Balancing the First Amendment with Brand Reputation after Breaches
Over the last several years, it has become commonplace for the media to publish information based on electronic materials that have been removed or copied either by organizational insiders and/or external people or groups. The publication of this type of material has impacted individuals, public and private organizations and various government agencies. While it is important for a free society to have the benefits of a free press serving as one of the checks and balances to protect citizens from abusive practices, we may have reached a point where we should re-examine how this is practiced. Are our criminal and civil statues effective on these issues?
Today, with very little exception, news and media outlets deliver content to their targeted audience with the intent of receiving financial gain through sales and advertising. Editors, producers and reporters remain in their roles and advance their careers based on a variety of factors supporting the monetary advancement of their organization.
If media utilize property or materials they know to be – or that a reasonable person would conclude are highly likely to have been – acquired in direct conflict with criminal or civil statues, are they not, in effect, profiting from either a crime or a tort? Those of you who have served in law enforcement have many times seen someone arrested and convicted for possessing and/or selling stolen property, and even the media themselves have hosted television shows of police “sting operations.” Is this not the same issue by a different name?
Admittedly, there is the argument that stolen physical property is easier to legislate because the owner is permanently deprived of it. If we are going to address the issue of intellectual property and the ease in which thousands of terabytes of data can be copied, we must address all the contributing elements in order to discourage the utilization of such information as well as the wrongful acquisition of it.
Going forward, ethically, should we encourage a standard that is contrary to the rule of law that excludes the presentation of evidence based on illegal search and seizure? If the police cannot use such materials, why is it acceptable for a person or organization to profit from using it? Just because an individual or organization doesn’t like how a government agency or public corporation are legally performing their activities, is it acceptable to obtain and then publish (sell) material the person or entity does not have a legal right to?
An additional question must also be asked: Are there exceptions that should be taken into account? Yes there are, and there have been a number of circumstances in which the disclosure of information pertaining to illegal acts has served the public interest and exposed illegal conduct by corporate and government leaders.
However, this should be examined carefully. Consideration must be given to utilizing other, less nefarious means to obtain the information and ensure the assumptions are factual and have not been cherry picked to support a personal or political cause.
This is a particularly slippery slope when it comes to government programs and activities that have been duly authorized and funded. Selective amnesia on the part of elected leadership seems to be an ongoing epidemic. However, protection of these assets is expected, and there are growing legislative requirements.
Now more than perhaps at any other time in history, private information, intellectual property and the work products of individuals and all organizations are under attack. The results of these breaches, incidents and losses due to a wide range of issues are significant negative economic impact that can further cause harm. Additionally, it is challenging and very costly for organizations to address this via our civil and criminal courts.
The media is supported in the protections of their copyrights and content. However, no individual or company should profit from the use of another’s intellectual property unless they have been rightly granted access to it. To do nothing facilitates this trend of gaining from the property of others, and conveys subtle encouragement with the goal of feeding public voyeurism. There should not be two standards in play.