Professor Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment clinic and tort law at UCLA School of Law. This column appeared Dec. 15 on the Volokh Conspiracy blog, which is hosted by the Washington Post.
David Boies, representing Sony, has written a letter to various media outlets, demanding that they not publish or otherwise use the stolen Sony documents, and threatening lawsuits if the information in the documents is indeed “used or disseminated by [the receipients] in any manner.” Does Sony have a legal leg to stand on?
Probably not, at least as to most of the information that media outlets would want to publish. There are two relevant precedents, which aren’t squarely on point, but which are pretty close.
First, let’s look at Bartnicki v. Vopper (2001). Vopper was a radio commentator who received a tape recording of an illegally intercepted conversation; he apparently wasn’t involved in the illegal interception, but a reasonable recipient of the recording should have realized that the conversation had been illegally intercepted, and Vopper likely actually did realize this. Vopper played parts of the conversation on his program, and was sued under a federal statute that made both the interception and the use of such conversations illegal (both a crime and a tort).
But the Supreme Court held that Vopper’s broadcast incorporating the intercepted communication was protected by the First Amendment. Though the interception was illegal (and could constitutionally be kept illegal), the playing of illegally intercepted material under these circumstances was constitutionally protected, at least when the broadcaster wasn’t involved in the illegal interception, and the communication was on “a matter of public concern.” (The particular conversation involved union leaders who were allegedly discussing physically attacking managers.)
The second precedent is Pearson v. Dodd (D.C. Cir. 1969) — not a Supreme Court precedent, but still influential. Some ex-employees of Sen. Thomas Dodd, in league with some current employees, took some documents from the senator’s office without permission, photocopied them, and then sent the copies to investigative reporters Drew Pearson and Jack Anderson. Pearson and Anderson published articles based on the documents. Dodd sued, claiming the publication was an invasion of privacy, and also constituted “conversion,” which is to say basically use of stolen property.
The D.C. Circuit rejected these theories, concluding that the publication just wasn’t tortious (and thus not having to reach the First Amendment issue). When information is on a matter of public concern, the court held, the fact that it was illegally leaked doesn’t make publishing it an invasion of privacy. And the information in the copied letters does not “fall under the protection of the law of property, enforceable by a suit for conversion.”
Thus, it seems likely that the publication of the documents isn’t likely to be tortious. And even if it can fit within some tort (such as the improper use of trade secrets, a tort that is sometimes said to apply to disclosers of illegally released information), the First Amendment would likely preempt the tort.
Two caveats:
1. The matter isn’t open and shut. There isn’t a lot of precedent on the subject, and one can argue that Bartnicki shouldn’t be applied here. Two justices of the six-justice majority, for instance, stressed that the speech there was “of great public concern,” and while the Sony documents are likely to be seen as of public concern (since they deal with the behavior of a large and highly economically and culturally significant company), one can argue that they aren’t of great public concern. Also, the majority opinion inBartnicki stressed — in my view, unpersuasively, though I agree the result in that case was correct — that illegal interception can often be deterred by enforcing the ban on illegal interception, without having to forbid the third-party use of the leaked intercepted material. One can argue that, when it comes to hacking, the only effective way to deter it and to minimize the harm caused by it is to ban third-party publication of the leaks. But on balance, I doubt that these distinctions will carry much weight, given the holding of the Bartnicki majority opinion.
2. Some particular publications of specific information in the Sony material might lead to a successful lawsuit. First, disclosure of facts about particular people that are seen as highly private (e.g., medical or sexual information) and not newsworthy might be actionable under the “disclosure of private facts” tort. But this would apply only to a fairly narrow sliver of material, a sliver that most mainstream publications wouldn’t cover in the first place (since they do tend to focus on material that is newsworthy, under the broad definition of newsworthiness that courts use in such situations). Also, any such lawsuits would need to be brought by the people whose private facts were disclosed, not by Sony.
Second, publication of large enough portions of a leaked e-mail might be seen as copyright infringement. (Even business e-mails are generally protected by copyright, and the copyright to e-mails written by employees as part of their employment is owned by the employer.) This is a complicated area of the law, and I don’t want to go into the details here. But the bottom line is that publication of short quotes, or disclosure of the facts from e-mails without the use of the precise phrasing from the e-mail, would likely not be infringement — it would either be fair use or the lawful use of facts rather than of creative expression. Moreover, even publication of entire e-mails might be seen as fair use, since there’s no real commercial market for the e-mails, and since the e-mails would be seen as predominantly factual rather than highly creative.
[UPDATE: After the post was written, it was revealed that the script for “Spectre,” the new James Bond movie, was one of the items that was stolen and leaked. If a publication posted this entire script, that would be a good example of something that is indeed a copyright infringement. Copying an entire creative work, in a way that would diminish the work’s commercial value, would likely not be a fair use, unlike copying excerpts from e-mails.]
So Sony is unlikely to prevail — either by eventually winning in court, or by scaring off prospective publishers — especially against the well-counseled, relatively deep-pocketed, and insured media organizations that it’s threatening. Maybe the law ought to be otherwise (or maybe not). But in any event this is my sense of the precedents as they actually are.
