The Hogan Case

As NPR covered, former wrestler Hulk Hogan has been awarded $140 million by a Florida jury in an invasion of privacy lawsuit against gossip news website Gawker, who published a clip of Hogan's sex tape in October 2012. The footage, supposedly given to Gawker by an anonymous source, was a 30-minute sex tape between Hogan (real name Terry Bollea), and his best friend's then ex-wife. Gawker revealed this information as well as a graphic, multi-paragraph description of the entire tape. On page two of the U.S. District Court order for the case, we read that "On October 15, 2012, Plaintiff [Bollea filed] a five count complaint against Defendants [Gawker] asserting claims for (1) invasion of privacy by intrusion upon seclusion, (2) publication of private facts, (3) violation of the Florida common law right of publicity, (4) intentional infliction of emotional distress, and (5) negligent infliction of emotional distress".

In class we've learned about libel, the legally unprotected action defined as any "malicious, false statement about an individual online, in print or media". The Gawker post, I would argue, is not libel, as seemingly none of it is false. But is it malicious? The courts have argued that it definitely was, with Gawker countering that in the trial, "Emotion was permitted to trump the law, and key evidence and witnesses were kept from the jury". I think that the post was malicious too. To me, private sexual matters of an individual shouldn't be touted as news unless they involve a death (see: David Carradine) or other serious incident that the public has a right to know about. We have also covered other cases of cyber-bullying where the courts don't side in favor of the victim. For example, in the case of Megan Meier's side, the perpetrator of the fatal bullying was acquitted. This is a more serious incident, but I think it impacted how seriously courts view cases of "intentional infliction of emotional distress" via CMC, which is explicitly mentioned in this case.

Gawker didn't have to post any of the sex tape, reveal that Bollea was involved with an affair with his best friend's wife, or lampoon him for his sex talk or what he ate for lunch (gross). The aforementioned Florida common law right of publicity also dictates that "No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other likeness of any natural person without ... express written or oral consent", which Gawker violated. And I don't think they should have. But to the defense of Gawker, $140 million is too much money in this case. They challenge the "$60 million [awarded to Bollea] for emotional distress with precious little evidence that he actually experienced any". Even if he did experience distress, does he really need $60 million for it? I think 1/60th of that amount would quell any emotional distress of mine pretty well.

Gawker will appeal the case and I am interested to see what happens. I don't think the end result is entirely fair, but I'm not sure if Gawker winning would be fair either. I think that when it comes to CMC, it isn't fair to publicly invade privacy intentionally when it will obviously cause the exploited person distress or worse. I support free speech but not when it goes this low. Although it can be hard to draw a line, a case like this becomes fascinating for that reason and I look forward to learning more about these types of situations in class.