Ruling Against Internet Journalism Has Serious Implications

By James Donahue

March 2005

A preliminary ruling in a California case filed by Apple Computers against three Internet blog-sites may have far-reaching implications affecting information sources via the World Wide Web.

In the ruling a Superior Court judge said that bloggers should not have the same protection afforded to journalists under the law.

If the ruling stands, the three blog sites, PowerPage, Apple Insider and Think Secret may be required to reveal to Apple the source of information obtained about products before they were released to the public.

It could mean that information sources for all Internet writers will quickly dry up since writers for these sites will no longer be able to guarantee confidentiality to their informants under the same laws protecting American journalists.

The problem with this ruling is that American journalists are moving from paper print to electronic media outlets. Studies have shown that most people under 30 are acquiring their news via the Internet instead of bothering to read newspapers and magazines.

Because the mainstream journalists are failing to do their job, many people say they no longer trust the news they get from their daily newspaper or even on regular broadcast television. They turn, instead, to the Internet, where investigative journalism is still at work, for information.

Thus it is to be said that the Internet is where the real journalists are working. To single out this new crop of independent online writers as “unprotected” for doing the very same work that writers for established newspapers and television stations should be doing is wrong and unfair.

Journalists in the United States have never enjoyed a “professional” status. They are not licensed to do what they do, and gain their skills by either working under the guidance of skilled writers or attending journalism school. Either way, the skill of collecting information and turning it into a news story is learned the same way.

Where trained journalists choose to work does not change what they are. Thus a court ruling saying an online writer is not as protected under the law as a newspaper writer does not make sense.

If allowed to stand, the ruling threatens the future of Internet news and information. It would mean that every net service provider could be ordered by a court to hand over sources of information used in controversial stories leading to potential litigation.

While it is true that many stories published on Internet blog sites are false, poorly written and misleading, it should be up to the individual readers to determine fact from fiction, not the courts. The Internet remains our last bastion for free expression and should be preserved as such at all costs.

The courts have also been trying in recent years to force journalists in well established publications to reveal their sources. It has been common to hear of writers that choose to go to jail rather than divulge the names of informants that leaked vital information for a news story.

Any reporter that has worked a beat for very long knows that his or her success on the job depends on an ability to gain the confidence of reliable informants who will be protected. Whispered “tips” in the hallway and calls in the night have always been a hallmark of a working journalist’s life.

Without building trusted news sources, the result is “canned” news releases fed by government public relations people that are printed verbatim. Getting the facts behind the news is what real journalism is all about.

I recall one of the few times that a judge attempted to force me to reveal my source of a news story I wrote involving the judge. I was tipped off about a special meeting of the county board of commissioners, with the judge, that was supposed to be held behind closed doors early in the morning, prior to the board’s regular meeting. I tried to attend and found myself locked out.

Because of the tip, I knew the judge was putting undo pressure on the board to get himself a large pay raise. Before the day was out I managed to weasel details of that meeting from several board members and wrote my story. When the judge sent a letter ordering me to reveal my sources, I turned the letter over to my editor, who, in turn, sent it to legal counsel. We stood up to that judge and he backed down.

In the meantime, once the secret was out, the board found the courage to also stand up to him and denied his demands for his raise. The following year the judge ran for re-election and was booted by voters out of office.

This is the kind of journalism that is sorely needed in America. I fear that there are too few writers and editors left with the courage to do their work the way it should be done, and fight the courts in the way they need to be fought.

The preliminary ruling in the California case was sparked by an effort by The Electronic Frontier Foundation (EFF) to block the Apple case against the three blog sites. The ruling, while tentative, is an ominous early indication of which way the court is leaning.

“Given that so many journalists correspond with their sources via e-mail, this would severely undermine those journalists’ abilities to guarantee their sources any kind of confidentiality,” EFF representative Annalee Newitz said in one report.

The EFF has argued that writing for websites that act as "unofficial" news sources, should get the same First Amendment and California Shield Law protection as “professional” journalists.

The law is designed to protect journalists from being forced to reveal the names of sources or supply unpublished materials, if the matter reported is in the public's interest.