Why Reporting A Red Dead Redemption 2 Leak Cost A British Website $1.8 Million

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 almost two million dollars 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 - ie, 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 in both the US and UK 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 it’s defensible in court, the risk just wouldn’t be worth it.


Comments

    This seems to confirm what I posted in the previous article on this. It's a bit of a myth that the media has free reign on what it publishes, there are several categories that aren't permitted (defamation, suppression orders, etc) and trade secrets that don't meet public interest criteria are one of those categories.

      Especially in the UK and Aus this is true. But with my very poor recall I think the US has much more of a chance of getting away with this if it happened there.

        UK has a lot more power with super gag orders and things of that like, too. But @zombiejesus is bang on with some of the limitations. Defamation especially.

        While the USA has that wonderful First Amendment to the Constitution which has been interpreted to allow freedom of the press, there are a ton of restrictions on what you can and can't publish still.

        Interestingly, the Reporters Without Borders Press Freedom Index ranks Australia significantly higher than the UK, and both higher than the US, with the most free press tending to be in Scandinavia, since in this like just about everything else it seems that that area has their shit well together. The surprising one that comes up quite high consistently is New Zealand.

          The UK has really regressive laws in this area. Truth is usually a defence against defamation. Not in the UK.

            Wait they can be sued for defamation even if the claims are completely true?

            How bizarre.

              From my understanding, yes. If it caused them some sort of damage. It's crazy.

      there are several categories that aren't permitted (defamation, suppression orders, etc) and trade secrets that don't meet public interest criteria are one of those categories.

      those can still be broken through if the information leaked warrants it like the company doing something illegal but forcing the employee who witnessed it to sign a non-disclosure contract.

        I'm not fluent in UK trade secret law as I mentioned in the previous article, but in the US that's actually only partially true. The DTSA came into effect in 2016 designed to protect whistleblowers, and in it, trade secrets suspected to be illegal can only be shared with government officials or attorneys solely for the purpose of reporting breach of law, or in a lawsuit provided the filing is sealed. If the disclosure doesn't meet those conditions, it doesn't gain immunity, so leaking to a media organisation still requires that it meets the criteria for public interest (and may still ultimately be liable if the court rules that way).

    I wonder how much Take Two could actually have claimed in damages? By their own reckoning, RDR2 had the second biggest launch in entertainment history - it's hard to imagine that they would have sold a lot more if Trusted Reviews hadn't published this information. So what harm, exactly, did this do to Take Two that they would actually need redress for?

      Take Two got no redress, the money went to charity.

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