The video games media reports on leaked information all the time. So why, when British website Trusted Reviews published details from a leaked document about Red Dead Redemption 2 in February of this year, did it end up paying out £1 million to charities as part of a settlement with publisher Take-Two Interactive?
The answer comes down to two things: how Trusted Reviews handled the information it was given, and how Take-Two decided to handle the breach. As detailed in the original article about the leak, which has now been taken down and replaced with an apology, Trusted Reviews originally received this information months prior to publication, in August 2017. (According to two sources from other media outlets, the same leaked document was also sent to other websites around the same time.) Trusted Reviews then waited until some of the information in the document was corroborated by Rockstar’s own drip-feed of information about Red Dead 2 before publishing the rest.
What Trusted Reviews did not do was verify the identity of the leaker or where the information came from, according to three people familiar with the situation. Nobody at Trusted Reviews knew whether this document was stolen or otherwise obtained via illicit means, those people said.
When reached by Kotaku, Trusted Reviews editor-in-chief Nick Merritt said he had no comment beyond the apology that the website published yesterday.
Per British law, what matters most here is not whether the information turns out to be true, but whether it was legally obtained – and whether that can be proven in court. Take-Two could have asserted that the confidential information was stolen, hacked, or otherwise illegally obtained, which would have made the outlet that published the information complicit in the misappropriation of trade secrets and liable for damages. One million pounds, in that situation, would be considerably less than could be demanded in court. Normally, it would be the person who breached confidentiality who would be legally liable – i.e. the person who passed the document to Trusted Reviews. But if Trusted Reviews couldn’t identify its source and be sure that the information wasn’t illegally obtained, it would have had a very thin defence.
Ordinarily, publishing confidential information about a company of its products is legally defensible – even if that information is valuable. To get it taken down or sue, the company would have to argue that it was a trade secret, and the definitions for that are quite strict – leaked marketing materials or a release date would almost never qualify.
In the UK, the public interest defence usually protects the publication of trade secrets if it’s in the people’s interests to know about it – if, for instance, a company is dumping toxic chemicals into a local river. It’s fair to say that the public interest defence rarely applies to information about a forthcoming video game, and wouldn’t have been easy to apply in this case.
It’s also generally a bad look for large corporations to come after the media, which is why they usually don’t – and it’s an even worse look to be defeated in a court battle over leaked information. Take-Two Interactive would have weighed all of that up.
This case is an extraordinary one, then, and it might prove to be influential. For many media organisations – especially smaller ones – the mere threat of expensive legal action might be enough to prevent the publication of leaked information, even if it was legally obtained from verified sources. Whether or not it’s defensible in court, the risk just wouldn’t be worth it.