In this post, I condemned the unethical manner media companies like TMZ conduct their businesses–by feeding on the misery and weakness of celebrities. So when last month I read The New Yorker’s The Digital Dirt How TMZ gets the videos and photos that celebrities want to hide, I gave a fist pump excited that the tables were turning on TMZ. While reading the feature I was struck by the writer’s narration that when he approached Harvey Levin (TMZ’s Managing Editor) during his investigations, Levin expressed displeasure over the fact that the journalist had been contacting current and former TMZ employees for the feature, and instead of granting an interview Levin referred the writer to his publicist. I wondered if Levin realized the irony that while he aggressively digs for dirt on celebrities and send paparazzi to harass and follow them around, he won’t himself grant as much as an interview. After reading the feature, I hoped the Feds would investigate TMZ for possible violation of privacy laws.
While I waited for the Feds to act, last week I was exhilarated when a jury awarded Hulk Hogan (former wrestler) $140 million (Hogan only asked for $100 million) against Gawker, a media company that operates very much like TMZ.
Hulk Hogan had sued Gawker for publishing a sex tape that showed him having sex with the wife of a friend of his at the time, Todd Clem. While his sexual indiscretion is reprehensible, it is not for Gawker to act as a moral police. Consider what dirt(literally and otherwise) would be uncovered of each of us if there is a secret video recording our every action. (For example, though most people look down their nose at nose-picking, a survey shows that 91% of people do it when no one is looking.)Hogan sobbed as the verdict was announced. This verdict will definitely send a cautionary signal to online publishers. In an interview he gave after the trial, He said he sued not to make money but to send a message.
While media houses are easily held for defamation when they publish untrue and harmful stories about a person, it has been tricky to win an invasion of privacy claim due to its conflict with the first amendment right to free speech. In an invasion of privacy claim, a Plaintiff is saying though what you published is true, I expected a reasonable expectation of privacy regarding this subject but you published it and caused me damage. It is especially hard for celebrities to win privacy tort actions because it is argued that having decided to be in the public eye, they have given up any expectation they have of privacy.
The tort of intrusion which is one form of privacy tort encompasses not-consented-to physical intrusion into the home, hospital room or other place the privacy of which is legally recognized, as well as unwarranted sensory intrusions such as eavesdropping, wiretapping, and visual or photographic spying.
The element of intrusion is not met when the plaintiff has merely been observed, or even photographed or recorded, in a public place. Rather, the plaintiff must show the defendant penetrated some zone of physical or sensory privacy surrounding, or obtained unwanted access to data about the plaintiff. This element, that the act must have taken place in a private space, may be the reason Solange and Jay Z (Solange punching and kicking Jay Z), and Ray Rice (Dragging out his unconscious wife from an elevator) may not succeed in a privacy lawsuit against TMZ for their publication of the infamous videos. Though an elevator is an enclosed space, it was within a public area. So if you pick your nose while in the elevator alone (or break the wind) you do so at your peril.
In the Hogan case, Gawker and their attorney’s arrogance and lack of remorse may have played a role in the jury’s decision. In his closing statement for the defense, Gawker’s attorney insisted that uncovering the sometimes less-than-laudatory activities of public figures “is what journalists do, and at the end of the day it’s what we want journalists to do.” This statement rubbed the jurors who sat on the case the wrong way. After the trial, the jurors cited this statement and said that it spoke of the defense’s arrogance. One of the jurors cited that the defense was also “very flippant” during the depositions (I suppose the deposition was read in court).
A juror’s advice to Gawker founder when asked by an interviewer? ‘Don’t demean yourself by going for the vulgar and the lewd and the trashy. Stick to the newsworthy journalism — you understand what that is.’ When asked what his advice to Gawker is, another juror said, “Put yourself in their shoes, if you have the ability to do that,” before saying, “I don’t even know if they even have the heart to be able to do that. It’s just amazing, everything I listened to, that they have no heart. No soul. It’s all about the almighty dollar, and it’s sick.”
I couldn’t have said it better than the jurors. While is is easy to condemn Gawker for their exposure of celebrity secrets, I find that in real life, it is hard to keep juicy stories to oneself. If we take time to scrutinize every story we share, we will find that we spread harmful gossips and rumors about others as much as TMZ and Gawker do. For example, if you hear that a girlfriend who is neither engaged nor unwed is pregnant, will you pass this information on to mutual friends?
As a rule of the thumb, before you speak THINK, that is, Is it True? Is it Helpful? Is it Inspiring? Is it Necessary? Is it Kind? It must pass all five musters. If it isn’t any of these, Keep it to yourself. This is the argument I made in this post.
Congratulations to Hogan! So what’s your opinion? Are you happy Hogan’s secret tape was leaked? Do you feel it was a just punishment for his sexual indiscretion and that the jury verdict is like paying him for committing adultery? Some people have taken this position. Please let me know what you think in the comments section.