How not to Gawker yourself: What we can learn

As a journalism educator, newsroom lawyer, writer and frequent panelist on media law issues, I have been asked several times about the impact of the famous “Hulk Hogan” case against Gawker.

Almost every newsroom lawyer I know has (at least privately) given the same flippant answer: “Easy. Don’t publish secretly-made sex tapes.”

But that answer, while true in a dark-humor sort of way doesn’t really get us anywhere. A case of this magnitude – a backbreaking damage award of $140 million against Gawker including $10 million personally against Gawker founder and chief honcho Nick Denton – deserves some examination as a cautionary tale, or in the parlance of the day, “a teachable moment.”

Legal Arguments Aside

Now before we begin, this column seeks an instructional, not a judgmental approach, and I will not re-litigate the case. To be fair to Gawker, they made arguments that the tape may not have “really” been secret; that as a public figure Hogan (real name Terry Gene Bollea) talked about his sex life in the past so he had it coming; and that the clips of the sex tape was broadcast in the public interest. The Florida trial judge and jury didn’t buy any of those arguments.  Still, Gawker has vowed an appeal and may or may not convince an appellate court that they were right all along.

Meanwhile, Gawker has been thrown into bankruptcy and may be sold and chopped up into pieces. Denton himself failed to convince a court that the bankruptcy protection should extend to his personal liability. Although he is reportedly a rich man with reports of upwards of $120 million in net worth, the costs of litigating the case, deposing employees, fighting over what should and shouldn’t be admitted, having a trial, and now the bankruptcy, has cost millions of dollars in legal fees. And that’s before the eye-popping punishment the jury meted out to Gawker.

Therein lies the cautionary tale: if you are a blogger or multimedia outfit, you had better recognize that when it comes to privacy (or “revenge porn” as many characterize Gawker’s past history) you better have a good reason and unassailable defenses for publishing this kind of material. More important yet is to understand the legal and ethical dynamics that publishing private material involves.

The Teachable Moment: Libel vs Privacy

Much of the discussion about this case has confused libel law with privacy law, and here’s where we can learn things to protect ourselves, our news organizations and serve the public. (Yes, it’s possible).

Libel law protects a person or company’s reputation, and in order to claim damages, a plaintiff has to first prove falsity of a statement of fact. Privacy law (which is complex and varies from state-to-state) seeks to protect a different interest: namely, the feelings one experiences when aspects of their intimate personal life are exposed to for all the world to see. Most importantly, unlike libel, truth is for the most part no defense at all to a privacy claim. Instead, the law balances out a person’s interests in privacy against the public’s need to see such pictures. The best illustration of this in the Gawker case is that if they had they merely stated that Hogan slept with his friend’s wife, there never would have been a cogent case. It is an undeniably true fact, and without falsity, a libel claim never leaves the starting blocks. But Gawker didn’t merely say that Hogan boinked his friend’s wife: they showed it, and he sued for privacy, not libel. Too many commentators overlook this important distinction.

Privacy claims are a different animal than libel claims. Although definitions of what is and isn’t “private” vary widely from state to state, there are some core values common everywhere. Sexual orientation (“outing”); surreptitiously made sex pictures or videos (“revenge porn”); and familial matters involving children are usually considered invasive of privacy in one way or another. The key question is whether the image being reproduced would be considered “offensive” to a reasonable person and whether it reveals the kind of “intimate” or “personal” moment ordinary people would not want splashed across the Internet or a newspaper front page.

But What About the First Amendment?

The Supreme Court has held that in privacy cases, “privacy concerns give way when balanced against the interest in publishing matters of public importance.” This public interest defense has been used successfully when exposing matters of legitimate public concern. Courts have found that private recordings or images about public union negotiations, corrupt politicians, murder investigations, and even personal information about rape victims may rise to the level of “legitimate public interest” that justifies publishing something that would ordinarily be intrusive or intimate. But remember the expensive Gawker lesson: you will be obliged to prove that the pictures or video itself serves the public interest.

Long before the Gawker case, courts have weighed privacy interests and on different facts found that the public interest may not always outweigh a privacy invasion. In the famous California Shulman case, a television team was doing a documentary about a helicopter ambulance crew, and filmed an automobile crash site and the overturned car with the victim trapped inside. The videographers not only filmed her being extracted from the car, but also followed her back into the helicopter ambulance, and recorded and broadcast the victim’s cries and moans on the way back to the hospital. (She was rendered paraplegic after the accident). Here, the California Supreme Court said, the press went too far. The “private fact” of the accident, the court held, wasn’t really private at all (it was on a public highway), the press did not wander into the intimate and personal sphere, and the story was ostensibly newsworthy. No foul.

