In a high-profile privacy lawsuit, former pro-wrestler Hulk Hogan won a $115 million jury verdict against Gawker for posting his sex video without his consent. Hulk Hogan, whose real name is TerryBollea, brought a lawsuit for invasion of privacy and other torts. Under one of the main privacy torts — public disclosure of private facts — one can be liable if one widely and publicly discloses private information about another that would be highly offensive to a reasonable person and not of legitimate concern to the public.
There are several points about this case to discuss:
1. The First Amendment right to free speech does not protect Gawker’s posting of the sex video.
Several commentators are suggesting that the First Amendment will protect Gawker. Indeed, the First Amendment will bar tort liability that infringes upon the right to free speech. But that’s not the situation with the Hulk Hogan case. The U.S. Supreme Court has held that the First Amendment provides the strongest protection when speech is of legitimate public concern. But in most instances, a sex video is not of legitimate public concern. As I wrote in the New York Times Room for Debate: “A sex video doesn’t contribute to public debate or to the development of ideas. The First Amendment doesn’t protect speech out of a desire to satisfy morbid curiosity or prurient interest.”
In the series of cases, the U.S. Supreme Court has curtailed privacy tort liability when speech is of legitimate public concern and has consistently refused to restrict liability when speech is not of legitimate public concern. See Smith v. Daily Mail Pub. Co., 443 U.S. 97 (1979). In Florida Star v. B.J.F., 491 U.S. 524 (1989), the Court explicitly rejected the “invitation to hold broadly that truthful publication may never be punished consistent with the First Amendment. Our cases have carefully eschewed reaching this ultimate question.” In Bartnicki v. Vopper, 532 U.S. 514 (2001), the Supreme Court held that “privacy concerns give way when balanced against the interest in publishing matters of public importance.”
Thus far, the Supreme Court has been consistent in not letting the First Amendment restrict liability for invasion of privacy when speech is not of legitimate public concern.
2. The First Amendment should not protect Gawker’s posting of the sex video and should not grant the media absolute editorial independence.
In my New York Times essay, I wrote: “The First Amendment doesn’t protect free speech because it is a source of profit. It protects free speech because it is essential to freedom and democracy. The exposure of a sex tape has little to do with giving people freedom. If anything, disclosures about people’s private lives inhibits them and curtails their freedom. Sex tapes and nude photos don’t contribute much to political discourse and discussion.”
Jane Kirtley, a professor at the University of Minnesota and the former executive director of the Reporters Committee for Freedom of the Press, disagrees, contending that the case is a “threat to editorial independence.” She argues that the First Amendment ought to protect Gawker: “Although Gawker may not be the ideal gatekeeper, its web traffic attests to a substantial audience eager to consume what it offers. But do those millions of clicks mean that Gawker’s sensational postings are a matter of legitimate public interest under the law, or merely that they are interesting to the public?”
If what is of legitimate concern to the public boils down to popularity, then some of the most silly, trivial, or prurient material online would be the most newsworthy of all. A sex video might get more views than a video of the President giving a speech. This doesn’t make the sex tape more of a legitimate concern to the public than the President’s speech.
The law shouldn’t simply defer to the editorial judgment of the media. Media entities don’t always make the best judgments about what is of legitimate concern to the public. We see such a wide array of journalistic judgment these days that there really are few, if any, standards that everyone will follow.
The judgment of some media entities can be quite self-biased. Not all media entities are committed to promoting a robust public discourse and keeping people informed. Some just want to make money.
The Hulk Hogan video on Gawker didn’t advance ideas or make an argument or inform people about something important. But it did bring attention and probably generated profit. The harm it caused was ignored. Normally, when one person harms another, the victim has a right to redress. The First Amendment provides an exception when the harm is caused by speech that is important to further freedom and democracy. But the First Amendment is not a broad license to trample over people just to pursue a profit or to be amused or aroused.
3. Hulk Hogan did not surrender his privacy by discussing the video in interviews.
Jane Kirtley also argues that Hulk Hogan “gave up his privacy when he decided to talk about the video in interviews with TMZ and Howard Stern. What he really wants is the right to control reporting about him.”
