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Reporter's Privilege - Confidentiality of Sources - Internet Library of Law and Court Decisions - Updated November 12, 2007

Court denies bloggers' motion for a protective order, which sought to quash a subpoena served by plaintiff Apple Computer, Inc. ("Apple") on Nfox, the e-mail service provider for the blog PowerPage.  The subpoena sought materials, including e-mails, that would permit Apple to identify the individual(s) who transmitted trade secret information about an Apple product to PowerPage, which information PowerPage subsequently published on its blog/website.  The Court held that the bloggers were not entitled to such relief under California's 'Shield Law,' as that statute only protects journalists from being found in contempt for failing to produce information, and does not support a motion to quash.  Similarly, such relief could not be grounded on the privilege afforded journalists under the First Amendment, as this privilege cannot be used to prevent the disclosure of information related to criminal activity such as that at issue here, the disclosure of trade secrets.  Because Apple had made a prima facie case that a crime had occurred, it was entitled to the requested discovery.

Granting defendant’s motion for summary judgment, the District Court dismisses defamation, trademark infringement, and invasion of privacy claims brought by plaintiffs against a blogger.  The claims arose out of defendant’s publication of articles on his blog, featuring plaintiff’s trademark, that were critical of plaintiffs’ eBay auction listing business. 

The Court held plaintiff’s trademark dilution claims failed because defendant used the mark in connection with “news reporting and news commentary,” a non-actionable use under the Federal dilution statute.  The Court held plaintiffs’ defamation claims failed because the statements at issue – which purportedly accused plaintiff Schmidt of being a “yes man” ‘who overpromised and underdelivered’ were non-actionable statements of opinion.  Finally, the Court held plaintiffs’ invasion of privacy claims – which were premised on a link on defendant’s blog to another site which contained a picture of plaintiffs – failed.  The Curt rested this holding on its determination both that South Carolina does not recognize a claim for false light invasion of privacy, and that, in any event, the link and article in question did not cast plaintiffs in a false light.  The Court also grounded its rejection of this claim on its holding that the link and corresponding use of the photo did not constitute a viable ‘wrongful appropriation of personalty’ invasion of privacy claim, given that plaintiffs had consented to the use of their photo on the internet site on which it was contained.

Reversing the court below, the California Court of Appeals holds that the Stored Communications Act prohibits an ISP that hosted a blog's email account from disclosing e-mails sent to the blog in response to a subpoena issued in a civil litigation.  The subpoena sought production of e-mails that would permit Apple Computer ("Apple") to identify the individual(s) who transmitted trade secret information about an as yet unreleased Apple product to the blog/website Power Page, which information was the source of articles Power Page subsequently published on its blog/website.

The Court further held that petitioners, who acted as publishers of, and/or editors or reporters for, the news blogs that published the stories at issue about this Apple product, were entitled to a protective order against their disclosure of the confidential sources of their stories.  Notwithstanding Apple's claim that the information petitioners received from these services constituted trade secrets disclosed in violation of confidentiality agreements each of its employees had signed, the Court held such disclosure barred by both California's Reporter's Shield Law and the First Amendment.  The Court held that the Shield Law, which prohibits a court from holding in contempt a publisher, editor or reporter of "a newspaper, magazines or other periodical publication" for failing to disclose the source of a published story, protected petitioners, publishers and/or reporters of news blogs, from having to disclose the sources of the stories at issue.  The First Amendment similarly provided protection, given Apple's failure to fully exhaust other avenues of disclosure before pursuing discovery from petitioners.

Quick Hits

Court holds that the “journalist’s privilege” applies to the publisher of an Internet newsletter.  As a result, defendant Clear Channel Communications could only obtain the sources of the newsletter’s stories “upon a clear and specific showing that the information is [1] highly material and relevant [2] necessary or critical to the maintenance of the claim and [3] not obtainable from other available sources.’”  Applying this standard, the court held that defendant was entitled to disclosure of some of plaintiff Inside Radio Inc.’s sources.

This case arose out of Inside Radio’s publication in its Internet newsletter of articles critical of defendant Clear Channel Communications.  Defendant, in its own publication, titled “Inside Inside Radio” purportedly claimed that these articles were false, and were published because the owner of Inside Radio “wanted to sell Inside Radio and had bragged that he would irritate CCC to such an extent that it ultimately would buy him out at his price.”  In response, plaintiff Inside Radio commenced this defamation action, asserting, inter alia, that Clear Channel falsely charged Inside Radio’s Del Colliano with intentionally publishing false and negative stories about Clear Channel to compel such a buy-out.  It was this allegation that rendered the identity of Inside Radio’s sources discoverable.  Said the Court:

The gist of the InsideInside Radio article … was not simply that Inside Radio had printed factually incorrect statements about CCC.  Rather, it was the Del Colliano deliberately printed falsehoods about CCC.  Hence, in order to prove the falsity of [this] article, IRI will have to prove either that its stories were factually correct or, if not, that Del Colliano did not publish them knowing that they were false.  The parties … can prove whether or not CCC in fact cut commission rates or took other business actions as reported in Inside Radio without reference to IRI’s confidential sources.  But IRI’s confidential sources, if any, do lie at the core of its contention that CCC libeled it by charging that it deliberately lied in its Inside Radio articles.  That contention puts in issue not merely the accuracy of the factual statements in the Inside Radio articles that InsideInside Radio claims were false, but IRI’s state of mind.  And the question whether IRI had any sources for the purportedly factual statements in the Inside Radio article, and, if so, precisely what they told IRI not only is clearly relevant, but it is pivotal to the claim or defense and unavailable from anyone but IRI.

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