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Website SLAPPS Back At Apple

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Apple computer won an early round last week in its fight against websites that have published information about Apple products that the company says were supposed to be keep secret.

According to news accounts, the judge in the case gave a tentative go ahead for Apple to subpoena companies that provide email services to the three websites—Apple Insider, PowerPage and Think Secret. No final ruling was issued, however.

Apple is hoping these subpoeanas will reveal who provided the confidential information in question. The websites oppose this, claiming that their work is subject to a reporter’s privilege, a legal concept that media outlets cite when trying to protect reporters from having to reveal confidential sources.

That privilege is not universally accepted: New York Times reporter Judith Miller and Time magazine’s Matthew Cooper are losing a legal battle to claim the privilege in the probe of who leaked CIA operative Valerie Plame’s name to the press. Despite new calls for Congress to pass a “shield law” for reporters, none currently exists, so the Cooper-Miller case is an argument over how to interpret earlier federal court decisions.

In the Apple case, however, there is a law on the books — California has a state law shielding reporters, so the question here is whether that law applies to these websites that resemble blogs more than traditional media.

In a separate case, Apple has sued Think Secret directly. In that matter, Think Secret has just filed a motion claiming protection under California’s Anti-SLAPP law. A SLAPP is a Strategic Lawsuit Against Public Participation—a legal action that a corporation brings against consumer, environmental or other advocates in order to halt criticism or protest. California has a law permitting “a special motion to strike” lawsuits “brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.”

In its filing, Think Secret argues: “Under the First Amendment, a journalist cannot be held liable for trade secret misappropriation or inducing breach of contract for publishing newsworthy information lawfully obtained, even if a source improperly obtained the information, and even if the journalist knew the information had been obtained illegally.”

But wouldn’t that mean that a reporter can divulge anything, with no thought of the consequences to a company’s copyrights? No. The anti-SLAPP law only protects information disclosed concerning “a public issue or an issue of public interest.” Think Secret argues that Apple is itself “newsworthy” because of its public profile, and its listing on public stock exchanges. In addition, the website argues, “Speech about the quality of commercial products constitutes ‘matters of public interest’ for First Amendment purposes.”

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