New Jersey Law Journal August 22, 2013

Old vs. New: Bloggers Want Same Rights as Mass Media -0 Why web logs are not automatically protected by traditional media law

By Jonathan Bick Bick is of counsel at Brach Eichler LLC in Roseland. He is also an adjunct professor at Pace and Rutgers law schools, and the author of 101 Things You Need to Know About Internet Law (Random House 2000).

Internet users are increasingly turning to web logs (blogs) as a source for news and information. Traditionally, people have used mass media for this purpose. Bloggers claim that no distinction exists between blogs and traditional media. Therefore, bloggers seek protection afforded by the First Amendment rights previously reserved for traditional media outlets. However, most courts do not afford bloggers the same rights given to traditional media.

Typically, traditional mass media providers must be at least negligent to be liable for defamatory publications. In general, bloggers are strictly liable for defamatory comments.

A classic blog consist of a series of dated entries in reverse chronological order. Often blogs contain hyperlinks to other websites. Blogs tend to be both personal and subjective. They provide a fast and cheap way to publicly share ideas.

Blogs, more often than not, differ from the traditional media in two important respects. First, traditional mass media providers try to be neutral, whereas bloggers often write from a personal point of view. Second, traditional media normally fact checks their content, while bloggers do not uniformly hold themselves to this standard.

Defamation liability arises from both common-law and First Amendment protections. Most First Amendment jurisprudence centers on defamation in the traditional press.

Normally, an individual's reputation is protected from injury due to false accusations by antidefamation statutes. Such injury may be the result of an oral communication or a writing that exposes a person to disgrace, ridicule, contempt, hatred or shunning and avoidance by others. In either case, common-law actions for defamation generally require: a false statement; the publication of said statement; and resulting harm due in part to the publisher's wrongful action or inaction, amounting at least to negligence. It should be noted that a defamatory statement must be false, and it must be presented as a statement of fact.

The Supreme Court found in Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990), that the First Amendment protects a statement of opinion relating to matters of public concern, which does not contain a provably false factual connotation. In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Supreme Court found that a public official could only prevail in a defamation action where the defamatory falsehood was made "with knowledge that it was false or with reckless disregard of whether it was false or not," a fault standard known as "actual malice."

The court also required that this actual-malice standard be proven. In Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Supreme Court considered the defamation standard for private individuals who are not public figures. It found the actual malice standard in Sullivan did not extend to private individuals. Finally in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985), the court held that when statements about a private individual that relate to imperative matters of community concern are at issue, the plaintiff must show authentic malice by the defendant to recover punitive damages.

The distinction between "media" defendants and "nonmedia" defendants (such as bloggers), for defamation purposes, becomes important where the court finds that the plaintiff is a private individual and the defamatory statement does not deal with a matter of public concern. In such a case courts must determine whether a blogger should be treated as a nonmedia defendant but to stricter standards, or treated the same as media defendants.

Courts have reached differing conclusions on the meaning of Gertz and whether nonmedia defendants can be held strictly liable for defamatory statements. Some courts have held that media and nonmedia defendants are entitled to the same level of protection under the First Amendment. In Bainhaur v. Manoukian, 215 N.J. Super. 9 (App. Div. 1987), the court found that all defendants must at least be negligent in the publication of defamatory material. This conclusion is based on statements from the Supreme Court denying extra privileges for the institutional press over other speakers. In particular, the Supreme Court in Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010), found that it has "consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers." However, a majority of courts across the nation have created liability distinctions between media and nonmedia defendants.

The Supreme Court in Branzburg v. Hayes, 408 U.S. 665 (1972), while never specifically defining media, did tie media to certain First Amendment rights. Nevertheless, it did support an expansive definition of media. In particular, the Branzburg court did not confine the definition of media to "newspapers and periodicals .... [but] … every sort of publication which affords a vehicle of information and opinion."

However, the media, as defined for "shield laws" and state constitutional purposes, have taken an opposite approach. They narrowly define entities that merit protection as media. While standards of protection vary from state to state, courts tend to look at each other's interpretations of protectable media.

Comparison of bloggers to the traditional press was also important to the Supreme Court of New Jersey's ruling in Too Much Media, LLC v. Hale, 206 N.J. 209 (2011). This matter involved a software company that brought a claim against a website operator for defamation posted on an Internet message board. The defendant claimed to be a journalist whose posts were protected under New Jersey's shield law to prevent the disclosure of the identity of her confidential sources. The court explained that New Jersey's shield law provides broad protection to news media, but did not include comments posted to online message boards.

The New Jersey court found that to be covered by the statute, a person must have some nexus to "news media," defined as "newspapers, magazines, press associations, news agencies, wire services, radio, television or other similar printed, photographic, mechanical or electronic means of disseminating news to the general public." While the defendant in this case was not included under this law, the court stated that a "single blogger might qualify for coverage under the Shield Law provided she met the statute's criteria."

In sum, a blog is not afforded media status automatically. To be considered part of the media, a blog must resemble the traditional press. The courts have looked at both the content of the blog and the blog's association to a news dissemination means to determine if a blog is subject to media rights protection. •