What's the difference between "legitimate" journalism and online journalism? Not much, according to a recent decision of the California Court of Appeal.
In a sweeping victory for online journalists, three justices of the Sixth District in Northern California unanimously ruled that publishers of websites are entitled to the same legal protections enjoyed by traditional media. (Although the court's opinion is long, for the most part it's not difficult reading, and it can be found
here. Unless otherwise indicated, quotes in this post are from the court's opinion.)
The case saw computer giant Apple suing a website,
PowerPage, in order to discover the sources who leaked secret information to the website. The website used the information to publish news stories about Apple's secret plans to release a device for creating digital live sound recordings.
The website's publishers argued that California's shield law, and the First Amendment, entitled them to a protective order to protect their sources. The trial court sided with Apple. The Court of Appeal didn't.
The Court of Appeal rejected the idea that there is "legitimate journalism" and instead looked to what the website and the online journalists did. The court ruled that the website publishers were entitled to a protective order because the website is a publication, the people posting information on the site are journalists, and both the site and the online journalists are protected by the same shield laws that protect traditional journalists.
The court's decision involved a website, as opposed to a blog, and the court declined to base its decision on any distinction between the two. (See Opinion, pp. 45-46, fn. 21.) The court's decision is so broad that whatever format distinctions exist between blogs and websites ought to make no legal difference when deciding whether a blog would be entitled to the same protections as traditional media.
The key question in any case involving online news publication will revolve around whether the online publisher is engaged in the gathering and dissemination of news. As the court explained:
"... like any newspaper or magazine, they operated enterprises whose raison d’etre was the dissemination of a particular kind of information to an interested readership. Toward that end, they gathered information by a variety of means including the solicitation of submissions by confidential sources. In no relevant respect do they appear to differ from a reporter or editor for a traditional business-oriented periodical who solicits or otherwise comes into possession of confidential internal information about a company. Disclosure of that information may expose them to liability, but that is not the question immediately of concern; the point here is that such conduct constitutes the gathering and dissemination of news, as that phrase must be understood and applied under our shield law." (Opinion, p. 39, emphasis added.)
No doubt Apple will petition the California Supreme Court to take the case and rule differently. They have their corporate interests to protect. In the meantime, if you are gathering information and disseminating it on the internet, you've got an argument that you are a real journalist, as legitimate as any newspaper or magazine writer. The democratization of the news continues.
-tdr
Here are some choice quotes from the court's opinion:
Rejecting Apple's argument and the trial court's conclusion that the website did not practice "legitimate journalism," the Court of Appeal said this:
"We decline the implicit invitation to embroil ourselves in questions of what constitutes 'legitimate journalis[m].' The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here. We can think of no workable test or principle that would distinguish 'legitimate' from 'illegitimate' news. Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment, which is to identify the best, most important, and most valuable ideas not by any sociological or economic formula, rule of law, or process of government, but through the rough and tumble competition of the memetic marketplace." (Opinion, p. 36.)
The Court of Appeal also rejected Apple's argument that the website did not do "legitimate journalism" because it simply published secret documents without editing.
"Apple asserts that petitioners merely reprinted 'verbatim copies' of Apple’s internal information while exercising 'no editorial oversight at all.' But this characterization, if accepted, furnishes no basis for denying petitioners the protection of the statute. A reporter who uncovers newsworthy documents cannot rationally be denied the protection of the law because the publication for which he works chooses to publish facsimiles of the documents rather than editorial summaries. The shield exists not only to protect editors but equally if not more to protect newsgatherers. The primacy Apple would grant to editorial function cannot be justified by any rationale known to us."
Now here's the really good part where the Court turns Apple's argument on its head.
"Moreover, an absence of editorial judgment cannot be inferred merely from the fact that some source material is published verbatim. It may once have been unusual to reproduce source materials at length, but that fact appears attributable to the constraints of pre-digital publishing technology, which compelled an editor to decide how to use the limited space afforded by a particular publication. This required decisions not only about what information to include but about how to compress source materials to fit. In short, editors were forced to summarize, paraphrase, and rewrite because there was not room on their pages to do otherwise.
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. The decision whether to take this approach, or to present original information at the top level of an article, is itself an occasion for editorial judgment. Courts ought not to cling too fiercely to traditional preconceptions, especially when they may operate to discourage the seemingly salutary practice of providing readers with source materials rather than subjecting them to the editors’ own 'spin' on a story." (Opinion, p. 37, emphasis added.)
Here's another smackdown:
"Beyond casting aspersions on the legitimacy of petitioners’ enterprise, Apple offers no cogent reason to conclude that they fall outside the shield law’s protection. Certainly it makes no attempt to ground an argument in the language of the law, which, we reiterate, extends to every 'publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication.' (Cal. Const., art. I, § 2, subd. (b).) We can think of no reason to doubt that the operator of a public Web site is a 'publisher' for purposes of this language; the primary and core meaning of 'to publish' is '[t]o make publicly or generally known; to declare or report openly or publicly; to announce; to tell or noise abroad; also, to propagate, disseminate (a creed or system).' (12 Oxford English Dict. (2d ed. 1989) pp. 784-785.) Of course the term 'publisher' also possesses a somewhat narrower sense: 'One whose business is the issuing of books, newspapers, music, engravings, or the like, as the agent of the author or owner; one who undertakes the printing or production of copies of such works, and their distribution to the booksellers and other dealers, or to the public. (Without qualification generally understood to mean a book-publisher or (in the U.S.) also a newspaper proprietor.)' (Id. at p. 785, first italics added.) News-oriented Web sites like petitioners’ are surely 'like' a newspaper or magazine for these purposes. (Opinion, pp. 39-40.)
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