Can Sony stop news organizations from publishing?
Sony Pictures Entertainment sent a letter to several news organizations including The New York Times, the Los Angeles Times and The Hollywood Reporter Sunday warning them not to publish information taken from the company during a recent hacking attack.
The end of the letter hinted that legal action could follow if news organizations disregard the demand:
If you do not comply with this request, and the stolen information is used or disseminated by you in any manner, SPE will have no choice but to hold you responsible for any damage or loss arising from such use or dissemination by you, including any damage or loss to SPE or others, and including, but not limited to, any loss of value of intellectual property and trade secrets resulting from your actions.
But does Sony Pictures Entertainment's threat of legal action have any teeth? We talked to two First Amendment lawyers and one communications law scholar to get some perspective.
Floyd Abrams, an attorney who represented The New York Times in the Pentagon Papers case, says Sony will not be successful if it tries to convince a court to make news organizations destroy information gleaned from the hack.
"While it's perfectly understandable why Sony is considering any and all legal steps to protect itself, any court-imposed requirement that copies of the documents be destroyed would be nothing more or less than a prior restraint, a limitation on speech that the First Amendment all but totally bars," Abrams wrote to Poynter in an email.
Sony Pictures Entertainment might have grounds for a lawsuit if news organizations republish copyrighted works taken from the company, however.
"Of course, certain legal remedies remain available: The copyright laws protect against wholesale republication of unpublished works, for example, but that protection would exist however the materials had been obtained," Abrams wrote.
Herschel Fink, the counsel for the Detroit Free Press, said Sony's legal team might have a legitimate claim if it can convince a judge that the material being published by news organizations doesn't serve the public.
"There would be an argument that this information is not in the public interest, and therefore if it was illegally obtained, it might be enjoinable," Fink said. "But if it were of public interest and concern, then it wouldn't be under the case."
There is existing Supreme Court precedent favoring the news organizations, Fink said. In Bartnicki v. Vopper, the Supreme Court ruled that the First Amendment protected the dissemination of an intercepted cellphone call by a third party. In that case, the court ruled that because the call was a matter of public concern, it was shielded by the First Amendment.
"If the information is truthful and a matter of public significance, it can't be enjoined absent a need of the highest order," Fink said.
Paul Siegel, a professor at the University of Hartford and author of "Communication Law in America," noted that the letter from Sony didn't cite any specific law that news organizations could be guilty of violating if they continue publishing.
"Indeed, it is my understanding that the courts have been pretty clear on this point — the thief incurs liability and/or criminal prosecution, but the press is generally free to publish materials it has learned through no criminal enterprise of its own," Siegel wrote. "That doctrine has been applied to stolen or leaked documents and to illegally taped conversations — again, as long as the conversations were taped by a source not associated with the media organization."