Kevin Goldberg is a lawyer for Fletcher, Heald & Hildreth and is the legal counsel to ASNE. You can address your legal questions to him at goldberg@fhhlaw.com and he will answer them in a later issue.

This year, courts will likely decide if the protection of reporter's privilege extends to a Web site's comments and forums

Q: THERE APPEAR TO BE MANY legal protections available against liability for acts committed by visitors to our Web site, but do we have any obligation or right to protect those visitors?

A: An excellent question as this edition of The American Editor discusses issues surrounding reader forums. It's also quite timely as courts wrestle with the right of Internet posters to remain anonymous. Of course, these considerations must be viewed in a different light with regard to news sites due to the possible application of the reporter's privilege.

Previous columns have discussed two important laws offering significant protection against liability for content posted by visitors to a Web site. They include Section 512 of the Digital Millennium Copyright Act, which immunizes a Web site operator against copyright infringement liability if it strictly follows certain procedures.

Perhaps more important is Section 230 of the Communications Decency Act, which protects a Web site operator against liability for most other claims. This statute in particular provides significant leeway to Web sites to reject, delete or edit comments with impunity. Most Web sites employ strong language in "Terms of Use," which clearly reserves these rights as a means of maintaining civil and legal discourse on the site.

Reserving and enforcing a broad editorial right over a reader forum also may keep your Web site out of court. While Section 230 may keep a Web site operator from being sued, an injured party clearly has a right to sue the original speaker. If the identity of that original speaker is unknown, the victim will often subpoena the Web site to get that information.

This creates further obligations for a newspaper as the Web site operator. As I discussed in a 2007 article, the NJ.com news site was sued for violating a user's privacy rights by responding to a subpoena requesting a poster's identity. I identified that case, Gallucci v. New Jersey Online LLC, as key in predicting the likelihood of future litigation in this area. Had the NJ.com Web site won in that case, the end result might have been an increase in subpoenas, as potential plaintiffs would know that a defendant Web site would invoke Section 230 and relieve itself of further litigation expenses by quickly turning over the information needed to identify the proper defendant. However, Gallucci dropped his lawsuit, leaving the question unanswered.

I still recommend a strongly worded provision that takes advantage of Section 230 and allows your Web site to control the content of reader forums. But you clearly will want to keep Terms of Use up to date and follow through on promises to remove posted content that clearly violates these terms. The Web site JuicyCampus.com, which can credit Section 230 for its very existence, has been threatened with legal action by prosecuting attorneys in at least two states under consumer fraud and related statutes because the site's Terms and Conditions promise the removal of certain violative content, but the site rarely does so.

There are reasons beyond Section 230 that Web sites like JuicyCampus.com do not wield an exceedingly heavy hand in forums. One is the time and effort required to review and edit content, if only in response to complaints. Perhaps more important is a desire to avoid being branded a censor. "Outing" a poster may be viewed as tantamount to censorship because of the chilling effect it will render. So what can you do?

Caught between the rock of litigation and the hard place of censorship, many newspapers have turned to the reporter's privilege as a means of protecting both their legal interests and their reputations. I predicted Gallucci v. New Jersey Online LLC was the case to watch in 2008. I believe the same is true for the application of the reporter's privilege to the comments and forums of a newspaper or other media Web site as the legal issue to watch in 2009, in part because of disparate results in court cases to date.

In one such case, a judge in Clackamas County, Oregon, held that the state's shield law allows a newspaper to withhold the identity of an anonymous poster of allegedly defamatory material. This emboldened the editor of the Bikeportland.com Web site to refuse to answer when served with a subpoena a few weeks later (though the editor contacted the commenter, who voluntarily stepped forward to talk to local authorities). A judge in Montana reached the same result under that state's shield law.

An Illinois case may provide an indication as to whether these can be chalked up to media-friendly judges or whether there is a true trend in the making. In Alton, The Telegraph has been subpoenaed by local officials to testify as to the identity of five people who posted comments about a murder investigation on the newspaper's Web site. The Telegraph cited the Illinois shield law in refusing to answer. That law applies to "any person regularly engaged in the business of collecting, writing or editing news for publication through a news medium on a full-time or part-time basis" and includes "any person who was a reporter at the time the information sought was procured or obtained."

In states where the issue has not been tested, the only guidance I can provide is that you first determine whether your shield law or judicially created privilege applies on the basis of one's status or his or her function. The former describes a law applicable to a reporter or other member of the media because he or she works for a newspaper, television or radio station or other recognized mass medium. The Oregon and Montana laws are very broadly written in this regard. Oregon law protects "anyone employed by or engaged in any medium of communication to the public," while Montana's applies to "any person connected with or employed by newspaper, magazine, press association, news agency, news service, radio station, television station, or community antenna television service for the purpose of gathering, writing, editing or disseminating news." Because courts generally apply the "status test" very strictly, a status-based law will often result in little to no protection for anonymous posters. Most shield laws were enacted before the advent of the Internet, meaning the list of those protected will not extend to the Internet (Time, Inc., learned this lesson the hard way in another case when Sports Illustrated was denied the protections of the Alabama shield law because that statute did not expressly protect magazine reporters; the court rationalized that the Alabama legislature would have or could later include magazines if it wanted to protect magazine reporters).

States employing the "function test" examine the intent and actions of the person seeking to invoke the privilege, generally asking whether the person is involved in the gathering and transformation of information for public dissemination. This protects online reporters, but it is not clear that the protections extend to information obtained from posters, especially if there is language requiring an intent to create a reporter-anonymous source type relationship at the moment that relationship commences.

Of course, you will be out of luck if subpoenaed in a federal court proceeding, as there appears to be no federal reporter's privilege at the present time. The most recent proposals of the "Free Flow of Information Act" to create such a privilege use a test that is largely functional in nature. So, a full answer to your question isn't going to be available immediately for a number of reasons.

But I'm sure we can all agree on one thing: There are times the reporter's privilege should apply, even to anonymous posters. The Internet has changed the way news is gathered, maintained and published. As newspapers move more of their operations online and adapt publishing and news-gathering activities to this new medium, we need to hope that the First Amendment and the reporter's privilege adapt as well. *