As a preview to my week long coverage of the myriad legal issues raised in the D’Banj v. Don Jazzy Mo’Hits case, I mentioned the numerous areas of law involved i.e. intellectual property law, company law, labour law, contract law, securities and tort law (potentially). However, another legal issue not discussed that this case raises is the tension between the freedom of the press and the privacy rights of individuals and/or a corporation. I will discuss that issue later. For now, let’s focus on a few important things about leaked emails and ways to protect yourselves (all industry people).
Actually, before I start, I LOVE music (needless to say) and when I write, often, different songs just pop in my head that best depict situations that I talk about. I’ve got Rihanna and Drake’s ‘Take Care’ as a sound track to this post in my head. D’Banj ends his relationship with Don Jazzy. What song could be more fitting? Plus, I know D’Banj has made it clear he wants to date Rihanna. At least he can see how she rolls on the music end. 🙂
Back to the issue at hand. Whether you are a member of the entertainment industry or not, it has got to be the most intrusive and violating feeling to see your confidential emails you shared with a specific person/persons shared across the world wide web. It is even worse when it concerns deeply personal and sensitive information on how you run your business. Nevertheless, specific to Nigeria’s fashion and entertainment industries, this appears to be a common practice. When individuals have disputes among themselves, they take to the streets of the internet in hopes that they can curry favor/ and or a pity party. This is absolutely unacceptable and NO ONE should be comfortable or complacent where they are violated in such manner to just sit and take it. That is what your attorneys are there for and you should consult with one if someone has been this vindictive to you.
Focusing in on the topic today, leaked emails in the biggest music breakup in today’s contemporary Nigerian Music Industry, the Mo’Hits D’Banj and Don Jazzy breakup, today’s ever evolving world of technology and the digital age, has paved the way for faster and easier modes of communication. In so doing, however, there have been many significant legal issues as technology collides with the law. From easy interceptions to the hacking of electronic devices and emails, we have seen the law collide with technology in a negative way and the impact it can have on the lives of those who are victims to these misuse of technology. What do you do about it? What are the basics you can follow to avoid easy hacking of your emails?
For one, basic due diligence might be helpful from the onset. There are no guarantees that despite following basic due diligence, someone/or an employee will not breach this confidentiality or fiduciary duty they may or may not have with your company to put your private business on the web. However, where they do, with due diligence already in place, it should be easy to track these persons, get rid of them as quickly as possible within your organization, get law enforcement involved (criminal courts, prosecutors etc.) and depending on the situation, sue in civil court.
Before I discuss these basic due diligence that I believe was lacking in the Mo’Hits company which made access to the email that easy, several things to note:
1. Record labels in the USA and Europe breakup and close down all the time. The private details communicated with company executives, even where disputes exists, has rarely ever, if at all, been leaked all over the internet. There are grave consequences for the person who leaks private email if caught. It includes firing, civil action and depending on the facts, a criminal action pursued by the prosecuting body. If the West does not tolerate it, why should we? Further, as a young industry, why are we so comfortable with embarrassing ourselves on the world stage just for a few laughs or scathing comments on blogs?
2. When you correspond with the media and bloggers via email, if they decide to publish your emails, that is not a leak. Every-time you write to or respond to the media or bloggers, understand that what you say can be tomorrow’s headlines, so think before you write and of course make sense.
How D’Banj and Don Jazzy Confidential Emails Got Leaked
1. There was most likely no notice of confidentiality and the consequences of breaching confidentiality in the bodies of the emails exchanged: It has become a standard thing for millions who communicate via email to append their signature with a disclaimer in the body of the email. The disclaimer specifies the email is for the intended recipient(s) and no one else, the email could contain information of a privileged nature, if the recipient is not the intended person, they are to return/notify of the error, delete and do not read the email. An example of such disclaimer is below:
This communication and any documents, files or previous e-mail messages attached to it, constitute an electronic communication within the scope of the Electronic Communication Privacy Act, 18 USCA 2510. This communication may contain non-public, confidential, or legally privileged information intended for the sole use of the designated recipient(s). The unlawful interception, use or disclosure of such information is strictly prohibited pursuant to 18 USCA 2511 and any applicable laws. If you are not the intended recipient, or have recieved this communication in error, please notify the sender immediately by reply email and delete all copies of this communication, including attachments, without reading them or saving them to disk.
