Gawker Owes That Verdict…Thanks to Vivid!

I had several people ask me how I thought the jury ended up coming down on Gawker for 115 Million dollars in the Hulk Hogan verdict.

I can’t answer  as far as the emotional damages of 65 Million but I can answer the economic damage part that amounted to 55 million.

The jury simply went to Vivid.com and got the price to join and view Vivid’s celebrity sex tapes( $4.95).  They then multiplied that by the number of views the video has gotten on the Gawker website and viola 55 million dollars is the answer.

Today it was announced that punitive damages would be another 25 million, making the total verdict 140 million dollars, a sum that Gawker probably doesn’t have the resources to pay.

It is clear to anyone following the case that the jury wanted to send a very clear message to Gawker that this kind of behavior won’t be tolerated.  From a legal perspective it is an interesting case that will likely be part of classroom studies for years to come.

From an appeals perspective Gawker has made clear it’s intention to appeal and in my opinion that appeal has a good chance to succeed. However distasteful you may find Gawker it is not reasonable to sacrifice the first amendment in order to punish Gawker.

 

25 Replies to “Gawker Owes That Verdict…Thanks to Vivid!”

  1. Karmafan

    For sure Hogan will never see that money. Maybe a slight fraction of that amt. (5-10%) if he is lucky.

  2. LurkingReader

    Whoa! IDGAF how famous anyone is if the expectation and presumption of privacy can get evidence tossed in murder and heinous child abuse cases then it stands to reason that Gawker or anyone else could be held civilly liable for crossing the privacy expectation line.

    I’m all for celebrities pretending they didn’t sign a contract to leak a sex tape. Angry revenge porn and shit like what Gawker did are more of a reason than Traci Lords situations to keep 2257 in effect.

    If I want to preserve a memento of wild monkey swinging off chandeliers sex with my husband I don’t want to be inhibited with the concern that a nosy or uninvited guest in my home or a acrimonious divorce situation is an open invitation to crossing every line of privacy expectations in the trash like broken light bulb that can never be restored. Consenting adults …whatever I consent to in my bedroom doesn’t extend to destroying that privacy.

  3. djskrapka

    Gawker has a problem just getting to the appeal. They will have to put up a $50 million cash bond just to file the appeal. They don’t have it. And if they try and borrow it, the issue becomes this, if they lose the appeal, that $50 million goes right to Hogan. So who would loan them the money?

  4. brendachicago

    This isnt a first amendment issue, this isnt news. This was a private video no one had rights to release it.

  5. MikeSouth

    Brenda my problem becomes when there is an arbiter of what is news and what isnt. I happen to agree that this was pushing the envelope and I am a strong believer in the right to privacy, my gut tells me that in the end maybe it was handled correctly…ie let a jury decide.. I know when Hogan attempted to file in federal court the federal courts wouldn’t hear it. I am much more comfy with this decision than I am with citizens united and if Gawker thinks they have problems imagine what will happen to Donny Long

  6. Ivy

    People can still think the Hogan thing was a private video….and if you really believe that maybe try digging through old news stories. One of the things that hampered Gawker is that the court would not accept evidence that Hogan knew he was being taped by Bubba.
    I understand why Hogan would feel like it destroyed his life or reputation (imho he’s over reacting he should have milked the opportunity) but at the same time, the FL hated Gawker from the get go.
    It’s not ok, in my book, to do what the courts did to Gawker, because any body with enough money and friends can bury a story they find is unflattering. Especially, with Trump running for president. Great precedent, FL courts. You asshole.

  7. BT

    Mike – if by arbiter of what is news you’re referring to the government, you’re absolutely correct that we don’t want the powers that be at local, state or federal level making decisions about what is and what isn’t news. That’s prior restraint and except in instances of provable national security, the government can’t stop you or me from publishing something, including Gawker posting a Hulk Hogan sex vid. The bar is very, very high even when it comes to national security.

    Once its out there, that’s a different matter, which is where libel, slander, defamation of character, invasion of privacy and all that other stuff comes into play.

    I didn’t follow this case at all, so I’m speaking off the cuff and not as an expert – I don’t know what happened, and the last thing I want to see is Hulk Hogan wrasslin’ nekid. But as a public figure, Hulk would have had to prove damages – it sounds like he did. At the same time, if someone really did film him without his knowledge, I think even a celebrity can prove invasion of privacy if your most intimate acts are filmed.

    Gawker doesn’t have to have $50 million. It has to have an insurance policy to cover a $50 million claim, or whatever Hogan was awarded. They couldn’t operate without insurance; no idea what is the extent of their coverage.

    Last, and this comes from the experience of having gone through several lawsuits involving big media as a co-defendant, this will be appealed vigorously, and other media organizations will rally around Gawker, even if its just Friends of the Court or Amicus briefs because in our celebrity-driven world, almost any media organization is vulnerable to a suit, even if Gawker was in the wrong.

