Appeals Court Upholds Journalistic Rights of Internet News Publishers

Tuesday, May 30, 2006

Page 3

Appeals Court Upholds Journalistic Rights of Internet News Publishers

By a MetNews Staff Writer

Publishers of news internet sites are protected by California’s reporter’s shield and state and federal free speech guarantees from having to divulge sources of alleged corporate trade secret information published on their sites, the Sixth District Court of Appeal ruled Friday.

The court reversed the order of Santa Clara Superior Court Judge James Kleinberg denying motions for protective orders filed by the operators of two sites.

“We decline the implicit invitation to embroil ourselves in questions of what constitutes ‘legitimate journalis[m].’ The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here,” Presiding Justice Conrad Rushing, writing for the court, said.

Beginning in November 2004 the web sites “O’Grady’s PowerPage” and “Apple Insider” began publishing articles about a rumored new Cupertino-based Apple Computers, Inc. product known as Asteroid or Q97. The articles described a product which would allow the creation of digital live sound recordings on Apple computers.

Apple filed sued alleging that unknown individuals wrongfully caused the publication of it’s secret plans for the product on the internet, and sought subpoenas against the web site publishers and an e-mail provider for one of the sites in order to determine the identity of the culprits who leaked the information.

The publishers moved for protective orders pursuant state and federal free press guarantees and the reporter’s shield in the California Constitution, which provides:

“A publisher, editor, reporter, or other person connected with or employed

upon a newspaper, magazine, or other periodical publication . . . shall not be adjudged in contempt . . . for refusing to disclose the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.”

Apple argued that the web publishers were not entitled to the shield because they were not engaged in legitimate journalistic activities when they acquired the information.

Rushing disagreed, saying:

“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.”

Rushing also found that the publishers were protected by the same state and federal guarantees of free speech that apply to the more traditional press, saying:

“[W]e can see no sustainable basis to distinguish petitioners from the reporters, editors, and publishers who provide news to the public through traditional print and broadcast media. It is established without contradiction that they gather, select, and prepare, for purposes of publication to a mass audience, information about current events of interest and concern to that audience.”

The court also held that the subpoenas to the e-mail service provider cannot be enforced consistent with the plain terms of the federal Stored Communications Act.

The Electronic Frontier Foundation, whose attorneys represented the publishers, told The Associated Press that the ruling is “a huge win.”

“Today’s decision is a victory for the rights of journalists, whether online or offline, and for the public at large,” said the group’s staff attorney Kurt Opsahl, who argued the case before the court of appeal last month.

The California Newspaper Publishers Association, the American Civil Liberties Union, Genetech, Inc., and Intel Corp. were among the many organizations that filed amicus briefs.

The case is O’Grady v. Superior Court (Apple Computer, Inc.), 06 S.O.S. 2635.