Too Much Media, LLC v. Hale

delivered the opinion of the Court.

Millions of people with Internet access can disseminate information today in ways that were previously unimaginable. Against that backdrop, this case tests the scope of New Jersey’s Shield Law, N.J.S.A. 2A:84A-21 to -21.8—a statute that allows news reporters to protect the confidentiality of sources and news or information gathered during the course of their work. Specifically, we are asked to decide whether the newsperson’s privilege extends to a self-described journalist who posted comments on an Internet message board.

Defendant Shellee Hale submits that she investigates and reports on corruption in the online adult entertainment industry. Plaintiffs John Albright, Charles Berrebbi, and their company Too Much Media, LLC (TMM) produce software used in the industry. They are suing defendant for defamation and false light for comments she posted about them on an Internet message board— a virtual forum for people to upload their thoughts, opinions, and other information. Defendant, in turn, has invoked the Shield Law.

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.

We therefore affirm the Appellate Division’s decision to deny defendant protection under the Shield Law. We also modify the Appellate Division’s judgment to clarify how courts should assess whether the privilege applies in future cases.

*217 I.

TMM manufactures software known as NATS, which adult entertainment websites use to keep track of access to affiliated websites and to determine what commissions are due the referring sites. Too Much Media, LLC v. Hale, 413 N.J.Super. 135, 141-42, 993 A.2d 845 (App.Div.2010). John Albright and Charles Berrebbi are TMM’s principals. This lawsuit stems from statements defendant posted about TMM and its owners on an Internet message board called Oprano.com (Oprano).

Internet message boards are essentially online forums for conversations. They are also referred to as discussion boards, forums, and, in the Internet’s earlier days, bulletin boards. See Erin Jansen, NetLingo: The Internet Dictionary 134, 254 (2002); see also Douglas Downing, Dictionary of Computer and Internet Terms 48 (10th ed. 2009) (defining online “bulletin board systems”). Early Internet bulletin boards were compared to “message board[s] at the grocery store ... [which allowed] anyone with a computer and a modem [to] ‘post’ messages, read those left by others, or hold direct conversations via computer.” Eric C. Jensen, Comment, An Electronic Soapbox: Computer Bulletin Boards and the First Amendment, 39 Fed. Comm. L.J. 217, 217 (1987).

Today, message or discussion boards are largely run through websites and serve essentially the same purpose: “they provide a place on the Web where users may post and read announcements on topics of common interest.” Jansen, supra, at 134; see Downing, supra, at 306 (defining “message board”). To participate, a user typically must first register with the host website by submitting an online form with a name, e-mail address, and a chosen username. Once accepted, the user simply types text into an area on the message board website and submits the message. See Jansen, supra, at 134. The unedited message then appears on the website almost instantaneously and is “usually public and visible to all users.” Downing, supra, at 306.

*218 Oprano, the message board that defendant used in this case, provided an online platform for people to post unfiltered comments and engage in discussions relating to the adult entertainment industry. Too Much Media, supra, 413 N.J.Super. at 143-44, 993 A.2d 845. As with other online message boards, comments posted on Oprano were not prescreened, and most of the content was open to anyone with Internet access. Id. at 144, 993 A.2d 845.

Defendant Hale resides in Washington State. Until 1994, she worked for Microsoft and ran a computer consulting company. Id. at 142, 993 A.2d 845. In 2007, she started a business as a certified life coach and interacted with clients using Internet-based video technology. Ibid. During the course of her work, defendant claims to have fallen victim to “cyber flashers” who feigned interest in her life-coaching classes so that they could expose themselves to her using web-cameras. See ibid. Defendant was disturbed by these incidents and complained to the online service she had been using. After getting no redress, she looked further into how technology was used to abuse women and decided to investigate what she believed was “criminal activity in the online adult entertainment industry.” Ibid.

In October 2007, defendant created a website called Pornafia. In a press release dated February 6, 2008, defendant described Pornafia as an “information exchange” that “came about in reaction to the unprecedented levels of criminal activity now rampant within the global adult entertainment industry ... with the aim of providing a cost free information resource for victims, potential victims, legitimate industry players, and pertinent government agencies worldwide.” Ibid. Defendant later testified that she intended Pornafia to serve as a “bulletin board to deliver news to the public.” See ibid. She also claimed, without support, to have hired journalists to write for Pornafia.