  8. Hop Sing

    Mike: speaking of Donney Long please provide an update in a future blog post. All I know is he’s camming with some rather unfortunate looking – and possibly underage – Thai girls and begging for money. Thanks.

  9. LurkingReader

    @ivy

    Which court are you talking about not accepting evidence? I’m seeing lots of noise about Bollea and his lawyer Houston stated they saw (viewed) three DVD-R in their entirety and FBI editing. That relates to Bollea and Houston being recruited to chase down Keith Davidson, an attorney in Beverly Hills for extortion.

    Not seeing anything that indicates Bollea consented to have his tryst with Cole recorded. The FBI returned evidence to Bollea’s lawyer (Houston) a transfer of copyright agreement & a check for $150k to Davidson. Assuming those go hand in hand with the DVD-R evidence the FBI held pending the outcome of the case against Cole & Bubba…it looks like Bollea didn’t consent to the recordings. Cole and Bubba both settled with Bollea and Bubba apologized on his show but no word on who got the DVR in question.

    Does it matter if bubba was shopping these around for years or waiting for a prime opportunity to use them before they ended up in Davidson’s hands….if there was no consent to record and a clear expectation of privacy?

    Your home and hotel rooms come with an expectation of privacy …your tryst partner’s bedroom shared with their spouse is less so but still more than a hotel elevator.

    Pretty sure law students will be poring over the Gawker case for decades to come. I wonder if the 115 will get drastically reduced and the 25 left intact to make the point.

  10. bfi

    @Ivy @lurkingreader The self-serving article by one of the defendants Nick Denton doesn’t answer all the questions, but just puts his spin on the case. Different courts have different standards for jurisdiction. The federal court and the appeals court would not order the offending video removed, but that does not mean its publication is not actionable. Denton mixes apples and oranges. Frankly even if Bollea consented to the filming, he clearly did NOT consent to its publication, otherwise the defendants would’ve come into court with his signature on a release. The sex was consensual, the filming may or may not have been, but the publication was not. Ivy, Bollea certainly did NOT bury the story, but rich politicians do that all the time. Law students do not typically study trial level decisions, but if an appeal is filed and decided they’ll probably study freedom of press vs. right to privacy. Let’s see what any appeal brings. Media framed this as a decision about what is news, but its much more about basic right of privacy protecting people.

  11. bfi

    I forgot to add that everyone already knows about the alleged racist rants, and they had no relevancy to the matter of the sex tapes.

  12. LurkingReader

    @ivy

    I read it and the linked info too…it would answer all my questions if my interest was limited to one side of this story. The secret to maintaining my ‘equal opportunity annoyance’ moniker is reading both sides and the undecideds too. 😉

    Gregg Thomas says Bollea knew she liked to tape herself and their bedroom had ‘security’ cameras….so fucking what.

    Let’s say Bubba is an opportunistic celebrity sextortionist and Bollea knew it…he could still have a reasonable expectation that his friend wouldn’t extort him via sending his wife to offer him a soft sexy shoulder to cry on through his divorce when the Clem’s also offered him a guest room to stay in.

    Heather testified that way in that case and this way in this case. So fucking what. The court and the jury are only allowed to consider evidence and arguments presented at trial when rendering a verdict.

    Not hunting for the link but if you’re interested Google the AJ De?? ( Former Gawker Editor who got assigned part of the verdict ) deposition …that might shed some light on why the case went the way it did. Saw his and some other depositions linked in a few places.

  13. LurkingReader

    Gawker can attribute any motive they want for Bollea pursuing the case, the only one that matters is the rationale Bollea presented and proved in the courtroom.

    The text says he’s concerned about other tapes out there, not that he is okay or not harmed with the gawker publication.

  14. Ivy

    @lurkingreader I started reading gawker a little bit before the Hulk thing, and it’s a site I’ve ready daily since. Denton sums up, very well their position and what happened, and I agree with his points. Just odd to me that you would take such a hard line, considering you post on this site all the time. And what I mean to say is that you have very great analytical skills, and skeptical and ask questions. Just haven’t heard any of that for Gawker, from you.

  15. LurkingReader

    @ivy

    Through this case I’ve had many questions, none of which were posted here because the case never came up before the verdict. My cousin’s son went to school with Bollea’s kids…she is on gawkers side because she hates Bollea. Her dad (my uncle) told her two years ago not to get her hopes up that gawker would prevail. Coming from a large family we tend to take dissent of opinion in stride and divvy up wooden nickels at every family reunion. Me taking a hard line for the right to privacy isn’t new or limited to this case.

  16. BT

    Don’t know the facts of this case, so only responding to posts. I do know the law in this area. A court would not order a media organization to remove a post – that’s called prior restraint.

    That has nothing to do with whether the post is actionable. For example, I could write something that was knowingly untrue and patently libelous about an individual or a company. Let’s say that I convince a newspaper, magazine, or website to publish it. If the individual libeled went to the court and said this is heinous, please make them remove it, the court would decline to hear the case. The courts don’t control what media organizations choose to publish.

