The Apple case against thinksecret as told from the bloggers perspective – the self-professed journalist.
The Internet age has heralded something of a journalistic free-for-all. There are now millions of "bloggers" around the world, and while much of their material is utterly unreliable, some of it is beginning to rival the traditional media for attention.
But fame comes at a price, and some of the more ambitious amateur hacks are finding they are not immune from the kind of legal tangles that have plagued traditional journalists for years. Nick Ciarelli, a 19-year-old blogger from the US, is the latest to find himself at the receiving end of some unwelcome legal attention. Despite his youth, he has made a name for himself as a source of reliable information about future product launches from Apple computers.
Ciarelli, who styles himself "Nick dePlume" on his weblog, thinksecret.com, broke the news about Apple's world beating music player, the iPod, a week before it was launched in 2001. More recently, he announced that Apple was producing a pared down computer, the Mac mini, shortly before it was released. His activities have clearly antagonised Apple, which has issued legal proceedings against him in an attempt to discover the identity of his sources. In response, he claims he is a journalist and proposes to assert a journalist's right not to reveal his sources. Apple won the first round of this legal battle at the end of last week when a Californian judge ruled that online publishers could be forced to reveal their sources.
The case raises the question of who, in the age of the Internet, can properly be described as a journalist and rely on the special legal protections journalists enjoy. In its legal action, Apple states that Ciarelli's Website illegally solicits its employees to violate confidentiality agreements by disseminating secret company information. In the US, as in Britain, where breach of confidence can be shown, the law requires any person receiving secret information to disclose who provided it, so appropriate action can be taken. Apple wants Ciarelli to disclose his contacts.
However, journalists enjoy a privileged position: the First Amendment gives considerable protection to reporters who want to protect their sources. Ciarelli claims this protection should be applied to him. "I employ the same legal newsgathering practices used by any other journalist," he has said. "It is crucial that a reporter has the ability to maintain the confidentiality of his or her sources."
The difficulty is whether a Web blogger should avail himself of this benefit. Some say that since Web contributors are not obliged to obey the same code of ethics as print or broadcast journalists, they should not get the same privileges. Although blogs have had some notable exclusives (the notorious Drudge Report blog first revealed Bill Clinton's relationship with Monica Lewinsky), much on there is wholly unreliable and there appears little comeback for such inaccuracies. There have also been some well-publicised episodes of celebrated bloggers being surreptitiously paid for their endorsement, for example, of a political candidate. This uncontrolled Web reporting cannot be considered in the same category as traditional journalism, the critics say. Moreover, if simply posting material on the Internet was sufficient to invoke the protection, surely any malevolent company could procure sensitive and secret information from a rival but be excused the obligation of telling who provided it by placing a few pages on the Web.
British journalists also enjoy a number of legal advantages over ordinary mortals including a degree of protection regarding sources. A reporter (or indeed anyone) may not have to disclose "the source of information contained in a publication for which he is responsible". This would seem broad enough to cover ad hoc Internet blogs as well as more traditional and recognised media. However, this protection can be set aside if it is in "the interests of justice" to do so. A court is much more likely to consider this to be the case with an Internet blog than with a journalist on a reputable newspaper.
Another important and relatively new protection for journalists is in defamation law. In the past few years the traditional defence of qualified privilege has been developed so that journalists may have a defence to a libel action for a story if its publication was in the public interest and they employed responsible journalism (in terms of checking out the facts and putting the allegation to the victim) in its preparation. However, the courts have taken a restrictive line with this defence, requiring a high standard of journalistic professionalism before allowing it to succeed. It seems unlikely that a court would see most Web bloggers as sufficiently rigorous for the defence ever to apply to them.
Journalists also enjoy some exemption from the provisions of the Data Protection Act. This complex piece of legislation governs the use of information relating to living people. It limits what can be done with such information and gives individuals a right to access information being held about them. However, information being processed with a view to the publication of journalistic material is largely free from these onerous conditions. What constitutes "journalistic material" for these purposes is so far untested in the courts. Nonetheless, it is not at all clear that bloggers would qualify for this protection and they may find themselves much more subject to the Act's provisions than a traditional journalist.
Another legal area where the media have special protection is copyright. It is not a breach of copyright to reproduce material fairly (not including photographs) for the purposes of reporting current affairs. Here bloggers may rank much more equally with traditional journalists. Provided the blogger used the material fairly and for reporting news, there seems no reason why the defence should not apply.
Ironically, one blogger in the UK, Joe Gordon, who was sacked from Waterstones after criticising the firm on his blog, is claiming that his Website cannot be compared to a newspaper or magazine and so he should not be treated as though he had taken his revelations to the media.
However, most bloggers would like to benefit from the legal privileges accorded to journalists. The courts will face a tension: they want to ensure that these protections are the quid pro quo for responsible journalism, but will not want them to be seen necessarily as for the benefit of an exclusive club of traditional print and broadcast media organisations. If bloggers want to rely on any of these protections, they would be well advised to think carefully (and to set out on their blog) the standards of journalistic professionalism they propose to adhere to. If they do not, the courts are unlikely to see them as journalists.
· Dan Tench is the head of public law and a media partner at Olswang