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'Strong protection' for online hacks

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California's Court of Appeal ruled last week that staff at web magazines qualified for journalistic protection. While there has never been a test case in the UK, a Solicitor Advocate says bloggers are likely to enjoy similarly strong protections here.

Apple Computer took a number of news website operators to court in the US to demand that they reveal the source of a product leak. Jason O'Grady of Apple Mac news site PowerPage and others claimed that they were protected by the California shield law, a provision of the California Constitution which prevents journalists being forced to reveal sources of information.

The initial case in the trial court ruled that the sources must be revealed, but the state appeal court overturned that decision. While hailed as a victory for bloggers in the US, the case highlighted the lack of any precedent in the UK on who, exactly, qualifies for journalistic protection.

The California shield law protects "publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service" and a "radio or television news reporter or other person connected with or employed by a radio or television station."

The equivalent protection for UK journalists is in the Contempt of Court Act of 1981. It states:

"No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime."

So while there is no absolute protection for sources in UK law, the court is required to judge if the request for source identification is sufficiently in the public interest or the interests of justice or national security to over-ride a general presumption of source protection. Recent cases have tended to favour the journalist's right to protect his sources.

In 1990, when Bill Goodwin was about to publish a report in The Engineer on information that suggested that company Tetra was in financial trouble, the company was granted an injunction preventing the publication of the story and sought the identity of Goodwin's source.

While the court initially backed Tetra, Goodwin appealed and argued that the request breached his right to freedom of expression as set out in the European Convention of Human Rights. He also argued that the Contempt of Court Act's demand that sources be identified in the "interests of justice" was too vague to be practical. The court agreed, and allowed Goodwin's source to remain anonymous.

In a case only settled in February of this year, Mirror freelancer Robin Ackroyd was permitted to keep his source confidential in relation to his stories about the hunger strike of Moors murderer Ian Brady. "It has not been convincingly established that there is today a pressing social need that the sources should be identified," ruled Justice Tugenhat.

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