The Hogan case and privacy

March 23, 2016 |

The Hulk Hogan case stands at a judgement of $115 million with punitive damages of $25 million from Gawker for publishing a video of Hogan having sex with his friends wife in 2006.   An appeal is almost certain and there is likely to be a correction in the award of damages.  Appellate jurisdictions in the USA often, if not invariably, reduce the eye watering sums awarded by outraged jurors.   What is less certain is whether the verdict will be disturbed on appeal on First Amendment lines.  Gawker is stating that the appeal is likely to be successful.

Slate reports that this case may be a key test case on the extent to which privacy protections may be given greater weight to the almost reflexive deferrence to a claim by journalists on freedom of speech.  The seminal cases commencing with New York Times v Sulliivan in 1964 and beyond which expanded the scope of freedom of speech cases and the protections afforded to journalists generally and particularly when that right abutted against claims of defamation and privacy did not contemplate the internet and the broadening concept of journalism, expanding from print media by established organisations with codes of behaviour and ethics to digital gossip sheets, social media and activist reporting, all of which rely on product over process, shock over analysis.  Slate in Privacy vs. Press considers the possible implication of an appellate body reviewing privacy rights in the modern context stating:

On Friday a Florida jury awarded Terry Bollea, better known as Hulk Hogan, more than $100 million in damages for Gawker’s publication of his sex tape. The jury’s decision valued Hogan’s right to privacy over the freedom of the press. Gawker publisher Nick Denton said prior to the trial that he expects his free-speech case would be a slam dunk on appeal, no matter what a rural Florida jury decided. After all, courts have traditionally given great deference to journalists to determine for themselves what is newsworthy and what isn’t. 

But Denton may not be correct about deferential treatment this time. Some threads in modern law suggest that these jurors may not be alone in giving new deference to privacy concerns. And they may one day have the Supreme Court with them.

Let’s start with one of the privacy-related torts that Bollea sued under, Publicity Given to Private Life. It’s basically a legal punishment for publishers of nasty gossip. In order to win such a claim, the plaintiff must prove the offensiveness of the truthful revelation, in this case video footage of Bollea having sex, and also that it was not newsworthy. Punishment for this sort of truthful speech is a legal idea that’s been around since the 1800s.

Newsworthiness is, of course, in the eye of the beholder. The Restatement of Torts, a scholarly work written in the 1970s and considered by many courts to be persuasive authority in privacy cases, suggests that news is a category that includes crimes, arrests, drug deaths, rare diseases, wild animal escapes, children giving birth, “and many other similar matters of genuine, even if more or less deplorable, popular appeal.” 

That’s an expansive definition, one that is potentially troubling in an Internet age when the distance between a journalist and a person with a social media account is shrinking—and when some private individuals publish deplorable stuff that appeals to many. But the Restatement also suggests that newsworthy information stops at “morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern.” Non-newsworthy information in their estimation would include the revelation of humiliating illnesses, private home life, and income tax returns.

There is also language that directly addresses the question of sex. “There may be some intimate details of her life, such as sexual relations,” the Restatement reads, “which even the actress is entitled to keep to herself.” The Restatement also suggests, however, that once a person subjects his work to public judgment, he has no right of privacy, “since these are no longer his private affairs.” This is essentially what Gawker argued in the case—that Hogan made his sexual life public when he discussed it in public forums. But the Restatement authors seem to recognize a difference between general talk and actual depictions. “Every individual has some phases of his life and his activities … that he does not expose to the public eye,” the Restatement reads. “Sexual relations, for example are normally entirely private matters.”

The confusing and subjective line between publishing something “deplorably appealing” and engaging in “sensational prying” is why courts hearing privacy-relevant lawsuits have been hesitant to second-guess journalists. Older court rulings somewhat routinely suggested that publishers themselves should be the ones to decide what is newsworthy. When some argue that media has the right to publish what it would like regarding public figures, they base that argument on this line of jurisprudence. But there are two problems for a free press hoping to rely on these precedents. One is that they may be changing. The other is that even those supporting publishers are very narrowly drawn.

