Who's a journalist? Now we know, thanks to Apple

by Charles Cooper , Executive editor, CNET News.com | Published: 5/26/06

CNET News.com's Charles Cooper says the court decision officially levels the field between mainstream media and bloggers.

===========

The emergence of technology that allowed personal publishing on the Internet also triggered a tiring debate over who should be considered a journalist. Thanks to Apple Computer, there's finally a clear legal answer.

And it's the right answer. If you can post information on a Web site, you're entitled to the same legal protections the law extends to the mainstream media.

Legal scholars will surely have a lot more to say about the California Appeals Court ruling (click here for PDF) rejecting Apple's bid to force an enthusiast Web site to turn over its records. But the most important precedent for me was the court's treatment of the "who is a journalist question."

Apple had sought to identify the source of a leak on an unannounced product. More than any other outfit in Silicon Valley, this company is run by control freaks prone to throwing tantrums when reporters land scoops. But when the information wound up published on a couple of Apple enthusiast sites, management ordered up the heavy artillery. Journalists--including everyone from the ink-stained wretches to the bloggers--can rest just a bit easier today.

Apple lawyers contended that posting information on the Web should not automatically confer the vaunted title of journalist since these folks "are not members of any professional community governed by ethical and professional standards" (like those of Jayson Blair, Janet Cook, Stephen Glass and Jack Kelley, I wonder? But let's not digress).

It was a legal Hail Mary, and it very nearly worked. In his ruling last March, Santa Clara County Superior Court Judge James P. Kleinberg danced around the question of whether Web site publishers should be afforded protection under the state's shield law. He also said that Apple's interests in protecting its trade secrets outweighed the public interest in the information under consideration. Had it held up, that screwball view of the world would have been a blow to aggressive reporting.

Apple claimed the public has no right to know a company's trade secrets. But the appellate court said any claim of legal protection for commercial secrets was trumped by the greater good served by the free and open disclosure of ideas and information.

"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. Labeling such matters 'confidential' and 'proprietary' cannot drain them of compelling public interest," the court said.

Best of all, the appellate court dispatched Apple's "dismissive" (the court's description, not mine) characterization of the tech industry gossip sites in question with a flick of its judicial wrist. Further, it determined that there was no reason to distinguish between these folks and the sundry "reporters, editors and publishers who provide news to the public through traditional print and broadcast media."

Future courts reading this decision may be more careful before declaring what information is worthy of publication and what information is not. Whether this puts a final coda on this affair is anyone's guess. The company has bigger fish to fry, but corporate paranoia is a tough trait to break. Even if Apple's lawyers do give it another try, however, journalists--including everyone from the ink-stained wretches to the bloggers--can rest just a bit easier today.

Sometimes the courts don't get it right. Today they did.

======================================= APC Forum is a meeting place for the APC community - people and institutions who are or have been involved in collaboration with APC, and share the APC vision - a world in which all people have easy, equal and affordable access to the creative potential of information and communication technologies (ICTs) to improve their lives and create more democratic and egalitarian societies.

_______________________________________________ apc.forum mailing list apc.forum@lists.apc.org http://lists.apc.org/mailman/listinfo/apc.forum