美国法院判决：博客和记者一样受法律保护

作者/刘植荣

根据《纽约时报》2006年5月27日的报道，加利福尼亚上诉法院于2006年5月26日作出裁决，网上信息发布者和传统媒体的新闻记者一样，受到保密法律的保护。也就是说，博客和论坛的“楼主”和记者一样受到法律保护。

2004年12月份，苹果公司起诉一博客运营商，称其公司包括Asteroid在内的新产品计划被人在该博客上泄露，苹果公司要求博客运营商提供消息来源，保护公司的商业秘密，并惩罚那些盗取和散布公司秘密的人。上诉法院的裁决认为，《美国宪法第一条修正案》保护的公民言论自由或出版自由，受保护的新闻无“合法新闻”和“非法新闻”之分，在任何媒体上发布信息都受法律保护，消息来源和信息发布者的信息——如注册人的真实身份、电子邮件地址——注册信息等——属于个人隐私，受法律保护。《 美国宪法第一条修正案》规定：“ 国会不得制定关于下列事项的法律：确立国教或禁止宗教活动自由；限制言论自由或出版自由；或剥夺人民和平集会和向政府请愿申冤的权利。”+

此次上诉法院的裁决无疑是给在线媒体添加了一个强大的保护伞，对在线新闻从业者来说是一次巨大的胜利。各类博客网站也对这一裁决表示支持，认为法院的裁决完全正确。

该裁决也给网络运营商敲响了警钟，把客户的注册信息泄露给第三者是犯罪行为，因为它侵犯了公民的隐私权。

言论自由是公民的最基本权利，是民主国家首先要保障给公民的权利。美国上诉法院的裁决有力地保护了公民的言论自由。言论自由包括说话的权利，出版的权利和利用各种媒体传播自己观点的权利。这三种权利共同构成了公民的言论自由。把公民关在自己的房间里说话，不让他把自己的观点印刷或在网络上出版，或不让他的印刷品散发，不让他的观点在电视、电台、网络等媒体上传播，那不是公民的言论自由。(作者博客：http://www.aifeier.cn )

First Amendment Applies to Internet, Appeals Court Rules

By LAURIE J. FLYNN

Published: May 27, 2006

SAN FRANCISCO, May 26 — A California appeals court ruled Friday that online reporters are protected by the same confidentiality laws that protect traditional journalists, striking a blow to efforts by Apple Computer to identify people who leaked confidential company data.

The three-judge panel in San Jose overturned a trial courts ruling last year that to protect its trade secrets, Apple was entitled to know the source of leaked data published online. The appeals court also ruled that a subpoena issued by Apple to obtain electronic communications and materials from an Internet service provider was unenforceable.

In its ruling, the appeals court said online and offline journalists are equally protected under the First Amendment. "We can think of no workable test or principle that would distinguish legitimate from illegitimate news," the opinion states. "Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment."

The ruling states that Web sites are covered by Californias shield law protecting the confidentiality of journalists sources.

Apple had argued that Web sites publishing reports about Apple were not engaged in legitimate news gathering but rather were misappropriating trade secrets and violating copyrights. But in its ruling on Friday, the panel disagreed.

"Beyond casting aspersions on the legitimacy of petitioners enterprise, Apple offers no cogent reason to conclude that they fall outside the shield laws protection," the ruling states.

If upheld, the ruling could have far-reaching impact in California courts on other writers who publish electronically, including bloggers who regularly publish news and opinion online without the backing of a mainstream news operation.

"This ruling will probably prove instructive to other online writers," said Kurt Opsahl, a lawyer with the Electronic Frontier Foundation, a civil liberties organization, who argued the case in front of the appeals court last month. "It says that what makes a journalist is not the format but the function."

Apple declined to comment Friday on the ruling or on a possible appeal.

Apples close guarding of company secrets, particularly unannounced products, is legendary. Fridays ruling arose from a suit filed in December 2004 against the unknown individuals who Apple said had leaked information about unannounced Apple products to two sites devoted to news of the company, AppleInsider and PowerPage.org.

Both sites published reports in November 2004 describing secret Apple projects, including one known at Apple by the code name Asteroid.

Apple did not sue the sites directly but sought to subpoena their e-mail records. As part of the investigation, Apple subpoenaed the e-mail records of Nfox, the company that provided Internet service to Jason D. OGrady, the publisher of PowerPage.

About the same time, Apple filed a trade-secret suit against Think Secret, another online news site that the company accused of publishing confidential data about its future products. That case is pending.

Fridays ruling is also significant because it addresses whether private e-mail is protected from subpoenas. "The court correctly found that under federal law, civil litigants cant subpoena your stored e-mail from your service," said Kevin Bankston, a lawyer for the Electronic Frontier Foundation.