NEWS MEDIA UPDATE · CALIFORNIA · Confidentiality/Privilege · May 30, 2006
Court applies reporter’s privilege to Web site operator
May 30, 2006 · The operators of a Web site are protected by the California reporter’s shield law even though the party seeking information from them claimed the site does not constitute “legitimate” journalism, a state appellate court ruled Friday.
“The shield law is intended to protect the gathering and dissemination of news,” Presiding Justice Conrad L. Rushing wrote for a unanimous three-judge panel for the California Court of Appeal in San Jose. “We can think of no workable test or principle that would distinguish ‘legitimate’ from ‘illegitimate’ news.”
In applying California’s shield law to the journalists, the court overturned a trial court’s decision which implied that the state’s reporter’s privilege law did not apply when trade secrets are at issue.
The appellate court decision could affect “any journalist who is engaged in business reporting, trade journalists, or even a sports reporter who might get an inside tip about what’s happening on a sports team,” said Kurt Opsahl, staff attorney at the Electronic Frontier Foundation, which represented the journalists.
“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 because it protects the free flow of information to the press and from the press to the public,” he said.
In December 2004, Apple Computer Inc. sued 25 unknown individuals, presumably Apple employees, who may have leaked information about an Apple product that would allow musical instruments to be connected to the computer for recording. Details about the product, which had not yet been put on the market, appeared on O’Grady’s PowerPage, an online magazine which publishes news and information about Apple computers, and Mac News Network and Apple Insider, online magazines focusing on Apple products.
Apple subpoenaed Nfox.com, which hosted the journalists’ e-mail accounts and Nfox.com Owner Karl Kraft. Apple also subpoenaed journalists Jason O’Grady, owner of PowerPage, Monish Bhatia, publisher of Mac News Network, and Kasper Jade, the pseudonymous publisher, editor and writer for Apple Insider, all of whom claimed protection by the California reporter’s shield law and the reporter’s privilege provided by the First Amendment.
The trial court ruled that the privilege does not protect those who violate criminal laws such as the dissemination of trade secrets and found that Apple’s subpoena upon the e-mail server of journalists — in order to discover the source — was valid because the information published was confidential.
In reversing the trial court decision, the appellate court found that California’ shield law applied even though the journalists repeatedly linked back to their source material — the supposedly confidential Apple materials.
“Courts ought not to cling too fiercely to traditional preconceptions, especially when they operate to discourage the seemingly salutary practice of providing readers with source materials rather than subjecting them to the editors’ own ‘spin’ on a story,” Rushing wrote.
The court reasoned that the nature of online magazines lends itself to a different publication model than traditional magazines. For example, instead of weekly or monthly publication dates, online magazines are updated at any and all times. But these differences do not prevent the online magazine from enjoying the protection of the reporter’s shield as a “periodical publication,” the court ruled.
“It seems likely that the Legislature intended the phrase ‘periodical publication’ to include all ongoing, recurring news publications while excluding non-recurring publications such as books, pamphlets, flyers and monographs,” Rushing wrote. “If the Legislature was prepared to sweep that broadly, it must have intended that the statute protect publications like the petitioners’, which differ from traditional periodicals only in their tendency, which flows directly from the advanced technology they employ, to continuously update their content.”
The court also ruled that the journalists are protected by the First Amendment mainly because Apple did not exhaust all other alternatives to discover who leaked its confidential information. Instead of making its employees testify under oath that they did not give out the information, Apple instead went directly to the journalists.
“In sum, Apple has failed to demonstrate that it cannot identity the sources of the challenged information by means other than compelling petitioners to disclose unpublished information,” Rushing wrote.
The court also ruled that Apple could not subpoena the journalists’ e-mail servers in order to retrieve their confidential source information.
The appellate court “got rid of a dangerous ruling that seemed to suggest that a journalist could lose some of their protection by using a third-party e-mail provider,” Opsahl said. “What would be the point of protecting confidential sources if you could just go around the journalist and ask their e-mail service?”
The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief on behalf of the journalists.
(O’Grady v. Superior Court of Santa Clara County, Media Counsel: Kurt Opsahl and Kevin Bankston, Electronic Frontier Foundation, San Francisco) — CM