On appeal from the Superior Court, Appellate Division, whose opinion is reported at 413 N.J. Super. 135 (2010).
RABNER, C.J., writing for a unanimous Court.
In this defamation claim by Too Much Media, LLC, and its principals (collectively, "TMM") against Shellee Hale, the Court considers whether the newsperson's privilege extends to a self-described journalist who posted comments on an Internet message board.
After defendant Hale was exposed through her computer to "cyber flashers" using web cameras, she looked into how technology was used to abuse women and decided to investigate the online adult entertainment industry. Hale claims that she spoke with government officials, attended industry trade shows, interviewed people, and collected information from porn web blogs. In 2007, Hale created a website called Pornafia, which was intended to be an online news magazine and bulletin board for the public to exchange information about criminal activity within the adult entertainment industry. Pornafia was never fully launched, however. Instead, Hale posted comments on other sites' message boards. One of the message boards, Oprano, provided an online platform for people to post unfiltered comments relating to the industry. Most of the content of Oprano was open to anyone with Internet access.
Plaintiff TMM manufactures software known as NATS, which adult entertainment websites use to keep track of access to affiliated websites and determine what commissions are due the referring sites. In late 2007, Hale's investigation focused on reports of a security breach of the NATS database, which potentially exposed personal information of customers who believed they had signed up anonymously for pornographic websites. Hale claims she conducted a detailed probe of the breach, including talking with sources on a confidential basis. She posted multiple entries on Oprano's message board suggesting that TMM had violated New Jersey law, had profited from the breach, and its principals had threatened people who questioned their conduct, including one of her confidential sources.
TMM filed a complaint against Hale alleging defamation and false light. TMM sought to depose Hale during discovery. Hale moved for a protective order, asserting that she was a reporter entitled to the protections of New Jersey's Shield Law, N.J.S.A. 2A:84A-21 to -21.8-a statute that allows news reporters to protect the confidentiality of sources and news or information gathered during the course of their work. The trial court ordered an evidentiary hearing to resolve the parties' dispute over the issue. After considering her testimony, the trial court concluded that Hale did not qualify for protection under the Shield Law.
The Appellate Division affirmed.
The opinion of the court was delivered by: Chief Justice Rabner
Millions of people with Internet access can disseminate information today in ways that were previously unimaginable. Against that backdrop, this case tests the scope of New Jersey's Shield Law, N.J.S.A. 2A:84A-21 to -21.8 -- a statute that allows news reporters to protect the confidentiality of sources and news or information gathered during the course of their work. Specifically, we are asked to decide whether the newsperson's privilege extends to a self-described journalist who posted comments on an Internet message board.
Defendant Shellee Hale submits that she investigates and reports on corruption in the online adult entertainment industry. Plaintiffs John Albright, Charles Berrebbi, and their company Too Much Media, LLC (TMM) produce software used in the industry. They are suing defendant for defamation and false light for comments she posted about them on an Internet message board -- a virtual forum for people to upload their thoughts, opinions, and other information. Defendant, in turn, has invoked the Shield Law.
New Jersey's Shield Law provides broad protection to the news media and is not limited to traditional news outlets like newspapers and magazines. But to ensure that the privilege does not apply to every self-appointed newsperson, the Legislature requires that other means of disseminating news be "similar" to traditional news sources to qualify for the law's coverage. We do not find that online message boards are similar to the types of news entities listed in the statute, and do not believe that the Legislature intended to provide an absolute privilege in defamation cases to people who post comments on message boards.
We therefore affirm the Appellate Division's decision to deny defendant protection under the Shield Law. We also modify the Appellate Division's judgment to clarify how courts should assess whether the privilege applies in future cases.
I. TMM manufactures software known as NATS, which adult entertainment websites use to keep track of access to affiliated websites and to determine what commissions are due the referring sites. Too Much Media, LLC v. Hale, 413 N.J. Super. 135, 141-42 (App. Div. 2010). John Albright and Charles Berrebbi are TMM's principals. This lawsuit stems from statements defendant posted about TMM and its owners on an Internet message board called Oprano.com (Oprano).
Internet message boards are essentially online forums for conversations. They are also referred to as discussion boards, forums, and, in the Internet's earlier days, bulletin boards. See Erin Jansen, NetLingo: The Internet Dictionary 134, 254 (2002); see also Douglas Downing, Dictionary of Computer and Internet Terms 48 (10th ed. 2009) (defining online "bulletin board systems"). Early Internet bulletin boards were compared to "message board[s] at the grocery store . . . [which allowed] anyone with a computer and a modem [to] 'post' messages, read those left by others, or hold direct conversations via computer." Eric C. Jensen, Comment, An Electronic Soapbox: Computer Bulletin Boards and the First Amendment, 39 Fed. Comm. L.J. 217, 217 (1987).
Today, message or discussion boards are largely run through websites and serve essentially the same purpose: "they provide a place on the Web where users may post and read announcements on topics of common interest." Jansen, supra, at 134; see Downing, supra, at 306 (defining "message board"). To participate, a user typically must first register with the host website by submitting an online form with a name, e-mail address, and a chosen username. Once accepted, the user simply types text into an area on the message board website and submits the message. See Jansen, supra, at 134. The unedited message then appears on the website almost instantaneously and is "usually public and visible to all users." Downing, supra, at 306.
Oprano, the message board that defendant used in this case, provided an online platform for people to post unfiltered comments and engage in discussions relating to the adult entertainment industry. Too Much Media, supra, 413 N.J. Super. at 143-44. As with other online message boards, comments posted on Oprano were not prescreened, and most of the content was open to anyone with Internet access. Id. at 144.
