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Over At Brandshift

Just posted this to Brandshift.

Apple Ruling Has Implications for Brand Communicatiors

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

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?

  1. 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."
  2. 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.
  3. 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.
  4. 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.
  5. 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.

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