< Shielded!


Friday, June 09, 2006

BOB GARFIELD: In recent weeks, two big legal victors for netizens. In one, Anthony DiMeo the Third slapped Tucker Max with a lawsuit for defamatory comments posted on Max's site. DiMeo sued under a criminal statute that bars people from anonymously using a telecommunications device to harass someone. DiMeo conceded that Max did not write the offensive comments, but argued that since he did have the ability to edit or censor them, he should be legally responsible for any libel contained therein. The judge didn't buy it, writing in his opinion that he found the law must protect even, quote, "the coarse conversation that, it appears, never ends." The second case involved several websites that came under scrutiny last year when they published leaked details of a new Apple computer device. Apple filed a lawsuit in California against the leaker, presumably an Apple employee, identified as John or Jane Doe in the brief. In order to find the leaker, Apple tried to subpoena the Internet service provider which had access to the e-mails sent from the source to the bloggers. The bloggers struck back, arguing that as journalists, they are protected by California's Shield Laws, and should not have to reveal their sources. Late last month, the judges agreed. Denise Howell is an attorney who specializes in technology issues, and is a blogger, and she joins us now to discuss the decision. Denise, welcome to the show.

DENISE HOWELL: Happy to be here.

BOB GARFIELD: So, at least in California, this clears up the question of whether what happens online is considered journalism. The judge pointedly refused to define the word "journalist," but did say that whether it's happening online or in newspapers or on television, looking into matters of interest to others is, by definition, journalism. Is that right?

DENISE HOWELL: That's right. The court didn't make any absolute statement that everything that happens online is news. Far from it. But it did clarify that the Shield Law is intended to protect the gathering and dissemination of news, and that that can certainly happen online.

BOB GARFIELD: Now, Apple had an argument in this case, that this material did not constitute journalism. How did it support its case?

DENISE HOWELL: Well, Apple tried to make a technical argument under the statute that this material wasn't a newspaper, magazine or other periodical publication. But, in a broader sense, Apple tried to basically pooh-pooh any form of online publishing as incapable of being journalism.

BOB GARFIELD: [LAUGHS] That's kind of ironic, since Apple is in the [LAUGHING] – what do you know? [LAUGHS] – digital communication business.

DENISE HOWELL: [LAUGHS] That's right. It's certainly facilitating a great deal of the kind of discussion and reporting that it was attempting to cast as something other than journalism, in this case.

BOB GARFIELD: Now, there's another element of this of keen interest to journalists, not just the definition of whether online material constitutes journalism, but how far a complainant can go to coerce an online company to divulge its sources. And the court was pretty tough on Apple on this point.

DENISE HOWELL: It sure was. Throughout the opinion, it's clear that the court was just unhappy that Apple had decided to use the civil discovery process to do its information-gathering from third parties who weren't actually parties to the lawsuit. The decision interprets a federal law, commonly called the Stored Communications Act, and held that simply because you have a civil action pending doesn't mean you can go rummaging around in the contents of somebody's privately-hosted third-party e-mail account.

BOB GARFIELD: So just a brief primer here on discovery – that's the portion of the case wherein the parties are entitled to seek from the other parties, or, I guess, third parties, information pertinent to either their defense or the prosecution. And in this case, Apple was going to [CHUCKLES] the ISPs and the websites themselves to find out who these Jane and John Does were. And the judge said, oh, not so fast.


BOB GARFIELD: Finally, this was a state ruling in California. Is there any reason to think that this will become a standard in other states or in federal courts as well?

DENISE HOWELL: Well, it is a case that is only law in California, but it is also very well written and well reasoned, and there's every reason to expect that other courts will look to it as persuasive authority on this issue where there is not a lot of judicial guidance.

BOB GARFIELD: Okay, Denise. Well, thank you very much.

DENISE HOWELL: Thank you so much.

BOB GARFIELD: Denise Howell is an appellate and intellectual property lawyer in Los Angeles who blogs at bagandbaggage.com. [MUSIC UP AND UNDER]

BROOKE GLADSTONE: Coming up, newspapers seek to right a 100-year-old wrong.

BOB GARFIELD: This is On the Media from NPR.