Thoughts on Gawker Legal Woes

My initial response to the prospect that Gawker Media might go down in flames as a result of its legal woes was somewhere between ambivalence and satisfaction.  I’m not generally sympathetic to the proposition that invasions of privacy are inherently protected by freedom of the press, particularly when the invasion involves “information” as useless to the public as a sex tape—let alone one involving a former pro wrestler.  So, if Hulk Hogan’s $140 million award from his lawsuit and another five defamation suits lined up behind that are going to send the company into bankruptcy, so be it.  Do we really need a media service whose motto declares Today’s gossip is tomorrow’s news?  In conjunction with also reading this week that just 37% of America’s high school seniors are proficient in reading at grade level and 12% (ouch) are proficient in US History, it’s hard not to cheer about even a small reduction in the gibberish industry.

But then it was confirmed late last week that Silicon Valley VC Peter Thiel has been secretly bankrolling the Hogan litigation, and this revelation is generally being reported as an act of retaliation for the company’s now-defunct Valleywag having published a story in 2007 “outing” Thiel as gay.  This narrative in itself spawns a range of opinions on the matter of how angry Thiel deserves to be, why there should be any shame in being gay, and that whole tangential line of discussion.

But more to the point, and regardless of Thiel’s motives or sexual orientation, journalist Glenn Greenwald is quoted on CNN, observing the potential hazard to the free press when he says, “Petty, vindictive billionaires like Thiel literally have the power to destroy media outlets in secret.”  Greenwald and others who echo this sentiment have a point, but then so does Thiel, who says, “Gawker … built its business on humiliating people for sport. They routinely relied on an assumption that victims would be too intimidated or disgusted to even attempt redress for clear wrongs. Freedom of the press does not mean freedom to publish sex tapes without consent. I don’t think anybody but Gawker would argue otherwise.”

Certainly, it is ironic to see this particular billionaire seek to kill the kind of creature he helped spawn as an early investor in the social media site Facebook.  There has always been money in tabloid journalism, but the internet and social media have not only had a multiplying effect on that axiom, they have also played a substantial role in blurring the line between the salacious and the edifying.  As a result, it seems that some members of the public will now more aggressively pursue a “right to know,” even in circumstances when there is nothing worth knowing.  At the same time, we can’t deny that sometimes there is real news in the dirt.   It was Gawker in 2012 that outed the super-troll Michael Brutsch (aka Violentacrez) to whom Reddit had given an award for attracting a large following to his threads promoting sexual assault of teenage girls.  And the Gawker is not without some thoughtful editorials in between its grabby, tabloid reportage.

In a New York Times OpEd this past Monday, author Stephen Marche, who has been repeatedly attacked by Gawker, wrote a defense of the site called Gawker Smeared Me, And Yet I Stand With It.  His perspective is that we should not blame the media company for reflecting the world in which we live and that there is value in the reflection itself.  He writes the following:

“Gawker is new media, but it possesses an old-fashioned sensibility that dates from the 18th century. The editors and writers want power to be made uncomfortable whether or not it deserves the discomfort, and they believe that the public right to information is more important than any individual’s right to privacy. I would say, to anyone who believes that Gawker is just the gutter press, that those values are worth something even in the gutter.”

I don’t know. That seems a bit high-falutin in this context.  I think the purpose of the free press—certainly the reason it’s part of the First Amendment—is to speak truth to power, not to make the powerful uncomfortable whether they deserve it or not.  Nobody can deny that there’s money in the latter, but that doesn’t imbue the enterprise with great social value. For instance, I don’t agree with Marche when he says “no one could possibly object” if a leaked sex tape involved a congressman.  Or perhaps he’s correct to suggest that no one would object but is missing the point that we probably should object.  People need to know if an elected official has broken a public trust, and if that violation involves a sex scandal, then that’s part of the story.  But the people don’t need the video and should not confuse mere curiosity to see the video with anything so weighty as freedom of the press.

