Can Sony restrict journalists from publishing hacked information?

Many celebrities and journalists have divergent opinions on what to do with the leaked entertainment information.

Carolyn Kaster, AP Photo, File
In this Oct. 10, 2014 file photo, attorney David Boies is seen in Washington. Lawyers representing Sony Pictures Entertainment are threatening news organizations not to publish details of company files leaked by hackers in recent days, following one of the largest digital breaches ever against an American company. Boies, a prominent lawyer hired by the company, demanded Sunday that Sony’s "stolen information" — publicly available on the Internet by the gigabytes — should be returned immediately because it contains privileged, private information.

Hollywood actors and producers are still on the defensive three weeks after hackers broke into Sony Pictures Entertainment’s computer system. Information exposed includes employee Social Security numbers — including those of actors —and private email exchanges.

On the heels of the latest information exposed, celebrities touched by the leak continue to distribute harsh words of blame — not to Sony, or to the hackers, but to reporters and news organizations that continue to disseminate the information.

Are actors and screenwriters correct? Should journalists not have touched the story? Two conversations are happening at once — one in media law, one in ethics.

Attorney David Boies, for one, has made his position clear, sending an official cease and desist to news outlets: “[Sony] does not consent to your possession, review, copying, dissemination, publication, uploading, downloading, or making any use of the Stolen Information, and to request your cooperation in destroying the Stolen Information.”

But legally, Sony may not "have a legal leg to stand on,” writes law professor Eugene Volokh for the Washington Post. 

“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,” he writes.

The Poynter Institute asked several media law experts the same question. News organizations would need to argue that the information "was in the public interest," says Herschel Fink, the counsel for the Detroit Free Press. But others pointed to legal precedent and the fact that Mr. Boies did not cite a specific law as indicators that journalists may be in the clear. 

Expanding the question from law to ethics, however, paints a murkier picture. Here, celebrities are far more vocal. 

“It’s stolen information,” actor Seth Rogen says, appearing with Howard Stern on Sirius XM radio, according to the New York Daily News. Mr. Rogen stars in the film that the hackers may be trying to stop. 

“All of this information would literally just be sitting on some obscure corner of the Internet if it wasn’t for these news articles exposing the information,” Rogen later continues.

Mr. Stern calls the materials “stolen information that media outlets are directly profiting from.”

Dean Baquet, The New York Times’s executive editor, writes in a statement that the Times has used documents that others’ had surfaced, though he notes that the paper does not have a firm policy. “It would be a disservice to our readers to pretend these documents weren’t revealing and public,” he writes. “But the main issue, the main thing we consider, is how newsworthy the documents are. In that regard I would say these aren’t the Pentagon Papers. And these aren’t Wikileaks.”

This morning, the New York Times published an op-ed by screenwriter Aaron Sorkin that criticized journalists for doing exactly what he says the hackers are doing. (Mr. Sorkin, notably, wrote the screenplay for one of the films discussed in leaked emails)

I understand that news outlets routinely use stolen information. That’s how we got the Pentagon Papers, to use an oft-used argument. But there is nothing in these documents remotely rising to the level of public interest of the information found in the Pentagon Papers.

Do the emails contain any information about Sony breaking the law? No. Misleading the public? No. Acting in direct harm to customers, the way the tobacco companies or Enron did? No. Is there even one sentence in one private email that was stolen that even hints at wrongdoing of any kind? Anything that can help, inform or protect anyone?

The co-editor in chief of Variety tells us he decided that the leaks were — to use his word — “newsworthy.” I’m dying to ask him what part of the studio’s post-production notes on Cameron Crowe’s new project is newsworthy. So newsworthy that it’s worth carrying out the wishes of people who’ve said they’re going to murder families and who have so far done everything they’ve threatened to do. Newsworthy. As the character Inigo Montoya said in “The Princess Bride,” I do not think it means what you think it means."

TechCrunch’s Sarah Perez and Forbes’s Dorothy Pomerantz disagree.

Ms. Pomerantz points to the gender disparity in earnings as a valuable piece of information disclosed.

“It’s one thing to talk about that fact in a vacuum or based on anecdotal evidence,” she writes. “It’s another to see a list of hundreds of employees that shows clearly that women in the same position are earning less than their male counterparts.” 

Ms. Perez writes that the information contributes to the public good by exposing that “if an organization of Sony’s size is susceptible to hacking, anyone is.” 

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