Apple v. Bloggers. v. NDA v.revealing sources

I've been wanting to write on the controversial trial going on regarding Apple Computer and bloggers with the related issues listed in my headline.  While traditional media has given this issue prominent play this week, bloggers have not--at least from the slim search results I found this morning at Technorati.

Here's a quick scenario of what has occurred over the past several months. Two consultants to Apple blog information about unannounced products.  Apple goes bonkers and sues. A court finds the consultants guilty of breaching NDA and declares that bloggers are not protected by the same disclosure laws as authentic reporters. Claiming that First Amendment laws apply to everyone, not just reporters, the consultants appeal to a higher court where it was heard this week.

The number of issues here are huge and complex. I am not a judge and I do not wish to second guess issues that need to be decided in court. But I thought I'd toss in my own thoughts on several of the questions being tossed around.

1. Should journalists be exempted from revealing sources when criminal or tort charges are connected?

If you think it through, you cannot have a free press unless they can protect the confidentiality of the press. The ability to report on business and government from sources other than official part lines is essential to how journalism works. The concept of confidential sources is under huge assault on multiple fronts right now, and failure to defend it seems to me to be a threat on a free society.

2. Should bloggers be treated as journalists?

My answer: When they behave as journalists, they most certainly should. In the cases of people like Om Malik and Dan Farber, these bloggers are indisputably journalists, not because they get paid as such to blog--but because they conduct themselves as journalists in every sense of the word. Other bloggers are simply opining and they are not journalists. Then there's this group of which I am included.  members of this group sometimes report on what they've seen.  They interview other people and write about it. They do Saturday morning opinion pieces that might have been suitable for the op ed page of yore.

My thought is that whether or not you are a journalist, is not about the delivery mechanism of paper vs. Internet; nor is it about paychecks. It is more about what you write about and how you conduct yourself as a writer. When we behave like journalists, we should be treated like journalists.  Likewise, when journalists or bloggers behave as idiots, they should be treated as such.

3. Is it fair game for a blogger, behaving as a company consultant, to break NDA agreements that they signed?

Of course not.  It is bad business and bad ethics.  Likewise, reporters should honor them as well.

4. Should Apple have pursued this this far?

My sense is that Apple has had much more to lose than it has had to gain here.  The conception of them as anti-blogger is widespread. Their behavior has to feel intimidating to their own employees.  It is presenting an image that will not attract very many new employees.  It has gained nothing through this experience that will help it sell more goods, nor will this behavior bolster its stock position. Apple believes it was betrayed and is pushing a point.  It may win this second round in court, but I do not see how this will score any points on their behalf in the court of public opinion.

Comments

[J. Winslow]

It eludes me how protecting a confidential source as a journalist, and releasing secret information covered by a NDA are even remotely the same thing.

Indeed, source protection and the freedom to write whatever you want to write are
protected by the First Ammendment. In reading the text of the First Ammendment I can't find anything that protects an author, journalist or not who decides to breach a contract into which they entered freely.

Thus, breaching an NDA is not a First Ammendment issue. It is a civil court issue.

These consultants should give up and take their medicine. They earned it when they breached their contracts.

[/pd]

She'll, this story maybe of interest to you. $1000/- reward for an anon blogger !!

http://www.isn.net/reward.html

When does a blogger get treated as a common criminal ? Just asking opinion.

[Saurabh]

No, Bloggers shouldnt be treated as journalists, because they blog what they want to, bloggers are usually people from the age group of 10 to 85, and their opinion is just isolated, if a blogger hates some xyz celebrity and if he is posting something weird about it it may affect the whole communit of bloggers if it'll be considered as an article posted by a blogger, moreover it could be a threat to the the portal providing the blogging assistance to the users.

Saurabh

[Jack Krupansky]

If you really want to pursue the questions related to treatment of journalists and bloggers, you (and the rest of the journalism and blogging and legal communities) *really* need to dis-aggregate all the aspects and qualities and characteristics of being a "journalist" and engaging in "journalism" so that the set of those factors that is *really* in common between journalists and bloggers can be examined in a more meticulous and disciplined manner that could have some non-zero probability of resulting in true enlightenment rather than endless posturing.

Like the fable of the blind men and the elephant, each of us (including myself) have lots of assumptions about the nature of journalism and blogging, but how many of those assumptions are really incontrovertible, "bedrock"?

I could offer my own assumptions as presumed "fact", but I am neither an attorney nor an expert in constitutional law. What little I do know about "law" guides me to believe that that law is *never* so black and white as to foreclose a variety of contextual interpretations or opportunities for judicial "discretion".

Apple *is* a big company, and hence not immune to bureaucratic protective tendencies. Maybe one of the issues interfering with making progress in the discussion of this "Apple v. Bloggers" controversy is a core belief that somehow Apple is inherently "different" and something other than a "big company".

-- Jack Krupansky

[Jane Genova]

As the boundaries between journalism and blogging keep blurring, this will probably not be a significant issue in a few years. But it is now, to some people, particularly print journalists.

When I was live-blogging the Rhode Island lead paint trial amidst "real" journalists they, of course, had both questions and comments about my role versus theirs.

I listened, thought about what they had said, and eventually decided that the hierarchy they had to deal with and the need to maintain the illusion of objectivity were things I was happy to never encounter. Therefore, I was not, by their understanding, a "real" journalist nor did I have aspirations to morph into one.

Unlike them, I could be 100-percent reader-centric, rather than publisher/shareholder centric.

As for Apple, that's Apple. Probably one of the reasons that Applie can be so innovative is that it runs its own tight ship according to its own rules. The place is secretive and, in its own way, despotic. But it works for Apple. I just know to keep away from it, despite my admiration for Steve Jobs.

[Jozef Imrich]

Claude Cockburn dictum applies today as much to bloggers as it does journalists: "Never believe anything until it is officially denied."

As the late, great A.J. Liebling pointed out, "Freedom of the press belongs to the man who owns one." Blogging and online journalism has given new meaning to this.

Of course, blogging is not perfect, but the fact that it has democratised the tools to enable the larger human processes to find an outlet is the primary reason for it's success.

Another essay in The Fix series: Putting It Out There. “Among the changes that technology has given us, few may be as influential in the long-term as the irresistable movement forcing news organizations to open up
http://www.thescoop.org/thefix/putting-it-out-there

Czech out the Czechs: Gossipy Web diaries connect with customers
http://www.praguepost.com/P03/2006/Art/0420/busi3.php Blogs are changing corporate communication