In Tort Pursuit of Mass Media: Big Tobacco, Big Banks, and Their Big Secrets
92 Pages Posted: 26 Apr 2014 Last revised: 14 Aug 2014
Date Written: March 20, 2014
This article examines potential civil liability under the multistate norms of tort and closely related areas in the common law of the United States for the mass media re-publisher of leaked corporate secrets. The examination employs two fact patterns derived from real cases: one, contemporary, an international bank's grievance, never resolved on the merits in court, against the online publisher WikiLeaks; and second, conventional, a tobacco manufacturer's grievance, feared but never filed, against the television newsmagazine 60 Minutes. The study assumes jurisdiction arguendo and examines liability theories in tortious interference; unfair-competition law; and conversion, trade-secret appropriation, and related theories of theft. The Article concludes that direct liability under any of these theories is unlikely, but that claims for associative liability might well succeed. In reaching these conclusions, the study analyzes the strengths and weaknesses of the claims and the vulnerabilities of the defenses, including the freedom of speech. Ultimately, the Article demonstrates how nuanced questions of fact would prove dispositive of liability, such that the liability exposure of the media defendant increases in proportion to its entanglement with an unscrupulous source. The discernible risk of liability counsels against an absolutist stance on the freedom of information when media contemplate the republication of leaked corporate secrets.
Keywords: whistle-blower, leak, wikileaks, tobacco, bank, tort, obligations, trade secret, appropriation, misappropriation, unfair competition, civil conspiracy, conversion, free speech, free expression, freedom of speech, freedom of information, media, privilege, journalist, source, tortious, interference
JEL Classification: K13, K14, K22, K42, L86, O33, O34, O38, P12
Suggested Citation: Suggested Citation