Only professionals can speak?

In a series of bizarre events, Apple has sued a bunch of bloggers for releasing information about their upcoming products. The thing is, a journalist is protected by the law, so that they don't have to reveal their sources, but Apple has managed to convince a judge that a blogger is not a journalist, and therefore must reveal their sources.

Dan Gillmor writes about this in depth, being a blogger and a professional journalist. He has some quite excellent points, I recommend that you read it. An interesting piece of information is also this article from CNET that suggests that in the future, blogging and other form of citizenship journalism might be subject to FCE regulation in the U.S., due to the fact that linking to a political campaign might be considered official support, and therefore subject to the same regulations as all monetary support.

I think this discussion will happen also in Finland in the near future. An unregulated internet where anyone can say anything they like is a horror to anyone in power. It's quite likely that also over here there will eventually be attempts to limit freedom of speech online - our very own Minister of Culture, Ms. Karpela, is already trying to circumvent the relevant laws to make sure that "filth" (as defined by your average geek writing a crappy program, owned by a corporation with commercial interests, and supervised by your average alarmist Christian) would be censored from the Internet.

All this talk about censorship and regulation makes my head ache. It won't work - get over it already. Embrace the change: the winners will be found in the crowd that accepts this first.

The alternate is that only professional, accredited writers have a freedom to speak.

Update: The FEC article has been shot down by representatives of FEC. And a good thing, too. I guess it shows that politicians will have to be even more careful about what they say, lest the blogger horde misinterpret them. However, I think in general it's good to have public review of important decisions - blogs have a way of turning legalese into something human-readable. Perhaps it is not always right yet, but it's getting more so.

Update2: Blogger Garrett M. Graff has been admitted into a White House news briefing, says CNN. Just as an interesting data point...

Update3: Kari Haakana has asked the Finnish Journalist Union, and got a response confirming that in Finland the right not to reveal your sources extends to any kind of online publishing, including bloggers.




Comments

Janne, I think part of mistrust of the blogosphere is that it collectively behaves like a bunch of teenagers getting outraged that their parents took the car and their allowance for a week. I think the unfortunate end to all of this is that someone(s) who breached their NDA and blabbed to some blogger will result in the yanking of the journalistic privledge for all. Apple is rightly enraged and, seeing as bloggers are not professional journalists, they are predictably pursuing the leak as aggressively as most any other company who relies on a tight ship before shipping a product. Like, for example, Nokia.

Btw- what happened with that case of censorship and the fundy school master? There was a lot of outrage and then....silence.

And a government can't censor a population better than they can themselves. Memes work both ways.

--212.68.4.37, 07-Mar-2005


There's an AP article today (http://apnews.myway.com//article/20050307/D88M5J105.html) about companies taking legal action against employees who blog.

One quote, "sympathizers coined the term 'dooced,' meaning 'to have lost one's job because of one's Web site,' in her case dooce.com"

--158.228.228.108, 07-Mar-2005


The verdict of Finnish supreme court in the case of the Sonera-Book probably extends to blogosphere as well. The publisher did not need to reveal the author (source) of the book, as the court interpreted it to be included within the limits of source-shielding.

However, I'm a bit irritated by the amateurish and provocative way of claiming that the source protection right equals freedom of speech. I figure the bloggers were not sued for divulging information (which would be ridiculous), but rather required to divulge their informants, who had probably broken some NDA:s.

- Markus

--Markus, 07-Mar-2005


Well, an adult behaving like a teenager still has the same protection under law as an adult behaving as an adult - no matter how childish it may seem to some.

Breaking an NDA is a serious matter, and there are many ways to figure out who it was. Suing a journalist to reveal his information source should be (and is) the last resort. AFAIK, Apple did not exhaust all other possibilities, but directly attacked the bloggers, claiming that they do not have the same rights as a professionally accredited journalist would have, probably calculating that they would collapse under pressure. Nobody wants to fight a big corporation in court in the USA, as it tends to be very expensive.

