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| Gawker's latest privacy scandal poses dilemma in $100m Hulk Hogan lawsuit | Gawker's latest privacy scandal poses dilemma in $100m Hulk Hogan lawsuit |
| (about 2 hours later) | |
| The latest scandal to hit Gawker Media has presented the company with another dilemma as it prepares to enter the ring with professional wrestler Hulk Hogan in a $100m personal injury case, experts say. | The latest scandal to hit Gawker Media has presented the company with another dilemma as it prepares to enter the ring with professional wrestler Hulk Hogan in a $100m personal injury case, experts say. |
| The group’s CEO, Nick Denton, has been named by Terry Bollea – the Hulkster’s civilian name – in a lawsuit over a sex tape of Bollea and Heather Clem posted by Gawker in an article by AJ Daulerio, also a defendant. Clem, then the wife of Bollea’s friend Bubba “The Love Sponge” Clem, was named in a parallel suit. Denton and Gawker’s reporters have vigorously defended their right to publish the video. (The video has been removed from the story citing “pending litigation”.) | |
| The next date in the Gawker v Hogan lawsuit is 1 October, when a case management conference is scheduled. | The next date in the Gawker v Hogan lawsuit is 1 October, when a case management conference is scheduled. |
| Now that Gawker has posted (and taken down) its story about a publishing executive, married to a woman and a father of three, who exchanged texts with a male escort, Columbia Law School professor John Coffee says Denton will have a harder time under questioning. | Now that Gawker has posted (and taken down) its story about a publishing executive, married to a woman and a father of three, who exchanged texts with a male escort, Columbia Law School professor John Coffee says Denton will have a harder time under questioning. |
| In a heated staff meeting on Tuesday reported by Capital New York, Denton told his editorial team that he saw the escort story as “threatening [Gawker’s] ability to actually fight its way through the Hogan trial and threatening its business”. But its removal may cause just as many problems. | In a heated staff meeting on Tuesday reported by Capital New York, Denton told his editorial team that he saw the escort story as “threatening [Gawker’s] ability to actually fight its way through the Hogan trial and threatening its business”. But its removal may cause just as many problems. |
| “Someone’s going to say to him, ‘You took this off of your website, even though you had violent opposition from two leading staffers who resigned,’” Coffee predicted. “‘You must have thought it was wrong!’ And he’ll have to say yes. If [the escort story] is an invasion of privacy, why isn’t it an invasion of privacy when you have a video of what happened? Gawker didn’t have a video of the potential gay relationship here.” | “Someone’s going to say to him, ‘You took this off of your website, even though you had violent opposition from two leading staffers who resigned,’” Coffee predicted. “‘You must have thought it was wrong!’ And he’ll have to say yes. If [the escort story] is an invasion of privacy, why isn’t it an invasion of privacy when you have a video of what happened? Gawker didn’t have a video of the potential gay relationship here.” |
| “In light of Gawker’s past rhetoric about our fearlessness and independence, this can be seen as a capitulation,” Denton wrote in an introspective post on Friday. “And perhaps, to some extent, it is.” | “In light of Gawker’s past rhetoric about our fearlessness and independence, this can be seen as a capitulation,” Denton wrote in an introspective post on Friday. “And perhaps, to some extent, it is.” |
| Gawker Media’s newly formed union excoriated company management for removing the escort story in a terse post on Friday; the company’s executive editor Tommy Craggs and the editor-in-chief of the flagship site (Gawker), Max Read, resigned in protest on Monday. | Gawker Media’s newly formed union excoriated company management for removing the escort story in a terse post on Friday; the company’s executive editor Tommy Craggs and the editor-in-chief of the flagship site (Gawker), Max Read, resigned in protest on Monday. |
| The question now is whether the company can weather litigation from Bollea – the retired wrestler has asked the court for $100m – and what will happen to it if it loses. Coffee said that much may depend on the venue, and Bollea, a Tampa native, may benefit considerably from the home field advantage. | The question now is whether the company can weather litigation from Bollea – the retired wrestler has asked the court for $100m – and what will happen to it if it loses. Coffee said that much may depend on the venue, and Bollea, a Tampa native, may benefit considerably from the home field advantage. |
| Coffee said that Bollea’s suit against Clem – for allegedly violating copyright and since dropped – would help keep the trial on his the wrestler’s home turf. “I don’t think he [expected] any damages from her, but he has a case for keeping the venue in Florida [because both he and Clem live there].” | |
| “Being able to choose a Florida jury probably gives them greater advantages than would a series of supreme court decisions,” Coffee said. “Having the ability to choose the fact-finder is a far greater advantage than having the case law. You’re going to get the community judgment of St Petersburg, Florida.” | “Being able to choose a Florida jury probably gives them greater advantages than would a series of supreme court decisions,” Coffee said. “Having the ability to choose the fact-finder is a far greater advantage than having the case law. You’re going to get the community judgment of St Petersburg, Florida.” |
