Apple Lawsuit Challenges Legitimacy of Website Journalism

Electronic Frontier Foundation attorney Kurt Opsahl: "If the court rules against us, and it does so on the basis that [PowerPage and AppleInsider] were printed in pixels instead of ink, then that should be of grave concern to any online journalist."

This week a Santa Clara County Superior Court judge in California is deciding whether or not Apple Computer can force journalists from Apple enthusiast websites PowerPage and AppleInsider to disclose their confidential sources to Apple attorneys. Apple says it needs the names of those who provided information about Apple's yet-to-be launched audio product, Asteroid, so it can sue them for violation of trade secret agreements. The Electronic Frontier Foundation (EFF), which is representing the websites, said Apple has also subpoenaed Nfox, the Internet service provider (ISP) for PowerPage. They are demanding that the ISP turn over the communications and unpublished materials PowerPage obtained while gathering information for articles about Asteroid.

Aren't journalists protected under First Amendment and other laws that allow them to protect their sources? Indeed, EFF lawyers say PowerPage and AppleInsider's confidential sources and unpublished material are protected by both the reporter's shield in the California constitution, and reporter's privilege under the federal First Amendment.

The EFF says the court is also determining whether "online reporters are legitimate journalists," although it acknowledges that, for most of the hearing, the judge has assumed that they were journalists and examined whether the reporter's shield should apply in this case. Under the First Amendment, the reporter's privilege is qualified - it does not protect reporters under all circumstances. At issue now is whether Apple has overcome this qualified privilege by demonstrating that its need for the information is greater than the need to protect the confidentiality of these journalists' sources.

If the journalists must surrender their sources so that Apple can sue those who gave them their scoops on the Asteroid story, this raises serious concerns. Will Apple and other companies then have the legal precedent to force online publications to disclose their sources when they publish pre-launch product information? Will readers of famous Web publishing mediums be restricted from offering their readers exclusive reporting due to the threat of a lawsuit hanging over the heads of their sources? Will any "Deep Throat" source be willing to talk after this?

"If the court rules against us and it does so on the basis that these publications were printed in pixels instead of ink, then that should be of grave concern to any online journalist," says Kurt Opsahl, an attorney for the EFF. "I would imagine that [Tom's Hardware] would be particularly concerned about this, because you are reviewing hardware products and it is just the sort of publication that might face a situation like that of AppleInsider and PowerPage."