The silence of the teacher case was due to the fact that internal investigations within the police were conducted, and it was found yesterday that the police did not act according to law. Read more from Mummila.

--JanneJalkanen, 08-Mar-2005


I'm just lately irritated by the freedom of speech activists consistently neglecting to remember that freedom of speech does not mean freedom to commit crimes by speaking. Until now, it has meant freedom to commit crimes by speaking until a court verdict.

Now that "speaking" in its various forms has become immensely more powerful weapon both in good and in bad, it is interesting to see how the legislation adjusts.

Personally, I'm in favor of wide discussion on these issues in the society, having not found my stance on all issues. But I have to confess that if I was a suing type, I'd try to take Waybackmachine down the first.

- Markus

--Markus, 08-Mar-2005


True. And I would also claim that many bloggers do not have the slightest clue as to what their rights and responsibilities are on-line; what are the limits to libel and slander and what kind of laws do at the moment govern personal publishing.

Discussion is clearly necessary.

By the way, Apple's definition of "journalism" seems to be "anything that they like", according to this article, where a representative of MacUser was denied press credentials "because ~MacUser is a rumour site". Unfortunately, ~MacUser happens to be the oldest Mac print magazine in the UK...

--JanneJalkanen, 08-Mar-2005


I'm sort of agreeing with Markus here. I can't really work up much outrage about Apple's actions. They didn't go after the bloggers. They're going after the people who broke NDAs, and they sued to get their names.

Now a journalists right to protect their sources is a good thing, but I think a degree of professionalism is essential for it to work. Otherwise anyone can obtain any kind of material criminally, give it to their friends and have them publish it.

Most bloggers, in my eyes at least, are not journalists. The rumour sites Apple sued were certainly established, but I don't really think that they're actions have been overtly professional. Professional journalists should (and thankfully still occasionally do) publish material companies don't want known when its publication benefits the public. No greater good was served by leaking Apple's trade secrets, and running a site built on that premise can certainly earn you a living, but in my eyes it's not much in the way of _professional journalism_.

And BTW any company can define "journalism" the way they like when "journalism" concerns access to their press events or trade shows. Of course being stupid about it isn't really good PR (and the MacUser thing was verging on stupid, certainly), but there is no law that says all journalists are entitled to free tickets. Sadly, because I would like to see more movies for free, even if the publications I work for rarely concern themselves with cinema :-)

--hakkis, 08-Mar-2005


Anyone can sue anyone - that's granted. As someone pointed out, it's not likely that any news company would've actually printed the same kinds of rumors as what ~ThinkSecret did.

However, you cannot simply say that a blogger is not a journalist. Some undisputedly are (such as Dan Gillmor). Some are somewhere in between. Most aren't. But you cannot simply make that distinction by saying that you can be a journalist if you work for a big corporation, and unless you are a professional, you don't have certain rights.

In Finland the situation is also slightly unclear: the 16th article of the Freedom of Speech and Mass media says that a person cannot be forced to reveal his source of information, once it has been distributed to the public. However, the Judicial Process 24th article says that if the punishment of the crime would be over six years or publishing that information would otherwise be against the law, it's possible to force a person to reveal their sources. I interpret this as publishing state secrets, but I don't know whether this would also apply at trade secrets (as it falls under the contract law). I am not a lawyer, after all.

--JanneJalkanen, 08-Mar-2005


"However, you cannot simply say that a blogger is not a journalist. Some undisputedly are (such as Dan Gillmor). Some are somewhere in between. Most aren't. But you cannot simply make that distinction by saying that you can be a journalist if you work for a big corporation, and unless you are a professional, you don't have certain rights."

I agree with you there. What I meant with professionalism here was more a certain attitude and skill set, not so much a state of employment.

I still maintain that 99 percent of bloggers lack the skills and ethics to really be called journalists. And if a line about journalists must be drawn somewhere, I most certainly am not comfortable at drawing it at the "anyone posting something publibly"-point.

