by Grania Spingies
In the last couple of weeks there has been a heated debate about the Gawker-Theil-Hulk Hogan fracas. To summarise the goings on as briefly as possible, Terry Bolea (the real name of Hulk Hogan) sued Gawker Media for publishing anonymously-sourced sex tapes. He won his invasion of privacy case and has won millions of dollars including punitive damages against the online media network. Then it turned out that his case had been bankrolled by Silicon Valley billionaire Peter Thiel, whose allegedly-humanitarian interest in the case seemed to have been fuelled by similar rough treatment by Gawker some years ago when one of their writers decided to “out” him. Gawker, of course, will appeal the judgement.
“It’s less about revenge and more about specific deterrence, I saw Gawker pioneer a unique and incredibly damaging way of getting attention by bullying people even when there was no connection with the public interest.”
Founder of Gawker Nick Denton has written a plaintive open letter to Thiel:
“We, and those you have sent into battle against us, have been stripped naked, our texts, online chats and finances revealed through the press and the courts; in the next phase, you too will be subject to a dose of transparency. However philanthropic your intention, and careful the planning, the details of your involvement will be gruesome.”
It’s a little whiny coming from someone who has no trouble subjecting anyone else to the ‘stripped naked’ treatment, and not a little threatening either.
Everyone and their dog (apologies, cats) has an opinion from Amazon CEO Jeff Bezos to journalists of every persuasion, see The Washington Post here and The New Yorker here. The conversation seems to be largely framed as a either a potential attack on press freedom or a potential attack on free speech.
Both of those things are precious in a free society, and so perhaps it is a good thing that a fierce debate has broken out about this.
On the other hand I personally am not sure that publishing the private sex tapes of anyone without their consent, even if they are famous, is in the public interest or can reasonably be claimed to be news. Consenting adults having sex is no more news than consenting adults brushing their teeth. Sure, people will look at it. But then, people will look at road-kill. I’m not sure I am totally onboard with an unregulated media with free reign to publish anything they think will generate revenue and page clicks regardless of the personal cost to the reputation of the private individuals they choose to platform for the delectation of others.
As it happens, almost an exact same debate happened in the UK a few years following the News International phone hacking scandal. It prompted a judicial public inquiry Leveson Inquiry which is still ongoing and none of its findings have as of yet been enacted into law. (Read its findings here).
As in the current US case, subsequent to the Leveson Report people found themselves on two different sides of the debate, torn between the crucial need to protect the freedom of the press (see Nick Cohen here) and regulate behaviour of some journalists (see Dr Evan Harris here).
The Leveson Report summarises the crux of the debacle like this:
It is not necessary or appropriate for the press always to be pursuing serious stories for it to be working in the public interest. Some of its most important functions are to inform, educate and entertain and, when doing so, to be irreverent, unruly and opinionated. It adds a diversity of perspective. It explains complex concepts that matter in today’s world in language that can be understood by everyone. In no particular order, it covers sports, entertainment, fashion, culture, personal finance, property, TV and radio listings and many other topics. It provides help lines and advice; it supports its readers in a wide variety of ways. It provides
diversion in the form of crosswords, games, and cartoons. In short, it is a very important part of our national culture.But that does not mean that it is beyond challenge. Neither does it mean that the price of press freedom should be paid by those who suffer, unfairly and egregiously, at the hands of the press and have no sufficient mechanism for obtaining redress. There is no organised profession, trade or industry in which the serious failings of the few are overlooked because of the good done by the many.
It is a subject that isn’t going to be easily resolved. However, I am not sure that the Gawker case really has anything at all to do with the freedom of the press, even though it has bumped the issue into the public spotlight.The fact that Thiel is a billionaire doesn’t automatically make his interest in the Terry Bolea case sinister.
What is your opinion?
I have a feeling that this arrangement would be unlawful in the UK by virtue of the law of champerty, which prevents the funding of civil cases for financial gain by third parties.
Champerty wouldn’t apply if Thiel just said “I hate the %#&*)*!s too, here’s some money to sue them with”, with no expectation of a share of the proceeds if Hogan won.
Maintenance is the intermeddling of a disinterested party to encourage a lawsuit (quoting Curzon’s Law Dictionary through Wikipedia – “disinterested” here meaning having no legal/financial stake in the outcome). This seems to have occurred.
US courts take real-party-in-interest seriously, but it’s possible to finance a lawsuit without running afoul of champerty; and if Thiel’s money were a gift, neither would seem to be a problem.
Jay at 8. below raises the issue of how this could be misused, and I agree; but I think that the Supreme Court’s treating money as speech would make it hard for maintenance to be viable now.