Pornafia, however, was “never fully launched.” Ibid. Defendant conceded that “the front end of it”—a “news magazine”—“was still being worked on, and was not live.” Id. at 143, 993 A.2d 845. Instead, the record consists of comments defendant posted on *219 Oprano and other sites; her pertinent posts about plaintiffs appeared on Oprano’s message board, the self-described “Wall Street Journal for the online adult entertainment industry.” Id. at 143-45, 993 A.2d 845.

As part of her investigation, defendant claims that she spoke with the offices of the Washington State Attorney General and her Congressman, attended six adult industry trade shows, interviewed people in the industry, collected information from porn web blogs 1 , and reviewed information in the mainstream press and on message boards involved in the industry.

In late 2007, defendant’s investigation focused on reports of a security breach of TMM’s NATS database. See id. at 142, 993 A.2d 845. The breach potentially exposed personal information of thousands of customers who believed they had signed up anonymously for pornographic websites. See Keith B. Richburg, User Data Stolen from Pornographic Web Sites, Wash. Post, Jan. 4, 2008, at A09. At the same time, TMM was involved in unrelated litigation with a competitor, NR Media. Too Much Media, supra, 413 N.J.Super. at 144, 993 A.2d 845.

Defendant claims that she conducted a detailed probe of the breach, which included talking with “sources on a confidential basis.” She also posted various items on Oprano’s message board suggesting that TMM had threatened people who questioned its conduct and had profited from the breach.

On March 17, 2008, for example, defendant posted the following comment on Oprano:

Consumer’s personal information is fair game to every thief online[J Read the 2mueh media Nats depositions (not yet public but copies are out there—Charles [Berrebbi] and John [Albright] may threaten your life if you report any of the specifics which makes me wonder).. .

[Ibid.]

*220 The post contains a link to Pornafia and refers to “the depths of the schemes and fraud and how the unethical and illegal use of technology has become common practice.”

In a later post on Oprano, defendant wrote that “Mr. John Albright has personally contacted me to let me know he ‘has not threatened anyonef,]’ but I was told something different from someone who claims differently and a reliable source.” Id. at 145, 998 A.2d 845. Defendant later testified that she spoke with a person who confirmed, on a confidential basis, that Albright had “threatened their life.”

Some of defendant’s posts suggest that TMM violated the New Jersey Identity Theft Protection Act, N.J.S.A. 56:8-161 to -67, and profited from the security breach. In one post, defendant wrote,

I guess I should preface this with innocent until proven guilty but____

This point really concerned me. I believe it is $10,000 per violation in New Jersey. Does anyone have any idea how many consumer’s [sic] processed their information through NATS. If 2 Much Media actually was aware of a security leak between them and the Billing Company why didn’t anyone put out a fraud security announcement to the consumers? If this is true—How long have they been sitting on this information and doing nothing?

[Too Much Media, supra 413 N.J.Super. at 145, 993 A.2d 845.]

In another posting under the heading “Re: Too Much Media v. NR Media,” defendant said,

Do you think there is traceable revenue on the stolen e-mail addresses from the security leak?

Do you think that we will find that traffic, spam, re-directs are found on a[n] adult site owned or operated by a TMM owner/employee?

Is there a potential class action law suit by customers who’s [sic] email addresses were compromised and were not informed of this theft as soon as TMM became aware of it?

How many customers had a[n] increase of spam or malware after signing up under a site managed by TMM and is there some relevancy connecting the two?

[Ibid.]

Defendant claims that she posted the above information to inform the public about the misuse of technology and to facilitate debate. Id. at 146, 993 A.2d 845. She contends that her Oprano comments were “small brief parts” of articles she intended to—but *221 never did—publish on Pornafia. Instead, she testified that she took Pornafia offline because her life was threatened by a customer of TMM and because of the pending lawsuit.

TMM and its owners maintain that the postings were defamatory and false in that they imply that TMM engaged in fraudulent, illegal, and unethical uses of technology, engaged in threatening behavior, used NATS software to cause an influx of spam to its customers, and failed to inform customers of the security breach because TMM was making money off of it.

In response to the posts, TMM, Albright, and Berrebbi filed a complaint on June 10, 2008 against defendant Hale and unnamed John Does alleging defamation, false light, and trade libel. The trade libel count was later withdrawn.

