Published by LawTechie - January 15, 2010 - LawTechie

A contest launched by Gawker, followed by a stern demand from Apple, raises an interesting legal issue for local news outlets:

Hours after launching a contest to pay thousands of dollars for a peek at the Apple Tablet, Gawker received a letter from Apple’s lawyers that read: “Apple insists that you immediately discontinue the Scavenger Hunt.”

Fed up with fake Apple Tablet rumors, Gawker editors decided yesterday to pay some real money for real rumors. laid out at ValleyWag offered: $10,000 for a picture of the tablet, $20,000 for a video, and a whopping $100,000 for the chance to fiddle around with the device for an hour.

The big question: Just what can Apple do?

Bloggers and media outlets concerned with the legal ramifications of utilizing similar strategies for news gathering should consider the risks, and perhaps consult a lawyer, on how such contests relate to the legal issue of “trade secrets theft.”

A person is guilty of theft of trade secrets when (1) a valid trade secret exists and (2) he acquires the secret by unlawful means such as physically stealing it or paying someone to steal it. There is a very real possibility that Gawker may end up paying some Apple employee money to steal a picture, video, or the currently secret phone itself – this could obviously amount to trouble for Gawker and any company looking to emulate its strategy.

It should be noted that Gawker’s status as a news outlet raises some First Amendment / free speech concerns. In New York Times Co. v. United States (1971), the Supreme Court ruled that publication of private information of public concern by a newspaper is protected speech under the First Amendment. In 2001, Bartnicki v. Vopper expounded on this ruling by adding that such publication is protected even if the publisher acquires the information from a source that obtained the information unlawfully. Nevertheless, the Court has yet to consider whether a publisher who, itself, obtains the information unlawfully is equally protected. Moreover, the Court has never ruled on whether or not trade secrets are considered “private information of public concern” or merely private information of no concern to the public. The latter is not protected by the First Amendment.

In this case, Gawker is certainly pushing the envelope by doing something which may be construed as the unlawful acquisition of trade secrets.

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.

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