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Perspective: Who's a journalist? Now we know, thanks to Apple
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And it's the right answer. If you can post information on a Web site, you're entitled to the same legal protections the law extends to the mainstream media.
Legal scholars will surely have a lot more to say about the California Appeals Court ruling (click here for PDF) rejecting Apple's bid to force an enthusiast Web site to turn over its records. But the most important precedent for me was the court's treatment of the "who is a journalist question."
Apple had sought to identify the source of a leak on an unannounced product. More than any other outfit in Silicon Valley, this company is run by control freaks prone to throwing tantrums when reporters land scoops. But when the information wound up published on a couple of Apple enthusiast sites, management ordered up the heavy artillery.
Apple lawyers contended that posting information on the Web should not automatically confer the vaunted title of journalist since these folks "are not members of any professional community governed by ethical and professional standards" (like those of Jayson Blair, Janet Cook, Stephen Glass and Jack Kelley, I wonder? But let's not digress).
It was a legal Hail Mary, and it very nearly worked. In his ruling last March, Santa Clara County Superior Court Judge James P. Kleinberg danced around the question of whether Web site publishers should be afforded protection under the state's shield law. He also said that Apple's interests in protecting its trade secrets outweighed the public interest in the information under consideration. Had it held up, that screwball view of the world would have been a blow to aggressive reporting.
Apple claimed the public has no right to know a company's trade secrets. But the appellate court said any claim of legal protection for commercial secrets was trumped by the greater good served by the free and open disclosure of ideas and information.
"As recent history illustrates, business entities may adopt secret practices that threaten not only their own survival and the investments of their shareholders but the welfare of a whole industry, sector or community. Labeling such matters 'confidential' and 'proprietary' cannot drain them of compelling public interest," the court said.
Best of all, the appellate court dispatched Apple's "dismissive" (the court's description, not mine) characterization of the tech industry gossip sites in question with a flick of its judicial wrist. Further, it determined that there was no reason to distinguish between these folks and the sundry "reporters, editors and publishers who provide news to the public through traditional print and broadcast media."
Future courts reading this decision may be more careful before declaring what information is worthy of publication and what information is not. Whether this puts a final coda on this affair is anyone's guess. The company has bigger fish to fry, but corporate paranoia is a tough trait to break. Even if Apple's lawyers do give it another try, however, journalists--including everyone from the ink-stained wretches to the bloggers--can rest just a bit easier today.
Sometimes the courts don't get it right. Today they did.
Biography
Charles Cooper is CNET News.com's executive editor of commentary.
See more CNET content tagged:
journalist, court, Apple Computer, blogger, interest
44 comments
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Companies like Apple already have the authority to monitor everything their employees say, type, and otherwise do at work (including running a search engine against, and X-raying their doo-doo, I'm sure ;) ). The bucks' have gotta stop somewhere, and this court actually saw through their ruse. I especially liked this journalist's dig at the ne'er-do-wells (Jason Blair, et al)in "traditional" media, whatever the heck that is ("Anyone who ain't pressin' Cuneform characters into clay ain't worth dirt, man!", said the reporter from the Sumerian Times :) ).
OK, so speaking of dirt, when can we expect to find out the latest-and-greatest on the 10 GHz MacBook Pro with AMD Opterons???
All the Best, on a Very Good Friday for The Rest of Us,
Joe Blow
You are not capable of journalistic integrity, objectivity, or
professionalism.
Obviously, you are predisposed to a cynical and borderline
hating attitude towards Apple the company.
Ergo, because they are the plaintiff in this suit, you automatically
side with the defense.
Oh, and while you're at it, take a few jabs at the President.
Yep. It's comforting to know that this recent court ruling
provides people like you with journalistic protections.
easily go against bloggers. Many bloggers do little or no fact
checking and blindly repeat what others say.
Bloggers definitely have the impact and ability to severely
damage people's reputations and affect the bottom line of major
companies, so are they now open to slander lawsuits?
We'll prolly have to wait for the first lawsuit to emerge before
knowing for sure.
many of them would lose their trailer homes because much of what
they write is wrong.
But, I am certain this case will be overturned on multiple grounds.
