11:49am PT by Eriq Gardner
Procuring Leaked 'Apprentice' Footage Raises Tricky Legal Questions for Media Outlets
Ever since the Washington Post on Friday published bombshell audio of Donald Trump bragging about groping women to Access Hollywood's then-host Billy Bush, speculation has centered on other potential videos that could show the Republican presidential candidate in a highly unflattering light. Thanks to an Associated Press report about Trump's sexually demeaning behavior on The Apprentice and a producer's tweet about the existence of "far worse" tapes than the explosive Access Hollywood footage that has rocked Trump's campaign, Apprentice outtakes have perhaps replaced Donald Trump's taxes as the top object of lust among many reporters.
But what is the cost to procure these videos? Hundreds of millions of dollars? Nothing at all? From a legal standpoint, this one isn't an easy question.
When it came to Access Hollywood outtakes, the legal analysis, at least for NBC (which owned the tapes), centered on the network's potential liability if Trump were to sue for wiretapping. There's good reason to believe that Trump couldn't have any expectation of privacy while wearing a microphone preparing to do an on-camera interview. NBC ultimately decided to allow footage to be shown — albeit too late to avoid being scooped by the Post.
The legal analysis over Apprentice outtakes raises entirely different questions — and potentially more serious and costly ones for those looking to encourage leakers. The issues are contractual.
MGM, which owns the tapes via its acquisition of Mark Burnett Productions, likely has a deal with Trump that allows him as an executive producer and the show's top star the right to approve any video or audio that is released publicly. The company has acknowledged that "various contractual and legal requirements... restrict MGM's ability to release [Apprentice] material," without much explanation.
in turn, Apprentice staffers have employment contracts that promise not to divulge nonpublic information about the show.
Speculation on the cost for an Apprentice insider leaking anyway has been pegged at $5 million, emanating perhaps from a since-deleted tweet from producer Chris Nee ("I don't have the tapes. I've signed a Burnett contract & know leak fee is 5 mill"). At that amount, some on social media have suggested a billionaire like George Soros or Mark Cuban could shoulder the burden. David Brock, a Clinton ally, has said he would be willing to back the leaker financially.
But that ignores the potential liability for inducing the leaker to breach a contract. There are laws against tortious interference with contractual relations, and the penalties can include economic damages and punitive damages. If a lawsuit were to come, it might be argued that the one encouraging the leaking has harmed not only Trump but also Burnett's ability as a producer to honor obligations with stars. And punitive damages, if malice can be shown, would take into account the defendant's financial wherewithal and be awarded with an eye on sending a message and deterring future bad acts.
Thus, it's easy to imagine that if a billionaire-backed enterprise or even a financially comfortable media organization attempts to interfere with Apprentice secrecy, the cost could be quite high. That was something that CBS strongly considered when running a 60 Minutes report based on what was procured from a tobacco industry insider in the 1990s as portrayed in the Oscar-nominated film The Insider. (In one memorable scene, a shocked Mike Wallace is told by a CBS lawyer that the tobacco company "could own CBS" as a result of his segment.) At least one court has also ruled recently that news organizations aren't immune from a lawsuit for tortious interference under the First Amendment.
Then again, there wouldn't be interference if Apprentice crewmembers aren't really prohibited from leaking material. It's impossible to say definitively without reviewing the Apprentice contracts, but at least one attorney believes that the anti-leak provisions are just meant to deter surprises before they air. In other words, spoilers like Apprentice winners and losers, not outtakes some years later. If a judge deemed the contract to be ambiguous, there would be testimony surrounding what the parties intended with their nondisclosure agreement.
Would broad prohibitions be deemed enforceable and overcome arguments of contravening public policy and the broader social interest in weighing a candidate's fitness for public office? And if a leak occurs, would a judge force reporters to disclose their source?
Burnett's company has denied that it has threatened anyone with litigation. At least yet.
The real problem as media organizations look into these issues is they will be making this analysis in the context of Donald Trump, an individual who is not only litigious, but could emerge from election day with a major grudge against news outlets. Trump has already signaled that he's unlikely to accept a loss with grace, and if he sees Apprentice outtakes as factoring into his defeat and has the opportunity to lean on Burnett to take vengeance and collect monetary damages, he very well could move forward with a lawsuit. Thus, regardless of confidence about ultimately prevailing, the mere possibility of a court fight with substantial damages at hand could be enough to dissuade media outlets with weak knees from overpursuing what was said off-air on Apprentice.