Apple ordered to pay legal fees for bloggers

Tuesday, January 30, 2007

A California court made it clear to Apple that if the company wanted to find out who leaked details of an in-development product to bloggers, they'd actually have to do it legally. That lesson cost the company almost $700,000 in legal fee reimbursement.

This drama begins in 2004, when Mac fan sites AppleInsider and PowerPage reported the technological details about a product codenamed "Asteroid."

Apple sought the identity of the sources who leaked the information by filing suit against the bloggers, and subpoenaed their email records from email service provider Nfox.com. The company claimed that the reports violated California's trade secret laws.

A Santa Clara County court ordered Apple to pay the legal fees of their opponent this month, a development considered "a large moral victory for bloggers," according to Macnn.com.

The case brought up several important questions related to the status of the blogosphere: Do bloggers qualify as journalists? Can blogs be considered news sites? Does a private company have the right to suspend the protection of journalistic sources guaranteed by the First Amendment?

Though the court didn't actually qualify the bloggers as journalists, it was assumed that they were journalists for purposes of opinion, according to the Electronic Frontier Foundation, who headed up the defense.

The EFF also convincingly maintained, based on the expert opinion of Professor Thomas Goldstein, former Dean of the Columbia University Graduate School of Journalism and of the University of California at Berkeley Graduate School of Journalism, that AppleInsider and PowerPage qualified as legitimate online news sites:

The publishers, editors and authors connected with Power Page and Apple Insider are engaged in trade journalism, bringing news to hundreds of thousands of visitors per month.

Further, Apple was prevented from accessing the email records of the defendants under the federal Stored Communications Act, which forbids ESPs from disclosing the contents of customers' emails and other electronic communications to private parties.

Though Apple claimed it had a right to protect its trade secrets, the EFF responded that the case wasn't about business rights, but about the means by which Apple can seek evidence. Subpoenaing journalist sources is not an acceptable means of discovery.

EFF opposes Apple's discovery because the confidentiality of the media's sources and unpublished information are critical means for journalists of all stripes to acquire information and communicate it to the public.

Because today's online journalists frequently depend on confidential sources to gather material, their ability to promise confidentiality is essential to maintaining the strength of independent media. Furthermore, the protections required by the First Amendment are necessary regardless of whether the journalist uses a third party for communications.