(I've said why in other comments.)
more clearly defined. Probably as someone who is "paid" to be a
journalist.
Every Tom, Dick and Harry, just because they blog, doesn't make
them a journalist.
Being hired by a news organization doesn't make one a journalist.
Being accredited by a journalist's organization doesn't make you a journalist.
WRITING and PUBLISHING news for others to read irregardless of the medium makes someone a journalist.
Only those who are too proud of their degrees, jobs and/or accredidations or perhaps those who've not thought too long about it would argue otherwise.
ruling.
Lack of accountability results in lack of responsible behavior.
Mainstream journalism has an occassional bad apple, but the
overwhelming majority of journalists adhere to standards of
responsibility. The overwhelming majority of bloggers would not
know responsible behavior if it smacked them.
information merely because they consider it a story.
The media is always quick to paint themselves as altruistic, that
it is all for the greater benefit of the public etc etc, but at the
end of the day, each media outlet is in it for the money they
make on advertising or otherwise.
Consequently, there has to be a balance between the interest of
an individuals right to privacy and the interest of the media to
sell a story. Likewise, there has to be a balance between the
interest of a company to protect confidential information and
the interest of the media to sell a story.
In general, the line should be drawn such that there has to be a
tangible benefit for the public. Merely a lust for sensation
shouldn't qualify. Yet, if an individual or a company is up to
something sinister that may hurt the public interest, then
definitely the public interest to know outweighs an individual's
or a company's interest to keep it to themselves.
However, I don't think Apple chose the right path in trying to get
third parties to disclose their sources. From a practical
standpoint alone this would seem to be a flawed approach,
regardless of the question whether or not somebody is a
journalist and whether or not a third party should be forced to
reveal where they got information from.
It would be far more practical for Apple to devise a bonus
scheme by which everybody who is working on a certain secret
project is a stakeholder in a bonus pool to be paid out once the
product is publicly announced without any leaks. If there is a
leak, the bonus pool expires and everybody loses out. To
prevent former employees who left in the midst of a project
from leaking information, they should still be entitled to their
slice. This way it would be very difficult for anybody to obtain
any information because any would-be whistleblower will
certainly risk his bonus and the wrath of the group.
This would probably be cheaper to implement than paying
lawyers to pursue silly lawsuits that can only lead to a PR
disaster and it would also be more efficient.
Would you blow the whistle if the publication of what you told
will guarantee you and all your colleagues to lose a 5000 USD
project-secrecy bonus in cash or equity?
Also, for the money those lawyers cost, Apple could probably
run a disinformation department with professionals who create
such a noise in the rumours market that after a few months
nobody is going to believe anything anymore because everything
is just so ridiculous that we all just say "YAWN, another
nonsense article about a future Apple product, I don't buy it".
Come on Apple, you guys are so creative. Don't waste your
money on lawyers. You can do better than that.
That's where you are wrong.
If you look objectively at all the things Apple has produced, you will find that ALL of their successful products are not things that they pioneered. They took things that others created and polished them a bit, dumbed down the interface and marketed the heck out of them. Even their much heralded GUI was taken from Xerox/PARC back in the day.
post to the web should have protection AND I come from a family
of currently active Journalists.
Amen to freedom of speech and press.
DJO.
post to the web should have protection AND I come from a family
of currently active Journalists.
Amen to freedom of speech and press.
DJO.
freedom of press. Each of these is different, however.
The court was wrong, and they will certainly be overturned. The
freedom of speech does have certain caveats - screaming FIRE in
a public place, for instance. The freedom of press carries with it
certain protections and privileges.
The freedom of the press, however, entitles professional
journalists and reporters to report. Tom and Tine Blogger are
not professional journalists. They have never studied journalism.
They have not studied and reviewed the codes of ethics and
provisions associated with journalism. They may not even be
able to spell journalism.
Protections need limits. In this case, the right to protect trade
secrets supercedes the right of some disgruntled employee to
reveal secrets on his MySpace blog.
Hailing, purportedly, from a family of journalists, I would expect
you, of all people, to appreciate the difference between a
TRAINED and EDUCATED journalist and a Joe-Schmoe blogger.