| The Bollea case, said Coffee, depends on invasion of privacy. Hulk Hogan’s status as a public figure, even one who holds forth often and at length about his sex life, may have kept him from getting the kind of sympathy that the subject of the escort story immediately received, but there’s no evidence Bollea intended for anyone to see the tape. Indeed, he’s denied he knew it was being made. | The Bollea case, said Coffee, depends on invasion of privacy. Hulk Hogan’s status as a public figure, even one who holds forth often and at length about his sex life, may have kept him from getting the kind of sympathy that the subject of the escort story immediately received, but there’s no evidence Bollea intended for anyone to see the tape. Indeed, he’s denied he knew it was being made. |
| “If he’d shown the video to others, that might have waived his right to privacy,” Coffee said. “He hasn’t sought to be taped. He’s just having sex, and that would probably entitle him to his right to privacy. If he’d sought to do it in Times Square, it might be a different issue. | “If he’d shown the video to others, that might have waived his right to privacy,” Coffee said. “He hasn’t sought to be taped. He’s just having sex, and that would probably entitle him to his right to privacy. If he’d sought to do it in Times Square, it might be a different issue. |
| “I can imagine him doing that, actually.” | “I can imagine him doing that, actually.” |
| Denton said he felt he could stand behind the Hogan story and not the escort story for exactly that reason. “Hogan is a hugely public figure, who was public too about his sex life,” he wrote in an email exchange with the Guardian. “[The other story’s subject] wasn’t.” | Denton said he felt he could stand behind the Hogan story and not the escort story for exactly that reason. “Hogan is a hugely public figure, who was public too about his sex life,” he wrote in an email exchange with the Guardian. “[The other story’s subject] wasn’t.” |
| “The closest legal case to the Hogan case is one involving one of the Pamela Anderson sex tapes,” said Lior Strahilevitz, a professor of law at the University of Chicago Law School, who agreed with Denton that “Hogan obviously speaks about his sex life in a way that most of us wouldn’t” but said it wasn’t that simple. “[In the Anderson case], what the court said is that being a sex symbol in movies and TV shows doesn’t mean you’ve waived the right to privacy that you have with your lover when you’re not performing in public.” | “The closest legal case to the Hogan case is one involving one of the Pamela Anderson sex tapes,” said Lior Strahilevitz, a professor of law at the University of Chicago Law School, who agreed with Denton that “Hogan obviously speaks about his sex life in a way that most of us wouldn’t” but said it wasn’t that simple. “[In the Anderson case], what the court said is that being a sex symbol in movies and TV shows doesn’t mean you’ve waived the right to privacy that you have with your lover when you’re not performing in public.” |
| Strahilevitz said that publishing a sex tape put Gawker over a line that merely recounting facts would not. “The distinction that really matters where privacy law is concerned is a visual depiction of a sex act versus a written story about a possible extramarital affair with an escort,” he said. “The law regards the publication of a sex tape as much more troubling.” Indeed, the new “revenge porn” law may come to bear on the case, he said. | Strahilevitz said that publishing a sex tape put Gawker over a line that merely recounting facts would not. “The distinction that really matters where privacy law is concerned is a visual depiction of a sex act versus a written story about a possible extramarital affair with an escort,” he said. “The law regards the publication of a sex tape as much more troubling.” Indeed, the new “revenge porn” law may come to bear on the case, he said. |
| And again, Gawker will be tried initially by the community of St Petersburg. Jon Mills, dean emeritus of the University of Florida Fredric G Levin College of Law, has a knowledgeable perspective on privacy law and said that, sleazy appearances on Howard Stern aside, Hogan has a strong case. | And again, Gawker will be tried initially by the community of St Petersburg. Jon Mills, dean emeritus of the University of Florida Fredric G Levin College of Law, has a knowledgeable perspective on privacy law and said that, sleazy appearances on Howard Stern aside, Hogan has a strong case. |
| “Hogan isn’t totally a sympathetic figure, but people or public figures do have some private life,” he said. “If you divorce yourself from thinking about who it is and just say, ‘Somebody had tape of sexual intercourse that they’d intended to be private, which somebody else published,’ that would of course be offensive.” | “Hogan isn’t totally a sympathetic figure, but people or public figures do have some private life,” he said. “If you divorce yourself from thinking about who it is and just say, ‘Somebody had tape of sexual intercourse that they’d intended to be private, which somebody else published,’ that would of course be offensive.” |
| Mills defended the family of Dale Earnhardt, Jr from a lawsuit by several news organizations seeking the release of Earnhardt’s autopsy photos after the famed stock car driver died in a fiery final-lap collision with Ken Schrader during the 2001 Daytona 500. The jury found in the family’s favor and enacted a new law requiring consent from next of kin before autopsy photos could be released as public records. | Mills defended the family of Dale Earnhardt, Jr from a lawsuit by several news organizations seeking the release of Earnhardt’s autopsy photos after the famed stock car driver died in a fiery final-lap collision with Ken Schrader during the 2001 Daytona 500. The jury found in the family’s favor and enacted a new law requiring consent from next of kin before autopsy photos could be released as public records. |
| Ultimately, no one involved is going to have an easy time looking like a hero, said Mills. “I had the New York Times on one side and Dale Earnhardt on the other side, and nobody was a bad guy,” he said. | Ultimately, no one involved is going to have an easy time looking like a hero, said Mills. “I had the New York Times on one side and Dale Earnhardt on the other side, and nobody was a bad guy,” he said. |
| “Now you have Hulk Hogan and Gawker.” | “Now you have Hulk Hogan and Gawker.” |