Some courts have taken the changing technological landscape and an increasingly push-the-envelope media as occasions to decide that privacy wins. In 2007, for example, the Ohio Supreme Court embraced a previously rejected privacy tort in a case that didn’t involve media at all but a neighbors’ dispute over vandalism in which one published leaflets about the incident. In that ruling, the court suggested specifically that it needed to recognize the privacy tort because of troubling Internet-based publication decisions. “Today … the barriers to generating publicity are slight, and the ethical standards regarding the acceptability of certain discourse have been lowered,” the court wrote. “As the ability to do harm has grown, so must the law’s ability to protect the innocent.”

And the trouble for media is furthered because the U.S. Supreme Court has never decided precisely where privacy trumps a free press. There are key cases from years ago that suggest that the media has the right to publish truthful information gathered from police reports and in court, but each of these cases has been decided narrowly and the court has written as much. 

Bartnicki v. Vopper, probably the most instructive recent Supreme Court precedent, was a case decided by the justices 6-to-3 in 2001. There, a radio station broadcast a surreptitiously recorded cellphone call, in which a teachers’ union negotiator seemingly discussed the possible use of violence to influence a school board response. The court found the revelation decidedly newsworthy enough to trump the callers’ privacy.

Even so, the justices quoted an earlier, limiting opinion: “We continue to believe that the sensitivity and significance of the interests presented in clashes between [the] First Amendment and privacy rights counsel relying on limited principles that sweep no more broadly than the appropriate context of the instant case.” In doing so, the justices quite literally refused to draw the line between press freedom and privacy.

That’s why the case involving Hulk Hogan and Gawker is an important one. If it ever finds its way to the Supreme Court, it will give the justices an opportunity to at least begin to draw that press-privacy line.

And, according to the Supreme Court’s own voting history, a sex tape might well be ruled private. Although Bartnicki upheld a speech claim, two concurring justices took care to note, in reference to an earlier case involving celebrity Pamela Anderson, that the “broadcast of [a] videotape recording of sexual relations between [a] famous actress and [a] rock star [is] not a matter of legitimate public concern,” suggesting that the tape was a “truly private matter.” “[T]he Constitution,” the justices wrote at the end of the concurrence, “permits legislatures to respond flexibly to the challenges future technology may pose to the individual’s interest in basic personal privacy.” In citing a case involving an actress known in part for her sexuality and nude photographs, the two concurring justices lay some groundwork for future justices to reject Gawker’s argument that Hulk Hogan’s openness about his sex life made the sex tape newsworthy. 

Moreover, that concurring opinion in Bartnicki suggests that the court at that time might have decided in favor of Hulk Hogan’s privacy. In addition to the two concurring justices noted above, the three who dissented cited worries about the invasive nature of technology and the need for greater privacy. “We are placed in the uncomfortable position of not knowing who might have access to our personal and business emails, our medical and financial records, or our cordless and cellular phone conversations,” they wrote. In a case involving a celebrity sex tape, they might well have joined the two who wrote specifically about such an item’s lack of newsworthiness. Which suggests that a majority of the court—at least 5-4—might have found that a celebrity whose sex tape was published against his will could constitutionally win a privacy claim against a publisher.

That’s why it’s possible that the Supreme Court would agree with the jurors in the Hulk Hogan trial, and why publishers should not take their ability to determine newsworthiness for granted. It’s true that the justices have changed in the past 15 years (of the five who would seem to lean toward privacy on the issue of sex tapes in Bartnicki, only two, Stephen Breyer and Clarence Thomas, remain on the court) and that times have changed as well. But as late as 2014, the court recognized and protected “the privacies of life” contained in cellphones. The search-and-seizure case didn’t involve a publisher, but did involve police interception of photographs and video from the phones. “Today,” the court wrote, “it is no exaggeration to say that many of the more than 90 percent of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate.” The justices voted unanimously to keep those privacies out of police hands without a warrant. 

