For many years, thanks to well-established legal doctrine about the public interest, producers, broadcasters and distributers have operated with a reasonable level of freedom under the First Amendment that they could investigate and report the truth, ugly as it may be, without reprisal. The key was to strike the right balance between the right to reveal information and a person’s right to privacy, i.e., the right to be left alone. One could publish with a level of assurance, albeit adhering to certain reasonable restrictions (several of which I note below) and having savvy legal counsel vet your materials to ensure that you were breaking “news” and not just sharing private matters. Will the Hulk Hogan trial verdict change this?
The Nutshell Version of the Hogan vs. Gawker Lawsuit
A person or entity who publicizes a matter concerning the private life of another can be liable for an invasion of privacy if the matter would be highly offensive to a reasonable person and is not of legitimate concern to the public. In other words, the publication is offensive and is not newsworthy. I believe we are going to see more cases that try to pin the Courts down as to defining “newsworthy”. It is already a hard-to-define, fuzzy and imprecise term and the standard as to what is “newsworthy” will likely evolve as our society increasingly over-shares personal matters on social media and news and entertainment further merge into one. However, just because the public has an unending appetite for sharing and hearing juicy gossip, the more salacious the better, does not by itself make an item newsworthy; at least not yet. Courts still have to weigh the type of information that has been published, the world’s need to know this information and whether the aggrieved party voluntarily made the information public.
For those who may not be aware, Hulk Hogan (real name Terry Bollea) is an international celebrity, known for his successful wrestling career, films, endorsements and VH1 reality program, “Hogan Knows Best” (full disclosure – I was the in-house Business and Legal Affairs executive for VH1 on that show). US courts have a different standard for celebrities and their right to privacy as they are very much cognizant that celebrities place themselves in the spotlight and as a result, have less of a right to privacy than you and I as mere plebes. The disseminated sex tape at the heart of the lawsuit involved consensual sex but it was allegedly filmed without Hulk’s knowledge by the husband of Hogan’s partner, purportedly his best friend. Hogan even bragged in the media about the assignation but claimed not to have known of the presence of cameras (countering this, Gawker argued that the Hulkster knew that the room was rigged for filming). Hogan’s legal team took the tack of not focusing solely on the videotaped consensual hook-up, but rather that his right to privacy was invaded by Gawker sharing a video in which he was unaware that he was being filmed while uttering extremely offensive racist language and being heard on tape acknowledging being a racist. As a result of his loathsome comments about his daughter Brooke having an African-American boyfriend, his employer, the WWE, terminated his contract.
In its defense, Gawker argued the footage of the escapade was newsworthy information about a public figure and thus protected by the First Amendment. They also posited that the facts in question were already made public by the time Gawker posted its story and accompanying video and had been widely shared in news reports, screen-grabs, etc. They also pointed out that Hogan himself had shared the story of the tryst, thereby removing any element of it being “private”.
Ultimately, the Florida state court judge and jury were obviously sympathetic to Hogan and awarded him $40 million more in damages than the $100 million he had originally requested.
Why the Hogan Verdict May be Bad News in the (Hopefully) Short Term
There is no doubt in my mind that a $140 million verdict (even if reduced or vacated on appeal) will embolden even the most timid of potential plaintiffs. In a world where the media is less trusted daily and vilified as the “enemy”, more lawsuits will likely be launched by aggrieved individuals. Agitating them further against the media are the regular reports of entertainment company hackings and info dumps of private, unflattering emails and documents, drones filming in previously private locations, unauthorized footage posted to YouTube and now increasingly to Facebook, and political candidates who want to ease up on libel standards (to make it easier for them to sue critics and win).
Hogan’s legal team made some smart tactical moves that paved the way for their victory and which may serve as a roadmap for other distressed celebrities and non-celebs who wish to sue and to ultimately exercise control what is reported about them. Without going into the full gory legal details, by moving the claim from the federal courts back to state court in Florida, his home state, Hogan took back home field advantage. The state judge who heard his case is known for her conservatism and it didn’t hurt that the case went before a jury in a state that skews conservative and by extension, is likely negative toward the “main-stream media”. The pearl-clutchers in Florida behaved as predictably as the Hogan legal team hoped they would, contrary to the success the Gawker team had defending Hogan’s suit in federal courts.
Before anyone goes all doom and gloom on the future state of investigative reporting and documentary filmmaking, it must be noted that this case can be isolated to the facts at hand, i.e., the publication of a private sex tape, and that the verdict, being so disproportionate and unexpected, will be knocked down on appeal. Also bear in mind that Team Gawker was successful in their “newsworthy” defense at both the federal court and state appeals level before the case was moved to Florida state court. Also unusual in the situation is the deep pockets of billionaire Peter Thiel, a sworn enemy of Gawker. Thiel made the Hogan matter a personal vendetta and bankrolled Hogan’s suit to the tune of a reported $10 million and quarterbacked some of the legal strategy to intentionally deplete Gawker’s resources and neutralize their insurance coverage.
Things You Need to Keep in Mind When Filming
- First off and as always, make sure that you have good legal counsel who can thoroughly vet your forms and your project before you start taping and before airing.
- Wherever possible (and I get that celebs have reps who are wise to this), ensure that you have broad, “reality-participant” style releases in place that make it clear that the identifiable participants are voluntarily being filmed, know all risks, allow for your editing of and creation of storylines, even if “enhanced”, acknowledge that you will disclose private information, etc. This is especially crucial when you are dealing with private individuals rather than public officials or celebrities.
- If you haven’t already done so, secure Errors & Omissions Insurance for your production company and include yourself as a named insured on the policy. Talk to several companies to get the best price / deductible / coverage balance and you must be absolutely honest when informing them about the nature of your project. Definitely keep your policies in place for several years after the project has filmed and/or aired, just in case suits come out of the woodwork years down the road (but within the statute of limitations for such claims).
- We all understand that bringing to light previously unknown salacious facts will get the eyeballs to make your project a success. However, you will be in a safer (but likely more boring) zone if you stick to matters that have already been made public knowledge, especially if previously disclosed by your subject. At minimum, work with your counsel on assessing the risks if you are bringing new facts to light.
- Know the laws of the state you are filming in as it relates to the use of hidden cameras and mic’s. If the words “two party state” mean nothing to you, definitely refer back to the first point about good legal counsel. https://www.rcfp.org/rcfp/orders/docs/RECORDING.pdf
While the ripple effects, if any, of this verdict remain to be seen, as always, there is no substitute for common sense and smart preparation in your productions to ensure that you are on the right side of the line and aren’t the one being newsworthy for the wrong reasons.