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'Strong protection' for online hacks

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John MacKenzie, a Solicitor Advocate and partner with Pinsent Masons, the law firm behind OUT-LAW.COM suggests that the Contempt of Court Act is broad enough to afford the same protections to operators of internet news wires, blogs or other new media content. "We have yet to see a test case against a blogger," he said. "But the 1981 legislation was future-proofed by being written in broad terms."

The Californian Court of Appeal's decision is being hailed as a major victory for press freedom. "This is a victory for the rights of journalists, be they online or offline journalists, and it's a victory for the public at large," said Kurt Opsahl, the staff attorney for the Electronic Frontier Foundation, the lobby group which represented the journalists. "It protects the free flow of information to the press and from the press to the public."

A crucial question in the case was whether or not the writers involved deserved the protection of the California Shield Law, a question which hinged on whether or not the sites involved could be considered a "newspaper, magazine or other periodical publication."

Presiding Justice Conrad Rushing described that phrase as ambiguous, but said, "it is at least arguable that PowerPage and [co-petitioners] Apple Insider, by virtue of their multiple staff members and other factors, are less properly considered blogs than they are 'e-magazines,' 'ezines,' or 'webzines'."

He took care to avoid referring to blogs in his judgment, a term he described as having a "rapidly evolving and currently amorphous meaning" – although his interpretation of the Shield Law hints at protection for a blog as a periodical publication.

Though Apple argued that it had a greater right to protect private information than the web writers had to publish it, Rushing argued that company information was not always protected. In what has been read as a reference to recent corporate governance scandals such as those at Enron, the judge wrote: "As recent history illustrates, business entities may adopt secret practices that threaten not only their own survival and the investments of their shareholders but the welfare of a whole industry, sector or community."

The judgment also warned that "courts must be extremely wary about declaring what information is worthy of publication and what information is not".

See: Apple judgment (69-page / 188KB PDF).

Copyright © 2006, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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