Pennsylvania Court Says Bloggers Protected By Journalist Shield Law; Don't Have To Reveal Commenter IP Addresses
from the nice-to-see dept
Over the years, there have been plenty of debates about whether bloggers should be considered journalists and, specifically about if they should qualify to be protected by journalist shield laws. Court rulings on this have been something of a mixed bag with some courts saying that bloggers don't qualify for state shield laws, but over in Pennsylvania there's a recent ruling that went the other way.
The case, filed in Beaver County Pennsylvania, and heard in the local state court, found that the blogger who runs BeaverCountian need not respond to a subpoena demanding IP addresses or other identifying info on various commenters. The lawsuit was brought by Connie Javens and Renee Javens Zuk against a bunch of John Does who they accused of posting defamatory comments on BeaverCountian.
The court carefully reviewed Pennsylvania's journalist shield law and found that the operator of Beaver Countian is pretty clearly covered. It first notes there's no requirement that the publication be a print publication and further highlights that the operator of the site, John Paul Vranesevich, clearly does journalism with his posts to the site.
Mr. Vranesevich authors articles posted on the site. Further its publication online is available to anyone who wishes to access the website. In that sense, it constitutes a newspaper of general circulation. The fact that the content is published online rather than in a traditional format is inconsequential considering the clear intent of the statute. There is no indication in the language of the Shield Law that its provisions are limited to publications printed in a traditional "hard copy" print format. Further, it is apparent that Mr. Vranesevich operates the website for the purpose of gathering, compiling and publishing news.
The second question, then, is whether or not commenters on a blog should count as protected "sources" under the law. The court, rightfully, decides that they clearly are sources:
Here the record establishes that at this stage of the proceedings the persons posting comments as "John Q Taxpayer" and "the bigdigger" were both sources of information provided to Mr. Vranesevich concerning his investigative reporting of Ms. Javens. The Plaintiffs have argued that the comments of the posters were not news information for Mr. Vranesevich and therefore not protected. Such a conclusion would require a narrow interpretation of the Shield Law which is an approach firmly rejected by our supreme court. The statute prohibits persons such as Mr. Vranesevich from being compelled to disclose "the source of any information procured or obtained" by him so long as the information was obtained "for purposes of gathering, procuring, compiling, editing or publishing news".
Moreover, it is not the content per se that's protected, but rather the source.... Nor are there any restrictions on the form of the content or where the content was disseminated and how it came to the attention of the person protected by the Shield Law. It is obvious that "John Q Taxpayer" and "the bigdigger" intended that their true identities be confidential to all but those operating BeaverCountian.com. Mr. Vranesevich used information provided by these two individuals to gather news to be published on the BeaverCountian.com. The Shield Law prohibits compelling disclosure of these two identities in this litigation.
The court does allow that some of the other John Doe commenters are not protected by the shield law as there is "nothing in the record to indicate that they were sources of information" to the website.
From there, the court analyzes whether or not it's appropriate to disclose anonymous commenters sued for defamation. This is a big issue that we've written about numerous times in the past. Different states have different standards, some of which do a better job than others in protecting commenters' First Amendment rights to anonymity. In Pennsylvania, the court notes, the test requires notification, sufficient evidence, an affidavit of good faith and necessity, and finally a "balancing strength of claims against First Amendment rights."
The court notes that to show sufficient evidence of defamation to disclose the anonymous commenters, Javens -- as an elected public figure -- needs to show "actual malice" and totally fails to do so. And, even worse, Javens fails to show that any of the statements they claim are defamatory are not true. The court is generally not impressed.
Ms. Javens is a public official whose actions as treasurer have been the target of extensive press coverage. There have been a number of online articles reporting on her allegedly dishonest or improper conduct including reports of official investigations into her conduct in office. There were numerous online comments posted at the BeaverCountian.com, while only a portion of which have been identified in this action. It is not possible to gage the extent to which the posts in question would have a defamatory impact or be responsible for the alleged injuries when compared to the entirety of media reports concerning much the same assertions of misconduct. The nexus between the statements at issue and the generalized assertion of harm is not strong. This diminishes the strength of her case.
Moreover Ms. Javens' factual record in support of her Motion seeking disclosure is thin at best. As noted above there are no specific evidence from which one could conclude that the allegedly defamatory statements are not true. The only factual averment in the record in this regard is the general statement in the plaintiffs Motion that they are "innocent victims of an offensive and scandalous attack on their reputation" without any delineation with regard to the contents of the numerous comments they cite. This greatly diminishes the strength Ms. Javens' case.
The court seems more open to allowing the case to move forward on behalf of Zuk, who is Javens' daughter. The court doesn't find her to be a public figure here, and does seem to suggest that some of the comments may be defamatory. But she failed to file a good faith affidavit that says there's no other way to determine the identities in question.
The larger issue here, though is the earlier determination by the court that a blogger can qualify for source protection under the state's shield law. There have been some who have reasonably argued over the years that shield laws can be a problem, since they seem to only apply to a class of people called "journalists" -- but if the laws are broadly applied to anyone in the process of doing anything journalistic, that wouldn't be a bad thing.