New Jersey Case Looks At Whether Bloggers Can Protect Sources

from the who's-the-media-these-days? dept

There have been a number of cases recently that have tested whether various laws that protect journalists from having to give up their sources also apply to people publishing content online in forums, email groups or blogs. The latest, sent in by someone Anonymous, is taking place in New Jersey, where a woman who revealed a security breach in the software of a company called Too Much Media is being sued for slander in revealing the breach. There are numerous issues with the lawsuit, including the oddity that they're suing for slander for online comments, since slander is for spoken words, whereas libel is normally applied to the written word. It's also odd that they're suing considering the fact that they don't deny the security breach existed, but dispute the claim that customer info (including credit card details) were exposed, because they claim the security breach was brief and no info was compromised. That seems like a pretty weak defense.

However, the real battle seems to be over the attempt to determine how the woman, Shellee Hale, found out about the breach in the first place. She's refusing to give that up, claiming that she has a right to protect her sources, just like any journalist. And while Hale writes multiple different blogs, and has written for many mainstream publications (including the Wall Street Journal and Business Week), Too Much Media claims that she doesn't deserve protections afforded to journalists because she wasn't working for any real publication and is just a blogger. The article quotes someone who says that if the court sides with Hale:

"then everyone is a journalist and the privilege becomes meaningless."

I don't see how that's actually true. In fact, I'd argue the other way. It's not that it becomes meaningless, but that it becomes very, very meaningful -- especially in an era where we're looking for new ways to prop up investigative journalism. If everyone's a journalist, and everyone has a reasonable expectation that their sources are shielded, then we're much more likely to continue to root out corruption. If this protection is somehow reserved for some "special" credentialed people, then it becomes that much harder to expose corruption.

Unfortunately, it appears that the judge in the case is almost entirely computer and internet illiterate, needing to ask for explanations for a variety of things during the court proceedings. He seemed entirely confused by the very concept of people blogging for personal interest:

"Why would a guy put all this stuff on a blog? Does he have nothing better to do?" Locasio asked. "Does he get paid?"

The judge, who apparently is about to retire in a couple months, also didn't understand the difference between blogs, message boards and forums, and was apparently unfamiliar with instant messaging. It's difficult to see why someone entirely unfamiliar with the technology should be able to judge a case like this, where understanding what's happening online is crucial to understanding what the case is really about.

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Journalistic Regulatory Capture

from the a-part-of-the-machine dept

Tim Lee recently highlighted an interesting, but worth exploring, aside made by Will Wilkinson, talking about the concept of "journalistic capture." You are (hopefully) aware of the concept of regulatory capture -- whereby regulators effectively become tools of the industries they regulate. There are a variety of reasons behind this, in part due to the fact that industries will always have more advanced lobbying activities rather than consumers or other parties, but also due to the fact that there's often a revolving door between regulators and the industries they regulate. That's why industry lobbyists all too often write the bills that regulators introduce and pass. Regulators are all too happy to allow this to happen -- as their main source of information about those industries comes straight from the industry reps themselves. Thus, the "need" for any particular piece of legislation is quite often presented from the industry's viewpoint directly. Basically, since the industry controls the flow of information, the laws come out in their favor. Regulatory capture at work.

Wilkinson's point is that something quite similar often happens with journalists and the industries or individuals they cover. Basically, the journalists are almost entirely reliant on their sources within the industry to provide the information necessary for reporting on that industry. Thus, the insiders are able to shape the story and often have it come out to their advantage -- just like laws and regulatory capture. It's certainly not a new concept to think that journalists often become too chummy with the industry insiders they cover -- but thinking of it in terms of "journalistic capture" is quite an intriguing concept which deserves more widespread recognition and discussion -- especially in an era where so many people distrust journalists and are looking for sources they feel aren't as biased.

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Should Bloggers Be Afforded The Same Rights Granted To Journalists?

from the lawsuits-galore... dept

Paul Alan Levy writes "Together with the ACLU of Virginia and the Thomas Jefferson Center for Freedom of Expression, we have intervened in a case pending in Buckingham County, Virginia in which a plaintiff in a defamation case retaliated against a blogger who covered his defamation suit in less than flattering terms by sending a highly invasive subpoena that demands production of the blogger's communications with his sources, IP numbers of all who posted on his web site or even READ the web site. There have been only a handful of cases in which courts have addressed whether bloggers should be treated as journalists for the purpose of considering the reporters' privilege. We are also arguing that, in addition to protecting the commenters on the blog for the reasons usually argued -- protecting their right of anonymous speech -- posters on a journalist's blog should be treated as "sources" whose disclosure violates the journalist's own rights."

We've been seeing a lot of these types of cases lately. It would be good to get some more definitive rulings that establish both the rights of those who blog, as well as those who comment anonymously.

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Anonymous Newspaper Commenters Protected By Same Law That Protects Reporters' Sources

from the all-works-out-the-same dept

While other countries often don't respect the right to be anonymous, the US has shown a strong willingness to protect anonymity rights. And, here's another such case, but for a somewhat different reason. Gigalaw points us to the news that a court has ruled that the Billings Gazette newspaper doesn't need to reveal anonymous commenters, relying on the same state (not federal) law that protects reporters in the state from having to reveal sources. The law specifically says that news organizations are protected from being forced to disclose "any information obtained or prepared" by the news organization -- and the identify of anonymous commenters apparently qualifies.

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Appeals Court Tells Homeland Security That Wikipedia Alone Isn't Sufficient Evidence For Refusing Asylum To A Refugee

from the DHS-didn't-realize-this? dept

While I tend to think that Wikipedia is a good thing overall, that's because I know it's not a source that should be relied on by itself for important decisions -- such as whether or not to grant political asylum to an individual. It can be useful as a starting point, if that information can be corroborated elsewhere. Apparently, the Department of Homeland Security felt otherwise in using Wikipedia to deny a request for asylum for a woman. An Appeals Court has now overturned that decision, noting the problems with using Wikipedia as a sole source of info, but the whole scenario should make you wonder. Did DHS really not have the ability to check the legitimacy of the woman's documents without resorting to Wikipedia? What sort of resources are provided to immigration officials that they're making judgments based on a Wikipedia page?

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People Are Promiscuous In Their News Sources

from the good-for-them dept

One of the defenses that people often put up for newspapers' dislike towards Google News is that newspapers don't want "drop in" visitors. Instead, they want people who specifically read The Local Paper Times, or whatever, rather than randomdude23 who shows up from across the internet to read one story. So they want people who are going to go straight to their site, stick around and read many different pages. After all, this is exactly how newspapers used to work. Most people would subscribe to one, possibly two, local newspapers and then read a good portion of it (potentially, cover to cover). Unfortunately, however, that's not quite how people consume news these days. A new study shows that people are rather promiscuous in their news consumption. They constantly divide their attention among many different news brands. This shouldn't be surprising, considering how many news options people have these days, though it should also ease the worries of those that believe people get all their news from one source and therefore need to be "protected" from bias at that source. This "news promiscuity" is also a reason why news providers should go out of their way to cater to the needs of their readers, as it likely means that they're constantly reshuffling their "news portfolio." Therefore, doing things like making your content tougher to access -- as the NY Times just did with the Freakonomics RSS feed -- is only an invitation to lose readers to a more friendly source that knows it needs to keep its readers' attention.

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