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March 13, 2005
Apple Ruling Has Implications for Brand Communicators
Posted by Andy Lark
Friday's ruling in favor of Apple has deep implications for brand communicators. Now I'm no lawyer and experience tells me that different corporate legal counsel will come at this one from different directions. So, take this as you will.
AP: Judge: Apple can press Bloggers on sources. A California judge on Friday ruled that three independent online reporters may have to divulge confidential sources in a lawsuit brought by Apple Computer Inc., ruling that there are no legal protections for those who publish a company's trade secrets.
The Judge seems to have not bought into Apple's argument that Bloggers are not Journalists, preferring to sidestep the issue all together. As I've stated on my blog, I don't believe bloggers are journalists unless they are blogging to what they regard to be a media blog. But that doesn't mean we're not entitled to report and to all the protections of the Fifth Amendment. And, the blogosphere shouldn't be confined by traditional notions of publishing. Suddenly, anyone who has information in the public interest must check with a company to see if it is a trade secret? To which the response is naturally, yes.
There are so many worrying things about this ruling. The least of which is a Judge ruling on the nature of content. "Even if the movants are journalists, this is not the equivalent of a free pass." Kleinberg firmly defined the trade secret information as stolen property. Assuming that all information belongs to someone else, where does this one stop?
Anyway, enough of the rights rant. So what are the implications for brand communicators?
- Communications policy takes a new twist. Most documents carry the line "Company Confidential - Not For Distribution". I suspect many will start to add "Trade Secrets". Dan Gillmor said it well, "Reporting on business, if this bad ruling is upheld on appeal, will be a great deal harder in the future. Companies will simply slap "trade secret" protection on everything they do, and any reporter who gets a scoop on anything the company doesn't want the public to know about will be under a legal threat."
- More enforcers raise their ugly heads. In a challenge to independent journalism - and reporting in general - more companies get more aggressive on leaks and use the Apple ruling to aggressively pursue and plug leaks. I'll be the first to admit to being on the receiving end of leaks. It's incredibly frustrating. At the same time I always had enormous respect for media who cultivated sources and were aggressive in reporting. I suspect the ruling will open the door to any aggrieved company pursuing journalists it doesn't like. This is going to get personal.
- Advances & NDAs are the next to be challenged. For decades companies have attempted to manipulate media coverage via negotiated advances, exclusives and NDAs. Apple is one of the grandmasters at this. So what if the information has been given to a range of selected outlets? Is it still a trade secret then? Perhaps the Judge's ruling will have the unintended effect of reducing these practices if information is regarded to be fair game once in the public domain? This is one for the Lawyers but its important.
- New additions to blog policy. I know companies are rethinking blog policies in the light of the Apple ruling. Thou shalt not disclose trade secrets is being added to the list. Very specific language is being crafted into employment contracts related to disclosing trade secrets to non-traditional media sources.
- Brands will be defined by how they handle the blogsphere. How would you have dealt with the leaks Apple faced? I'm an Apple fanatic. I've only bought Apple for years. But all of this has made me much less loyal than I once was. What I'm also surprised at - from a company that is meant to care so much about its community - is the lack of dialog. As far as I can tell there isn't an Apple blog in sight providing perspective on the issue. Your reputation will be partly defined by how you react and act in relation to leaks. Apple has tarnished it's reputation.
These are just five of the implications of this absurd but critical case for brand communicators. I'd love to build a list of other implications and then publish them as a whole. Drop your thoughts into the comments section... I'll leave you with Charles Cooper's comments from his C/Net column:
The real subtext is this: Apple is directed by a collection of control freaks who would have found themselves quite at home in the Nixon White House. The big difference being that reporters had the constitutional freedom to report on the Nixon White House.
Apple has been an infuriating company for me to cover over the last two decades or so. I adore its technology but can't stomach its overreaching sense of entitlement. Other tech companies deal with leaks all the time. Nobody's happy when their discussions wind up as fodder for the rumor mill. But that's part of the give-and-take that's defined the technology business for decades.
Comments (7)
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Jennifer Rice
Andy Lark
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1. PXLated on March 13, 2005 08:29 PM writes...
Couldn't resist...:-)
1) Have you actually read the Dan G entry and ALL the comments? Unless the tide shifted today (haven't been there), the majority seem to disagree with Dan. And the majority of other blogs/posts I've read, the comments have been for Apple and against the poster as well.