Defendant Hale resides in Washington State. Until 1994, she worked for Microsoft and ran a computer consulting company. Id. at 142. In 2007, she started a business as a certified life coach and interacted with clients using Internet-based video technology. Ibid. During the course of her work, defendant claims to have fallen victim to "cyber flashers" who feigned interest in her life-coaching classes so that they could expose themselves to her using web-cameras. See ibid. Defendant was disturbed by these incidents and complained to the online service she had been using. After getting no redress, she looked further into how technology was used to abuse women and decided to investigate what she believed was "criminal activity in the online adult entertainment industry." Ibid.
In October 2007, defendant created a website called Pornafia. In a press release dated February 6, 2008, defendant described Pornafia as an "information exchange" that "came about in reaction to the unprecedented levels of criminal activity now rampant within the global adult entertainment industry . . . with the aim of providing a cost free information resource for victims, potential victims, legitimate industry players, and pertinent government agencies worldwide." Ibid. Defendant later testified that she intended Pornafia to serve as a "bulletin board to deliver news to the public." See ibid. She also claimed, without support, to have hired journalists to write for Pornafia.
Pornafia, however, was "never fully launched." Ibid. Defendant conceded that "the front end of it" -- a "news magazine" -- "was still being worked on, and was not live." Id. at 143. Instead, the record consists of comments defendant posted on Oprano and other sites; her pertinent posts about plaintiffs appeared on Oprano's message board, the self-described "Wall Street Journal for the online adult entertainment industry." Id. at 143-45.
As part of her investigation, defendant claims that she spoke with the offices of the Washington State Attorney General and her Congressman, attended six adult industry trade shows, interviewed people in the industry, collected information from porn web blogs*fn1 , and reviewed information in the mainstream press and on message boards involved in the industry.
In late 2007, defendant's investigation focused on reports of a security breach of TMM's NATS database. See id. at 142. The breach potentially exposed personal information of thousands of customers who believed they had signed up anonymously for pornographic websites. See Keith B. Richburg, User Data Stolen from Pornographic Web Sites, Wash. Post, Jan. 4, 2008, at A09. At the same time, TMM was involved in unrelated litigation with a competitor, NR Media. Too Much Media, supra, 413 N.J. Super. at 144.
Defendant claims that she conducted a detailed probe of the breach, which included talking with "sources on a confidential basis." She also posted various items on Oprano's message board suggesting that TMM had threatened people who questioned its conduct and had profited from the breach.
On March 17, 2008, for example, defendant posted the following comment on Oprano:
Consumer's personal information is fair game to every thief online[.] Read the 2much media Nats depositions (not yet public but copies are out there -- Charles [Berrebbi] and John [Albright] may threaten your life if you report any of the specifics which makes me wonder) . . . . [Ibid.]
The post contains a link to Pornafia and refers to "the depths of the schemes and fraud and how the unethical and illegal use of technology has become common practice."
In a later post on Oprano, defendant wrote that "Mr. John Albright has personally contacted me to let me know he 'has not threatened anyone[,]' but I was told something different from someone who claims differently and a reliable source." Id. at 145. Defendant later testified that she spoke with a person who confirmed, on a confidential basis, that Albright had "threatened their life."
Some of defendant's posts suggest that TMM violated the New Jersey Identity Theft Protection Act, N.J.S.A. 56:8-161 to -67, and profited from the security breach. In one post, defendant wrote, I guess I should preface this with innocent until proven guilty but .. . . This point really concerned me. I believe it is $10,000 per violation in New Jersey. Does anyone have any idea how many consumer's [sic] processed their information through NATS. If 2 Much Media actually was aware of a security leak between them and the Billing Company why didn't anyone put out a fraud security announcement to the consumers? If this is true - How long have they been sitting on this information and doing nothing?
[Too Much Media, supra, 413 N.J. Super. at145.]
In another posting under the heading "Re: Too Much Media v. NR Media," defendant said, Do you think there is traceable revenue on the stolen e-mail addresses from the security leak?
Do you think that we will find that traffic, spam, re-directs are found on a[n] adult site owned or operated by a TMM owner/employee?
Is there a potential class action law suit by customers who's [sic] email addresses were compromised and were not informed of this theft as soon as TMM became aware of it?
How many customers had a[n] increase of spam or malware after signing up under a site managed by TMM and is there some relevancy connecting the two? [Ibid.]
Defendant claims that she posted the above information to inform the public about the misuse of technology and to facilitate debate. Id. at 146. She contends that her Oprano comments were "small brief parts" of articles she intended to --but never did -- publish on Pornafia. Instead, she testified that she took Pornafia offline because her life was threatened by a customer of TMM and because of the pending lawsuit.
TMM and its owners maintain that the postings were defamatory and false in that they imply that TMM engaged in fraudulent, illegal, and unethical uses of technology, engaged in threatening behavior, used NATS software to cause an influx of spam to its customers, and failed to inform customers of the security breach because TMM was making money off of it.
In response to the posts, TMM, Albright, and Berrebbi filed a complaint on June 10, 2008 against defendant Hale and unnamed John Does alleging defamation, false light, and trade libel. The trade libel count was later withdrawn.
Defendant moved to dismiss the complaint for lack of personal jurisdiction. In support of the motion, she certified, among other things, that she had "no knowledge of the residence or domicile of any of the plaintiffs." Some of defendant's earlier posts on Oprano, however, directly contradicted her sworn statement. One post, for example, said that "NATS is made by Freehold, New Jersey-based Too Much ...