Damaging information is all fun and games until it hurts you. You reap what you sow.
District or Apeallate Court.
Unfortunately, your article - which is perhaps the most biased
article I have ever read - is utterly wrong.
I understand the need for journalistic privilege and the
associated legal protections.
But I also appreciate the need to protect trade secrets.
And I am sorry - but a disgruntled employee writing a MySpace
blog revealing Apple's trade secrets is not the same as reporting
on CNN or MSNBC. By your argument, MySpace bloggers should
be entitled to the full protections afforded professional
journalists. By your argument, my 8 year old sister can post a
blog on MySpace saying her school is going to be shot up
according to some punk kids and yet she isn't obligated to
disclose the names of the sources to authorities because she is a
journalist.
My 8 year old sister is no journalist. And the common blogger is
no journalist either.
I mean, where does it end? Privileges have limits. Spousal
privilege doesn't apply two people who randomly had sex last
Friday. And journalistic privilege must not apply to MySpace
bloggers.
I understand my examples and analogies are extreme, but I am
merely demonstrating the full scope of what you and the CA
court have proposed: a world where anybody and everybody is a
journalist.
You are dead wrong, and the decision will certainly be
overturned.
I thot it particularly annoying that when he cited journalists, he included only 'bad apples' like the plagarists who had been caught. What about Edward R. Murrow and Mike Wallace? They were practicing journalists as well? Do the bloggers count equal to them?
My 2 more cents.
Cheers,
Tony
I thot it particularly annoying that when he cited journalists, he included only 'bad apples' like the plagarists who had been caught. What about Edward R. Murrow and Mike Wallace? They were practicing journalists as well? Do the bloggers count equal to them?
My 2 more cents.
Cheers,
Tony
Yeah, and neither were many of Thomas Paine's writings (published under a pseudonym). How would you propose to define journalist vs whatever you chose to call this other writer who isn't a journalist? The fact that it's policital discourse vs. trade secrets? Suppose the trade secrets are about the failings in the world's largest oil company, which is actually going bankrupt despite the diverting converstations of its exec's? Not political. What makes that worthy of a journalist's efforts, but not someone you'd define as not a journalist? What made Thomas Paine not a journalist? He didn't have a journalism degree? No credentialing from an approved organization?
Citing specious examples (your 8 year old sister) doesn't prove a thing. Learning from the history of real journalism in this country would be of great benefit to you and those who try to neatly define journalist.
mark d.
Furthermore, I am really tired of the intentional MIS-USE of the example of "...shouting fire, in a public place". The CORRECT example is that someone "...cannot FALSELY shout fire in a public-place". If a person truly believes that there IS a "fire", then they have EVERY RIGHT to call attention to it. In fact, most REASONABLE-PEOPLE would assert that such a person even had a MORAL-RESPONSIBILITY, to do so.
Additionally, "secrets", both "business" and "national", HAVE always been, and ARE CURRENTLY BEING, used as a convenient EXCUSE to MANIPULATE, and HIDE, all manner of, important information from "the public". That is simply a fact. So, "Apple" simply claiming something as a "trade secret", and also alleging that its release, therefore, has somehow caused them "harm", is entirely specious, without significant legal-proof.
And just for the record, in general, EVERYBODY has the BASIC-RIGHT to express ANY belief that they hold to be true, except under a few, extremely narrow, circumstances. PERIOD. That IS the LAW, and that is basically the very DEFINITION of "...Freedom of Speech".
And finally, the ONLY real "...requirement..." to being considered to be "...a journalist", is the decision to make information, and opinion, available to the public. In my experience, ANY other definition, is simply an excuse to artificially and, under the "U.S. Constitution", ILLEGALLY limit such "expression".
These ARE the principles that have been upheld by this "legal ruling". And, in my opinion, they ARE the RIGHT DECISION, based upon long-standing legal-precedence and, good old-fashioned, AMERICAN COMMON-SENSE.
Exposing trade secrets is not journalism. In fact, it's an offence that usually results in termination.
Exposing trade-secrets is the same as stealing intellectual property. Both are damaging to the company.
