As a follow up to my previous post, I now want to get into a liability analysis relating to the type of claims Sony could advance against media companies. Though not addressed in the letter itself, liability is highly questionable because of robust First Amendment defenses that may be deployed by publishers in this case. Sony and its executives could deploy a couple of conceivable legal claims in their fight against publishers. First, there could be claims for violations of California’s Uniform Trade Secrets Act. This Act ascribes liability to parties that disclose trade secrets information. This requires that the disclosed Sony information actually constitute a trade secret. In California, data can qualify as a trade secret if it derives economic value by virtue of being not generally known to the public. Secondly, the owner of the trade secrets, in this case Sony, must have maintained reasonable efforts to keep the data secret.
Sony would likely have major difficulty qualifying much of the released data as trade secrets. Thus far, the published data does not contain information that derives independent economic value by virtue of being a secret. Much of the reported disclosed data is in the category of industry gossip and insults. Similarly, data such as executive salaries lacks economic value. Movie release date information and production expenses like actor salaries and profit participation likely would hold economic value by virtue of its secrecy. However, Sony’s knowingly deficient data protection efforts may ensure that it fails to satisfy the element of reasonable efforts to maintain secrecy. As a trade secrets litigator, I think Sony would be fighting an uphill battle on such claims.