boards and blogs. She claimed anonymous sources who informed her of TMM's supposedly fraudulent, unethical and illegal use of technology.

TMM sued Hale for defamation, false light and trade libel, and sought to depose her about the sources of her information.

In its decision, the New Jersey appeals court decided that Hale doesn't qualify as a journalist for purposes of being able to keep her sources confidential:

"The key to the application of the newsperson's privilege is not that one claims to be a reporter or that one has a website, but that one is actively affiliated with and engaged in any of the 'aspects of the news process.'...Defendant has produced no credentials or proof of affiliation with any recognized news entity, nor has she demonstrated adherence to any standard of professional responsibility regulating institutional journalism, such as editing, fact-checking or disclosure of conflicts of interest."

The appeals court didn't require that someone satisfy all of these conditions; rather, it said that Hale demonstrated none of them.

Perhaps she can't. But can Gawker?