Online Journalists Entitled to Same Protections as Others
July 10, 2006
Judith Frances Bonilla - Washington
In a unanimous, 69-page decision, the California Court of Appeal has sided with publishers of several online Web magazines – PowerPage.org, AppleInsider.com and MacNN.com – in rejecting Apple Computer, Inc.’s attempts to force the disclosure of confidential sources who allegedly leaked proprietary information about a soon-to-be-released device for Macintosh users. Reversing a trial court order compelling disclosure, the appellate court held that the California reporter’s shield law and the qualified First Amendment privilege protects online journalists and their sources.
The case, O’Grady v. The Superior Court of Santa Clara County, has been closely followed by the electronic press and others. The news industry feared that the court would create a legal distinction between traditional print and broadcast journalists on the one hand, and those journalists whose work appears solely in electronic formats on the other.
PowerPage, Apple Insider and Mac News Network are Web sites devoted to news and information about Apple’s Macintosh computers and compatible software and hardware. In November 2004, several articles appeared on these sites describing a new Apple product known as “Asteroid” or “Q97,” rumored to be released soon. The articles gave details of the new product, information about production and distribution, and included drawings of what it would look like.
Apple brought suit against unidentified defendants alleging that they “misappropriated and disseminated through Web sites confidential information about an unreleased product,” and that this unauthorized use and distribution of information violated California’s trade secret statute. In an attempt to identify the anonymous sources, Apple sought and received permission from the trial court to issue discovery subpoenas upon the publishers of PowerPage, Apple Insider and Mac News Network.
Arguing that the shield law was unavailable to the Web publishers, Apple contended that the Web sites were not engaged in “legitimate journalistic activities.” The appellate court, however, refused to distinguish between “legitimate” and “illegitimate” news:
The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here. We can think of no workable test or principle that would distinguish “legitimate” from “illegitimate” news. Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment, which is to identify the best, most important, and most valuable ideas not by any sociological or economic formula, rule of law, or process of government, but through the rough and tumble competition of the memetic marketplace.
The court recognized that Power Page, Apple Insider, and Mac News Network “[i]n no relevant respect ... appear to differ from a reporter or editor for a traditional business-oriented periodical who solicits or otherwise comes into possession of confidential internal information about a company.” The court did recognize that disclosure of certain information might expose publishers to liability. However, the question before the court was whether or not the publishers’ conduct constituted gathering and dissemination of news that was entitled to protection under the shield law.
Apple claimed that the shield law covers only certain types of media and “has never been enlarged to cover posting information on a website.” The court reproached Apple for its oversimplification of the Web sites’ activities, noting a significant distinction between (1) the mere “deposit of information, opinion, or fabrication by a casual visitor to an open forum such as a newsgroup, chatroom, bulletin board system, or discussion group” and (2) “the open and deliberate publication on a news-oriented Web site of news gathered for that purpose by the site’s operator.” The operators of PowerPage, Apple Insider and Mac News Network are “publishers” for purposes of the shield law, the court ruled, and the Web sites constitute e-magazines and therefore are protected by the shield statute.
The court expressly avoided discussing application of these principles to “bloggers” because of what it described as the “rapidly evolving and currently amorphous meaning of the terms ‘bloggers’ and ‘blog.’” Rather, the court set out to determine only whether these particular parties possessed the same characteristics traditionally associated with journalists and whether the Web site possessed the characteristics of traditional news publications, issues which are determined on a case-by-case basis.
The appellate court also held that the conditional First Amendment privilege, which prevents compelled disclosure of confidential sources by newsgatherers “without a showing of need sufficient to overbalance the inhibitory effect of such disclosure upon the free flow of ideas and information which is the core object of our guarantees of free speech and press,” is available to the online journalists. The court then weighed a number of factors in determining that Apple failed to demonstrate a need sufficient to overcome the privilege.
In a victory for all users of electronic mail, the court refused to permit Apple to seek discovery from the e-mail service providers of the Web sites. Apple had sought all e-mails to the sites that referenced the terms “Asteroid” or “Q7.” The court quashed the discovery subpoenas as violations of the Electronic Communications Privacy Act, specifically, the Stored Wire and Electronic Communications and Transactional Records Access (more commonly known as the Stored Communications Act). Civil litigants cannot subpoena stored email from service providers, the court said:
It would hardly be irrational of Congress to deflect such hazards by denying civil discovery of stored messages and relegating civil litigants to such discovery as they can obtain from or through their adversaries. On the contrary, Congress could reasonably conclude that to permit civil discovery of stored messages from service providers without the consent of subscribers would provide an information windfall to civil litigants at too great a cost to digital media and their users. Prohibiting such discovery imposes no new burden on litigants, but shields these modes of communication from encroachments that threaten to impair their utility and discourage their development. The denial of discovery here makes Apple no worse off than it would be if an employee had printed the presentation file onto paper, placed it in an envelope, and handed it to petitioners.
Because of its resounding reaffirmation of free speech principles, this case is thought to be a major victory for all members of the media, regardless of format.
For more information, e-mail Judith F. Bonilla at judith.bonilla@hklaw.com or call toll free, 1-888-688-8500.