Defendant moved to dismiss the complaint for lack of personal jurisdiction. In support of the motion, she certified, among other things, that she had “no knowledge of the residence or domicile of any of the plaintiffs.” Some of defendant’s earlier posts on Oprano, however, directly contradicted her sworn statement. One post, for example, said that “NATS is made by Freehold, New Jersey-based Too Much Media,” and that TMM “is organized in New Jersey.” Defendant eventually withdrew her motion to dismiss.

TMM sought to depose defendant during discovery, and the trial court ordered her deposition by teleconference. Defendant, in turn, moved for a protective order and asserted that she was a reporter entitled to the protections of the Shield Law. Ibid. The trial court ordered an evidentiary hearing to resolve the parties’ dispute over the issue. The court, in part, did not rely on defendant’s certification that she was a reporter because her earlier certification wrongly declared that she did not know plaintiffs were connected to New Jersey.

The evidentiary hearing was held on April 23, 2009. After considering defendant’s testimony and other evidence, the trial court concluded that she did not qualify for protection under the *222 Shield Law. Among other reasons, the court explained in a detailed written opinion that all of defendant’s comments were posted on Oprano, a forum for discussing “the business of porn,” which was not “similar” to the types of “news media” listed in N.J.S.A. 2A:84A-21(a). Defendant’s motion for reconsideration was denied.

The Appellate Division granted defendant leave to appeal from the interlocutory order and affirmed the trial court’s decision. Too Much Media, supra, 413 N.J.Super. at 141, 160, 993 A.2d 845. Preliminarily, the panel agreed with the trial court’s decision to order an evidentiary hearing because there were disputed factual issues about the privilege’s applicability. Id. at 149, 993 A.2d 845 (citing N.J.S.A. 2A:84A-21.3(a) & (c); N.J.R.E. 104(a) (further citations omitted)).

While grappling with “the difficulty in defining who is a ‘news-person’ ” in the age of the Internet, the panel observed,

[w]e read New Jersey’s Shield Law to ... focus on the news process rather than the medium or mode through which the news is disseminated to the public. Thus, the statutory privilege extends to persons “engaged in, connected with or employed by,” N.J.S.A. 2A:84A-21, any medium “similar” to one of several enumerated news entities, N.J.S.A. 2A:84A-21a(a), and involved in any aspect of the news process, including “gather[ing], proeur[ing], transmitting], compil[ing], edit[ing], or disseminatfing]” regardless of the manner of dissemination, be it print, broadcast, mechanical, electronic or other means. N.J.S.A. 2A:84A-21(a).

[Id. at 157, 993 A.2d 845.]

The Appellate Division concluded that defendant did not meet that standard for various reasons: there was no “mutual understanding or agreement of confidentiality” between defendant and her sources; she did not have “credentials or proof of affiliation with any recognized news entity” or adhere to journalistic standards “such as editing, fact-checking or disclosure of conflicts of interest”; she did not produce notes of the conversations and interviews she conducted; she did not identify herself as a reporter “so as to assure [her sources] their identity would remain anonymous and confidential”; she “merely assembled] the writings and postings of others” and “created no independent product”; she never contacted TMM to get its side of the story; and, *223 citing to the trial court’s finding, because “there is little evidence (other than her own self-serving statement) that [defendant] actually intended to disseminate anything newsworthy to the general public.” Id. at 157-60, 993 A.2d 845.

The panel emphasized that a person need not “satisfy all the aforementioned considerations to qualify as a member of the news media,” but that “in view of the totality of the evidence, defendant has exhibited none of the recognized qualities or characteristics traditionally associated with the news process, nor has she demonstrated an established connection or affiliation with any news entity.” Id. at 160, 993 A.2d 845 (emphasis in original).

Finally, the Appellate Division rejected defendant’s argument that the First Amendment provides a privilege separate and distinct from the Shield Law. Id. at 162, 993 A.2d 845. The court reasoned that New Jersey’s broad statutory privilege is arguably “more protective than the qualified First Amendment privilege recognized in Branzburg [v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) ].” Ibid. The panel also found that this case “does not involve an individual’s right to speak anonymously” because defendant posted comments using her own name. Id. at 163, 993 A.2d 845.

We granted defendant’s motion for leave to file an interlocutory appeal, R. 2:2-2(b), and limited review “only to those issues relating to the New Jersey Shield Law and the First Amendment of the United States Constitution.” 203 N.J. 433, 3 A.3d 1224 (2010).

