Who Is A Journalist?

It used to be so easy to spot them – they worked for a newspaper or television station. They had “credentials.” But in the online world, it’s not as easy as it once was to spot a journalist. Because in some respects, any Tom, Dick or Harry (or Jack, for that matter) with a computer and a blog site can purport to be a journalist. And that matters when courts or legislatures try to decide who can invoke a privilege to refuse to identify sources. A New Jersey court recently faced this issue and came to an interesting conclusion – it’s not about what you call yourself, it’s about what you actually do. A blogger who set up a site to expose criminal activity in the online entertainment world got sued for defamation by one of her targets. In the course of discovery the plaintiff demanded that defendant identify her sources. She refused, citing the New Jersey shield statute. That statute allows a “a person engaged on, engaged in, connected with, or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public” to refuse to disclose sources. So the question for the court was whether the blogger qualified under this definition. The court said she didn’t. Noting that the question has been made more complex by the expansion of the media, it nevertheless ruled that it depends on what the person does, not what they purport to be. Nor does the medium matter. So here, notwithstanding the defendant was an online presence, she “produced no credentials or proof of affiliation with any recognized news entity, nor has she demonstrated adherence to any standard of professional responsibility regulating institutional journalism, such as editing, fact-checking or disclosure of conflicts of interest,” according to the court. It was what she didn’t do, rather than the medium that answered the question. The court also made an interesting observation about the underlying rationale for protecting sources. It felt that the key aspect he privilege protects is the source/journalist relationship. But when the information is an anonymous blog post, the court had trouble finding any relationship to protect. As it noted, “where, as here, there is no evidence of any mutual understanding or agreement of confidentiality, the rationale for the privilege ceases to exist.” The notion of a source that is anonymous even to the journalist is a new one. And it will be interesting to see how courts handle it. This New Jersey ruling may provide a clue.