    That doesn’t mean that the post isn’t libelous and actionable – suing for libel, invasion of privacy, etc., is the remedy and not courts censoring the news. That’s the way our system works.

    So if people are saying well, the federal courts wouldn’t touch this with a ten foot pole because the courts wouldn’t require Gawker to remove it, they’re missing the point. That’s not what courts do.

  17. LurkingReader

    @BT

    Exactly retraction or correction in slander/libel cases are not ordered by the court. The court orders approval of party negotiated settlements that include retraction, correction/public apology or the jury verdict and monetary award.

    I’m thinking the 4.95 per view will get drastically reduced…number and length of content avail for 4.95 vs this one item.

  18. Ivy

    @lurkingreader Do you believe in free speech so hard that you would support someone taking on Mike like that? Do you believe TMZ should be treated the same way? Sure, set it all on fire and let it burn.

  19. LurkingReader

    @ivy

    The right to free speech is not a license to speak freely without consequences. What the fuck does the right to privacy matter as a guard against government Intrusion into private lives if media (editors) can disregard journalism ethics without penalty?

    If they’ll absolutely disregard a celebrity’s privacy for page view income then why wouldn’t they sell you or I to law enforcement for a confidential informant reward that pays more than page views for non celebrities…or because prosecution is icing to the cake of persecution they desired?

    Go read the depositions and testimony, then try and defend this shit. The former editor didn’t care if the content was Bollea or not aka if a clever photoshop would bring him the same page views he’d do it. They’d draw the line at publishing content of a child under the age of four. Let that sink in for a moment….of course it wouldn’t be porn cuz the content of celebrity or politician’s pre-adolescent child being groomed for sex or violently attacked is NEWSWORTHY. Thanks but no fucking TY there’s a reason many court records are sealed.

    Six months ago they knew they were going to lose, they hoped for and expected a much lower verdict. Now they are moving to a political focus.

    Many of the groups supporting Apple as a guard against government intrusion into our private lives aren’t trying to protect our privacy at all…they are absolutely fine with public persecution as long as it isn’t government prosecution. IDGAF who the self appointed sheriff is …they aren’t taking my right to privacy away 😉

  20. MikeSouth

    Obviously this is a topic that is of interest to me and in all honesty the best commentary I have read on it has been right here in the comments. I hold the first amendment in very high regrd but I also hold the right to privacy in very high regard and in some circumstances I think that that right to privacy trumps the 1st amendment, and this case may well be one of them. I haven’t followed this until the verdict so I have some conflicted opinions and am honestly not too sure about some of it.

    I can say this, if I had gotten hold of that sex tape, my first call would have been to a really good attorney someone I trust and someone good, like JD Obenberger or Marc Randazza.

    In the end though had they told me that I would be safe running it the big question is do I run it? In this case my answer would have been no, and some of you probably know that I was faced with a very similar situation last year.

    For me there would have to be a compelling reason to run it, say John Doe KNEW that he had HIV and this tape proved that he was having unprotected sex with girls who he did not tell that he had HIV then I have a compelling reason why privacy doesnt trump first amendment.

    Put another way, when a performer gets HIV or HEP C or another STD I am always faced with a dilemma, that being does his/her right to privacy trump the right of fellow performers to know that they were exposed. I don’t think it does and that is why I contact the performer and say look come forward, do the right thing by your fellow performers and I will back you up, if you choose NOT to come forward I will out you, take a day and think about it if you need to but people have a right to know if their health has been compromised.

    It is a situation that I absolutely HATE to be in, but in the end I have to do what I think is right.

    Back to Hogan and Gawker, I am just not sure what the justification is on Gawkers part, I know that tomorrow Gawker founder Nick Denton will be telling his side and I am interested to hear it.

    I just intended this to be a comment but it occurs to me that maybe it should be a post. As always if anyone wants to present an alternative view I am more than happy to run it, just email it to me or post it here and let me know you are OK with my running it front page and crediting you.

    Thanks Y’all you really are the best and I am lucky as hell to be in such esteemed company…Y’all are smart and articulate and I appreciate the opportunity I have to learn from ya!

  21. Ivy

    @lurkingreader
    This statement that you made:
    Many of the groups supporting Apple as a guard against government intrusion into our private lives aren’t trying to protect our privacy at all…

    This is not true at all. Not sure why you think that. It’s not a debate with me, we can draw lines that’s fine. But to you say that anyone who supports Apple is somehow saying that “they don’t really care about privacy” unless you meant to say something else.

    I had realized that my previous post was poorly worded, but TBH I really don’t want to get into it with you about it right now, so I’m not going to stress about it.

  22. LurkingReader

    @ivy

    Not a tiger…I is a momma bear protecting my cub though sometimes it comes across as a pitbull biting into a tasty bone 😉

    Not saying anyone who supports Apple doesn’t care about privacy…saying some prefer facilitating uncontrolled arbitrary court of public opinion persecutions while thwarting government prosecution with due process protections. I think both are pernicious threats to our right to privacy.