II.

Defendant contends that the Appellate Division improperly rewrote the scope of the Shield Law. She raises various arguments: that the statute is extremely broad and covers members of new, non-traditional, Internet-based news media like herself; that she was connected with news media through Pornafia; that the applicability of the Shield Law depends less on how information is disseminated than on a newsperson’s intent when gathering infor *224 mation; that the Appellate Division required an enhanced eviden-tiary showing to invoke the privilege and adopted a flawed multi-factor test; that defendant satisfied her burden of showing that she was entitled to the privilege; and that she had standing to assert her source’s right to anonymous speech.

TMM embraces the Appellate Division decision and maintains that defendant’s self-proclaimed status as a journalist does not entitle her to protection under the Shield Law. TMM argues the following points: that Oprano does not qualify as news media under the statute; that it was proper for the trial court to conduct a preliminary hearing; and that even if defendant were entitled to the Shield Law’s protection, she waived the privilege by informing others about her investigation.

We granted amicus curiae status to the following organizations: the North Jersey Media Group Inc. and the New Jersey Press Association (collectively, “NJMG”); the American Civil Liberties Union of New Jersey (ACLU); and the Reporters Committee for Freedom of the Press, Gannett Co., Inc., and the Society of Professional Journalists (collectively, the “Reporters Committee”).

Though none of the amici opine on whether the Shield Law applies to defendant, they all encourage this Court to reject the criteria outlined by the Appellate Division to determine eligibility for protection under the Shield Law. They also argue that a newsperson’s certification should ordinarily suffice to establish one’s entitlement to the privilege; in limited cases in which an evidentiary hearing is necessary, the hearing should be narrowly circumscribed.

NJMG also contends that the Appellate Division failed to recognize that the privilege belongs to the newsperson, not the source, and that it protects newspersons from revealing information obtained from both confidential and non-eonfidential sources.

The ACLU, relying on federal ease law, see, e.g., von Bulow v. von Bulow, 811 F.2d 136, 144 (2d Cir.), cert. denied sub nom., Reynolds v. von Bulow, 481 U.S. 1015, 107 S.Ct. 1891, 95 L.Ed.2d *225 498 (1987), argues that the privilege depends on a person’s intent to engage in the process of newsgathering and disseminate news. The ACLU also contends that the Appellate Division placed undue emphasis on whether defendant promised her sources confidentiality, which the Shield Law does not require.

The Reporters Committee similarly argues that this Court should adopt an intent test to determine the applicability of the Shield Law. It maintains that such an approach would properly extend the privilege beyond traditional journalists and include online content providers.

III.

A.

This case is about the Shield Law, not freedom of speech. Defendant was free to exercise a right at the heart of our democracy by posting her thoughts online on Oprano’s message board. See Reno v. ACLU, 521 U.S. 844, 870, 117 S.Ct. 2329, 2344, 138 L.Ed.2d 874, 897 (1997) (finding “no basis for qualifying the level of First Amendment scrutiny that should be applied to” Internet). To the extent that her statements related to matters of public interest or concern, the actual-malice standard would apply to evaluate the defamation claim against her. See Senna v. Florimont, 196 N.J. 469, 496-97, 958 A.2d 427 (2008); see also New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed. 2d 686 (1964). 2 That standard reflects “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” New York Times, supra, 376 U.S. at 270, 84 S.Ct. at 721, 11 L.Ed.2d at 701 (citation omitted).

*226 New Jersey’s Shield Law flows from the right to free expression and freedom of the press. As discussed further below, the statute promotes and protects the ability of newspersons to gather and communicate information to the public. The law thereby buttresses constitutional safeguards for gathering news.

Although none of the parties directly challenge the constitutionality of the Shield Law on First Amendment grounds, defendant and amici encourage us to interpret the statute using an “intent test.” See, e.g., von Bulow, supra, 811 F. 2d at 144 (holding that “individual claiming the privilege must demonstrate, through competent evidence, the intent to use material—sought, gathered or received—to disseminate information to the public and that such intent existed at the inception of the newsgathering process”). For reasons expressed below, we decline to rely solely on an intent test because that approach does not comport with the precise language of the Shield Law. But because some courts have inferred an intent test from the First Amendment, we briefly address whether the United States Constitution provides journalists greater protection than New Jersey’s Shield Law. The Appellate Division found that it does not. Too Much Media, supra, 413 N.J.Super. at 162, 993 A.2d 845. We agree.

