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Free speech for bloggers at risk

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Apple Computer wins this round. A judge ruled that 3 bloggers must reveal their sources and blow the whistle on some employees who supposedly leaked trade secrets.

The protections that mainstream journalists enjoy should extend to bloggers–after all, what are we but reporters that no one’s paying? Well, I guess you could say we’re a few other things…

I don’t know. It’s a touchy issue–making somebody “tell on” somebody else when you promised you wouldn’t. I remember Jack Nicholson screaming the now-famous line in the movie “A Few Good Men.” Should it depend on how wrong the thing was? Don’t the cops give immunity to informants? Don’t reporters protect their sources for criminal activities–even if they’re criminals?

The bloggers will appeal. Can’t wait to see the next round.

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  • This *isn’t* a free speech issue. The judge clearly stated in his ruling that even *IF* the bloggers are journalists (it wasn’t important in the ruling) they would have to reveal their sources in this case.

    Why? Because not even journalists are exempt from the Trade Secrets Act which makes it illegal (even for journalists, and bloggers as the case may be) to reveal information that is classified as a trade secret. Had it been the NYT that leaked this, Apple would be just as much in the right, and the judge’s ruling would stand.

    There is a lot of precedent for this in United States law. Trade Secret Law always trumpts free speech and freedom of the press, unless the information is of public interest (polution, potential harm to the public, corruption etc.) which the information about Apple’s upcoming products is not. The judge said so in his ruling, Apple’s products fall squarely inside Trade Secret Law. The Shield law does not apply.

    Apple also didn’t sue for damages, simply for the names. If it is found that the sources have signed NDA’s with Apple, the company will sue them for damages. The journalists in question were acting illegally when publishing (to the public, uninteresting) trade secrets in the first place; so, not a free speech issue. Open and shut case.

  • Good points, Andy. I didn’t notice if it said how the bloggers came to be in possession of this knowledge–did they talk to the employees? If so, I think you’re right about the law, and they were plain stupid to publish it.

    But if the employees wrote it somewhere (like in an email that didn’t have the “privileged and confidential” warning at the bottom–in which case theirs was the first publishing), then I think it’s less clear that the bloggers should be forced to say where they found the info. But then again, did they write it in their personal email or use the company’s? Gets messy again, don’t you think?

  • This mostly seems like a case of Apple being remarkably dumb and short-sighted, pissing off the people who do more to publicize and promote their products than any publicity they could ever hope to purchase.

    But the fact that they aren’t seeking monetary damages suggests some awareness of this. They don’t seem to object to the online reporters reporting this stuff, just to their employees leaking it – and that seems semi-sensible.


  • You are so right, Dave. As a PR and marketing professional, I think there’s truth to the saying “There’s no such thing as bad publicity.” It sure-in-hell is working for Martha Stewart–have you read how her popularity rating is soaring? And look at all the free exposure Apple’s getting with its lawsuit…

    But that saying is a truth-with-a-warning. In this case, revealing the details too soon (before the products are ready to hit the market) could give competitors too much time to beef up their rival offerings and cut seriously into Apple’s lead time for establishing primacy. On the other hand, in this day of instantaneous global exposure and ever-faster-and-more-skilled product developers, competitors often have an advantage in that they can steal the idea as soon as it’s released and improve it or add extra features. For decades now, marketing pros have been advising that first-to-market is no longer necessarily the strongest position to be put yourself in.

    So you’re right. It’s a good question to know what Apple REALLY wants to accomplish. Maybe they just want to make an example of these guys–or maybe they’re just smart enough to know that lawsuits can get you tons of free publicity–especially if you involve bloggers.

  • You’re right, that there remains a question of whether the websites had knowledge that this was classified information. But with Apple’s notorious secrecy regarding, well, everything… It’s not that much of a stretch to say that they should’ve known.

    Think Secret faces some legal repercussions for this, I think. Since they actively solicit for information on Apple on their website (through an “anonymous” e-mail form).

    But like others have said, you can certainly blame Apple for getting bad PR on this (the flip side being that they won’t be able to claim damages in future cases if they don’t actively police every known instance of NDA violation and whatnot) — but you can’t say that they’re trampling free speech or journalistic (bloggeristic?) rights.

    The current rumor is that Apple has much more significant products down the tube (compared to the leaked “Asteroid” they’re currently suing over), and that Apple wants all of its leaks silenced before those products go into production. Or not.