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New Jersey Shield Law Does Not Protect Bloggers From Defamation Claims

In the case of Too Much Media v. Shellee Hale (pdf file), the New Jersey Supreme Court rejected the claim that the state’s shield law for journalists protected a blogger who posted defamatory comments on an online message board. This will it easier for an Internet lawyer to protect his client’s reputation from libel in that state.

The court found…

“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.”

This has caused uproar in the social media for obvious reasons. To many in the online community, providing favorable treatment to offline media arbitrarily discriminates by those who just don’t understand the Internet.

Yet it’s important to note that the court’s decision was rendered by interpreting state law as it exists. The court made it clear that New Jersey’s legislature could broaden the statute at any time by amending the law to include bloggers and others.

“The Legislature is free to expand the law’s coverage as a matter of policy.  In an era of ever-changing technology, with new and rapidly evolving ways of communicating, the Legislature may choose to reconsider who is a newsperson and add new criteria to the Shield Law.  We are not foreclosing that discussion today; we are simply interpreting an existing and far-reaching statute.”

For now, it seems clear that those seeking shield law protection in the State of New Jersey are going to need to jump through some extra hoops to establish themselves as journalists protected by the statute if they’re going to be posting content online in blogs and message boards.

Internet Privacy Law Rebellion

What if someone wrote new Internet privacy requirements but no one enforced them? No need for your Internet attorney to get involved yet? Here’s what’s happened…

“New European Union rules to ensure privacy have been ignored by the vast majority of E.U. member countries, according to Jonathan Todd, European Commission spokesman for Digital Agenda.” – EU Countries Ignore New Law on Internet Privacy

Just wait until the U.S. Congress weighs in with do-not-track Internet privacy legislation (there are plenty of pending bills). Will you need express consent before using installing cookies on a visitor’s computer? If the Internet browser is set to accept cookies by default, does this mean express consent has been given.

It will be interesting to see if a private cause of action will be permitted under whatever new Internet privacy laws are enacted or if enforcement will be limited to government officials.

You’ll have, at a minimum, the Federal Trade Commission (FTC) implementing rules and guidelines for enforcement. State attorneys general will jump on the bandwagon too in the interest of protecting the consumer, children, puppies, Mom, apple pie, and the American flag in time for the next round of elections.

If suits by aggrieved website visitors are permitted, expect to see numerous attempts by Internet attorneys to certify class action lawsuits against deep pocket website owners.

Great Depression Law Grants President Internet Kill Switch?

With Congress debating numerous bills designed to regulate the Internet, high on the Obama administration’s agenda is new legislation designed to give the President an Internet “kill switch” in some undefined emergency.

Now administration officials are overtly threatening Congress by claiming that the failure to pass a law granting such powers would mean that the President could rely upon existing executive branch authority under the Communications Act of 1934.

Yes. It is apparently the stance of President Obama that a law passed long before Al Gore invented ARPANET authorizes the President to do whatever he please to the World Wide Web in the event of an emergency.

The President is threatening to seize control of the Internet by “rely[ing] on a pre-World War II radio emergency law to provide the president with authority to protect key computer and communication networks.”

If the administration can’t tell the different between “radio” and “Internet,” would you trust the executive branch not to abuse the definition of “emergency?” You don’t need an Internet attorney to define these terms for you…but perhaps the President does.

If the President happens to be trailing in the polls in late October 2012, would websites critical of his policies be shut down because of the “emergency” need for him to win re-election?

This isn’t picking on the current Oval Office occupant. Would you trust this power in the hands of any single politician without immediate real checks on that power?

At a minimum, shouldn’t a presidential Internet “kill switch” power require a federal district court order, be on a very temporary basis, and subject to immediate appeal to the U.S Supreme Court?

And based on the current threat to act unilaterally under a 1934 law that has absolutely nothing to do with the Internet, Congress should seriously consider tabling the notion of granting a “kill switch” and focus instead on clarifying that Great Depression-era law so that it can’t be twisted into a legal position to support the administration’s current interpretation of it.

If your website gets shut down by Executive Order, do you truly own an e-commerce business or are you simply a peasant working at the will and pleasure of the current monarch? If the latter, Internet lawyers won’t be able to help you regain the business you’ve lost by royal decree.

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