In our above example, there is a reference to USA laws that govern electronic communications i.e. the Electronic Communication Privacy Act. In Nigeria, you need not specify the actual law. It is enough to just communicate that the email is confidential and explain what is to be done with the email should the wrong person receive it. Most likely, D’Banj and Don Jazzy did not have a notice of this kind in their communications.
2. There was most likely no notice of confidentiality in the subject line of email: Beyond the body of your email, your subject line should also indicate this is a private and confidential email. For example:
To: ([email protected])
From: AML Artist | AML Industry Insider | AML Music executive
Subject: PRIVILEGED & CONFIDENTIAL – Negotiations Over XYZ Record Label
Marking your email in the subject line “Confidential” further makes it clear that your email is meant to be confidential. Where a person violates that confidentiality and it can be shown that such violation has caused serious damage including damage to reputation, emotional distress, loss of business etc., then your attorneys, depending on Nigerian Tort Law, may seek to have a court of law also award you punitive(to punish) damages (money) against the person who violated and intruded into your privacy.
There is a high probability that both D’Banj and Don Jazzy in the leaked emails did not mark their emails confidential.
3. There was probably no internal processes limiting access to confidential information to a specified individual: Not everyone should have access to company email, stored passwords etc. That information should be protected and there should be a designated staff who handles any and all things relating to such sensitive formation. With internal processes in place and streamlined, it makes it a lot easier to identify who may have been responsible for a leak where it occurs. It goes without saying that for your personal accounts, it should be either you or your designated Personal Assistant who handles such emails.
4. The Password to Access Emails Stored on D’Banj and/or Don Jazzy’s Computers was Probably Not Very Secure:Your passwords that you use to login into your emails should be very secure. They should also be changed especially where a dispute already exists between company executives, as in this situation. Further, realize that updating your login password every 4-6months significantly limits the functionality of your password to whomever is looking to hack into your emails.
Let’s go back to that tension I discussed between the freedom of the press and illegally obtained information i.e leaked private emails.
I cannot speak as to Nigerian law on this. But I can lay out a parallel here in the USA for you all to think about.The Punch Newspaper first broke the news of illegally obtained private emails that was sent to it by an insider at Mo’Hits. Should The Punch Newspaper be liable? What about other blogs that have republished these emails?
Here is where it becomes relevant to always know which territory you are dealing with and how the laws work there. In the USA, Journalists have relied on leaked materials to create sensational news and stay ahead of the game for decades. The issue has been whether such leaked emails, if obtained illegally, can still be published. In 2001, the US Supreme Court took this issue on, for the first time. In a case called Bartnicki v. Vopper, the court had to answer whether the First Amendment protected journalists where they published leaked information that was illegally obtained. The court ruled in favor of Journalists but gave a caveat. Where information is obtained as a result of a “pervasive” invasion of a person’s privacy interest, then the First Amendment cannot be stretched to protect the media.
For interested AML legally inclined minds, click here to read about the case.
In conclusion, I highlighted some important points that I think industry folk should give serious thought to. The constant leakage of private information, many times intentionally, by parties affected in a dispute is not only unbecoming but presents Nigerians , on a global stage i.e. the world wide web, as people who are uncivilized, vindictive and out of control. Everyone has their own issues, I fail to understand why our issues need to be dragged into the public for the world to laugh at. Did I miss something?
NOTE: I already discussed, in a prior post, the need for employees &/independent contractors to know they are bound by confidential agreements when they work for the AML Artist/label or music business.