Court rules that web site authors are journalists too.

LawReader Analysis.    On May 26, 2006, the California court of Appeals held that internet writers and publishers was entitled to the same statutory and constitutional protections provided to Journalists working for newspapers.   This case involved an attempt by Apple Computer company to obtain discovery of internet publishers sources in the face of the California Press Shield Law.

 It should be noted that the California Press Shield Law is more comprehensive than the Ky. Law, but the issue that is important about this decision is it is one of the first (if not the only) court reviews of the difference between internet writers and traditional journalists and it’s conclusion that web site journalists are real journalists.

The California court held that internet publishers enjoy the same protection under the Press Shield Law as more traditional journalists.  This decision noted:

“… petitioners’ Web sites are highly analogous to printed publications: they consist predominantly of text on “pages? which the reader “opens,? reads at his own pace, and “closes.? 

“…we can see no sustainable basis to distinguish petitioners from the reporters, editors, and publishers who provide news to the public through traditional print and broadcast media. It is established without contradiction that they gather, select, and prepare, for purposes of publication to a mass audience, information about current events of interest and concern to that audience.?

“We agree …with petitioners’ (web site authors) arguments, that petitioners are reporters, editors, or publishers entitled to the protections of the constitutional privilege.?

“If their activities and social  function differ at all from those of traditional print and broadcast journalists, the distinctions are minute, subtle, and constitutionally immaterial.?

“(The) Amicus Internet Technology Industry Council (ITIC)… notes that the internet has “contribute[d] to dramatic increases in business productivity.?

      According to the reasoning in Apple v. Does, the mere fact that a story is published on the internet as opposed to be printed in a newspaper is not a sufficient basis to deny them the protections enjoyed by traditional publishers.

Kurt Opsahl, an attorney for the Electronic Frontier Foundation, “What makes a journalist a journalist is not the format. If you’re engaged in journalism, you’re a journalist. You have to look beyond the medium selected.”
                      Selected Excerpts from Apple v. Does

May 26, 2006

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
JASON O’GRADY et al.,
Petitioners,
v.
THE SUPERIOR COURT OF SANTA
CLARA COUNTY,
Respondent;
APPLE COMPUTER, INC.,
Real Party in Interest.

“Digital communication and storage, especially when coupled with hypertext
linking, make it possible to present readers with an unlimited amount of information in connection with a given subject, story, or report. The only real constraint now is time—the publisher’s and the reader’s. From the reader’s perspective, the ideal presentation probably consists of a top-level summary with the ability to “drill down? to source materials through hypertext links.?

“D. Covered Publications
We come now to the difficult issue, which is whether the phrase “newspaper,
magazine, or other periodical publication? (Cal. Const., art. I, § 2, subd. (b)) applies to Web sites such as petitioners’. Again, Apple offers little if any argument concerning the construction to be given this language, beyond the general notion that it should not extend to petitioners.

“As potentially applicable here, the phrase, “newspaper, magazine, or other
periodical publication? (Cal. Const., art. I, § 2, subd. (b); Evid. Code, § 1070, subd. (a)) is ambiguous. The term “newspaper? presents little difficulty; it has always meant, and continues to mean, a regularly appearing publication printed on large format, inexpensive paper. The term “magazine? is more difficult. Petitioners describe their own sites as “magazines,? and Apple offers no reason to take issue with that characterization. The term “magazine? is now widely used in reference to Web sites or other digital publications of the type produced by petitioners. Thus a draft entry in the Oxford English Dictionary defines “e-zine? as “[a] magazine published in electronic form on a computer network, esp. the Internet. “

“ Although most strongly associated with special-interest fanzines only available online, e-zine has been widely applied: to regularly updated general-interest web sites, to electronic counterparts of print titles (general and
specialist), and to subscription-only e-mail newsletters.?19

Similarly, an online dictionary of library science defines “electronic magazine? as “[a] digital version of a print magazine, or a magazine-like electronic publication with no print counterpart (example: Slate), made available via the Web, e-mail, or other means of Internet access.?20   And a legal encyclopedia notes that “[a]s with newspapers, the nature of magazines has changed because of the internet. Magazines may be published solely on the internet, or as electronic adjuncts of a print magazine.? (58 Am.Jur.2d (2002) Newspapers, Periodicals, and Press Associations, § 5, p. 11, fn. omitted.)

Of course, in construing an ambiguous statute, courts will “attempt to ascertain the
Legislature’s purpose by taking its words ‘ “ ‘in the sense in which they were understood at the time the statute was enacted.’ ? ’ ? (Resure, Inc. v. Superior Court (1996) 42 Cal.App.4th 156, 164, quoting People v. Fair (1967) 254 Cal.App.2d 890, 893, italics added; see People v. Williams (2001) 26 Cal.4th 779, 785.) The term “magazine? was added to Evidence Code section 1070 in 1974, as was “or other periodical publication.? (Stats. 1974, ch. 1456, § 2, p. 3184.) “

“Presumably the Legislature was not prescient enough to have consciously intended to include digital magazines within the sweep of the term. By the same token, however, it cannot have meant to exclude them. It could not advert to them at all because they did not yet exist and the potential for their existence is
not likely to have come within its contemplation.

However, even were we to decide—which we do not—that Web sites such as
petitioners’ cannot properly be considered “magazines? for purposes of the shield law, we would still have to address the question whether they fall within the phrase “other periodical publications.? That phrase is obviously intended to extend the reach of the statute beyond the things enumerated (newspapers and magazines). The question is how to delineate the class of unspecified things thus included within the sweep of the law.

