Peter A Clarke

Terry Gene Bollea (known professionally as Hulk Hogan) was  a major celebrity in the curious world of American wrestling and subsequently as a big media personality.  Always good copy.

For lawyers he is at least as well known as winning a very significant privacy case in in 2016,  Hulk Hogan v Gawker case where he defeated Gawker Media ( citation Gawker Media, LLC v. Bollea, 129 So.3d 1196 (Fla. 2d DCA 2014); 170 So.3d 125 (Fla. 2d DCA 2015).  The case demonstrated that not everything a media company does is protected under the First Amendment.  Gawker Media was an online gossip tabloid which specialised in salacious coverage of celebrities private lives. I covered the verdict with posts in March 2016 here and here.

In a trial in Florida in 2016 Hogan won a privacy claim against Gawker which claimed protection under the First Amendment.

It was and remains a very significant case and one which has influenced in jurisprudence in the United States of America,

The facts in brief summary are:

• In 2006, Bollea was videotaped while having sex with Heather Clem, his friend’s wife.  he claimed the videotaping was undertaken without his knowledge or consent. On The Howard Stern Show, Bollea told Stern that he had slept with Heather with Bubba Clem’s (Heather Clem’s husband) blessing and his encouragement because he was so burnt-out from the trauma of his coming divorce that he finally gave in to the “relentless” come-ons from Heather who “kept going down that road.” 
• On October 4, 2012, Gawker editor A. J. Daulerio published a two-minute extract from the 30-minute video, including 10 seconds of explicit sexual activity
• Bollea originally sued Gawker for copyright infringement in the United States District Court for the Middle District of Florida, seeking a temporary injunction. U.S. District Judge James D. Whittemore denied Bollea’s motion, ruling that the validity of the copyright was in question, and that given the degree to which Bollea had already put his own private life into the public arena, the publication of the video might be protected by fair use.
• Bollea withdrew his case in the US district court and sued Gawker in Florida state court.
• Bollea’s request for an injunction was granted by Judge Pamela Campbell in 2013. Gawker announced that it would not comply with the part of the court order requiring the removal of the post and associated commentary because it deemed the order “risible and contemptuous of centuries of First Amendment jurisprudence.” Gawker removed the video itself, but linked readers to another site hosting the video.
• The injunction was stayed on appeal, and was denied in 2014 by the appeals court, which ruled that under the circumstances it was an unconstitutional prior restraint on speech under the First Amendment.
• The trial in 2016 ran for two weeks. Gawker argued that Bollea made his sex life a public matter, although on cross-examination, when asked by Bollea’s lawyer whether a depiction of his genitalia had any “news value”, former Gawker editor AJ Daulerio responded “no”. Bollea said that comments made in interviews were done in his professional wrestling character, an on-air persona different from his own.
• On March 18, 2016, the jury delivered a verdict in favor of Bollea. The jury awarded him $115 million in compensatory damages, which included $60 million for emotional distress. The jury awarded Bollea an additional $25 million in punitive damages on March 21.
• On June 9, 2016, Gawker filed a motion for a stay of execution of judgment pending appeal. In the motion and accompanying affidavits from Gawker Media personnel, the company stated that it could not afford to pay the $140.1 million judgment or the $50 million appeal bond.
• On June 10, 2016, Gawker filed for Chapter 11 bankruptcy protection and put itself up for sale.
• Univision Communications bought Gawker Media’s assets for $135 million at a bankruptcy auction on August 16, 2016 which included six Gawker websites—Deadspin, Gizmodo, Jalopnik, Jezebel, Kotaku, and Lifehacker.
• On November 2, 2016, Gawker Media and Bollea reached a $31 million settlement. As a result of the settlement, Gawker forwent its appeal and three articles from gawker.com were taken down, including the one involving Bollea.

Schedule 2 of the Privacy Act 1988 contains the provisions giving effect to the statutory tort of serious invasion of privacy.  How relevant is the Hulk Hogan case to the consideration of Australia’s statutory tort?  On its face little.  An issue in the Hulk Hogan case was whether the material published by Gawker Media had news value.  And the witness for Gawker said “no.”  Under section 15(1) of Schedule 2 the statutory tort does not apply “..to the extent that the invasion of privacy involves the collection, preparation for publication or publication of journalistic material” while section 15(1A) provides that “..This Schedule does not apply to an invasion of privacy to the extent that the invasion of privacy involves the publication or distribution of journalistic material that was prepared for publication by a journalist.”  At clause 15(3) Journalistic material is defined as:

(3)   Material is journalistic material if it:

  (a)   has the character of news, current affairs or a documentary; or

  (b)   consists of commentary or opinion on, or analysis of, news, current affairs or a documentary; or

  (c)   consists of editorial content relating to news, current affairs or a documentary.

Just because a journalist or his or her website publishes a story does not mean the exemption applies.  The story may or may not be journalistic material.  The arguments may be very similar to that in the Hulk Hogan trial.