Hogan’s trial redefines the line between public figure and private citizen

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In Terry Gene Bollea v. Gawker Media LLC et al., Bollea (or Hulk Hogan) sued Gawker media for invasion of privacy, after the website published a video of Bollea engaged in sexual acts with Heather Clem, a wife of a shock jock by the name of Bubba the Love Sponge Clem.  The video was filmed in 2006.  Bollea settled his claim against Bubba Clem for five thousand dollars while he maintained his actions against Heather Clem and Gawker Media.

Gawker Media is a media conglomerate comprised of multiple blog websites.  Gawker.com is their flagship website but other blogs have gained notoriety in the past such as Deadspin.com, which broke the story about Bret Favre sending a New York journalist an explicit photo of himself.

Gawker’s defense team predominantly argued that the video was of public concern. 

Bollea filed his lawsuit alleging five claims: invasion of privacy by intrusion upon seclusion, publication of private facts, violation of Florida common law right of publicity, intentional infliction of emotional distress, and negligent infliction of emotional distress.  In order to prevail in his suit, he had to prove that Gawker gave publicity to a matter concerning private affairs 1) that would be highly offensive to a reasonable person and 2) the information was not of public concern.

Gawker’s defense team predominantly argued that the video was of public concern.  Defense explained that Bollea placed his sex life in controversy by routinely talking about his sexual prowess and history in the public eye.  Over the years, Bollea has not only been a star wrestler but specifically injected his sex life into the public eye through his reality TV show, talking to TMZ, and revealing details on the Howard Stern show where he even brought up the sex tape.  The sex tape was an extension of these repeated assertions.   Given that Bollea had talked about his sex life on other media outlets, the public was indeed interested in his sex life and therefore the sex tape.

In addition, Gawker’s defense advocated for a broad interpretation of “newsworthiness” under the First Amendment.  The defense cautioned that an adverse ruling against Gawker would set a precedent that substantially chills the speech of the media.  Newsworthiness should be a decision made by the public not the courts.  In response, Bollea attorneys argued that “Hulk Hogan’s” sex life might be of public concern but the private sex life of Terry Bollea is not.

The crux of Bollea’s argument was that Gawker Media published a video that violated his privacy rights as a private citizen  . . .

The crux of Bollea’s argument was that Gawker Media published a video that violated his privacy rights as a private citizen and that his private persona is entitled to more privacy than his public persona, as Hulk Hogan.  Bollea testified that the media has mistaken the two because he “exercises artistic liberty” by blending the truths of “Bollea’s” private life with “Hogan’s” public life.

In addition, Bollea’s attorneys argued that the video possessed “no news value” and that the video was published solely for monetary gain.  In other words, Gawker posted the video not because it was newsworthy but because it would create traffic on their website.  Bollea’s attorney’s also argued that if Gawker had instead provided a description of the video tape or an article addressing the video, then that would be protected under the First Amendment.

[The jury] collectively believed that posting the video was highly offensive and that the content had no news value.

After a two-week trial, the jury decided that Gawker Media did invade Bollea’s privacy.  The jury explained and defended their decision soon after on Good Morning America.  They collectively believed that posting the video was highly offensive and that the content had no news value.

The panel felt that if they had been in the wrestler’s shoes, that they would have felt emotionally devastated.  One of the juror’s went further and said even if he knew that he was recorded, it was not right to publish the video without his consent.  Another juror was persuaded by the fact that Bollea’s counsel requested Gawker to remove the video and the media company refused.  Finally, they concluded that the size of the award was not only meant to compensate Bollea for the emotional harm caused to him but to send a message to other media organizations about these sorts of actions that seem to be so frequent in our entertainment news cycles.

The breakdown of Bollea’s award is $55 million for economic damages, $60 million for emotional distress, and $25.1 million in punitive damages. 

So how did they arrive at this grandiose amount?  The breakdown of Bollea’s award is $55 million for economic damages, $60 million for emotional distress, and $25.1 million in punitive damages.  While many understood how the jury arrived at the amount for punitive damages and damages for emotional distress, the calculation for economic damages was less clear.

Economic damages are supposed to be based on concrete evidence readily calculable.  The jury based the $55 million award by the average cost of viewing sex tapes on prominent adult sites ($4.95), multiplied by the number of page views the Gawker post had gained.  The amount also encompassed the increase of value to Gawker Media attributed from the video and loss of earnings due to being fired from World Wrestling Entertainment.  The emotional distress award also surprised many since Bollea never sought any counseling or therapy.

To put the size of the award in perspective, Gawker Media brought in $44 million in revenue last year.  Gawker’s net worth is approximately $250 million.  In anticipation of an adverse verdict, the owner of Gawker, Nick Denton, sold off a minority share of the media outlet in January.  The large award in this suit has the potential to bankrupt the media organization.

[T]he media company may only have to pay a $50 million dollar bond until all issues appealed are resolved . . .

Luckily for Gawker Media, due to a recent change in Florida law, the media company may only have to pay a $50 million dollar bond until all issues appealed are resolved and the appellate decision is final.  The Florida law provides an opportunity for an “automatic stay” if the media organization can pay $50 million, as opposed to the entire of the $115 million bond.  Gawker will have to request this stay with the court, and if denied, will likely appeal the decision to try to get the stay until the appealed issues have been resolved in a final appellate decision.

 Gawker has already stated that they plan to appeal and feel confident that the appellate court will reverse the trial court in this suit.  Gawker is confident about their appeal because a crucial piece of evidence became inadmissible when Bubba the Love Sponge Clem, the maker of the video, refused to testify in court.  Counsel for Gawker is claiming that the witness was “improperly withheld from the jury and that the appellate court will have to resolve the issue.”

Gawker’s confidence is also derived from previous motion hearings where other judges, one a federal district judge and the other, a state appeals judge, concluded that celebrity sex tapes are newsworthy given the public’s fascination with them.  These judges undoubtedly adopt the view that the public determines what is newsworthy and not the courts.

In an attempt to gain public support, Gawker says that the privacy discussion at trial has overshadowed the fact that his firing was due to racial remarks.  Gawker says that Bollea brought the lawsuit to distract the public from his use of racist language, which threatened his reputation and career.  Additionally, Gawker attempted to argue that the terms of the settlement agreement between Bollea and Bubba the Love Sponge should be made available, but they had no success.

[T]this year has represented a shift in privacy rights pertaining to celebrities and public figures.

Even though Gawker has been boasting about their likelihood of success at the appellate level, the company is rattled.  There is no guarantee that they will win, and they can hardly afford to pay the Bollea’s damages.

Celebrities are generally not afforded the traditional protections of privacy since they have voluntarily placed themselves in the public eye.  However, this year has represented a shift in privacy rights pertaining to celebrities and public figures.  Earlier this year, Erin Andrews was awarded $55 million after a man secretly recorded a video of her undressing at a Marriot hotel. (See “Erin Andrews continues her fight to get justice for compromising videos released by her stalker”).  Both awards are signaling that the public is ready to set new standards as to what is deemed newsworthy as well as where the privacy rights of public figures begin.  The message is ringing loud and clear to many in the media community that the public recognizes that certain portions of a person’s life should be private no matter how famous or important you are.