Champerty laws have been on the out since 1963’s NAACP vs. Button ruling.
https://en.wikipedia.org/wiki/NAACP_v._Button
There’s a great deal of legal activism that would be prevented by application of such laws.
Haven’t we already had decisions on “toilet-cams” and “dressing-room cams” and “up-the-skirt” videos that were abundant in the early internet video days? “A reasonable expectation of privacy” kind of thing?
I mean, you thave sex in a public park or the office conference table, I think you’re pretty much fair game. But people circulating and profiting from private behavior and private items… I’d have to say no.
In the US, if you’re a public figure your legal ‘expectation of privacy’ is less. The logic is twofold: (1) the public has a keener interest in what public officials do compared to what their neighbor does, because public officials spend our money and make decisions that affect us. If you’re sleeping with someone and that’s a potential blackmail threat that could affect legislation and thus the laws I live under, that affects me. (2) The press can’t be expected to know the set of detailed, nuanced, ins and outs of your specific and unique individual privacy ‘line in the sand’. That’s an unreasonable expectation on your part. Thus, once you put yourself out in the public eye, most of your life is going to be open to scrutiny.
Having said all that, I think I side with Hogan on this one. I think even public figures should be able to expect that their sex acts are private – unless they themselves start releasing tapes. The ‘most or nothing’ concept I outlined above doesn’t preclude us from setting reasonable, general guidelines on what counts in that ‘most’ category, and I think an overwhelming majority of people would consider video footage of bedroom and bathroom acts to not be included in it.
Are certain media/reporter/journalist types “public figures” by virtue of their purely voluntary decision to thrust themselves before and under the public eye and nose?
I believe some of the more big-name anchormen/women would probably be considered public figures, but in general no; journalism as a job does not make you a public figure.
Gawker is clearly using people as a commodity in this case. It’s not news. It’s the anti-science of journalism… anti-journalism. The media does it all the time with random boobs, nose jobs, baby bumps, etc. It’s all reprehensible and largely exploitative of women. I’m not sure what I hate more, that they do it, or that they are allowed to do it because a seeming majority of people *want* it.
I have no way of guessing some random billionaire’s intentions, so I have little opinion on him. The whole situation is rather dubious.
I don’t consider organizations like Gawker to be the press. They are entertainment organizations and should be monitored differently than the press.
+1
I think there should be limits to freedom of expression. (Sounds familiar?) When a friend of mine quarreled with a boyfriend and left him, he made a revenge by publishing her nude photos on his blog. She wrote to Blogger and they replied they were for free speech, so she had just to put it into her pipe and smoke it.
So-called “revenge porn” isn’t remotely covered by freedom of expression.
In fact, First Amendment lawyer Marc Randazza took on websites devoted to this sort of stuff pro bono and put them out of business.
http://www.pissedconsumer.com/blog/2016/01/who-really-killed-revenge-porn-sites-our-lawyer-marc-randazza/
http://arstechnica.com/tech-policy/2015/03/revenge-porn-creepsters-ordered-to-pay-900000-in-default-judgment/
~Grania
Yep, if nothing else there are two key elements missing from such cases that make it qualitatively different: the victim isn’t a public figure and the author isn’t a press agency.
I think most everyone would agree that such things shouldn’t be covered by free speech. There are a few cases where I start to wonder what people are thinking however. I don’t get the cases where someone is sending nude pictures via Snapchat or the like, and then get angry that the pictures are spread. It’s the same thing with Facebook. People post the most ridiculous and offensive stuff there without realising that their boss or parents can see it.
High schoolers in a certain school district started a petition demanding that the school board reinstitute their in-school access to Snapchat, the putative appeal of which, IIRC, is that the posted material will disappear after a given amount of time. (So far as I know, it got nowhere.)
Pray tell, adolescent human primate children refulgent with practical wisdom and worldly experience, what photos would you take on school premises that you would want to thus disappear in a rather timely manner?
I think freedom of expression should have limits. (Sounds familiar?) A friend of mine once quarreled with a boyfriend and left him, and he revenged by posting her nude photos on his blog. She complained to Blogger, and they replied that they were sorry, but they were for freedom of speech.
Sorry, my Web connection was messy, so I thought the comment was lost and typed it again.
There’s nothing more private than oneself.
Using a persons image without their consent isn’t free speech. If anyone thinks it’s about news instead of money, they can run these stories without pictures and see if it generates the same revenue much less interest.
We’re not talking photojournalism, not even the wonderfully staged photos like the raising of the flag on Iwo Jima.
