Watch Your Back, Brother: How Hulk Hogan’s Sex Tape Affects Your Business / Legal / Last Modified: February 22, 2017

If your business involves publishing images, videos, or info about people, then the Hulk Hogan ruling could impact your company.

If part of your business involves publishing images, videos, or information about people, then the recent ruling in the dispute between Hulk Hogan and could have an impact on your company.

At issue in the case was a video of former professional wrestler, Hulk Hogan (real name: Terry Bollea) having sex with the wife of a friend, Todd Clem, a radio shock jock who had his name legally changed to Bubba the Love Sponge Clem.

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The video was published on without Hogan’s permission. Hogan sued Gawker, alleging that the publication of the video was a gross invasion of privacy.

As their defense, Gawker argued that the publication of the video was an act of journalism protected under the First Amendment and that Hogan had given up his right to privacy as a public figure who frequently sought the spotlight and openly discussed his personal life.

Ultimately, the court held that Hogan’s privacy interests outweighed any newsworthiness that the sex tape may have held.

Hogan was awarded a total of $140 million, including $25 million in punitive damages.

This ruling now threatens to shutdown Gawker, as it is unlikely to be able to afford to pay out that much in damages and still remain in business. 

But What Does All of This Mean for Your Business?

Well, if you run a website or other media outlet that publishes images and videos or reports on celebrities or other public figures, this case highlights the importance of considering whether information is newsworthy before publishing it, even if that information is true. 

Unlike defamation, truth is not a defense in right to privacy cases. You may be liable for publication of private facts if you publish information that is...

  1. So personal and intimate that it would offend a reasonable person
  2. Not generally known to the public
  3. Not newsworthy
  4. Widely communicated

The trickiest issue is determining whether information is newsworthy, or relevant to the public interest.

Generally, courts have given substantial deference to publishers in deciding what is and is not newsworthy.

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Some factors to consider in making this determination are:

  1. The social value of the information,
  2. The depth of the intrusion into private affairs, and
  3. The extent to which the person about whom private facts were revealed voluntarily assumed a position of public notoriety.

The Restatement of Torts, a scholarly work written in 1979 and considered by many courts to be a persuasive authority in privacy cases, suggests that newsworthy subjects include crime, arrests, drug deaths, rare diseases, wild animal escapes, children giving birth, and similar matters of genuine, if more or less deplorable, popular appeal.

However, the Restatement also generally holds that newsworthiness stops at, “morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern.”

The ambiguous and subjective line between information that is “deplorably appealing” and “sensational prying” is why courts in the past have generally allowed journalists to determine what is and is not newsworthy.

This can be troublesome for the media because there is little guidance, not even from the Supreme Court, for when privacy interests outweigh a free press.

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Take Note and Be Careful

This is why the Hulk Hogan case is important, because it helps publishers determine what published information is and is not protected by the First Amendment, especially in an age when a person with a social media account is not that different from a journalist.

So, while courts have recognized a publisher’s authority to decide what should and should not be considered newsworthy, the Hulk Hogan case illustrates that this authority should not be taken for granted, even when the subject is a public figure.

This is especially true, as Gawker demonstrates, when multi-million dollar awards for damages can threaten to bankrupt your business.

So before you publish anything that might implicate someone’s privacy concerns, consider whether that information is actually newsworthy.

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