We may someday get to find out whether such privacies can be kept off the Internet as well.

The Law Report also ponders the question in What lessons does the Hulk Hogan case have for Australia? which provides:

Damien Carrick: Hi, Damien Carrick with you, welcome to the Law Report.

First, celebrity sex tapes.

Newsreader: A larger-than-life character with a successful career as a professional wrestler, Hulk Hogan has a huge following around the world. But when the Gawker website posted a video of him having sex with the wife of his then best friend, a radio shock jock called Bubba the Love Sponge, Hogan says it was a violation of his privacy. He said he didn’t know the consensual encounter had been recorded when it occurred nearly a decade ago at Bubba’s home.

Damien Carrick: Last Friday a jury in Florida agreed. It awarded a Hulk Hogan US$115 million for invasion of privacy. And last Monday, the jury added a further US$25 million in punitive damages.

Hulk Hogan: When the video was released my whole world changed, it flipped my world upside down, and I was desperate to know if…

Damien Carrick: The sex tape, posted on Gawker, which is a celebrity gossip website, was viewed at least 5 million times before it was pulled down.

Amy Gajda is a Professor of Law at Tulane University in New Orleans.

Amy Gajda: Hulk Hogan sued for, among other things, something called publication of private facts. And so the jury took a look at the evidence and decided that that particular sex tape was not newsworthy, and therefore favoured Hulk Hogan in its verdict.

Damien Carrick: Gawker say that they will appeal the decision. Do you expect that the $115 million damages awarded by a jury to be reduced on appeal?

Amy Gajda: I would think so, and I think the larger question is whether the decision will be overturned completely. Some people in the United States and some courts in the United States believe that journalists may publish whatever they would like. So in other words, there is a line of cases in the United States that suggest that publishers have the ability to decide what is newsworthy and what isn’t, and that courts or judges shouldn’t second-guess those decisions. So there’s a long line of cases that say that sort of thing, but those decisions were written and those words were written back in the 1970s and 1980s when we didn’t have internet media. So therefore it’s questionable whether that sort of language really applies today because back in the ’70s and ’80s this sort of publication very likely never would have happened because back in the ’70s and ’80s journalists in the United States followed ethics codes much more strongly, and Gawker has suggested that it doesn’t abide by the same ethics code as traditional journalism does. And so because of that it will be interesting to see if a court on appeal decides that, that Gawker does in fact have the right to decide what is newsworthy and what isn’t.

The other line of cases supports Hulk Hogan and suggest that in fact he does have a right to privacy, even though he is a celebrity. And today there has been a real pushback by courts against push-the-envelope media in the United States, and so I suspect that it’s possible and I would say even perhaps likely that the verdict in favour will of Hulk Hogan will be upheld on appeal at some point.

Damien Carrick: The defence I understand argued that this wasn’t an invasion of privacy because Hulk Hogan had given up privacy, because on many previous occasions he’d spoken publicly about his sex life. What do you make of that argument?

Amy Gajda: Well, I think it’s an interesting one, and certainly there is a scholarly work in the United States that’s called the Restatement, and the Restatement on privacy is something that a lot of judges and courts refer to routinely because privacy is a relatively new concept in the United States. The Restatement suggests very clearly, and I’m quoting almost exactly from the Restatement now, that even an actress has privacy in her sex life.

And so there have been cases involving sex tapes of celebrities, and I should say I’m using the plural here, but really I only know of one, where the court specifically looked at an actress who had used her sexuality very clearly and had posed nude a number of times, and yet her sex tape was protected as private. And the court said that the fact that this woman had made her career on appearing nude or using her sexuality made no difference because this was a particular sex act, and in that way should be protected. And you see that line of thought in the Restatement as well, that suggests that celebrities do have the right to privacy in their sex lives in particular.

Damien Carrick: Amy Gajda, Professor of Law at Tulane University in New Orleans.

So what would happen if a media outlet here in Australia published a Hulk Hogan type sex tape? Would the victim be able to sue in an Australian court?

