Over the weekend I received a nice holiday letter from lawyers representing Sony Pictures Entertainment, demanding that I cease publishing detailed stories about the company’s recent hacking and delete any company data collected in the process of reporting on the breach. While I have not been the most prolific writer about this incident to date, rest assured such threats will not deter this reporter from covering important news and facts related to the breach.
“SPE 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,” wrote SPE’s lawyers, who hail from the law firm of Boies, Schiller & Flexner.
This letter reminds me of one that I received several years back from the lawyers of Igor Gusev, one of the main characters in my book, Spam Nation. Mr. Gusev’s attorneys insisted that I was publishing stolen information — pictures of him, financial records from his spam empire “SpamIt” — and that I remove all offending items and publish an apology. My lawyer in that instance called Gusev’s threat a “blivit,” a term coined by the late, great author Kurt Vonnegut, who defined it as “two pounds of shit in a one-pound bag.”
For a more nuanced and scholarly look at whether reporters and bloggers who write about Sony’s hacking should be concerned after receiving this letter, I turn to an analysis by UCLA law professor Eugene Volokh, who posits that Sony “probably” does not have a legal leg to stand on here in demanding that reporters refrain from writing about the extent of SPE’s hacking in great detail. But Volokh includes some useful caveats to this conclusion (and exceptions to those exceptions), notably:
“Some particular publications of specific information in the Sony material might lead to a successful lawsuit,” Volokh writes. “First, disclosure of facts about particular people that are seen as highly private (e.g., medical or sexual information) and not newsworthy might be actionable under the ‘disclosure of private facts’ tort.” Continue reading →