Many people working for media companies are also bad at their jobs by the way, but at least there the higher barrier of entry has pushed the percentage of qualified contributors a bit higher than the net in general :-)

--62.236.91.194, 08-Mar-2005


Sorry, I'll post this in Finnish. It's about situation in Finland, anyway :-)

Koulutustilaisuudessa tänään oli puhetta lähdesuojasta. Kukaan paikalla olleista toimittajista ei muistanut tilannetta, jossa lähdesuoja olisi loppuun asti käydyssä tapauksessa oikeudessa murrettu. Lähdesuoja on ollut laissa 60-luvun puolivälistä.

Ja hei, murtaminen edellyttäisi rikosta, josta kakkua olisi tulossa kuusi vuotta! Ja se on kuusi vuotta *ehdotonta*. Siinä saa tehdä rikosta ihan tosissaan, ennen kuin tällainen ehto täyttyy!

Lisäksi pitää muistaa, että oikeus tässä tapauksessa määräisi toimittajan kertomaan lähteensä rangaistuksen uhalla. Toimittaja voi siis olla myös kertomatta lähdettään ja ottaa rapsut.

Ja IANAL :-)

--Kari Haakana, 08-Mar-2005


Well, 62.236.91.194 (you are not a free man, you are a number :), I disagree with you on one point only: your 99% figure is too low.

Assume five million bloggers: 1% of that would be 50,000 people. I would estimate perhaps 1000-2000 people with journalistic integrity paralleling those of professionals. That would give the estimate of 99.96% that are not journalists...

However, 2000 people (or by your estimate, 50,000 people) with the talent, the integrity, the connectivity, the speed, and the means is a powerful force. Shirky's Power Law suggests that these people will "float to the top", and will have far more weight than your average haircut-blogger.

In the end, I don't think it eventually matters if you're called a journalist or not. Your readers and your peers will do the decision. Perhaps the word "journalism" is losing its meaning - much like the words "blog" or "IT". You can no longer define it to be inside a particular box.

--JanneJalkanen, 08-Mar-2005


Oops, just noticed that Technorati now tracks seven million blogs... Revise my estimate to 3,000 people :)

Think of the blogging growth rate: 240% per annum! It's no wonder legislation is creaking and the aftereffects are spilling everywhere! What other phenomenon has been growing so fast lately?

--JanneJalkanen, 08-Mar-2005


For once, I agree 100% with Hakkis.

I'm under the belief that if a pro bono freelancer works for a magazine that has a www-edition, that falls under journalism, even in California. So certainly the lines are fuzzy.

The problem with your reasoning, Janne, is that the category or concept of "blog" means nothing. Established journalism has an intentionally privileged position in western society, which at least I want to preserve. Bloggers include everything from professional specialists to hatemongers and to clueless jerks. Earlier "journalism" and "magazine" were problematic definitions, now "blogger" is even more so.

These cases must be settled one-by-one in the courts, to find out the pattern of when a person writing to web constitutes a journalism and when not. Numbers of bloggers are completely meaningless, especially when you understand that blogs are legally not different from any other web content produced by random people.

Or, where can you draw the lines? Do my personal webpages pass the criteria of blogness, even on the areas that are not chronologically organized entry collections? Why? Why not?

--Markus, 09-Mar-2005


Actually, according to Finnish law, yes. It makes no distinction between a blog or any sort of a personal home page. And neither do I.

It's not really about blogging (though bloggers do get the heat of the matter, being the first. I'm sure podcasters will get the next wave of doubt. But I'll just talk about bloggers for now.) In fact, ~ThinkSecret can hardly be called a blog - it wouldn't fit the idea of a blog for many people.

The concept here is really about personal publishing, i.e. making your own content available to the internet in text, audio, video, or any format you could think of.

