No self-respecting blog on trade secrets could let the recent news of WikiLeaks' mass publication of top-secret government cables go without comment. To businesses, as many commentators already have pointed out, the episode should be a potent reminder of how quickly someone can disseminate widely sensitive documents on the Internet. Of course, there are important differences between the misappropriation of state secrets and the misappropriation of trade secrets owned by non-government persons, including businesses, not the least of which involves remedies available to the aggrieved party.
When Wikileaks revealed thousands of U.S. diplomatic cables, there was little the government could do to have them removed from the Internet and protect their secret status. Private businesses suffering an Internet leak, however, may be able to persuade a court to order that leak plugged.
That is good news not just for the major U.S. bank that Wikileaks continues to threaten to "take down" by revealing information found on a bank executive's hard drive, but also for any business that owns trade secrets and is victimized by a disgruntled former employee posting those trade secrets on the Internet.
Courts now typically recognize that the presence of information on the Internet alone need not destroy trade secret status of published information, particularly where the business is prepared to act swiftly. Instead, in determining the trade secret status of information that has found its way onto one of the Internet's billion-plus webpages, courts tend to apply the traditional trade secret factors, according no special-let alone dispositive-weight to the information's publication on the Internet.
For example, some courts (PDF) have noted that where there is no evidence that posted information became "generally known to the relevant people", trade secret status was not destroyed by posting on the Internet. These decisions are in line with others from the "paper" world holding, for example, that a trade secret was not destroyed when it was contained in a pleading on file in a court clerk's office. In other words, unlike publication of top-secret government documents -- which all but guarantees exposure to millions of "relevant people" -- publication of a company's trade secrets on the Internet (particularly if they are not newsworthy in and of themselves), will be but the beginning of a fact-intensive inquiry into whether trade secret status has been destroyed.
Further, when private property such as trade secrets are involved, courts are inclined to give less weight to First Amendment concerns in ruling on requests for takedown injunctions. So an additional "Wikileaks" lesson for companies is that they can limit the damage of Internet publication of sensitive information if they act quickly to get a court order removing it.