But petitioners’ Web sites are highly analogous to printed publications: they consist predominantly of text on “pages? which the reader “opens,? reads at his own pace, and “closes.? The chief distinction between these pages and those of traditional print media is that the reader generally gains access to their content not by taking physical possession of sheets of paper bearing ink, but by retrieving electromagnetic impulses that cause images to appear on an electronic display.22

Thus, even if there were evidence that the Legislature intended the term “publication? in this narrower sense, it would be far from clear that it
does not apply to petitioners’ Web sites. Thus the online library science dictionary to which we have previously adverted defines “electronic publication? to include Web sites.23?

“We conclude that petitioners are entitled to the protection of the shield law, which precludes punishing as contempt a refusal by them to disclose unpublished information.?

“…we can see no sustainable basis to distinguish petitioners from the reporters, editors, and publishers who provide news to the public through traditional print and broadcast media. It is established without contradiction that they gather, select, and prepare, for purposes of publication to a mass audience, information about current events of interest and concern to that audience.?
“We agree with these implied concessions, and with petitioners’ arguments, that petitioners are reporters, editors, or publishers entitled to the protections of the constitutional privilege.29?

 “If their activities and social  function differ at all from those of traditional print and broadcast journalists, the distinctions are minute, subtle, and constitutionally immaterial.?

“(The) Amicus Internet Technology Industry Council (ITIC)… notes that the internet has “contribute[d] to dramatic increases in business
productivity. Accordingly, ITIC and its members strongly favor policies that protect the flow of free speech across the Internet.?
 
________________________________________
Bloggers can shield sources, court rules  In setback for Apple, Internet journalists are protected by law
Ellen Lee, Chronicle Staff Writer  Saturday, May 27, 2006
 
•In a decision that could set the tone for journalism in the digital age, a California appeals court ruled Friday that bloggers, like traditional reporters, have the right to keep their sources confidential.

A panel of three judges said in a 69-page decision that a group of bloggers did not have to divulge their sources to Cupertino’s Apple Computer Inc., contending that the same laws that protect traditional journalists, the First Amendment and California’s Shield Law, also apply to bloggers.
Siding with the Electronic Frontier Foundation, a high-tech legal group that had filed the appeal, the judges said that Apple could not force the bloggers to reveal the identity of the person — presumably an Apple employee — who had leaked details about a digital-music-related project code-named “Asteroid” to a number of bloggers. The details of the product release were published on several Web logs, Internet sites commonly referred to as blogs, including Jason O’Grady’s PowerPage, which reports on Apple news.

“This was a huge win for the First Amendment and for journalists who publish online,” said Lauren Gelman, associate director for Stanford’s Center for Internet and Society, who filed a brief supporting the Electronic Frontier Foundation. “The court recognized that in the modern era, one way journalists publish information is through the Internet.”

The decision by the state Court of Appeal in San Jose, which reverses a ruling by the Santa Clara County Superior Court, speaks to changes in the way news is gathered and published. Anyone with a computer and an Internet connection can now be a reporter. It also means that information, not limited by region or resources, can reach far and wide via the Web.

In their ruling, the judges said the online news sites should be treated as newspapers, television and radio broadcasts are. O’Grady and the other bloggers, they contended, were acting as traditional reporters and editors do: developing sources, collecting information and publishing it, albeit on the Web.
“The shield law is intended to protect the gathering and dissemination of news, and that is what the petitioners did here,” the judges said in the ruling.
Apple had initially argued that the bloggers shouldn’t be considered journalists. The maker of the popular iPod digital music player, along with other Bay Area high-tech companies such as Intel Corp. and Genentech, also were concerned that the Internet had made it easy for the bloggers to make their trade secrets public, potentially giving their competitors an edge and harming their business.

But Kurt Opsahl, an attorney for the Electronic Frontier Foundation, said the companies can still protect their businesses but cannot use reporters as their first resort to expose a leak.

“The court upheld strong protections for the free flow of information to the press and from the press to the public,” Opsahl said.
In addition, the judges ruled that, in the digital age, bloggers’ e-mails should also be protected, just like a telephone call or written document. Apple had not sued the bloggers directly but had tried to subpoena their Internet service provider, which had access to the e-mails sent between the confidential source and the bloggers. The Electronic Frontier Foundation, representing the bloggers, intervened.
In the end, the judges made little distinction between online journalists and traditional journalists.

“Does Walter Cronkite stop being a journalist if he blogs for the Huffington Post (an online news site)?” Opsahl said. “What makes a journalist a journalist is not the format. If you’re engaged in journalism, you’re a journalist. You have to look beyond the medium selected.”
George Riley, an outside attorney representing Apple, declined to comment. Apple did not return calls for comment. It was not clear whether the company would appeal.

                            The Kentucky Press Shield Law is not as extensive as the California law.
.
KRS 421.100 Newspaper, radio or television broadcasting station personnel need not disclose source of information.

No person shall be compelled to disclose in any legal proceeding or trial before any court,

or before any grand or petit jury, or before the presiding officer of any tribunal, or his

agent or agents, or before the General Assembly, or any committee thereof, or before any

city or county legislative body, or any committee thereof, or elsewhere, the source of any

information procured or obtained by him, and published in a newspaper or by a radio or television broadcasting station by which he is engaged or employed, or with which he is connected.

Effective: June 19, 1952

Comments are closed.