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2016 Summer Issue091216corrected.Indd A PUBLICATION OF THE SILHA CENTER FOR THE STUDY OF MEDIA ETHICS AND LAW | SUMMER 2016 Gawker Shuts Down After Losing Its Initial Appeal of $140 Million Judgment in Privacy Case n Aug. 22, 2016, celebrity and media gossip to an investigation that the FBI conducted into an alleged website Gawker ceased operations after losing extortion attempt against Hogan by a third party. The records its initial appeal of a $140 million judgment in a were unsealed on March 18 while jurors were deliberating and March 2016 trial court battle with Terry Bollea, contained statements that Hogan, Clem, and Cole gave to the better known as professional wrestler Hulk FBI under oath that directly contradicted sworn deposition OHogan. The closure came after several tumultuous months for statements given to Gawker’s attorneys in 2015. In April 2016, Gawker’s parent company, Gawker Media, in which Florida Gawker fi led motions in the Florida state trial court asking state courts denied motions that the $140 million judgment Judge Campbell to overturn the jury’s verdict or to greatly be stayed pending appeal, bankruptcy fi lings, and revelations reduce the damages awarded to Hogan. (For more on the that a billionaire tech entrepreneur funded Hogan’s lawsuit as background of the legal dispute between Gawker and Hogan, part of a personal vendetta against the media company. The see “Gawker Faces $140 Million Judgment after Losing Privacy fi nal blow against Gawker came on August 16 after Gawker Case to Hulk Hogan” in the Winter/Spring 2016 issue of the Media was sold during a bankruptcy auction to Univision Silha Bulletin.) Communications Inc., which opted to close down the gossip website. Many legal observers remained divided over the Billionaire Tech Investor Revealed as Secret Financer end of Gawker’s operations. Some critics suggested that of Hogan Lawsuit Gawker could only blame itself for its legal woes, while other Prior to the court ruling on the motions, The New York commentators argued that the tech investor’s involvement Times reported on May 24, 2016 that Denton suspected that an in Gawker’s demise was a worrisome development for unknown third party was fi nancing Hogan’s lawsuit because independent journalism. several new lawsuits had been recently fi led against Gawker Gawker’s legal troubles began in 2012 after it published by several other plaintiffs, many of whom were represented a story titled “Even for a Minute, Watching Hulk Hogan by Hogan attorney Charles J. Harder. “My own personal Have Sex in a Canopy Bed is Not Safe For Work but Watch hunch is that it’s linked to Silicon Valley, but that’s nothing It Anyway,” written by then-editor-in-chief A.J. Daulerio. really more than a hunch,” Denton told the Times . “If you’re The story contained a one-and-a half-minute excerpt from a a billionaire and you don’t like the coverage of you, and you 30-minute video recording from 2007 of Hogan engaging in don’t particularly want to embroil yourself any further in a various sexual acts with Heather Cole, then-wife of radio host public scandal, it’s a pretty smart, rational thing to fund other and Hogan friend “Bubba the Love Sponge” Clem. The story legal cases.” also contained a written description of the remainder of the The Times also reported that Hogan’s legal team had made video as well as commentary by Daulerio about the public’s several unusual economic decisions throughout the course of fascination with celebrity sex tapes. In December 2012, the lawsuit against Gawker, such as refusing to accept sizable Hogan fi led a lawsuit against Gawker Media, its founder Nick settlement offers from Gawker Media as well as deciding to Denton, and Daulerio in a Florida state circuit court alleging drop a negligent infl iction of emotional distress allegation. claims of invasion of privacy and intentional infl iction of The emotional distress claim would have required Gawker’s emotional distress. Hogan sought approximately $100 million insurance company to provide fi nancial support to the in damages. Following several years of procedural delays and website’s legal defense and provide funds toward any potential pretrial proceedings, the lawsuit went to trial in March 2016. settlement. Larry Geneen, a risk management consultant, The approximately two-week trial ended on March 18 when a told the Times that the latter decision by Hogan’s legal team jury awarded Hogan $55 million for economic injuries and $60 was an atypical development. “It’s a very unusual thing to do, million for emotional distress. The jury later awarded Hogan because the insurance company would have deeper pockets $25 million in punitive damages. Adding further complexity to than Gawker,” Geneen said. “I’ve never had a situation where the case, the Florida Court of Appeal for the Second District the plaintiff intentionally took out the claim involving the overturned a decision