Professor John Williams is the director of the South Australian Law Reform Institute.

John Williams: Well, there hasn’t been anything as spectacular as the Hulk Hogan example. And it’s unlikely that a victim would be able to sue in an Australian court. But that said, there has been some developments which give some hope that the courts are moving in this direction.

Damien Carrick: We do have a common law cause of action called breach of confidence. Would that be something that people might be able to use if there was a celebrity sex tape scandal?

John Williams: Well, only if the elements of the equitable action is met out, and they are, there has to be some pre-existing obligation not to disclose, there has to be a relationship of confidence. And what that generally has meant is that the information has to have a necessary quality of confidence, that the information was imparted in a context of confidence, and there was an unauthorised disclosure. We are used to seeing those sort of relationships usually in a contractual or a commercial or the classic example is usually given as the doctor and their patient, so the information about health is one of confidence, there is a context that it should be confidential, and if it’s an unauthorised disclosure that would give rise to the breach. Though that said, there’s a real problems in there if the person you are dealing with has no relationship with you. So in the case of Hogan, the, the publisher, had no real relationship. They are a third party.

Damien Carrick: So moving away from celebrities, this cause of action, this breach of confidence action has been used here in Australia by victims of revenge porn. There have been a number of recent cases, haven’t there.

John Williams: That’s true, and in Western Australia in a case called Wilson and Ferguson, Justice Mitchell had to look at this very question about how far you can extend the confidence relationship, and in that case we had two fly in, fly out workers working in a West Australian mine who had formed a relationship. There was an exchange of sexually explicit material. On one occasion the defendant accessed Miss Wilson’s phone and obtained photographs and videos without consent. It transpired there was some agreement that the photos could remain but they have to remain private. Unfortunately the relationship broke down and the defendant posted 16 photos and two videos to Facebook, which was viewed by more than 300 friends but, more importantly, was viewed by co-workers and others. This created great distress, and the court had to deal with that very question.

Damien Carrick: And indeed I think the plaintiff won something like $35,000 for the pain, the distress, the embarrassment, and $13,000 for the economic loss. She wasn’t able to turn up for work in that environment following this dreadful breach of trust.

John Williams: That’s true. One of the challenges the court had to deal with was that we could conceive that this was a relationship of trust as such, but whether or not you could have damages for non-economic loss, which generally the equitable notion was to put you back in a position that you were, so the court had to consider whether or not it was time to develop the law in that direction, to say, okay, distress, emotional stress would sound in damages of the breach of the obligations.

Damien Carrick: John Williams, last week the South Australian Law Reform Institute released a report where it recommended a statutory tort for the invasion of privacy. And indeed just a few weeks before the Law and Justice Committee of the upper house of New South Wales issued a report calling for exactly the same kind of tort. What’s the South Australian Law Reform Institute calling for? Why do we need a tort for the invasion of privacy?

John Williams: Well, partly, even though these developments we’ve heard about, we looked carefully and found that the law really was inadequate and patchwork in this area, and that the present protections against serious invasion were inadequate, and that in a modern era where technology is prevalent and that everybody has the potential to be a publisher, it’s time to try and give some protection to individuals and do so in a statutory form.

Damien Carrick: So it would, in a sense, fill in the gaps, is that what you are saying?

John Williams: Yes, it would, it would move towards filling in some of those large gaps which we believe exist. So take even the Ferguson example that we just talked about, if the person had no relationship with you or indeed if it wasn’t the type of relationship they had, it may be other not just intimate relationships, could be facts about your health, it could be whether you have addictions, it could be someone looking over your fence, a nosy neighbour. You may not have the requisite relationship that gives rise to the confidence requirement, but more importantly we need to try and craft of the notion of a balance between freedom of speech in one sense and rights of privacy on the other.

