By Dick Goehler, Frost Brown Todd, LLC

  

On May 6, the Supreme Court of New Hampshire extended the traditional media’s right to protect anonymous sources to websites, internet bloggers and journalists.  In Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., a First Amendment case that will have significant implications for the future of on-line journalism, the Court said that freedom of the press is a fundamental right that extends beyond newspapers and periodicals to any kind of publication that serves as a vehicle for information and opinion.

The key facts in the case were as follows.  Mortgage Specialists is a mortgage lender in New Hampshire.  Implode operated a web site that ranked various businesses in the mortgage industry on a ranking device that it called “The Mortgage Lender Implode-O Meter.”  On its web site, Implode identified allegedly “at risk” companies and classified them as either “Imploded Lenders” or “Ailing/Watch List Lenders.”  The web site allowed visitors who registered on the site and created user names to post publicly viewable comments about lenders.

In August 2008, Implode published an article that described administrative actions taken by the New Hampshire Banking Department against Mortgage Specialists.  In the article, Implode posted a link to a document that purported to represent Mortgage Specialists’ 2007 loan figures (the “Loan Chart”).  In response to the article, an anonymous website visitor with the user name “Brianbattersby” posted two comments regarding Mortgage Specialists and its president.

Once it became aware of the article and the on-line postings, Mortgage Specialists filed a lawsuit seeking injunctive relief and alleging that Brianbattersby’s postings were false and defamatory.  In addition to other demands for relief, Mortgage Specialists demanded that Implode disclose both the identity of Brianbattersby and the source of the Loan Chart.  The trial court granted the relief sought by Mortgage Specialists.  On appeal, Implode argued, among other issues, that the trial court erred in ordering the disclosure of the sources of the Loan Chart and Brianbattersby’s postings.

In deciding the issues on appeal, the Supreme Court of New Hampshire rejected Mortgage Specialists’ argument that the news gathering privilege was inapplicable because Implode was neither an established media entity nor engaged in investigative reporting.  The Court ruled in that regard that the fact that Implode operated a web site made it no less a member of the press.  In addition, in light of the trial court’s implicit findings that Implode was a “legitimate publisher of information,” the New Hampshire Supreme Court concluded that Implode’s web site served an informative function and contributed to the flow of information to the public.  Accordingly, the Court held that Implode was a reporter for purposes of the news gathering privilege.

Having extended the protection of the news gathering privilege to Implode’s web site, the New Hampshire Supreme Court then went on to rule that the trial court had erred in its findings and, as a result, sent the case back to the trial court for further proceedings consistent with its opinion.  The remainder of the Court’s opinion provides an excellent recitation of the well-established First Amendment tests which apply when a party seeks to compel disclosure of the media’s sources and the identity of anonymous internet posters.