2) If others wanted to be aggressive, they didn't need this ruling to go for it. It's only personal from some journalists/bloggers, they seem to be the ones making a mountain out of a molehill. Some have turned it into their own personal little hysteria.
3) No effect, an exclusive would more then likely be under an NDA until an agreed upon time/date anyway and still be a trade secret.
4) Has nothing to do with blogs. Most companies have policies about disclosing trade secrets. Disclose, you're fired, period. And should be.
5) Bull :-) Blogs aren't the answer to everything. Not all companies need to blog or will.
As far as the referenced Cooper item...Jobs has always treated "marketing" like theater...full of surprise, magic and a big show. You can't have that when nothing is a surprise. To be a surprise, it needs to be secret. Not many companies (or marketing professionals) can do marketing theater. Apple is nothing like a lot of the other boring tech companies out there so comparing is impossible. Just because others do something a certain way doesn't mean everyone else should also.
Permalink to Comment2. Andy Lark on March 14, 2005 12:25 PM writes...
I couldn't resist either :-)
1. Yes. Did read them all. This debate isn't going to be won on the basis of who posted comments in Dan's blog. Read the commentary occuring across the Net - I'd say the majority are against Apple on this one. But that isn't really the point. The issue at the end of the day is the Judge's ruling.
2) I think you are missing the implications this has for free speech and reporting. If the journalists are worried, so should you be.
3) No, not all exclusives are under NDA. Many are just negotiated. Some take the form of an "Advance". The very nature of an exclusive means an NDA is more than often not required. NDAs are most useful when briefing smaller groups of pubs that compete (in order to preserve the embargo).
4) It has everything to do with blogs and the nature of secrets. A blog policy that doesn't cover this is missing something.
5) I never suggested that Apple should have a blog. What I said was they are not communicating effectively on this issue. That aside, I do believe blogs are quickly becoming a must have component of the communications mix. Not all companies will need them. Just like not all companies need a press release. That doesn't seem to hold them back from pumping out drivel all day long.
Nobody disputes your final claim. But their launch style doesn't give them a proxy to attack the media when their secrets make it into the public domain.
Permalink to Comment3. PXLated on March 14, 2005 12:31 PM writes...
I'm really surprised there is so little discussion (comments) on BrandShift. You raise some good issues/opinions/etc. but generate very little discussion.
Permalink to CommentI was checking my logs this am and saw several have come from my link here. Figured from that there would be some additional posts besides just mine.
It appears that people are reading BrandShift, just not engaging...Why do you think that is?
4. elabalus on March 14, 2005 02:46 PM writes...
Major screw up by Apple. A too look on them much less favorably. No corporate secrets deserve protection at the expense of an stifling an informed society and corporate oversight.
They deserve to have everyone start leaking.
Permalink to Comment5. Andy Lark on March 14, 2005 04:00 PM writes...
Takes time for people to engage. There have always been more spectators than participants. That's Ok as well.
One of the other implications of the Apple ruling is that - and I'm not saying this is right - is that companies right to market their way, uninterrupted. They get to choose the when, where and by who of how their information makes it into the public domain (this in fact runs against various acts which encourage the disclosure of information in the public interest).
They've always had this right but no protection against the anonymous leakers. The media would simply suggest confidential sources and leave it at that. Now we have a clear precedent and I’m certain companies are going to be more assertive in exercising their rights to market their way and pursue leakers.
Permalink to Comment6. Roger on March 14, 2005 10:38 PM writes...
I agree that companies will make everything a Tade Secret. This will eventually turn on them. All of these issues have cycles. We are diving rapidly into a period of lost privacy and the loss of reasonable privileges and rights across all areas of politics and culture. When we get tired of the abuse and excess we will get back what we have lost. After all, we voted for this abuse.
I hope it doesn't last too long.
Roger
Permalink to Comment7. Johnnie Moore on March 15, 2005 03:28 AM writes...
It looks like Apple have found ways to use the law to support control and secrecy. The excessive reliance on rules is the response of the bureaucrat and they are probably experiencing the short term satisfaction of someone who believes that by making rules you create what you seek.
It creates great opportunities for competitors to do something quite different. As some already are. And the market can vote with its feet.
I know where mine would take me.
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