I don’t like having my picture taken and I’d be beside myself if someone used images of me for their financial gain.
If you don’t want to pay me for my image, use your own.
/rant off
If you’ve been to a high school or college graduation in the past ten years, then your picture has almost certainly been taken and posted to Facebook or Instagram without your consent.
My walking route to my workplace takes me directly beneath the Space Needle. If I had your scruples about being photographed, I’d never get there, because there are always multiple groups of tourists taking selfies which I can’t avoid photobombing.
With the ubiquity of mobile phone cameras and photo-sharing apps, urbanites implicitly give their consent to be photographed every time they step out onto the street.
Yeah but that’s just accidental exposure. I’ve been on steam trains and waved at the onlookers, most of whom had cameras. So what? I’m just another face in the crowd.
That is quite different from singling out, identifying and publicly ‘exposing’ an individual.
cr
Sure it’s different. I’m just pointing out that “don’t use my image, ever, without my permission” is an unreasonable standard.
I fully understand implicit consent when out and about in public, however you seemed to have glossed over the point which is using the images for financial gain.
If you can’t use someones words without consent, what makes you think you can use an image?
I understand the distinctions you are drawing, and I think they have intuitive appeal. But can you propose a workable rule of law that would codify these public/private, consent/non-consent, journalism/non-journalism dichotomies?
A society is ill-served by having such decisions made on an ad hoc basis, so that those whose image has been captured, those who have captured the image, and any media company considering publishing the image have to guess at what the result of publication will be. We need bright-line rules, where everyone knows what is expected, and can conform their conduct to those expectations, for free expression to have the needed breathing space to function.
I can think of a number of instances where news outlets use people’s words without explicit consent (presumably for financial gain): 911 calls, chanting protesters, graffiti, viral Facebook posts, and so on.
Should Google’s Street View mapping vehicles be required to stop and get consent from everyone they pass?
I just don’t think the distinction is as clear-cut as you’re trying to make it.
The possible problem is bigger than Denton or Gawker. It’s the submarine financing of legal attacks by hidden 3rd parties.
Consider what damage some Saudi billionaire could do to sites critical of Islam, even if the case was not won.
If you’re assuming that doesn’t happen now, I’d like to point out the Koch brothers and the many pies they have their hands in in an attempt to destroy vast swaths of US wilderness for personal gain.
Wikipedia listing them as philanthropists is almost amusing.
It’s simply not illegal.
Attorneys do it all the time, self-financing lawsuits for a cut of the proceeds. Not to mention fund raisers.
Poor people would be helpless if it were illegal for a third party to finance suits.
Contingent fee arrangements are not champerty; and contingent fee litigation is sometimes necessary for people to be able to take a worthwhile claim to court.
But maintenance seems to me to be a potential problem for society, as Jay points out.
Yes, what if the poor could go to court?
” . . . Jeff Bezos . . . The Washington Post . . . The New Yorker . . . The conversation seems to be largely framed as a either a potential attack on press freedom or a potential attack on free speech.”
Yes, to hear these noble souls talk, personal privacy seems to be The Phrase Whose Name Must Not Be Uttered.
I gather that Bollea is something of a millionaire, but apparently not so much that he could bear the (thus far) $10,000,000 in legal costs. Other than claiming that Bollea did not have a basis for and should have abandoned his legal quest, how would the above noble souls suggest Bollea – or any person of modest means – fund his lawsuit? A bank loan? Crowd funding?
A noble reporter once interviewed a certain public intellectual luminary in the latter’s home. The reporter became rather in extremis in a lower-GI way, and of course his gracious host directed him to the Necessary Room. What decent person would not? While there, the reporter noted certain items located there and, obviously possessed of a monumental sense of journalistic ethics and personal sense of decency and respect for personal privacy, succumbed to the temptation to mouth off about in the published interview.
I guess the lesson there is to NOT ever invite a reporter into ones home (though of course that would eliminate the possibility of any opportunity to refuse the reporter access to the restroom and to witness him squirm and possibly monumentally soil himself).
Re the last para, I’d be more worried about him doing it on my furniture.
cr
Grayling and his hairspray? That shouldn’t embarrass anyone. Who cares if you like to use hairspray on your hair?
What did it possibly have to do with the interview?
Nothing. But the reporter and many others evidently thought it was a juicy bit of gossip that somehow showed Grayling to have feet of clay.
Well, it must be so if reporters and their gossipy ilk think/say so.
