N.J. case Involving Porn Company Too Much Media could define free speech on web

A Superior Court judge in Monmouth County, New Jersey will be asked today whether a woman from the Pacific Northwest who posted comments online about the pornography industry should have the same protections as working journalists when it comes to sorting out allegations of slander.

Shellee Hale (pictured) wrote forum posts alleging security flaws at Freehold- based Too Much Media LLC from her home computer in Washington state and was sued by the company for defamation. Too Much Media, which helps online adult entertainment companies track sales, acknowledged the breach, but says no customer information was lost.

The case being heard in Superior Court in Freehold may help define free speech rights on the internet, where experts say posters have long asserted First Amendment protections -- regardless of what they write.

Hale, who writes four blogs, is seeking protection as a journalist from disclosing her sources. She has been writing on internet safety for five years and contributing to such publications as the Wall Street Journal and Business Week. She also obtained her private investigator's license in 2008, according to court papers.

Litigation like the suit against Hale has so far been uncommon in New Jersey, but that may change as blogs, chat rooms and networking sites become ubiquitous.

"It's rare, but I think it's going to become more common as that becomes the primary way of people communicating," said Tom Cafferty, counsel to the New Jersey Press Association.

Hale's legal troubles began last year when she posted comments relating to a software security breach at the Monmouth County company on a message board frequented by those in the adult entertainment industry. She said the breach potentially could have given hackers access to names and addresses of account holders. Company officials said consumer information, including credit card numbers, was never compromised.

Company principles John Albright and Charles Berrebbi said the postings, which included allegations they had threatened Hale's life, amount to slander against them and their firm. They want Hale to reveal her sources and pay punitive damages for harming the company's reputation.

"The issue of libel and slander has been litigated heavily for TV and radio," said Jeffrey Pollock, the Lawrenceville attorney representing Hale. "But when it comes to websites, not so much."

Courts have traditionally recognized slander as spoken defamation and libel as written defamation. Pollock said the standard used in considering the case against Hale should be libel -- which is much harder to prove in court than slander -- because her comments were written.

Pollock is trying to get the case dismissed by asking Superior Court Judge Louis Locasio to declare Hale to be protected by so-called shield laws. Built on court decisions and a variety of state laws, the shield generally protects working journalists from revealing their sources except in the case of a crime.

In his lawsuit, filed last June in Superior Court in Freehold, company attorney Joel Kreizman said Hale "has embarked on a campaign to defame and otherwise ma lign the plaintiffs (TMM) in those chat rooms."

"She has seized upon and uti lized the security breach as the underlying theme of her attacks, but they are made without any basis in fact and without any concern for truth," Kreizman wrote.

Cafferty said Hale's claim to a reporter's protections may be dubious. He said just because Hale contributed to publications in the past doesn't mean she necessarily was shielded for this investigation.

He said a court will most likely look at whether she was disseminating the information through a publication or for her own purpose, because judges realize they have to be careful who gets the protection. If the newsperson's shield is extended to everyone who posts items on the internet, "then everyone is a journalist and the privilege becomes meaningless," he said.

TMM contends Hale, as a blogger, isn't entitled to the protection.

Hale said in court papers she gravitated toward internet security issues after hearing her other mom- friends complain about unsolicited pop-ups and spam -- the often-annoying advertisements plugging everything from credit card offers to skin care products, she said in court papers.