It’s Not That Complicated

On Friday a jury in Florida ruled that Gawker Media harmed famous person Hulk Hogan by publishing a sex tape that featured Hogan. The news accounts are all over the place about the legal issues, mostly written by people with zero understanding of the law. From the best I can tell, the case was about whether or not Gawker had the right to post the video. If not, then they harmed Hogan and are liable for damages.

The answer as to whether they had the right to post the video is obvious. Gawker does not own the video so they can’t possibly have a right to post it. All the blather about the First Amendment simply does not apply. There’s no constitutional right to theft. The video is the property of the woman, Hogan or the person who filmed the two. This is not a complicated issue.

There’s well established law on this matter. The video was of two people engaged in a private act. They had an expectation of privacy. They either gave permission to the person that recorded them or they did not. The burden of proof is on the filmmaker who would have had both “performers” sign a release. If he failed to do that, then he does not have ownership of the video.

Unless Gawker could prove they bought the video from the rightful owner, the performers or the filmmaker, they were in possession of stolen property. It’s no different than if Gawker sold Hogan’s car or his personal belongings that they had stolen from his home. It’s not their property so they have no right to profit from it. When they decided to publish the video, they were liable for the consequences.

The usual idiots are wringing their hands over this case, claiming it is is a chilling of the press. They are wrong in that the press does not have the right to steal or the right to harm people for a profit. Gawker had every right to report the existence of the tape and the events surrounding its creation. That’s legitimate journalism and protected by the First Amendment.

Further, Gawker could have reported what they saw on the tape. If Hogan has a micropenis, for example, they could have made jokes about his micropenis. They could have said he was a terrible lover or wore socks to bed. If Hogan sued, he would have to show that Gawker lied or misrepresented him in some way. Those are loser cases, assuming the news outlet did not deliberately lie or manufacture facts.

This is not about press freedom. This is about theft. Frankly, Gawker should have been charged with theft. After all, if Nick Denton was found to be driving around in Hogan’s car, he would have been charged with possession of stolen property, unless he could establish had the permission to possess the car. In America, you have a duty to establish the provenance of property when you take possession of it.

This is why pawn shops have to take reasonable steps to make sure you are the rightful owner of whatever it is you are trying to pawn. They get your ID and run your property through the hot sheets, if available. The risk is that if the property turns out to be stolen, the pawn shop forfeits it without compensation. That’s because no one has a right to stolen property. That includes news organizations.

As far as I can tell, Gawker never tried to establish their legal ownership of the tape. They were never required to disclose how they obtained it. Frankly, this is a bigger problem than the so-called chilling effect on the news. We don’t want to live in a world where some weirdo can record your private doings and then sell the video to a website. They’re starting to be people in jail for this now. Reporters should not be exempt.

Now, it’s probably better that Gawker will be shuttered and the owner ruined. From what I understand, he is personally liable for some portion of the judgement. He will be a great example to remind other tabloid sites that they have to follow the law. Even if Hulk Hogan has a micropenis, he has rights like everyone else.

14 thoughts on “It’s Not That Complicated

  1. I never did understand the court ruling wherein the stolen videos made by Pamala Anderson’s celebrity husband of the couple having sex were not ruled private property and quashed from publication by those receiving them from the thief.

  2. “Now, it’s probably better that Gawker will be shuttered and the owner ruined. ”

    This caught my attention. Any well run business should keep cash on hand or some asset they could sell set aside as a provision for losing an expensive lawsuit. Litigation risk is something analysts take into account when evaluating a business. But Gawker Media may not be a well run business. I can’t think of an instance where a media coverage was shuttered by a lawsuit. Usually, when they fail its due to declining revenue.

    Anyway this prompted me to go to their site. I’ve sometimes gone to and found some of the posts funny, but its never been on my lists of sites that disappeared. I then went to the wikipedia page about Gawker and learned that they run a ton of websites that I’ve never heard of, and overall seem to be a fairly sleazy company and Denton a fairly sleazy person. So yeah it might be better if they went away.

    • It has been standard for media companies to carry defamation insurance for these cases. Typically, the policy is tied to the size of the company. That’s the thing to remember with insurance, it’s about potential loss. It’s why you cannot get a billion dollar policy on your Toyota Corolla. Gawker is probably valued at $10 million based on their revenues.

      What’s going to ruin them is no one will lend to them as they have this enormous liability hanging over them. In order to appeal, they need to post a bond and that means at least $5 million of cash or assets must be pledged as collateral. Maybe George Soros will post the collateral, but no bank will do it. That’s why I suspect their lawyers will explore a settlement. Hogan knows he will never see that money. He’ll accept an apology, acknowledgement of wrongdoing, legal fees and cash. But, he could force the issue and bankrupt the company.

  3. Can someone watch this tape and report back on the micropenis situation? I have heard there is a sextape with Merkel and Hogan floating around out there…

    • In Gawker’s original story, they described his member as having the length and girth of a child’s lunchbox thermos holding an apple. Me thinks he’s light years away from micro.

  4. I do not subscribe to gawker, and nor do I know what their ethos is though the name “Gawker’ suggests it is from an old word ‘Gawk’ meaning to stare stupidly.

    I take it in an age where people stare stupidly as a matter of routine, the site’s founders think this makes for entertainment. They may be right. Again, I don’t know but as I don’t want to be accused of gawking I shan’t go there to see.

    However, I did see a story that suggests the Gawker people will appeal on the basis, perhaps, of having evidence not in the original case. If so, this is disturbing: I would have thought for the law to work all relevant evidence has to be made available once and for all. That makes me wonder how (and I am no lawyer, as is patently obvious) evidence can be withheld from the original trial but be available for appeal. Hmmm….

    • There are rules as to what constitutes evidence. In order to keep be fair to both sides, the judge decides if the testimony and evidence offered to the jury is relevant to the case and if it would be useful in their deliberations. On appeal, Gawker will ask a judge to review the trial judges determinations. The appeals court may rule that key evidence was improperly excluded. The judge could also rule that the jury was correct, but levied an excessive award. This is much more likely.

      The challenge for Gawker is they have to post a bond now in order to appeal. The reason for this is to avoid delaying things indefinitely with endless appeals. In this case it means $50 million. They will need to arrange for that and there’s no reason to think they can do it. Plus, they now have a huge incentive to settle.

  5. All of that was a problem in the case. Gawker never said where they got it, but it seems clear the homeowner (and husband of the woman in the tape) recorded it and sold it to them. Did he have title to the tape? Did Gawker claim they were shielding their source? Did Bollea have an expectation of privacy in someone else’s home?

    I’m not smart enough to referee all that, but I am smart enough to hope that the careers of Denton and every Gawker “journalist” are destroyed .

    • The law is pretty clear. Secretly taping someone having sex is going to require a release from the performers. If Gawker could have provided evidence that Hogan knew he was being taped, then they would have won. The funny thing here is Hogan’s celebrity helps. He makes a living from his image so court will tend to side with him when it comes to who owns his image.

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