In support of that sentiment I offer a recollection of a noble journalistic luminary of such sweet disposition as to warm the cockles of ones heart:
On Inauguration Day, January 20, 2001, one of the major broadcast networks (NBC?) ventured to and (by invitation, I gather) into the George W. Bush domicile in Crawford, TX. That paragon of reportorial congeniality and comity, Barbara Walters, was on duty.
The camera showed the Bush kitchen. Ms. Walters “blessed” viewers across the fruited plain with her unsolicited personal opinion that the design of the kitchen did not meet her approval. (Maybe she got a better look than me, but I got a sufficient look to satisfy me that it was at least superior if not excellent in design and functionality.)
Presently, her co-host innocently mentioned the family dog and its name. (The kitchen comment having put me on notice and alert, I was standing by for another beneficent pearl of conciliatory wisdom from her.) Again, Ms. Walters “blessed” viewers with her personal opinion that the dog’s name was “unimaginative.”
Is a congenial invitation to the media to darken the President-elect’s door to be reasonably construed as also an invitation and opportunity for a tart-tongued harridan journalist to have a go at popping her bill and getting in her cute little personal digs?
But hey, it must be so if Barbara Walters says so.
Seems there should also be “Roolz” for such media magpies.
Is *that* what it was? Filippo was being so arch and elliptical I thought it must be some celeb’s sex toys.
Okay, my mind just works that way. Deplorable, I know. (I nearly said ‘regrettable’ but then I don’t regret it in the least 😉
cr
I’m with Thiel on this one. No-one is after Gawker for expressing ideas or opinions but for bad bahaviour and subvening future bad behaviour. As to the latter, consider why we make child pron illegal. Arguably it can lessen risk by providing an outlet. But buying it create a demand for more. As to the former, this was done without the consent of anyone involved, and the women he was having sex with didn’t even know about the tape or consent to being taped.
From what little I’ve heard, I have no ethical issues with a wealthy person helping someone sue a worthless entertainment site like gawker for something like this. If the philanthropist isn’t doing it to make money. I’d consider it a public service.
But, I don’t know near enough about the history of these sorts of issues to give a worthwhile opinion about whether or not it would be better to disallow such third party involvement due to the likelihood of abuse.
It’d be nice if both sides lost, but that isn’t possible. Seems that a whole lot of “not nice but perfectly legal” nonsense is happening on both sides.
Then again I’m from the UK where we don’t have a fundamental “freedom of speech” right. Maybe I should scare quote “right” as it generally seems that people who can afford better lawyers have a better chance of shading the case.
I think there cannot be any doubt that publishing sex tapes is wrong and should be punished. But what gets me is the amount of the damages awarded. Some companies commit systematic fraud over years and are fined an amount that amounts to perhaps 1% of their profits from fraud, tops. Now another is supposed to be put out of business over one event? Surely there must be some middle way, where a judge can set a fee that hurts and incentivises people not do do the undesirable thing in question but does not destroy them unless they make a practice out of it?
Well, apparently Gawker does make a practice out of it so destroying them is the only sensible option.
cr
All this reminded me of a great slapstick scene in a old B&W movie. Just can’t remember the title but in the Buster Keaton, Laurel and Hardy mould. The one where they start pulling each others’ trousers down, next thing you know, the whole streets at it. Bloody funny it was.
Does Gawker have a right to freedom of the press? yes. Does Hogan by whatever means have the right to respond, yes.
It is when the weight of justice, recourse is asymmetrical or biased, we have a problem.
Gawker may think they can make a living doing this type of journalism, reporting, exposing but it is risky so, times up, pay up.
I assume all offended parties will benefit and Hogan has been called out and roasted by the women. Perhaps if she is not satisfied.. eh, yes well… perhaps she should put Hogan on the stand.
Diverging from the main topic here, but I think the movie you’re referring to is Laurel & Hardy’s “Your Darn Tootin'”.
http://www.youtube.com/watch?v=5z_Tl-1CthM
They also made a movie called “The Battle of the Century” that had a similar scene, but with a huge pie fight (the gold standard of pie fights, in face!) instead of a pants tearing scene.
http://www.youtube.com/watch?v=1L27zRb43K8
OK, now back to the regularly schedule discussion…
That should read “in fact”, not “in face”, although the pies were in fact, in face.
I’m not sure this addresses the situation precisely, but I personally loathe this apparently ubiquitous idea that if you are a public performer or figure, then you are completely fair game for the world to know every detail we ant about you. This “We’ve let you entertain us, and this gives the right to exploit every bit of your life that we can uncover” stuff.
I don’t buy it. I think if a celebrity wants areas of their life to be private – especially ares that WE ourselves want to keep private – then I would much prefer to be civil and give them their privacy, just as I’d want it. It just seems to be giving in to the most unseemly characteristics of ourselves to demand some Faustian bargain of anyone who becomes well-known to us, that they have to sell their soul, their privacy, to us in the bargain.
