Shield laws might not protect bloggers and citizen journalists

By MARK PEARSON Follow @Journlaw

Q: When is a journalist not a journalist? A: When trying to earn a shield law privilege.

Sadly, that is too often the situation for those using confidential sources for their online reportage, even when it is exposing serious wrongdoing.

So-called ‘shield laws’ are limited protections offered to journalists trying to keep their sources confidential. But, even in the US, they are even more restricted when it comes to bloggers, ‘citizen journalists’ and social media users.

Shield laws vary widely in their scope, sometimes only applying to material that has already been ‘published’ and sometimes specifically naming ‘journalists’ and ‘news media’ as those protected.

Federal shield laws introduced in Australia in 2011 extended to bloggers and tweeters – but only to those ‘engaged and active in the publication of news’.

Some US state shield laws can be interpreted to cover new media users, while others are narrowly construed to apply to journalists in the mainstream media. Montana’s shield laws were held to apply to anonymous Internet commenters in 2008 when a former political candidate launched a defamation action over material on the Billings Gazette’s site.

But a blogger who was sued for defamation over comments on a message board failed to win protection under the New Jersey shield law in 2011. The former Citizen Media Law Project’s Justin Silverman  developed a useful state-by-state analysis of shield laws for bloggers.

The application of Californian shield laws to bloggers was questioned in 2010 when Gizmodo gadget blog editor Jason Chen appeared in a video on the site displaying a prototype of an Apple iPhone 4G which had been lost then purchased by an intermediary for about $5000. Police seized six computers and other items from Chen’s home. But the matter was not tested when charges against Chen were not pursued.

There were calls for a US federal shield law after travel bloggers Chris Elliott and Steve Frischling were subpoenaed in late 2009 to find the anonymous correspondent who had provided them with a Transportation Security Administration security directive they had posted after a failed terrorist attack. But the TSA backed off and withdrew its demands. 

The waters get murkier as the traditional media contract throughout the developed world and continue to retrench journalists, with many then turning to the Web and social media to continue their work. Some can only do it part-time and may not be defined as  ‘engaged and active in the publication of news’. The same goes for students who often produce excellent investigative journalism but are not yet doing it for a living. It is debatable whether they would earn the protection of shield laws under many definitions.

And then there is the serious blogger with an agenda – not meeting the usual definition of ‘journalist’ and perhaps even rejecting the term. Nevertheless, should such an individual’s claim to a shield law privilege be allowed? Policy makers in most jurisdictions think not.

What do you think? I welcome your comments below.

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Parts of this blog have been excerpted from my recent book Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online (Allen & Unwin, 2012).

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.