Is Gawker's "Apple Tablet Scavenger Hunt" Illegal?
Apple is threatening to sue over Valleywag's tablet stunt. It's got a pretty good case.
Gawker—whose founder, Nick Denton, recently chided his minions for thinking "way too much before publishing," and which is fighting off a copyright lawsuit after posting extended excerpts of a celebrity trio's "naked threesome" video—is once again testing the limits of journalistic ethics and the law.
The fun started Tuesday, when Gawker's Silicon Valley gossip site, Valleywag, announced what it called the "Apple Tablet Scavenger Hunt," offering cash prizes for information about the much-anticipated new Apple device, reportedly set for public unveiling Jan. 27. Valleywag said it had "had enough of trying to follow all the speculation" about the product and set out a "menu" describing what it would pay for info, ranging from $10,000 for "bona fide pictures" to $100,000 for anyone who could physically deliver the tablet to the editors and "let us play with one for an hour."
The famously, obsessively secretive, "super, super paranoid" Apple is not playing along. Wednesday it had one of its outside lawyers fire off a cease-and-desist letter to Gawker's editor-in-chief, demanding that he cancel the scavenger hunt. The letter, from Orrick, Herrington & Sutcliffe's Michael Spillner, accuses the site of "inducing a misappropriation of trade secrets in violation of California trade secret law" and "inducing breach of contract," and threatens legal action against Gawker and "anyone who makes an illegal submission to you in response to the offer."
Is Apple just huffing and puffing, hoping that Gawker folds without a fight? Or does it actually have a case against the site for engaging in what might be described as a form of corporate espionage? And does the First Amendment give Gawker the right to report by a paid, crowd-sourced "scavenger hunt"?
The First Amendment guarantees journalists the right to print just about anything they want. But one thing it doesn't do is give reporters a free pass to break laws that the rest of us have to obey. And that's true even if obeying them would impede their newsgathering activities. Scribes on the crime beat can't speed to the scene of a shooting and park in a handicapped spot to make sure they get the story first. Investigative reporters can't trespass onto company property or steal documents to expose wrongdoing. As the Supreme Court first put it in 1937, and re-affirmed in 1991, "The publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others."
So Apple's allegations that Gawker violated trade-secret law and induced others to breach their confidentiality agreements with the company can't simply be dismissed with a facile invocation of the First Amendment. While trade secrets and similar legal doctrines are seldom wielded against journalists, there's no reason that they can't be.
The most famous invocation of the tort of inducing breach of contract (sometimes called "tortious interference with contract") in the journalism context involved Jeffrey Wigand, the Brown & Williamson tobacco executive turned whistleblower immortalized in the movie The Insider. Wigand spilled the beans on Big Tobacco to 60 Minutes, but, as the film portrays it, weak-kneed CBS lawyers and execs cut the juicy parts from his interview, fearful that B&W would sue the media giant for interfering with the nondisclosure agreement between Wigand and his employer.
Ben Sheffner is an attorney in Los Angeles and a former newspaper reporter. He blogs at Copyrights & Campaigns.
Photograph of Nick Denton by JP Pullos/PatrickMcMullan.com/Sipa Press.