I couldn’t agree more strongly. That applies to film stars / TV celebs, to politicians, to royalty, and to any poor schmuck who happens for some reason to have been propelled into the headlines.
And it should NOT be confused with investigative journalism. If a politician owns shares in a company that’s being legislated about, that’s public interest. Who he’s shagging is NOT*. Unfortunately so-called ‘journos’ often find it easier to investigate the latter.
(*Unless of course it’s the owner of said company).
cr
There’s even a further indirection: “Hulk Hogan” is itself a pseudonym, or the like. The sleazy folks will market whatever media they’ve made as “Hulk Hogan sex” or whatever, when of course it isn’t (unless he keeps up his persona elsewhere …) So presumably there might be a further violation of privacy/slander to Bolea’s “brand”, etc.
It may be splitting hairs, but I think Gawker should have the right to publish the tapes when it comes to the right to free Press. However, I agree that they should lose a lawsuit on the grounds that they obtained private property and disseminated it without permission. I’m not a lawyer, but it seems to be there should be some kind of “inherent copyright” in privately owned material like this. So, Gawker shouldn’t be in trouble on 1st Amendment grounds, rather on the grounds of theft.
If you read Josh Marshall at TPM, you will pick up the idea that what was so wrong about Theil’s involvement was that it was kept secret.
It is one thing to publicly offer support for a lawsuit, and quite another to do so secretly. It is along the lines of knowing your accuser. Gawker, and the public, should have been told that Theil was funding it.
Not knowing who is behind lawsuits would be a real problem if it were routinely permitted.
Perhaps Jeff Bezos should come along and underwrite Gawker’s defense for all the world to see.
There are multiple issues:
The new ambulance chasers are lawyers who are going after the Press. The Press are an easy target because 1) they have money and 2) they are doing horrible things. If someone bankrolls the ambulance chasers, that’s not an indictment of the people filing suit but of the system that prevents an aggrieved party from getting justice without a huge investment.
A conflict of rights: the right of the press vs. the right of privacy. Cases that involve a conflict of two rights always fascinate me because the courts have to decide which right is more important because their decisions become case law. I agree with siding on the right of privacy, but there will have to be definitions of what is considered “private.” This could be quite interesting as the cell phone generation grows up and regrets the things they’ve posted on instagram and twitter.
It’s interesting why we value pricacy at all, and I do greatly. Some argue that giving up the principle altogether would level the playing field. Whatever odd things you might do, other people might do similar odd things and its not a big deal anymore — goes the argument. I disagree. For starters, Stasi or Gestapo would not be suddenly nice if they were under control of Rupert Murdoch (or Nick Denton).
In an “everything goes” world, privacy becomes a matter of resources. Those who have them, will enjoy privacy; those who don’t, don’t have privacy. If a media corporation wants to make such people a spectacle, they can do so and run a gossip magazine that vivisects person by person every week in tiny detail, especially the more “cringey” subjects that are already exploited on reality TV (Böhmermann recent media stunt was about that).
Rich people are still vulnerable due to breaches of trust, and the obvious response would be being paranoid and suspicious all the time, with the consequence of putting a greater distance to society (which is a great way to make it worse, see conspircay theories revolving around exclusive and elite clubs).
I already loath the aspects that are common in the US atheist blogosphere, where certain bloggers put random persons onto a stage, essentially define and describe them from a hostile perspective and that would be everything known about the person — possibly forever (and also false).
An opinion leader, or a media organisation can reach thousands or millions of people, but the individual often times can only hope to reach 50 of their Facebook friends. It would be another matter if this information would fade away as people don’t care anyore. But information is now persistent. As soon anyone cares, all information is available within mouseclicks. To me this is potentially worse than any (temporary) physical damage. It’s more akin to a permanent, virtually irreparable damage.
What’s more, I believe journalism is complete rubbish at the moment. This profession cannot even inform adequately whether Clinton is in trouble or not over the mail server. Every side is offering five different stories ranging form “not a big deal” to “will be persecuted” (if they don’t know, why don’t they write that?). There are probably good journalists, but this is now a New Propaganda Age, and one certain feature is that it now includes individuals as propagandists. The line between public person of interest and “random schmuck” is forever blurred, because we can now all publish, and be talked about in a tabloid fashion.
I thus hope the law comes crashing down extremely hard on Denton and the likes. Quis custodiet ipsos custodes? I sympathize with Katharina Blum.
+1