Fair Report Privilege: New York Shield Law: A New Jersey Appellate Court recently held that the identities of information sources utilized by the author in composing a biography of Donald Trump were protected from discovery by the New York Shield Law. In Trump v. O’Brien, the defendant Timothy O’Brien was the author of a book which claimed that several individuals having personal knowledge of Mr. Trump’s finances had indicated that his net worth was somewhere in the neighborhood of $150 to $250 million, and that he was not a multibillionaire as he had previously claimed. In response, Mr. Trump sued the author for defamation.
In reaching its decision, the Court first considered choice-of-law principles. It determined that New York law would apply since the action had a significant relationship to the State. Specifically, the Court noted that the book had been published in New York, the author’s career was centered there and many of Mr. Trump’s business interests were located in the State. The New Jersey Court therefore decided this case applying New York law.
Under the New York Shield Law, N.Y. Civ. Rights §79-h, sources of confidential information are provided absolute protection where the information is deemed to be “news” for purposes of the statute. The law defines “news” as “written, oral, pictorial photographic, or electronically recorded information or communication concerning local, national or worldwide events or other matters of public concern or public interest or affecting the public welfare.” Applying this broad definition, the Court ultimately found that although the details of Mr. Trump’s life had some entertainment value, they were nevertheless matters of public interest and therefore constituted “news” under the law. Accordingly, the author’s sources were deemed to be protected from discovery.
The case therefore marks a notable expansion of the privilege generally aimed at, and for the benefit of news entities, to the authors of entertainment-related books. The New York law defines a professional journalist as “a person who is engaged in gathering, preparing, collecting, writing, editing, filming, taping or photographing of news intended for a newspaper, magazine, news agency, press association or wire service or other professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public. . .” In Trump, the Court specifically states that it “regard[s] an author who obtains news in confidence for dissemination to the public through the medium of a published book as fitting within this definitional phrase.”
It will be interesting to see if, and how, this case, and its expansive definition of a “professional journalist,” may be utilized in looking to extend protections of the Shield Law to bloggers and Internet posters who may claim to be disseminating “news” to the public. In fact, there is proposed legislation pending in the New York legislation that seeks to address this very question. The pending legislation seeks to modify the New York Shield Law to include in the definition of a “professional journalist” those who perform such services for a “web log.” For purposes of this bill, a “web log” is defined as “a website or webpage that contains an online journal containing news, comments and offers hyperlinks provided by the professional journalist or newscaster.”
© 2009 Nissenbaum Law Group, LLC
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