Apple Computer is suing Think Secret to identify an employer who leaked trade secrets to the Apple rumour web site.
This is the type of case that leads to reporters facing the choice of going to jail for contempt rather than reveal their confidential sources.
In legal cultures that enshrine a right to free expression, such cases tend to become arguments about whether there is a de facto “journalists’ privilege” to protect sources.
Journalists in such situations contend that a principle of forcing reporters to reveal sources who break secrecy laws or breach contracts to provide them with sensitive information would create a “chilling effect” — sources would cease to come forward, and the right to free expression would be eroded.
Such cases pit the publication’s right to free expression against the company’s (or government’s) right to enforcement of its laws or contracts that demand silence. Balancing the two is always a tricky issue, as the Valerie Plame and Jim Taricani cases have recently shown in the United States.
In Europe the major precident in such cases, Goodwin v. United Kingdom, also revolved around a company that wanted to force a reporter to name an employee who had revealed confidential internal documents to Bill Goodwin, a reporter then with The Engineer.
In practice, such lawsuits are rare because most big companies know better than to go after equally-big media organisations that have just many lawyers as they do. That balance of power doens’t exist in the world of grassroots media, as Dan Gillmor notes:
I’m fairly sure of this: If the party leaking information to Think Secret had sent it, say, to the San Jose Mercury News or New York Times, and had those publications run the news, Apple wouldn’t be suing them. Both have deep enough pockets to defend themselves.
I hope the EFF or some other organization will defend Think Secret. I don’t know if there’s counter-suit potential for interfering with freedom of the press. But I do know that if citizen-based journalism is to have a prayer of making headway, we need to deter, not just counter, moves like Apple’s.
The application of traditional media law problems to the blogosphere won’t go away after this case. This sort of thing will continue to happen. Perhaps the blogosphere needs some sort of collective libel insurance and legal defense fund.
Update: Broken link fixed.