Should the media be worried by Sony's warning to stop publishing hacked material?
It has been reported that Sony Pictures Entertainment has written to media organisations in the aftermath of the hacking of its data – apparently by a group calling themselves Guardians of Peace – demanding that they destroy any confidential information they have received as a result of the theft.
So from a legal perspective, does this have legs?
Sony’s claims are likely to fall under two broad headings. First, breach of confidentiality.
As much as they may have wanted to keep them quiet, the off the cuff views of senior executives on that most precious of commodities – the stars and celebrities who fuel the whole industry – are unlikely to have the required quality of confidence or to be imparted in conditions requiring confidence to be protected in this way.
More importantly, the law is clear that once the information is in the public domain then duties of confidentiality cannot be maintained and this is the case even where the information was obtained through illegal activity.
In the UK we have seen in the Ryan Giggs case that a previously granted injunction will be dismissed by the court when the information covered by the injunction enters the public domain – even when the publication was itself a breach of the injunction.
More recently we have seen that attempts to supress information once it has entered the public domain has actually backfired and created more adverse publicity for the organisation trying to gag websites and blogs.
However, if the supposed scale of the hacks are to be believed, then there are many thousands more documents yet to be released. Many of these may relate to dry as dust legal contracts, business reports and financial data produced by Sony. It is the release of these documents that many industry insiders fear most – exposing the varying pay grades of actors and crew and the secrets of so-called Hollywood accounting, where high grossing films apparently never make a profit.
If media organisations hold information of this nature, which they have not yet distributed but know that the source is an illegal hack, then Sony could have a case to prevent further dissemination. At the rate the information is being released however it will have to move fast.
The other main area is breach of copyright. While the emails are unlikely to be protected, or to be covered by the fair use exception, instances of releasing whole screenplays – as in the case with the James Bond film Spectre – would be regarded as a breach of copyright. The case of Harper and Row v Nation Enterprises also shows that releasing the ‘heart’ of a work, such as the ending, could also constitute an infringement of copyright, even where the actual amount copied is small, particularly where it affects the market for the original work.
Robert Taylor is a media and entertainment solicitor at Cubism Law London