Online Journalists Have Confidential Source Privileges

In a case recently decided by the 6th District Court of Appeals in California, online journalists were declared to have the right to the same confidential source protections offline journalists enjoy. The case was brought by Apple against several anonymous sources who allegedly revealed Apple’s confidential product development info to online journalists. In an effort to discover the identity of the sources, Apple also subpoenaed the bloggers’ Internet Service Providers to obtain any emails regarding the product leak.

A trial court upheld the subpoena but the appellate court declared it unenforceable because it violated the federal Stored Communications Act, which protects private emails from civil subpoenas. (The Act requires direct subpoena of individual email account owners.) In addition, the appellate court rejected Apple’s argument that the bloggers weren’t actually acting as journalists. Its decision was based on the California reporters shield law’s protection for gathering and disseminating news as well as the privilege against disclosing confidential sources afforded by the state Constitution.

As more litigation develops in this area, the case for purchasing insurance for online publishing may grow even stronger. This particular case also demonstrates that confidential source exposures are not limited to just traditional print, radio and TV journalists but also affect online journalists.