Protecting sources: What if Apple had sued British bloggers?

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".