So yes, I see no reason to give bloggers a particular preference here. Anyone publishing for the web goes, whether it be a comment in a BBS system, a measly blog, or a fully fledged web magazine have certain rights. Even clueless jerks have the right to speak openly (you can check what Voltaire said allegedly about the matter). Or perhaps you would like to curb the freedom of speech to only those that use it for the "good"? Surely not. But you can't draw the distinction, neither can I - and with tens of millions of people providing all kinds of content, nobody can. It's the same thing as with Karpela's censoring attempts: you just can't say what is okay and what is not.

I personally feel this will either create a situation where freedom of speech will be seriously limited, or where journalism will become even a more of an "attention ecology" than it is now. Neither of the options is very good, I admit. But it's hard to see it not happening.

You want to keep journalism an art of the few and the privileged. Record companies want to preserve their business model. I want to preserve my loved ones. There is no distinction - the world changes and we have to embrace the change.

And I don't think you got my point about the number about bloggers. I was only estimating how many authors might there be who actually do have something to say in a manner that might influence things. Please reread.

(FWIW, I don't believe this is the death of journalism. High-quality journalism will still be appreciated in the future as well. But it should be accepted that interested individuals with too much time in their hands, when moving in great numbers, can provide comparable, even better quality journalism than any news organization. Wikinews is a good attempt. Wikipedia proves that the theory works. Mostly.)

--JanneJalkanen, 09-Mar-2005


"Even clueless jerks have the right to speak openly (you can check what Voltaire said allegedly about the matter). Or perhaps you would like to curb the freedom of speech to only those that use it for the "good"? Surely not. But you can't draw the distinction, neither can I - and with tens of millions of people providing all kinds of content, nobody can. It's the same thing as with Karpela's censoring attempts: you just can't say what is okay and what is not."

But this isn't really a freedom of speech issue. I'm not saying that ThinkSecret should be censored. However, if they publish content obtained in unlawful ways, I don't think it's unreasonable to sue them to find out their sources. They're allowed to say what they want, and they are also allowed to take responsibility for what they've said. That's the way it should work.

Then it should be up to the courts to decide - on a case by case basis - if this was a case of the sort of journalism where the whistleblowers are mandated protection and the reporters allowed to protect them, or if it's simply maliciously publishing trade secrets for no really good reason (or some other similar scenario). And even then the ThinkSecret people or other parties in similar situations, if they believe in their case, can protect their sources and pay the penalties for doing that (which, by the way, is the way protecting your sources has often traditionally worked in this less than ideal world - journalists or newspapers have paid fines or even done jail time rather than betray a trust).

Source protection and free speech are two very different things. Both are certainly important, but one should not be confused with the other. Freedom of speech is in my book a universal right, applicable to just about everything. Source protection is something I only see as sensible and doable when it's applied to worthy causes (and that's also the way the legistlation concerning it - if any exists at all - works in many places).

--hakkis, 09-Mar-2005


Who says what's a worthy cause?

You are attaching a blanket description of "good" and "evil" to the matter, which is always dangerous. Should the Sonera book author have been revealed?

I didn't mean to say that this is a freedom-of-speech issue, though the matter is actually addressed in the Finnish Online-Freedom-of-Speech law (which, I guess, technically does make it a freedom-of-speech issue in Finland :). I was just merely pointing out that drawing the line is difficult also in the freedom-of-speech areas as well as in what can be constituted as journalism and what cannot.

I just object to the blatant line-drawing done by the judge: "bloggers are not journalists, and therefore do not have the right to protect their sources". If you say that Apple has the right to sue, then why not the US government, if someone leaks out confidential documents proving that GWB eats kids for breakfast? Online personal publishing can on a very, very slippery ground after generalizations like that...

If all cases are tried in court, many small publishers will simply censor themselves for the fear of being sued. Not because they feel they might be wrong, or the matter might not be important, but simply because they cannot afford to go to the court. I'm sure you realize what this might do to citizen grassroot movements.

The trouble is that when everyone can publish, anything is news to someone. This is the Long Tail. You can't say what's worthy and what's not...

