Is Nick Robinson a blogger? Is Guido Fawkes a journalist? The Question has been hotly debated on the internet. Last week, for the first time, a New Jersey Judge dipped his toe into these turbulent waters, and arrived at a conclusion that is likely to reach accord with the judiciary on this side of the Atlantic.
In the case of ‘Too Much Media’ LCC v Hale the judge was being asked to decide whether a journalist, whilst acting as a blogger, was entitled to rely on journalistic privilege, specifically the right to protect sources, and further whether someone defamed under these circumstances could reclaim damages without having to prove pecuniary loss.
Shellee Hale, the defendant, is a published author and a member of Society of Professional Journalism, The National Writers Union and maintains a corporate account with PR Newswire. The issue was not whether she was a journalist, but whether she was entitled to the privileges and protection (called the Shield Law in the case report) accorded to that profession when blogging on her own account.
“Courts are now being faced with the task of evaluating a virtually limitless number of people who claim to be reporting on issues, but who are, many times, doing little more than shouting from atop a digital soapbox. When New Jersey’s legislature enacted the Shield Law, it could not have anticipated the instantaneity with which people now transmit information. (Here at page 7)
There is no fact-checking required, no editorial review, and so little accountability for the statements posted that it is virtually impossible to discern the author or source of the posts. To extend the newsperson’s privilege to such posters would mean anyone with an email address, with no connection to any legitimate news publication, could post anything on the internet and hide behind the Shield Law’s protections. Certainly, this was not the intention of the Legislature in passing the statute.” (Here at page 9).
The judges decision, whilst not binding in the UK, will send a shiver down the spine of many a journalist who blogs in addition to his main employment, or perhaps following redundancy. The decision, as always, turns on its own facts, and cannot be taken as a blanket ruling that bloggers are not journalists unless employed by a bonafide news organization and are not then covered by New Jersey’s Shield Law, which legally protects reporters from disclosing their sources. However, taken in conjunction with the recent case of Nightjack (The author of a blog v Times newspaper  EWHC 1358 (QB) where Mr Justice Eady refused to protect the anonymity of a blogger, it is an indication of how the judiciary on both sides of the Atlantic are attempting to draw a firm line between the rights and privileges accorded to those who work for the accredited establishment media, and the voices of the citizens that ‘shout from atop the digital soapbox’.
The second part of the decision is interesting, in that not only was the defamation suit bought under a head of Slander rather than Libel, which accords with Mr Justice Eady’s ruling in Smith v ADVFN & Others  All ER (D) 335 (Jul) that in the context of defamation law, postings and communications of this kind are more “akin to slanders”. Mr Justice Eady said that such comments are “contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) which people simply note before moving on; they are often uninhibited, casual and ill thought out.” The distinction between the two causes of action is important because slander is only actionable if the claimant can prove special (monetary) damage caused by the imputation – however injurious to reputation, however malicious the motive of the defendant.
In the Hale case the Judge ruled that where she had alleged that the plaintiffs had ‘threatened someones life’ and ‘committed theft’ (of e-mail addresses) this came under the heading of:
One who publishes a slander that imputes to another conduct constituting a criminal offense is subject to liability to the other without proof of special harm if the offense imputed is of a type which, if committed in the place of publication would be (a) punishable by imprisonment in a state or federal institution, or (b) regarded by public opinion as involving moral turpitude.
[Restatement (Second) of Torts §571 (1977)]
and thus, because ‘the defendant’s message board postings allege that plaintiff’s have engaged in criminal conduct and are incompetent with respect to their business practices, the complaint is actionable without proof of pecuniary damages’.
In plain English, at the moment, this ruling only applies to those within the Washington jurisdiction, but if the cross fertilisation continues between the US and UK judiciary, as seems likely, and a similar set of circumstances is brought before a UK court, then bloggers will find that even if they are journalists ‘in real life’, then they are not covered by journalistic privilege when blogging or commenting on message boards, and furthermore those who comment on message boards are liable for comments such as ‘I will kill her’ or ‘he’s a thieving git’, even where no financial loss can be proved.