On its face, it was just a salacious tabloid story about a fading celebrity, a feisty gossip site and a murky sex tape.
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, say legal experts, suggests that pendulum has swung strongly toward the latter and away from the former in the Internet age.
Hogan (a.k.a. Terry Bollea) won the eye-popping jury award as a result of his invasion-of-privacy lawsuit against Gawker, the New York online publisher that has scored some notable scoops over the years but has alienated others with its boundary-pushing.
In 2012, it published excerpts of a video in which Hogan has sex with a friend’s wife. Hogan claimed that publication of the video caused him to lose endorsements and inflicted emotional harm. Gawker argued that 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 jury in St Petersburg, Fla. agreed with Hogan, awarding him $55 million in economic damages and $60 million for emotional distress - an astounding total that exceeded even the $100 million he’d sought. On Monday, the jury added punitive damages to the total, assigning Gawker Media $15 million, Gawker founder Nick Denton $10 million and former editor A.J. Daulerio $100,000.
Gawker, which has said it can survive its legal issues, has vowed to appeal the judgment. It is counting on an appellate court’s review of documents that were sealed during the trial that allegedly show that 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,” said 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 said, 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 said.
These concerns have resulted in state 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. The latter, which some American commentators have viewed favorably, obligates search-engine companies to scrub unfavorable statements or links upon an individual’s request.
Concern over privacy violations also played a role in another celebrity trial that resulted in a gigantic award, sportscaster Erin Andrews’s lawsuit against a stalker who posted surreptitiously shot nude videos of her in a hotel room. Andrews won $55 million this month after suing the man and the company that owned the hotel in which the videos were taken.
Traditionally, hateful or inflammatory information, especially against public figures, has been given wide protection by courts 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 speculated.
“It could have some implications for newsgathering,” said David Hudson Jr., a First Amendment scholar at Vanderbilt Law School. “I think it sort of ratchets up the notion that the public is very [protective] of privacy. It shows the pre-eminency of public concern about privacy.”
And that could “make editors think twice before they publish,” said Stuart Slotnick, a defense attorney 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?’”
As a broader matter, the Internet has changed who the media are, and who can publish, noted Sonja West, an associate professor at the University of Georgia’s law school. Only a decade or two ago, with fewer media outlets, the likelihood of anyone publishing a sex tape was almost nonexistent. But now that anyone, including individuals, can set up a digital platform and disseminate information, “it raises the question, ‘who or what is the press?,’ “ she said.
On the other hand, Hudson and West said the huge judgment against Gawker will probably be reduced on appeal as a judge hears more evidence.
“It’s one of those verdicts that shocks the conscience,” said Hudson. “I won’t go so far as to say it will be overturned, but the damage award is too high. It does not reflect the damage done.”