made by Judge Pamela Campbell, who insurance company.” oversaw the Gawker trial, to seal several court records related Gawker , continued on page 3 Inside This Issue Summer 2016: Volume 21, No. 3 1 Gawker Shuts Down After Losing Its Initial Appeal of $140 22 2016 Presidential Candidates Present Challenges for Free Million Judgment in Privacy Case Expression Cover Story Freedom of Press 6 Sixth Circuit Rules that Booking Photos Implicate Privacy 25 Revenge Porn Remains Controversial Topic for State and Interests Under FOIA Federal Legislatures FOIA Online Speech 8 D.C. Circuit Upholds “Net Neutrality” Rules 28 Data Breaches Continue to Plague Social Networking Websites, Government Agencies, and News Organizations FCC Data Privacy 10 President Obama Signs Law Making Signifi cant 31 Critics Raise Privacy Concerns over Pokémon Go Amendments to the Freedom of Information Act Data Privacy FOIA 33 Department of Defense Revises Law of War Manual after 12 Right to Be Forgotten Continues to Create Challenges for Criticisms from Journalistic Community Online Entities Newsgathering International News 34 State Legislatures, Courts Consider Media Law Issues 19 Supreme Court Issues Long-Awaited Spokeo Ruling State Law Updates Data Privacy 39 Free Expression Controversies on College Campuses to be 20 Eighth Circuit Overturns Jesse Ventura’s Victory in Libel Topic of 31st Annual Silha Lecture and Unjust Enrichment Suit Silha Center Events Defamation SILHA C ENTER S TAFF JANE E. KIRTLEY SILHA C ENTER D IRECTOR AND S ILHA P ROFESSOR OF M EDIA E THICS AND L AW CASEY C ARMODY SILHA BULLETIN E DITOR SCOTT M EMMEL SILHA R ESEARCH A SSISTANT RONALD W ACLAWSKI SILHA R ESEARCH A SSISTANT ELAINE H ARGROVE SILHA C ENTER S TAFF 2 Gawker , continued from page 1 legal victory over Gawker had little to do with the outcome Later on May 24, Forbes reported that Peter Thiel, of the case. In a May 26 post on The Volokh Conspiracy blog, billionaire tech investor and co-founder of online payment Northwestern University School of Law Professor Eugene service company PayPal, had been secretly funding Hogan’s Kontorovich wrote that Thiel’s actions were immaterial if lawsuit against Gawker. Forbes wrote that Thiel’s involvement Hogan’s claims against Gawker were legitimate. “Critics of appeared to be driven by a personal vendetta against the Thiel’s role in the Gawker case argue that it is particularly online gossip website. In 2007, Gawker spin-off website inappropriate because they think he is motivated by ‘revenge’ Valleywag , which focused on Silicon Valley gossip and rumors, over the gossip site’s earlier publication of stories about his outed Thiel as gay despite his attempts to conceal his sexual private life,” Kontorovich wrote. “But if the lawsuit is not orientation. The investor later said that Valleywag had the frivolous, it is hard to see how the motivations of funders “psychology of a terrorist” and likened it to Al-Qaeda, a are relevant (or discernible). One would not say a civil rights terrorism organization. organization could not accept donations from philanthropists In a May 25 interview with The New York Times, Thiel confi rmed that he had funded Hogan’s lawsuit. He explained “I saw Gawker pioneer a unique and that Gawker’s stories about him, his friends, and others had “ruined people’s lives for no reason.” As a result, Thiel began incredibly damaging way of getting funding a team of lawyers to help attention by bullying people even when “victims” bring lawsuits against Gawker. there was no connection with the public COVER STORY “It’s less about revenge and more about specifi c deterrence,” Thiel told the interest. I thought it was worth Times . “I saw Gawker pioneer a unique fi ghting back.” and incredibly damaging way of getting attention by bullying people even when there was no connection with public — Peter Thiel, interest. I thought it was worth fi ghting back.” Billionaire tech investor and PayPal Co-Founder The Times also noted that Thiel, a member of Facebook’s governing board, had previously donated money to press- advocacy group Committee to Protect Journalists and often angered by a personal experience with discrimination. All spoke about maintaining strong protections for freedom of Thiel has done is cut out the middleman.” speech. Thiel told the Times that his legal pursuit of Gawker However, several other legal commentators and press did not confl ict with his free expression advocacy. “I refuse advocates expressed concerns over Thiel’s funding of to believe that journalism means massive privacy violations. I Hogan’s lawsuit against Gawker. In a June 10 discussion on think much more highly of journalists than that. It’s precisely the National Constitution Center’s “We the People” podcast, because I respect journalists that I do not believe they are Director of the Silha Center and Professor of Media Ethics endangered by fi ghting back against Gawker,” Thiel said.
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