Sun, May 28, 2006 - Page 11 News List

Bloggers can shield sources, court rules

NEW JOURNALISM California's `shield law' protects the gathering and dissemination of news, and that also applies for Internet journalists, a California appeal court ruled

BLOOMBERG

Apple Computer Inc can't force online journalists to disclose their sources of confidential information used for news stories, a California appeals court ruled.

Online writers are protected by the state's reporter "shield law," as well as by the First Amendment right to free speech, the state Court of Appeal in San Jose ruled on Friday, reversing a lower court decision.

Apple, maker of the iPod music player, subpoenaed the e-mail provider of Jason O'Grady, publisher of O'Grady's PowerPage, an Internet site that posted information in 2004 about an unreleased Apple product.

The ruling establishes that Web reporters have the same right to protect sources as print reporters, lawyers at the Electronic Frontier Foundation said.

The decision is a "victory for the rights of journalists, whether online or offline, and for the public at large because it protects the free flow of information to the press and from the press to the public," said Kurt Opsahl, a lawyer at the San Francisco-based EFF, a privacy-rights group which sided with the journalists.

Apple argued that O'Grady posted trade-secret information stolen from the company, and that the company's need to learn the identity of the thieves trumped California's shield law.

The court disagreed, saying 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," the appeals court said.

"Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment," the court said.

The ruling overturned a ruling in March last year by Superior Court Judge James Kleinberg in San Jose, California, saying Apple could subpoena two online news sites, the e-mail service provider for O'Grady and the publisher of a third Web site to find out the source of the leak.

Kleinberg said that the information the publishers posted was a trade secret. O'Grady appealed.

Opsahl said that the decision was also important for Internet service providers because it extends legal protections to subscribers' e-mail.

"It protects the privacy of e-mail communications, so they can't be subpoenaed in private litigation without you having an opportunity to present whatever privileges you may be entitled to," Opsahl said.

Apple argued that O'Grady and two other publishers used stolen information to publish 2004 stories on their Web sites that described an unreleased Apple product code-named "Asteroid" as an external audio device that plugs into Apple computers, allowing customers using Apple software for recording and mixing music to incorporate instruments and other audio sources.

Apple filed the lawsuit in December 2004 against unknown individuals, identified in court documents as "John Does," to find out who gave the information to the Web publishers.

Intel Corp and Genentech Inc filed papers supporting Apple, while news organizations, including Tribune Co's Los Angeles Times and Hearst Corp filed briefs supporting the online publishers.

Schuyler Moore, an intellectual property attorney at Stroock & Stroock & Lavan LLP in Los Angeles who's not involved in the case, said the ruling "is going to send shivers down corporate America."

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