Gawker Verdict Reinvigorates Power of Privacy Claims

I’m old enough to remember the days when “the news” consisted of thirty minutes on one of three major television networks.  In those days there were high barriers to entry into the world of television or print media, leaving the news in the hands of major entities that, I believe, tried to apply sincere journalistic standards.  We had a relatively high level of comfort that what was delivered to us as “news” was: a) relatively important; b) relatively objective and c) relatively accurate.

With the advent of cable television and the Internet, “news” is now ubiquitous, available 24/7 through an unlimited number of sources.  Anyone with a laptop can publish “news” on a website.  This has had a certain liberating and democratizing effect, but for me has also degraded the values of importance, objectivity and accuracy.

With the explosion in new media outlets comes in an insatiable need for content to publish.  Thus we now have more “gawking” as news, feeding our tawdry need to know when slinky celebrities go out on the town without panties or which celebrity is having extra-marital sex.

The recent $140 million verdict by a jury in favor of Hulk Hogan and against gossip site Gawker for publishing a surreptitious video of Hogan having extra-marital sex gives new vitality to classic “privacy” claims, always taught in law school but used with little success.

The four classic privacy claims are: 1) intrusion upon the plaintiff’s seclusion or solitude; 2) public disclosure of embarrassing private facts; 3) publicity which places the plaintiff in a false light in the public eye; and 4) appropriation of name or likeness for commercial advantage.

These claims have been rarely asserted and relatively unsuccessful.  When someone is shown in a creative work or in, dare I say, “legitimate” news reporting, First Amendment concerns for free speech and discussion of matters in the public eye tend to provide a complete defense to the privacy claim.

Hogan’s case against Gawker is groundbreaking because the First Amendment defense to the claim was so thin.  Ordinarily a media defendant could keep a privacy case away from a jury by obtaining dismissal of the action through a pretrial motion based upon the First Amendment.  In Hogan’s case, the judge refused to do that and sent the question of the newsworthiness of the Hogan sex tape to the jury.  The judge is reported to have instructed the jury that they were to determine the difference between news and what “ceases to be the giving of legitimate information to which the public is entitled and becomes a morbid and sensational prying into private lives for its own sake.”

What fascinates me about the case is that a jury was asked to decide what constitutes real news, with relatively little guidance other than the powerful suggestion that “morbid and sensational prying into private lives” does not qualify.

Any media defendant that obtains surreptitious photographs or recordings must now be leery about whether publishing that work as gossip news will be met with a multi-million dollar claim in court.  Unless that company can convince a judge to dismiss the case on a pretrial motion, the company’s fate will be left to six or twelve citizens, who will be asked to decide the boundary between legitimate news and unlawful gawking.

I suspect that on appeal the damages in the Hogan case will be reduced, or the court of appeal may weigh in on the propriety of the newsworthiness instruction and send the case back for retrial. Whatever the result, however, I predict that there will be greater interest in the assertion of privacy lawsuits against gossip-style media defendants.