But intrusive act of showing the victim inside the ambulance was another matter: “The mere fact the intruder was in pursuit of a [news] story does not, however, generally justify an otherwise offensive intrusion.” The court went on to bring us to a key understanding we must learn:

“Newsworthiness is a complete bar to liability for publication of private facts and is evaluated with a high degree of deference to editorial judgment. The same deference is not due, however, when the issue is not the media’s right to publish or broadcast what they choose, but their right to intrude into secluded areas or conversations in pursuit of publishable material.”

Other cases have gone against the press when it was not the statement of fact but the intrusive imagery itself that did not serve the public interest: a photograph of a grieving mother in a hospital holding the body of her son slain in gang violence; the children of allegedly crooked millionaires playing in their sumptuous backyard surreptitiously photographed from afar with long lenses; and filming a police raid conducted in a Brooklyn apartment, showing children screaming and cowering at the police storming their home. On the surface, they all sound like matters of public interest, but simply put, in those cases the press published images that went “too far” for the courts. And despite Hulk Hogan being “famous,” at the end of the day, the Florida judge and jury found that Gawker went too far and proved no public interest in a clip of a TV wrestler having sex with another man’s wife.

Four Steps to Staying Out of Trouble

I suggest a four-step analysis any reporter, editor or blogger can use keep out of trouble. Consider your business model. Do a deep searching inventory about “legitimate public interest.” Make sure the imagery involved has a rational relationship to the story; and finally, consider the offensiveness of the image itself.

1. Consider your business model. Different publications have not only different editorial missions, but different tolerances for risk. Gawker has a long history of publishing stolen sex photos, and long ago made the decision that such material is within their editorial mission, a very profitable one, I might add. In 2010, Gawker website “Fleshbot” published stolen photos of Grey’s Anatomy star Eric Dane and his wife Rebecca Gayheart having sex. The couple sued Gawker for more than $1 million and the case was settled out of court. The next year, Gawker published nude photographs of actress Scarlett Johansson stolen by a mobile phone hacker. Legal threats followed and Gawker removed the pictures. Obviously, the profitable Gawker has a higher degree of tolerance for paying out legal fees and settlements than most, and the whopping judgment in the Hogan case teaches us that when you gamble with intrusive pictures you may end up facing a claim you can’t buy your way out of. (Yale Law professor of constitutional law Stephen Carter published an interesting take on Gawker’s business model here).

Given that you have to do a risk assessment (Can you afford to litigate this? Can you afford to lose?) the obvious question is whether or not you are succumbing to the “chilling effect” of losing a lawsuit. Like it or not, that is a question legitimate publishers ask themselves every day. (Remember, the First Amendment’s proscription against the “chilling effect” of lawsuits against the press is not a complete immunity, as some would have us believe. It simply means there should be very high bar for putting irresponsible publishers out of business). Platitudes such as “it’s the principle of the thing” only work when you either have unlimited resources, or conversely, when you just don’t give a damn whose privacy you violate. Neither of those make sense. No, a story should never be spiked merely because there is a risk of lawsuit. But when there is a risk of suit, you have a moral, legal and fiduciary responsibility to get it right.

2. Do a deep and searching inventory about “legitimate public concern.” This is the “getting it right” part. To begin with, don’t confuse the “public figure” doctrine of libel law with the “public interest” doctrine of privacy law. Just because someone is famous doesn’t mean they have no privacy rights. Instead, you have to ask yourself the following questions: will publishing the imagery make the public safer, richer, or able to make more informed economic or political choices? For example, if instead of a TV wrestler, the Hogan video clip was of an avowed anti-gay rights Congressman having a same-sex assignation, it would be a much easier question.

To be sure, some courts have included the plaintiff’s notoriety into the mix, and acknowledge that celebrities might be expected to possess less privacy rights than “ordinary” people. But the mere fact that someone is famous will not by itself get you over the goal line. Getting it right means that the public needs to see the action to make sense of an important story or to even prove its truth. There’s a world of difference between what the public finds “interesting” and what is “in” the public’s interest. At the end of the day, you have to ask “what’s at stake here?” If the matter legitimately touches the lives of citizens, then the chilling effect can be waved away. On the other hand, if the video or photo is merely clickbait or a salacious attention-getter, you may have a problem.

