Online commenters as sources? Maybe so… if done right

A recent New York Times blog post (article) discusses the valuable reporting contributions made by online commenters and how these “contributors” have become critical “sources” to modern reporting.  The NYT piece is excellent and is linked here.  As it happens, this classification of “commenters” as “sources” is of particular interest to me;  in fact, there is an unpublished law review note on this very topic at the bottom of a drawer somewhere in my house.  Sources, of course, have “legal” status under many state shield laws.

In other words, the term “source” is not just a colloquialism.  It is a legal term of art.  A journalist, in many states, is “privileged” to protect the identity of his “source.”

But why should such a privilege exist when the journalist writing the story (or reporting it for TV or radio) does not actually know the identity of this “source?”

Increasingly, around the country, lawyers are arguing that online commenters are sources and that their media clients should not be compelled to disclose their identities (I.P. addresses, email addresses, etc.).

Here are a couple of [hopefully] illustrative examples (describing real cases):

1.  During the widely-reported criminal trials of two men charged in the shooting death of a Tennessee state trooper in 2007, defense attorneys sought to identify a series of anonymous commenters who had been posting on the web site of a local newspaper.  The paper had been reporting on the proceedings and enabling its readers to opine just  below the online version of its report.  The defense, seeking a change of venue out of “concern” that some of these unnamed commenters might end up on their jury, sought to subpoena the newspaper to compel disclosure of the users’ identities.  The newspaper’s lawyers successfully quashed the subpoena by arguing that these anonymous posters were “sources” and that the newspaper was privileged from disclosing their identities.

2.  In Montana, an individual sued a newspaper seeking the identifying information about three anonymous commenters who that individual claims defamed him in a series of online comments.  These allegedly snarky comments were posted by the unknown commenters below the article and after it was published.  Here, the newspaper’s lawyers again defeated a subpoena for this information by arguing that these unknown commenters were “sources” as contemplated by Montana’s shield statute.

3.  A Kentucky paper reported a story about a 20-year old university student who was reportedly evicted from an area shopping mall because her dress was too short.  Beneath the article on the newspaper’s web site, an anonymous commenter alleged that the student had, on a prior occasion, intentionally exposed herself to a woman and two children.  The student filed a “John Doe” suit and subpoenaed the newspaper to reveal identifying information about the anonymous commenter because the student had allegedly been damaged by this anonymous remark.  Again, the media lawyer argued (among other things) that the commenters were “sources” under the Kentucky shield statute and that the newspaper should not have to reveal the identifying information.

Of those states with a reporter’s shield or a journalist’s privilege, many have statutes using different language; they are not all created equally.  In many of these statutes, the definition that is most hotly debated is that of the “journalist”, i.e., is a blogger a journalist, etc.?  Very few statutes define “source” and, as a result, courts with limited knowledge of the journalistic process, do not know what to do with the argument that online commenters are statutory sources.

Here’s another twist:  There is a federal statute that protects web publishers from liability for the content posted by third parties on their web sites.  I have a “primer” on that elsewhere on this site.

So imagine this:  Your hometown paper writes an article about a recent charity drive you organized.  The story is all positive.  In the comments however, user “hater12834” posts a series of false remarks about you, alleging infidelity and drug abuse.  Imagine that you are damaged in a measurable way by these remarks (your wife files for divorce, you lose your job, etc.).  How can you be made whole?  You cannot sue the newspaper, because of that federal statute I mentioned;  the newspaper is not liable for the comments published on its site by third-parties.  You do not know who “hater1234” is.  The increasingly common strategy is to sue “John Doe” and then issue a subpoena to the newspaper for any identifying information regarding user “hater1286.”  Then, you would replace John Doe with the true identity of the unknown defamer.  Whoa!  “Stop right there,” protests the newspaper.  User “hater1234” is a “source” and under this state’s shield law, the newspaper argues, we do not have to divulge or unmask the identity of our sources!

Now what?  In a number of cases, the damaged plaintiff is just out of luck because courts have, increasingly in recent years, allowed media organizations to point to online commenters and call them sources, when the journalist writing or reporting the story does not actually know who “hater1234” really is, never made a deal to protect his identity and did not actually use the comments as part of his reporting.

I should mention that in my example #3 above, the reporter who wrote the original story actually used the allegedly defamatory comments as the basis for a follow-up report.  The lawyer in that case made that point in his “motion to quash” the subpoena and, in my opinion, that does tend to strengthen the argument that the online commenter provided “source” material for some journalism.

All that said, the number of cases that I have identified where this issue arises are primarily state court disputes and the law is generally unsettled in this area. Most reporter shield statutes do not define “source” and, unfortunately, I think this often results in abuse and the misapplication of the various state shield laws.

The NYT piece is titled, “For Some, Reader Contributions Become a New Reporting Tool.”   It is a great piece about how some reporters are actually using online comments as part of their reportage.  For what it’s worth, I think this kind of reporting reflects the upside in allowing and inviting online commentary.  In my opinion, these NYT examples typify source-driven reporting.  The headline though (“For Some”) implicitly acknowledges the downside, that there are others who are not using reader contributions as part of their reporting.   Should these reporters and news organizations still be able to benefit from these shield laws?


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