Damien Carrick: I think we can all understand and agree on the importance of providing effective recourse for people who are the victims of revenge porn. But many people might have concerns about the impact of a statutory tort for the invasion of privacy on the media. Coming back to the common law action for breach of confidence, in the UK it is extended to the media. We don’t know if it would extend here, we’re not really sure, but we know that in the UK it has extended there. And there are a long line of rich soccer players and celebrities who go to court to stop the publication of articles about their private lives. Presumably the people who use this cause of action will be rich, powerful people, the Hulk Hogans of the world, the soccer players, the celebrities. It’s not necessarily going to help ordinary people, is it?

John Williams: It may be taken up by the soccer players of the world but it would also be taken up by the Miss Wilsons of the world too, those fly in, fly out workers who find themselves in exactly the same situation. So it is not the case that it’s a law just for the wealthy, it’s a law for everybody. Access to justice is clearly one important thing. But I guess the point you’d have to consider is, okay, what is the nature of the action and how are we defining it? So the Law Reform Institute has been quite clear that it wants to craft a statutory set of actions here that takes into account the seriousness of the invasion, so it can’t be trivial, it has to be a serious invasion. And then we have to turn our mind to what defences and what public interest do we have to protect, and that’s the freedom of political communication or the freedom of expression that we think is essential in our community.

Damien Carrick: There will be a lot of line-ball cases. I am thinking Sydney Rooster, Sydney rugby player Mitchell Pearce, he was recently at the centre of that Australia Day controversy when he was secretly videoed on a smart phone while he was at a gathering at a private apartment, he was drunk, forced an unwanted kiss on a woman and then simulated sex with her dog. Fairfax media have reported that he sought legal advice about whether he could sue those who sold the footage to Channel 9. If we had a tort for the invasion of privacy, would Mitchell Pearce be able to sue using that new tort? How do you determine this idea of public interest, what is in the public interest?

John Williams: We are asking there the balancing question about what’s important in our democracy, and we ask, well, what was the public interest in releasing this footage? Now, sometimes things that are of interest to the public are not in the public interest. If there was some question about national security or a breach of the law or an issue that went to currency of debate in Australia. So I think there has to be a level of interrogation about what is in the public interest.

Damien Carrick: Does the public interest extend to knowing about a sports person’s inappropriate behaviour in private, and does that outweigh that sports person’s right to privacy, which you would expect in a house or an apartment? These are very hard line-ball issues.

John Williams: They are, and we ask courts to do it all the time. So there is questions like that. We have suggested in our report that where the balance is equal, where privacy and the public interest are equal, then we should err on the side of the release of the information. So in other words, we have tried to suggest that there is probably an overarching interest in release of information rather than not. But that of course has to be within the context of everything that was going on. And we think that courts are probably as good a person, they certainly don’t have a horse in the race, unlike a media outlet which may wish to push it out, or a relative or friend or a malicious person who wishes to also assist the discrediting or humiliation of somebody.

Damien Carrick: What about politicians? Do we in the public have a right to…well, not view sex tapes, but do we have a right to know about, say, marital infidelity? Do we have a right to know that side of their character? Is that something which would be in the public interest or not?

John Williams: Well, it is interesting that most journalistic codes, codes that deal with this question, err generally on the fact that private lives are private and are left to…unless there is a public hypocrisy being perpetrated, that somebody is saying one thing and living a life that’s different, we can think of some celebrated examples where the media itself has debated amongst itself whether or not the release of information about relationships, whether or not that was in the public interest. So I think it’s not the case that there are bright lines here. Yes, if there is a context where a public official…and we’ve got to be careful about that sort of language…whether a public official is acting in a way that is detrimental to the exercise of their public duties, that probably would be in in the public interest.

Damien Carrick: John Williams, director of the South Australia Law Reform Institute. He is also a professor of law at Adelaide University. Do visit the Law Report homepage on the RN website, there we have a link to both the Institute’s report and also to another recent report of the New South Wales upper house, which also recommends a statutory tort for the invasion of privacy.

One Response to “The Hogan case and privacy”

  1. The Hogan case and privacy | Australian Law Blogs

    […] The Hogan case and privacy […]

Leave a Reply

Verified by MonsterInsights