A few days ago, a jury in Florida awarded Hulk Hogan (real name Terry Bollea) $140 million because Gawker posted a leaked sex video of the former wrestler. Rather than focus on the lurid details (which you can Google), let’s look at the law that led to the two-week trial.
To recap, Gawker allegedly received the video from an anonymous source. Other news outlets reported the existence of the tape. Gawker decided to publish the video in 2012 and had it on its site for six months.
What Issues Went to the Jury
The lengthy jury instructions indicate Bollea sued for (1) invasion of privacy; (2) violation of his right of publicity; (3) intentional infliction of emotional distress; and (4) a violation of Florida’s Security of Communications Act. Gawker denied the allegations and contend their actions were protected by the First Amendment.
Florida law on invasion of privacy
A number of acts can constitute an invasion of privacy. The first claim was for invasion of privacy based upon the publication of private facts which requires: (1) the publication of truthful private information; (2) that a reasonable person would find highly offensive; and (3) that does not relate to a matter of legitimate public concern. The final element is why there was a lot of discussion about the “newsworthiness” of the video and the effort by Bollea to distinguish between his real self and the character that he plays as Hulk Hogan.
Bollea also sued for invasion of privacy based on intrusion upon seclusion which requires: (1) the wrongful intrusion through physical or electronic means; (2) into a place in which Bollea had a reasonable expectation of privacy; (3) in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities. Because of this claim, there was a lot of discussion about whether Bollea knew about videotaping.
Finally, there was a claim for invasion of privacy based on misappropriation of the right of publicity which requires: (1) the unauthorized use of the plaintiff’s name or likeness; (2) for a commercial or advertising gain.
Intentional Infliction of Emotional Distress
This claim consists of: (1) extreme and outrageous conduct by the defendant; (2) that causes severe emotional distress; and (3) was engaged in either with an intent to cause severe emotional distress or a reckless disregard of the high probability that it would cause severe emotional distress. Extreme and outrageous conduct is behavior which, under the circumstances, goes well beyond all possible bounds of decency and is regarded as shocking, atrocious, and utterly intolerable in a civilized community.
Florida Security of Communications Act
This statutory claim requires: (1) the disclosure of oral communications; (2) in which the plaintiff had a reasonable expectation of privacy; (3) by one who knows or has reason to know that the communications were recorded without plaintiff’s knowledge or consent.
The First Amendment
The court instructed the jury that the newsworthiness of the video was a defense to Bollea’s claim for publication of private facts and a First Amendment defense to each claim. The court explained: “A matter of public concern is one that can be fairly considered as relating to any matter of political, social, or other concern to the community or that is subject to general interest and concern to the public. . . . The line between the right to privacy and the freedom of the press is drawn where the publication ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable manner of the public, with decent standards, would say that he or she had no concern.”
As you know, the jury found in favor of Bollea. The jury therefore had to assess damages. Bollea’s experts claimed the video raised the value of the website by $5 million to $15 million. Gawker retorted that it only added $11,000 in value because there were no advertisements next to the video.
The court instructed the jury to award “the amount of money that . . . will fairly and adequately compensate Plaintiff for the emotional distress he experienced as a consequence of the publication of the Video.”
On the misappropriation of the right of publicity, the court instructed the jury to award “an amount of money that . . . will fairly and adequately compensate Plaintiff for any economic damages relating to the publication of the Video.”
The jury awarded compensatory damages in the amount of $55 million for economic damages and another $60 million in pain and suffering. The jury added another $25 million in punitive damages made up of $15 million against Gawker, $10 million against the founder of the site and $100,000 against one of the editors involved. Some media reports suggested Bollea only asked for $100 million in damages. There were reports that the jurors were disgusted by jokes made by Gawker employees at the time of publication and during depositions.
You can read another interesting take on the case here.
Gawker intends to appeal.