Hulk Hogan verdict raises crucial privacy issues in the digital age

March 20, 2016 3 AM PT

It’s hard to think of a case with details more spectacular: A videotape featuring wrestling star Hulk Hogan having sex in a canopy bed with the young wife of a good friend — a guy whose legal name is Bubba the Love Sponge Clem.

Hogan, whose real name is Terry Bollea, sues the website that published portions of the tape, the New York-based gossip site Gawker.com. A Florida jury deliberates just six hours before ruling in Bollea’s favor and awarding him a staggering $115 million in damages.

Aside from offering jaw-dropping details, the case also raises crucial issues about privacy in the age of Internet phenomena such as revenge porn.

“People are thinking a little bit more about the concept of what is newsworthy, because what’s changed is the concept of who a public figure is,” said Mary Anne Franks, a professor at the University of Miami School of Law and the legislative and tech policy director of the nonprofit Cyber Civil Rights Initiative, which advocates for privacy issues.

“Society can be contemptuous toward a celebrity because they’re a celebrity, and people think that a celebrity can deal with this,” Franks said. “But nowadays you can be turned into a public figure because of a sex tape that is released of you.”

The verdict’s legal scope is, for now, limited. Friday’s decision emerged from a jury trial in a district court, which means it doesn’t set precedent.

“It might have influence on plaintiffs or attorneys based on the same claims against publishers,” said Amy Gajda, a law professor at Tulane University and author of “The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press.” “But it wouldn’t have precedence until it is decided on appeal. And at that point, it will have binding precedential value only within that particular jurisdiction of Florida.”

Still, the case might be cited by other courts deciding similar cases.

“Any time there is an unusual fact pattern,” she said, “courts will look to other states for a similar pattern.” Which means that Bollea vs. Gawker Media may wield some influence as a reference point for other jurisdictions, but its results can’t be held up as binding legal precedent. (Unless, of course, the case ended up at the U.S. Supreme Court.)

But the Hulk Hogan verdict has emboldened privacy advocates, who say that 1st Amendment rights don’t trump an individual’s right to privacy — no matter how famous the person. Unlike other celebrity-versus-media legal battles, the issue here was privacy, not whether published material was defamatory or false.

You should be able to control who sees you naked. It doesn’t matter if you are promiscuous or not promiscuous.

— Mary Anne Franks, University of Miami School of Law professor and the legislative and tech policy director of the Cyber Civil Rights Initiative

Howard Weitzman, a Santa Monica-based attorney who represents celebrity clients such as pop star Justin Bieber — nude photos of him were recently leaked online — said that the Hogan case sends an important message.

“I believe there is a growing dislike of reckless conduct in this age of digital distribution,” he said in an email. “When someone’s privacy is clearly violated, the ‘victim’ is entitled to some safeguards. In my opinion, such distributors have a duty to act in a decent and responsible manner rather than rushing to satiate perceived prurient interests.”

Gajda said that the legal notion of privacy extends back to 1890, when Samuel Warren and Louis Brandeis published a much-cited Harvard Law Review article, “The Right to Privacy,” and that this includes matters of a sexual nature.

“In my assessment of the cases and the law and society, nudity and issues involving sex have traditionally been protected from the time right to privacy began,” she said. So while the media may be free to cover some famous person’s sexcapade as “newsworthy,” posting images or video of the act without permission can violate the celebrity’s privacy.

In the Internet age, it’s a concept that is being put to the test as nude photos and old sex videos pop up online, distributed by vindictive ex-lovers or hackers who bust into iCloud (such as the hackers who posted revealing images of actress Jennifer Lawrence to the Web in 2014).

After a photo or a video appears on the Internet, the Web’s cut-and-paste powers of regeneration make it virtually impossible to take down — even if an individual is armed with a pile of injunctions.

It’s an issue that isn’t just affecting celebrities, but private citizens too, who have to contend with the phenomenon of revenge porn.

“The term we prefer is ‘nonconsensual pornography,’” Franks said. “It’s not about the motives of the person who posted it. It’s sexually explicit material distributed without consent.”

Certainly, Hulk Hogan is an unusual poster boy for a privacy movement because the reality show star has openly discussed his physical endowments and his sexual exploits, among other unsavory bits.

But Franks says his public persona is not the issue. “He doesn’t seem like a victim in the traditional way, but we need to think about the principle here,” she said. “You should be able to control who sees you naked. It doesn’t matter if you are promiscuous or not promiscuous.”

Though celebrity sex tapes back in the days of Rob Lowe and Pamela Anderson may have been greeted with some public amusement, these days they are just as likely to raise public ire. When the images of Lawrence were published, some writers described it as a “sexual assault” and another example of the harassment of women. Lawrence called it a “sexual violation.”

All of this may explain why the jury in Florida was so willing to award Hogan such an extraordinary sum -- $15 million more in damages than he was seeking.

Whether the amount or the verdict will stick on appeal remains to be seen. But at a moment in which questions of privacy are in the ether — from NSA surveillance to the FBI’s battle with Apple over its iPhone source code — attitudes about what might appear to be a silly celebrity sex tape may be shifting.

“In a way,” said Gajda, “these cases call out for a Supreme Court resolution.”

Twitter: @cmonstah

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