If you think stealing trade secrets are not damaging to a company you obviously don't understand how the U.S. economy works.
Press should only apply to "real"
journalists who have training and
education in journalism, I would like
to point out that the Intro to
Journalism course I took in the
10th grade is more "education in
journalism" than Edward R. Murrow
ever got. So what right did he have
to go attacking Joe McCarthy??
Murrow wasn't even a trained
journalist! Attacking the rich and
powerful is a right that should be
reserved for people with 'real'
training, like me.
Freedom of the Press is just an
aspect of Freedom of Speech.
The constitution also doesn't
address the issue of training,
licenseing, credentials or 'ethics.'
And well it shouldn't as those
would just be ****** in the
protection the founders intended.
It's called "Freedom of the PRESS"
for a reason. The intention was to
protect the right to spread (read:
publish) _ideas_ not _facts_ or
_The Truth_ (whatever the heck
that is). It was intended to protect
both open and established
newspapers _and_ pamphleteers.
It intends to protect anyone
wanting to take their ideas to the
public at large so they can work in
the light of day, not only 'printing'
in basements late at night while
listening for the sound of jack-
boots.
Readers decide if it's worth reading, not government or courts.
Being biased, unbiased or true has
nothing to do with it.
JPL
Thomas Jefferson once said When the people fear their government, there is tyranny; when the government fears the people, there is liberty.
My freedom of speech gives me the right to challenge the rich, the powerful, and anything I feel violates my rights to life, liberty and the pursuit of happiness.
You are entitled to your opinion and so am I. That doesn't make either one right or wrong. But I do know that it is my constitutional right to challenge the rich and powerful.
Apple and Google may still fool some who seriously believe they are anything but arrogant companies with delusions of grenadeur and ideals that end at the bottom line, but for once the justice system wasn't for sale
There is no legal protection for someone who leakes trade secrets. It can actually lead to legal prosicution in some cases.
beside, moraly, one is protecting the public good, the other isn't. Tell me, how does someone breaking their employer's trust and giving company secrets away really helps the public's good? All it does is loose the company money and glorify someone's ego.
While i agree with others that Apple was taking the wrong approach in sueing MySpace, If they do find who this employee is, he has no legal right to protection. Most of the time, when you work with sensitice information like this, a company will have you sign a contract spelling out what they can do to you if you leak it out. Then he is sunk.
And tell me, what cose of ethics was this "journilist" following? And when did he ever qualify as a journilist?
Sometimes I'm glad that Microsoft holds the market, not Apple, knowing Apple's business practices.
thread, but will revisit it briefly. But, first, let's be clear that this
drivel is Cooper's uninformed personal opinion. Furthermore,
his own credentials as a 'journalist' are dubious at best. He has
absolutely no credentials as a lawyer. What he says carries no
more weight than that of a man on the street.
The flaws in the court's decision include:
" Expanding the meaning of 'journalist' under the California
Constitution without the authority to do so. (That power lies in
the citizens through a referendum process or the legislators'
ability to pass new statutes.)
" Failing to focus on the status of the leaker as likely an
employee of Apple or a partner who is bound by his
employment contract.
" Ignoring the well established precedents for protecting trade
secrets.
I believe the court will be reversed on multiple grounds.
Today, I was reminded of the difference between a journalist and
a blogger. Several CBS journalists were wounded or killed while
covering the occupation of Iran in Bagdad. Education, research,
oversight and risk taking distinguish real journalists from
wannabes such as bloggers. We should never confuse a Matt
Drudge, or a Charles Cooper, with the heroic CBS crew that died
today.
wounded or killed (two have been confirmed dead) while covering
the occupation of Iraq in Bagdad."
I want to know what has happened to (TV in particular) Journalististic ethics and integrity. How about disclaimers (lower thirds for TV people) stating their party and associations! CNN is all Liberal, Fox is conservative - why deny it)
They come on as "experts" espousing thier OPINIONS - as though it was FACT! They repeat misinformation over and over and cherry pick it (like they accuse Bush of using WMD - Hippocrites!!) until thier sheepish audiences start to believe thier (reporters) view of the truth IS the "real" truth. Truth is in the eye of the beholder.