November 29, 2020

Volume X, Number 334


The First Amendment and the Reporter's Privilege: What Constitutes News on the Internet?

In the digital age, anyone who gathers and disseminates information—including bloggers—can be a reporter. Or can they?

With blogs becoming increasingly popular and abundant, courts are doing their best to catch up with the digital revolution. But the question remains: Are bloggers considered reporters and, therefore, entitled to invoke a reporter's privilege (or shield law) to protect the identity of their sources?

While the issue is of interest to bloggers, reporters and advocates of the First Amendment, it is also becoming increasingly important for businesses wishing to protect themselves from corporate espionage. Given the proliferation of smartphones—with their built-in cameras and constant access to the rest of the world via E-mail, text messaging and social networking—it has become easier than ever to obtain and share trade secrets and other sensitive information about a company. In this context, businesses need every tool available to combat potential theft.

Courts Remain Divided

The First Amendment guarantees freedom of the press, but there is no federal equivalent that provides for a reporter's privilege. To date, it has been up to the states to pass shield laws and determine the extent of the protection they impart. In doing so, states must consider the important role anonymous sources play in investigative journalism and weigh it against every person's right to evidence at trial. Given the varied scope of state shield laws and the divisive nature of the reporter's privilege, it is no surprise that courts are split.

In Too Much Media, LLC v. Hale, a New Jersey appellate court discussed the difficulty in identifying to whom the reporter's privilege should apply. In its 2010 ruling, the court noted that the "Internet poses a particularly perplexing problem in deciding who should qualify for the privilege given its easy accessibility, connectiveness, virtually limitless research capacity and universality." Blogs in particular give "people a chance to post their opinions and insights about a wide range of topics." The court warned, though, that "the fact of presenting information on a new, different medium, even if capable of reaching a wider audience more readily, does not make it 'news,' for purposes of qualifying for the newsperson's privilege." The court clarified that there is "a distinction between, on the one hand, personal diaries, opinions, impressions and expressive writing and, on the other hand, news reporting." The court cautioned that "[s]ome delimiting standards must pertain lest anyone with a webpage or who posts materials on the Internet would qualify."

Similarly, in In re Madden, the Third Circuit Court of Appeals in Philadelphia held in 1998 that certain communications obtained by an individual for entertainment purposes were not "news" entitled to the protections of the privilege under Pennsylvania's shield law. The court noted that rules and privileges that limit evidence are not favored by courts, that they contravene the fundamental principle that the public has a right to every person's evidence, and that they, therefore, should not be expansively construed. The Madden court determined that the purported reporter was disseminating hype, not news. Since he intended to create art or entertainment—rather than news—the privilege did not apply.

However, in O'Grady v. Superior Court, a California appellate court extended the shield law in that state to a blog in order to protect the identity of a tipster who leaked information about a new Apple device. In its 2006 decision, the court declined the implicit invitation to embroil itself in questions of what constitutes "legitimate journalism." The court could "think of no workable test or principle that would distinguish 'legitimate' from 'illegitimate' news" and determined that news-oriented blogs are similar to a newspaper or a magazine.

Lay of the Land in Illinois

With courts split and no precedent in Illinois, it remains difficult to predict how an Illinois appellate court will rule on the issue.

Much Shelist, however, recently obtained a favorable outcome on behalf of an Illinois client that was the victim of corporate espionage. In order to complete a project, the firm's client was given images of a sensitive trade secret belonging to one of its customers. After those photos were captured by an unknown individual and eventually uploaded without permission to a blog, Much Shelist filed a petition in Cook County seeking the identity of the thief. The blog objected, claiming that it is the equivalent of a newspaper or periodical and, therefore, entitled to the protections of the Illinois reporter's privilege. But the court disagreed. Although the content may have been of interest to readers, that did not qualify the blog as a "news medium" or its bloggers as "reporters." Furthermore, the type of information posted by the blog did not "encourage a well-informed citizenry" so as to warrant the protections of the reporter's privilege. The court felt that the blog's tipster was hardly an example of a "source" of investigative journalism. In sum, the blog was not reporting news; it was merely publishing hype about a highly competitive consumer product—an action that is not protected by the reporter's privilege in Illinois.

Some fear that the court's position could jeopardize the rights provided by the First Amendment. Ultimately, however, we believe the ruling  protects the interests of businesses and will have little to no effect on freedom of the press. The court did not narrow the scope of Illinois' reporter's privilege; it merely ruled that a blog that does not report "news" is not entitled to the protections of the state's shield law.

Although the case will likely be appealed, for the moment, the court's ruling protects a company's ability to obtain the identity of thieves and guard itself from corporate espionage.

© 2020 Much Shelist, P.C.National Law Review, Volume II, Number 47



About this Author

Anthony C. Valiulis, Civil Trial Litigator, Much Shelist, Chicago Law Firm

Anthony C. Valiulis is an accomplished litigator with more than three decades of experience in a broad range of state and federal civil trial and appellate matters. A principal of the firm since 1979, Tony served as Chair of the Litigation & Dispute Resolution group for more than 20 years. His practice encompasses complex business and financial litigation, concentrating in four major areas: (1) business disputes, including non-compete agreements, (2) insurance coverage, (3) appeals and (4) class action defense. Tony represents individuals, privately held companies and publicly traded...