Apple Computer took a number of news website operators to court
in the US to demand that they reveal the source of a product leak.
Jason O'Grady of Apple Mac news site PowerPage and others claimed
that they were protected by the California shield law, a provision
of the California Constitution which prevents journalists being
forced to reveal sources of information.
The initial case in the trial court ruled that the sources must
be revealed, but the state appeal court overturned that
decision.
While hailed as a victory for bloggers in the US, the case
highlighted the lack of any precedent in the UK on who, exactly,
qualifies for journalistic protection.
The California shield law protects "publisher, editor, reporter,
or other person connected with or employed upon a newspaper,
magazine, or other periodical publication, or by a press
association or wire service" and a "radio or television news
reporter or other person connected with or employed by a radio or
television station."
The equivalent protection for UK journalists is in the Contempt
of Court Act of 1981. It states:
"No court may require a person to disclose,
nor is any person guilty of contempt of court for refusing to
disclose, the source of information contained in a publication for
which he is responsible, unless it be established to the
satisfaction of the court that disclosure is necessary in the
interests of justice or national security or for the prevention of
disorder or crime."
So while there is no absolute protection for sources in UK law,
the court is required to judge if the request for source
identification is sufficiently in the public interest or the
interests of justice or national security to over-ride a general
presumption of source protection. Recent cases have tended to
favour the journalist's right to protect his sources.
In 1990, when Bill Goodwin was about to publish a report in The
Engineer on information that suggested that company Tetra was in
financial trouble, the company was granted an injunction preventing
the publication of the story and sought the identity of Goodwin's
source.
While the court initially backed Tetra, Goodwin appealed and
argued that the request breached his right to freedom of expression
as set out in the European Convention of Human Rights. He also
argued that the Contempt of Court Act's demand that sources be
identified in the "interests of justice" was too vague to be
practical. The court agreed, and allowed Goodwin's source to remain
anonymous.
In a case only settled in February of this year, Mirror
freelancer Robin Ackroyd was permitted to keep his source
confidential in relation to his stories about the hunger strike of
Moors murderer Ian Brady. "It has not been convincingly established
that there is today a pressing social need that the sources should
be identified," ruled Justice Tugenhat.
John MacKenzie, a Solicitor Advocate and partner with Pinsent
Masons, the law firm behind OUT-LAW.COM suggests that the Contempt
of Court Act is broad enough to afford the same protections to
operators of internet news wires, blogs or other new media content.
"We have yet to see a test case against a blogger," he said. "But
the 1981 legislation was future-proofed by being written in broad
terms."
The Californian Court of Appeal's decision is being hailed as a
major victory for press freedom. "This is a victory for the rights
of journalists, be they online or offline journalists, and it's a
victory for the public at large," said Kurt Opsahl, the staff
attorney for the Electronic Frontier Foundation, the lobby group
which represented the journalists. "It protects the free flow of
information to the press and from the press to the public."
A crucial question in the case was whether or not the writers
involved deserved the protection of the California Shield Law, a
question which hinged on whether or not the sites involved could be
considered a "newspaper, magazine or other periodical
publication."
Presiding Justice Conrad Rushing described that phrase as
ambiguous, but said, "it is at least arguable that PowerPage and
[co-petitioners] Apple Insider, by virtue of their multiple staff
members and other factors, are less properly considered blogs than
they are 'e-magazines,' 'ezines,' or 'webzines'."
He took care to avoid referring to blogs in his judgment, a term
he described as having a "rapidly evolving and currently amorphous
meaning" – although his interpretation of the Shield Law hints at
protection for a blog as a periodical publication.
Though Apple argued that it had a greater right to protect
private information than the web writers had to publish it, Rushing
argued that company information was not always protected. In what
has been read as a reference to recent corporate governance
scandals such as those at Enron, the judge wrote: "As recent
history illustrates, business entities may adopt secret practices
that threaten not only their own survival and the investments of
their shareholders but the welfare of a whole industry, sector or
community."
The judgment also warned that "courts must be extremely wary
about declaring what information is worthy of publication and what
information is not".
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