Shift seen in Gawker case
Hogan win shows limits of public’s appetite for free speech
On its face, it was just a salacious tabloid story about a fading celebrity, a feisty gossip site and a murky sex video.
But former pro wrestler Hulk Hogan’s $115-million legal body slam Friday against Gawker Media could have deeper implications for the debate between the public’s right to know (and the media’s right to report) and an individual’s right to privacy. The verdict, legal experts say, suggests the pendulum has swung strongly toward personal privacy in the Internet age.
Hogan (real name Terry Bollea) won the eye-popping jury award after his lawsuit against Gawker for invasion of privacy. The New York-based online publisher has scored some notable scoops over the years but has alienated others with its boundary-pushing reporting.
In 2012, it published excerpts of a video in which Hogan has sex with a friend’s wife. Hogan claimed publication of the video caused him to lose endorsements and inflicted emotional harm. Gawker argued publication was protected by the First Amendment and that Hogan/Bollea had waived some of his right to privacy by bragging about his sexual exploits in interviews.
After a two-week trial, a Florida jury agreed with Hogan, awarding him $55 million in economic damages and $60 million for emotional distress — exceeding even the $100 million he’d sought. On Monday, the jury added punitive damages, assigning Gawker Media $15 million, Gawker founder Nick Denton $10 million and former editor A.J. Daulerio $100,000.
Gawker has vowed to appeal the judgment. It is counting on an appellate court’s review of documents sealed during the trial that allegedly show Hogan was planning to commercialize the video before Gawker published it.
Despite its unsavory aspects, “this case will be important because it indicates a change in the cultural mood,” says Samantha Barbas, an associate professor of law at State University at Buffalo who studies the mass media and privacy. The jury “is essentially saying too much free speech is dangerous. There are a lot of people who are disgusted with the way the media is corrupting the public sphere.”
Some of this is a backlash against the media, Barbas says, but it’s also personal: People increasingly fear the loss of control over their own images and information through hacking or unauthorized sharing via social media. “People are feeling very insecure about their own privacy,” she says.
These concerns have resulted in U.S. laws against “revenge porn” — criminal sanctions for posting intimate photos, texts or videos of a former lover — and the European Union’s enactment of a “right-to-be-forgotten” law. This law, which some U.S. commentators have viewed favourably, obligates search-engine companies to scrub unfavourable statements or links upon an individual’s request.
Courts have traditionally given inflammatory or even hateful information, especially against public figures, wide protection on the theory that newsworthiness trumps a well-known individual’s right to privacy. The massive award in the Hogan case may create a “chilling effect” as journalists rethink where the outer limits are, some experts say.
And that could “make editors think twice before they publish,” says Stuart Slotnick, a defence lawyer with the New York firm Buchanan Ingersoll Rooney. “It’s not limited to surreptitiously recorded sex tapes. The verdict is significant because it could stop (publication) of surreptitious recordings of any nature,” including newsworthy material about important people. “Journalists have to ask, ‘Is this so newsworthy that it’s worth the potential risks and costs of an invasion of privacy?’”
“There are a lot of people who are disgusted with the way the media is corrupting the public sphere.
SAMANTHA BARBAS ASSOCIATE PROFESSOR OF LAW, STATE UNIVERSITY AT BUFFALO