3. Make sure the imagery involved has a rational relationship to the story. The Radio and Television News Directors Association has compiled an outstanding list of the kind of questions that editors must ask in such instances, leading with “What is the journalistic purpose behind broadcasting the graphic content? Does the display of such material clarify and help the audience understand the story better?” Most important of all, “If asked to defend the decision to your audience or the stakeholders in the story, such as a family member, how will you justify your decision?” When the imagery itself is the story, the law will generally protect your use. But gratuitous use of private material for clickbait does not play well.

You need a good answer for “why did you run this?” One of the pivotal (some say devastating) moments in the Gawker trial was when A.J. Daulerio, the Gawker editor responsible for the Hogan video, faced grueling questioning:

“Had you known that Hulk Hogan would be emotionally distressed by this publication you would have still published it, correct?” he was asked. “Sure, yes,” the editor said. A.J. Daulerio also admitted under oath that he didn’t consider the 2012 publication of Duchess Kate Middleton’s naked breasts an “invasion of privacy” because “she’s a public figure” and that he also thought the size of Hogan’s penis was “newsworthy.”

The coup de grace came when the Gawker editor was asked “Can you imagine a situation where a celebrity sex tape would not be newsworthy?” Daulerio answered: “If they were a child.” “Under what age?” Hogan’s attorney asked. “Four,” Daulerio said.

Mind you, Gawker later said Daulerio was merely being flippant, and I don’t think anyone thinks Gawker would really run a sex tape depicting a five-year old child. But the damage had been done, the jury saw arrogance instead of remorse, defiance instead of thoughtfulness. The lesson? Before you push the button on publishing that image or video, put yourself in that editor’s shoes and imagine what you might have to tell a jury.

4. Consider the offensiveness of the image itself in relation to the public interest. Many of the privacy cases that go against the media turn on the shocking or offensive quality of the images themselves. When images are deemed newsworthy but are still graphic in detail, the Associated Press’ guidelines represent the kind of thoughtfulness that serves the publication and the public:

“We take great care not to refer readers to Web sites that are obscene, racist or otherwise offensive, and we must not directly link our stories to such sites. In our online service, we link the least offensive image necessary to tell the story. For photo galleries and interactive presentations, we alert readers to the nature of the material in the link and on the opening page of the gallery or interactive. If an obscene image is necessary to tell the story, we blur the portion of the image considered offensive after approval of the department manager, and flag the video.”

To be sure, there are going to be instances where graphic detail is unavoidable, but the pure public interest must clearly outweigh any offensive detail displayed. Most emblematic is Nick Ut’s iconic 1972 Pulitzer-winning photograph of a naked Vietnamese child running from a U.S.-inflicted napalm attack. There was no other way to tell the story, and indeed, some might argue the shock value contributed to the enormous public interest. But those are the easy cases, and precisely the ones the First Amendment protects. I dare say no judge or jury would find that this child’s privacy rights were unjustifiably violated. Can we really say the same thing about illicit sex photos of B-List celebrities with no position of authority or power over public policy?

Putting it All Together

Whether you choose to play the straight and narrow or instead you choose to push intrusion into privacy as far as you can is a matter between you and your conscience, your newsroom lawyer and your insurance company. It’s worth noting that the costs aren’t just legal ones, and the drive for revenue from clicks and page views might also blind you to toxifying your publication’s brand. Gawker may have titillated some readers, but it certainly turned others off. Cartoonist and writer Scott Adams said that now “When you think of Gawker, you automatically think of Hulk Hogan’s penis.” As I noted above, Gawker has said it would appeal the legal issues, and they may very well convince an appeals court that there is a legitimate public interest in video of Hulk Hogan having sex.

But the lesson for us is to consider the hoops you need to jump through to avoid suffering Gawker’s painfully expensive and embarrassing experience. Is the imagery so clearly in the service of the public interest (not mere celebrity), that any judge or jury will see that it had to be shown? Do you have an answer to why you published it that you could give it with a straight face? Have you considered the impact on the people depicted? Granted, it’s easy to be a Monday morning quarterback, but that’s what learning from other people’s mistakes is all about.

A former journalist, Charles J. Glasser served as Bloomberg News global media counsel for more than 12 years, and currently teaches graduate level Media Ethics and Law courses at New York University’s Arthur Carter Center for Journalism. His “International Libel and Privacy Handbook” is going into its Fourth Edition, and he also maintains a private media consultancy.