Florida Record

Monday, February 17, 2020

Hulk Hogan's Gawker verdict as much about newsworthiness as privacy, according to experts

By Jamie Kelly | Jun 26, 2016

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ST. PETERSBURG—The $140 million Florida verdict for invasion of privacy last month that has driven Gawker Media into bankruptcy and toward a possible sale is less a result of one state’s privacy laws and more a combination of the decision of one particular jury and possibly the visceral reaction to excerpts of a sex tape, according to people who have studied the case.

A jury in the U.S. District Court for the Middle District of Florida awarded wrestler Hulk Hogan—real name Terry Bollea—$140 million from Gawker media, which posted an excerpt of a tape in which Bollea had sex with the wife of a friend. Taking a case before a jury always involves some level of risk, Dave Heller, deputy director of the Media Law Resource Center, said.

“This was a jury verdict, which can be a roll of the dice,” Heller told the Florida Record. “Gawker may have gotten a different result in another state—or even with six different jurors in St. Petersburg.”

Despite some analysis in the media, Florida’s privacy laws are broadly the same as many other states, he said.

“Florida privacy law is actually similar to the majority of states in the U.S. in recognizing a claim for the disclosure of truthful private facts,” Heller said. “The key question was whether showing a short excerpt from the Hulk Hogan sex tape was newsworthy or not. In earlier proceedings in the same case, the Florida Court of Appeals suggested that what Gawker did was newsworthy. The trial court judge disagreed and put the question into the hands of six jurors. Courts usually defer to the press to decide what's newsworthy, recognizing that the First Amendment shouldn't be trumped just because some people may find a publication offensive or in bad taste.”

Jessica Silbey, a law professor at Northeastern University School of Law who has written about the Gawker case, said the question of whether what Gawker posted was newsworthy is a difficult question, especially as Hogan had spoken widely about his sex life to the media.

“I think the harder question about the Hulk Hogan case, aside from whether the Florida standard is lower, therefore making it easier to win, is whether the plaintiff in the case made the issue of his own masculinity or sexuality an issue that the public is concerned or interested about in the first place, such that a conversation about his sex life or images of his sex life would be fair game under the First Amendment,” Silbey told the Florida Record.

“That's, I think, the harder issue in the case. I think most people would think that a surreptitiously videotaped sex act disclosed to the public is an outrageous act. Reasonable people are probably not going to disagree about that. I think it's harder to say that the sex itself, given who he was, and how he talked about himself and his own sex life was not something reasonably in the public domain and debated by the public.”

That left the jury to consider whether posting the video should be treated differently than simply writing about the video or about Hogan in general, she said.

“When you put something into the public debate and then try to restrict what people can say about it, usually privacy laws won't protect you,” Silbey said. “It's a closer call whether images of a private sex act rather than conversations about a private sex act are properly shielded by privacy law.

“I think so much of what this case is about is about the film, not the facts. It's the intrusion by the video camera and the images that I think people react very strongly to. Had there just been a textual description of the sex, I think he would have lost. It's the video. And I think that's an interesting conversation to have: whether privacy laws will be shifting and changing based on jury verdicts or statutory amendments depending on the medium of the privacy invasion. And I think an interesting policy question is whether or not it should be treated differently under the law, and if so, why. I think here the jury said, yes, it is different. The video made a difference.“

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Northeastern UniversityUnited States District Court Middle District of FloridaMedia Law Resource Center