I strongly disagree. There is a big difference between a discussion about sex and a video of it. There is a big difference between a person talking about his or her nude body and a photo of it. The mere mention of some facts about something doesn’t waive one’s privacy interest in all of the facts about that matter. For example, if a person says that she went to the doctor and got a blood test, that doesn’t waive her privacy as to the results of that test or even waive her privacy as to a video taken of her getting her blood drawn. 
4. The Hulk Hogan case will help strengthen privacy litigation, but only to a limited degree.
Hulk Hogan won a very impressive victory, with a huge damage award ($115 million) that is much higher than normal for privacy violations. What is the significance of this case?
The case doesn’t change the law, which has been the same for quite some time. Nor does it likely indicate a major change in how likely it will be for plaintiffs to prevail for privacy violations. Cases involving sex videos and nude photos are often the most likely cases to win. Most cases, though, do not win. Judges are quick to dismiss privacy cases based on very narrow conceptions of privacy or very broad conceptions of what is of legitimate concern to the public.
Lawyers will often not take the cases of many privacy victims because the chance of recovery is low and the cases are not likely to bring the lawyers media attention (and essentially free publicity). Even if the plaintiff wins, the defendant might not have the ability to pay, as many people are victimized not by large media entities but by individuals or smaller media entities, some of which are nothing more than a few laptops in a basement.
The significance of the Hulk Hogan case is that it was so successful. The jury sent a loud and clear message that privacy is valuable and that it is not journalism to exploit salacious information that doesn’t contribute to any meaningful debate or discussion. Most ordinary people, though, will not be able to mimic Hulk Hogan’s success.
5. People must paradoxically pour salt in their own privacy wounds in order to vindicate their privacy in a lawsuit.
One of the worst paradoxes of bringing a case to vindicate one’s privacy is that the case will often increase the publicity and exposure. I’ve seen many instances where plaintiffs are mocked for trying to protect their privacy. “Ha ha!” critics laugh. “The plaintiff has now made her situation a lot worse! What a fool!”
Unfortunately, under U.S. law, it is very difficult for plaintiffs to sue under a pseudonym. This is not the case in other countries, but U.S. courts are very reluctant to allow plaintiffs to use pseudonyms. Doing so is in a court’s discretion, so conceivably, courts could protect people, but they most often don’t. Even in cases of rape victims suing their rapists, they have often failed to be granted the right to sue under a pseudonym. See Doe v. Shakur, 164 F.R.D. 359 (S.D.N.Y. 1996).
For many people, bringing a privacy lawsuit will deepen the harm they are already suffering, and suing is just not worth it. Courts should be better about protecting the privacy of victims and not make victims suffer additional harm to obtain redress.
6. Revenge porn, online harassment, cyberbullying, and doxing victims still need protection.
There are people being victimized today who lack the resources to avail themselves of the law as Hulk Hogan did. We are seeing many cases of people victimized when malicious creeps post revenge porn — nude photos or sex videos of them in order to harass, humiliate, and exact revenge. Other people, especially women, are relentlessly harassed online and doxed (their personal information exposed online) to further harm them.
Many of these people are being harmed by individuals who are using media sites as vehicles to spread their comments. Some of these sites even encourage people to post revenge porn or harmful gossip. A federal law, 47 U.S.C § 230, part of the Communications Decency Act, has been held by courts to immunize websites for content supplied by third parties — even if solicited. So a gossip-
mongering website can urge people to post anything no matter how much it violates other people’s privacy and use § 230 as a shield for liability. This law has been twisted by some courts into a much broader grant of immunity than the language of the law actually says, but that’s a story for a different day.
The bottom line is that many victims will not be as fortunate as Hulk Hogan. Hulk Hogan had a great victory, and it will help people in similar situations, but these cases remain hard to litigate for most people, especially non-celebrities and those without great wealth or power.
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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. This post was originally posted on his blog at LinkedIn, where Solove is a “LinkedIn Influencer.” His blog has more than 950,000 followers.
Professor Solove is the organizer, along with Paul Schwartz of the Privacy + Security Forum (Oct. 24-26, 2016 in Washington, DC), an annual event that aims to bridge the silos between privacy and security.
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