Federal law has no statutory equivalent to the Shield Law. The extent of the newsperson’s privilege under federal law derives from the First Amendment. See Branzburg, supra, 408 U.S. at 667, 707, 92 S.Ct. at 2649-50, 2670, 33 L.Ed.2d at 631, 655. Compare Shoen v. Shoen, 5 F.3d 1289, 1292 & n. 5 (9th Cir.1993) (finding qualified privilege for journalists under Branzburg and listing eight other circuit courts in accord) with In re Grand Jury Proceedings, 810 F. 2d 580, 584-85 (6th Cir.1987) (interpreting Branzburg not to provide qualified newsperson’s privilege).

In Branzburg, the United States Supreme Court considered whether a news reporter could be compelled to testify before a grand jury. The reporter had written an article about two young drug dealers he interviewed and watched manufacture hashish. Branzburg, supra, 408 U.S. at 667-68, 92 S.Ct. at 2650, 33 L.Ed.2d *227 at 631-32. The reporter declined to identify them before the grand jury, relying on a reporters’ privilege under state law; the state trial judge ordered him to answer the questions. Id. at 668, 92 S.Ct. at 2650, 33 L.Ed.2d at 632.

The Supreme Court rejected the claim of privilege citing the public’s interest in effective law enforcement and the important role of grand juries. Id. at 690-91, 92 S.Ct. at 2661, 33 L.Ed.2d at 645. However, the Court observed that “news gathering is not without its First Amendment protections.” Id. at 707, 92 S.Ct. at 2670, 33 L.Ed.2d at 655. It also found “merit in leaving state legislatures free, within First Amendment limits, to fashion their own standards.” Id. at 706, 92 S.Ct. at 2669, 33 L.Ed.2d at 654. The Court recognized that “state courts [may] ... respond[ ] in their own way and constru[e] their own constitutions so as to recognize a news[person]’s privilege, either qualified or absolute.” Ibid.

Justice Powell, who cast the decisive concurring vote in Branz-burg, suggested that the First Amendment requires a “case-by-case” balancing “between freedom of the press [not to disclose information] and the obligation of all citizens to give relevant testimony with respect to criminal conduct.” Id. at 710, 92 S.Ct. at 2671, 33 L.Ed.2d at 656 (Powell, J., concurring).

Six years later, in the context of a civil defamation case, the Supreme Court rejected an absolute privilege for the editorial process. Herbert v. Lando, 441 U.S. 153, 169, 99 S.Ct. 1635, 1645, 60 L.Ed.2d 115, 129 (1979). The Court explained that such a rule “would substantially enhance the burden of proving actual malice, contrary to the expectations of New York Times, [Curtis Publishing Co. v.] Butts, [388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967),] and similar cases.” Ibid.

By contrast, New Jersey’s Shield Law “contains no limiting language” and provides an absolute privilege to those it covers, absent any conflicting constitutional right. Maressa v. N.J. Monthly, 89 N.J. 176, 189, 193-94, 445 A.2d 376 (1982); see also *228 In re Venezia, 191 N.J. 259, 269, 922 A.2d 1263 (2007). In a defamation action, with “no overriding constitutional interest at stake,” “[t]he Legislature has already balanced the interests and concluded that the newsperson’s privilege shall prevail.” Maressa, supra, 89 N.J. at 194, 445 A.2d 376.

In essence, our Legislature accepted Branzburg’s invitation and “fashion[ed its] own standards” that fall well within, or exceed, First Amendment limits. See Branzburg, supra, 408 U.S. at 706, 92 S.Ct at 2669, 33 L.Ed.2d at 654; see also Maressa, supra, 89 N.J. at 187, 445 A.2d 376 (noting Shield Law “protect[s] confidential information to the extent allowed by the United States and New Jersey Constitutions”).

For that reason, no independent federal source governs this ease. At issue is whether defendant can avail herself of a state statutory privilege not to identify her sources. That question turns on the meaning of New Jersey’s Shield Law, to which we now turn.

B.

Our State’s Shield Law statute is among the broadest in the nation. Venezia, supra, 191 N.J. at 269, 922 A.2d 1263. In short, it protects “al