I think that in the long run, hiring a private detective would've been cheaper for Apple.

--JanneJalkanen, 09-Mar-2005


As mentioned, my stance on these issues is still unclear.

My dissection of the problem goes like this:

1) Can society do anything to prevent explosive increase in freedom of (anonymous) speech and the attached ability to commit crimes by speaking without punishment?

2) If there was something that could be done, should it be done? This decision should be made combining high principles with practical repercussions.

3) If nothing can be done to free, anonymous speech, should non-anonymous speech be equally liberated, as the fight is lost anyway?

IMO the same logics apply to Karpela's porn filters. If we could filter porn and violence and gambling from kids, we should. (At least some of the stuff from some age groups). If we can't prevent the access anyway, should we then even try, or go for the freedom + responsibility avenue.

Freedom of speech is exploding. Our opinions make little difference in this fight: in 5-20 years, the personal publishers will win no matter what we do. They already did, but the society is just in the middle of a painful process trying to understand the fact.

[As a comparison: expanding from this logic, the society should try to come up with ethically acceptable ways of producing legal kid porn, instead of waging a lost war against it. Wouldn't be impossible, even.]

--Markus, 10-Mar-2005


First of all, I find dangerous, if not naive, to equate freedom of speech with legalizing kid porn. I agree that it is difficult to draw borders, but let's not get silly here. I mean, if you are a freedom fighter in some obscure country, you are committing crimes according to the local government, no matter how noble your intentions are. Therefore, local legislation cannot be used as a natural basis on determining what is right and what is not. Same applies to copyright violations, for example. Is posting copies of MP3:s governed by free speech? What about advertisements and spam?

However, the fact is that online free speech cannot be regulated to any significant amount. The internet has ways of rerouting around damage, and it is very difficult to shut these things down. Self-moderation is the only thing that works: i.e. things like netiquette. There are many ways to achieve a level of self-moderation, and I think I'll make a post on those in the future. Suffice to say that this is what has worked with journalism so far, so I think it should work on the internet as well. Unlike with journalism, these "bad texts" will still be published, however they will be largely ignored.

As to your second point - I'm not sure. The concept of "high principles" is extraordinarily vague, and would differ considerably between me, and say, a born-again christian from USA. Practical repercussions we don't know of yet, so that's even more problematic. I think the only solution to this is to allow this decision to be personal: you decide what you want to see. I'm not against people selling filtering software - I'm against forcing them down the throats of everyone.

Anonymity on the internet is an interesting issue. Nobody is really anonymous: your identity can be discovered, if someone tries really hard. There are multiple levels of identity protection, and you tend to choose the one that suits you best. If you become a large enough nuisance, someone (perhaps the authorities) is going to figure out who you really are. Thus I don't really see the point of your question.

--JanneJalkanen, 10-Mar-2005


"First of all, I find dangerous, if not naive, to equate freedom of speech with legalizing kid porn."

So, indeed we agree on the fact that freedom of communication is not the same as freedom of committing crimes with communication. :-) Then again, we never really disagreed on that I guesss.

The very nature of internet makees self-moderation an impossible idea. The point of democratic legislation is its ability to control the whole community. In internet case, the no kid porn advocating majority can self-moderate all it wants, but it makes no difference for the minority, as the minority includes the whole value chain from production to consumption (except for the victims).

Which can again be reflected back to self publishing and blogging and real life. If self control worked on the mass scale, we didn't need legislation.

The high principles are political-ethical issues. Between me and you, we mostly agree that banning kid porn is good and denying the right of expressing opinions is bad. Certainly there are people disagreeing with us on both of these points. But that's the reason why we elect legislators. There is someone always saying what is the worthy cause, to some extent. Running the relativism thread to the bitter end is a practical impossibility -- albeit it takes examples like kid porn to prove this point to many people.

As a bottom line, I don't really think we disagree, except maybe on a hairsplitting-class philosophical level.

--Markus, 11-Mar-2005


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