I would no more defend the distribution of Hulk Hogan’s sex tape on First Amendment grounds than I would defend the distribution of leaked nudes of Jennifer Lawrence and other celebrities in 2014 that caused a similar stir.  Gawker Media deserved to be sued in this case and deserved to lose, in my opinion.  But at the same time, it’s hard to be entirely comfortable with the prospect that one man with a vendetta and a big checkbook might sue a media company out of existence.  Marche writes, “Mr. Thiel has turned Gawker into a scapegoat for the shifting world of celebrity culture that we all inhabit. He has made Gawker into a scapegoat for the world he himself is helping to create.”

But I don’t think that’s quite right either.  Yes, Thiel has personally invested in creating this world we now inhabit and so, perhaps he deserves in a karmic sense to be among its victims.  But Peter Thiel is not responsible for the editorial decisions at Gawker, and he is certainly not responsible for the fact that millions of people are actually interested in seeing Hulk Hogan’s stupid sex tape. Moreover, a fact that continues to manifest in the digital age is that just about anyone can be made “famous” through leaks, shaming, bullying, mob justice, etc. As such, it’s probably best that even the gossip-mongers keep their sense of a “right to know” in its proper perspective.

© 2016, David Newhoff. All rights reserved.

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  • The UK Supreme Court’s take on the recent 3-in-bed celebrity brouhaha the judgement is worth listening to:

    • I’ll repost this from TechDirt because I think it’s still relevant:

      – – –

      I should point out a correction, Mike [Masnick of TechDirt]. This isn’t a superinjunction, it’s an injunction. A superinjunction is when you can’t even mention the injunction exists without being in contempt of court, which is illiberal because it essentially means secret courts. Though a regular injunction you can say that the injunction exists, which is why papers are allowed to talk about the injunction in England and Wales without actually mentioning the names, and they have done so. See the Daily Mail’s “The Law Is An Ass!”

      Here in Scotland I could probably name the names without legal trouble. However if I were to step across the border only a couple hundred miles away I probably could not. And I’m not sure if it counts if a copy of my message would be read in HTML in England despite me posting from Scotland to an American server.

      I do have some sympathy with my opponents here. If some poor woman were photographed nude without her permission and that image went viral across multiple sites globally, she’d be pretty pissed, and she would be a bit disgusted at folk who try to mock her resisting it as creating a “Streisand Effect”, as if she were to blame for everybody else’s violation of her privacy, which is what “fighting it makes it stronger” can only mean in this case. The thing about the Streisand Effect is that it only gets you so far morally. It can lead to victim blaming.

      And my opponents could also say that it is possible to beat the Streisand Effect by citing the example of the naming of the identities of the killers of James Bulger. This had gone a bit “viral”, but then the names had indeed still been removed at every instance in the end.

      Though I fear the above example was only due to luck and the example above that no doubt due to the ignorance of porn viewers when determining if each and every nude image is consensual or not. There was more interest here in the UK about the James Bulger killers’ identities than say in the US because it was a UK story at its origin, and not as many were spreading the identities because many others objected to it, which may have made it easier for the police to stop.

      It’s a bit scary to think that law has lost its competency here, and that no amount of law can stop memetic information if it’s up against millions willing to resist it. If the law does appear to succeed in putting it down, is that because the law’s force was strong, or because the people simply chose not to make the content viral? That’s a critical question, because if law is all in the mind anyway and authority is an illusion just like free will is, it would make sense that the latter bit of the answer would be right. We all, in the end, decide if laws should be followed or not, and papers called “laws” are inanimate objects that only mean something if we choose to act in favour of them. Law comes from Order, not the other way around.

      That’s pretty disturbing, so it is possible that memes can’t be stopped by law online – and I really do mean meme in the Dawkins sense of the word: natural selection of expressions. So how do we deal with the nasty stuff?

      I think we need to start considering focusing all the justice of civil compensation and prosecutions etc, if there is a case of course, on the “point of the leak”, not on folk who simply echo the leak. So if Hulk Hogan wants compensation for an act of revenge porn (I don’t know the full details but I assume it must have been revenge porn, I don’t think he would have won if he himself published it), he’d have to take it to Gawker or even the person who sent it to Gawker, not everyone else reporting on the story. Otherwise you get farces where because of international servers anyone can find out the UK injunction names but cannot talk about it between them in certain regional parts of the Union. And I’m sure you can still find the Hulk Hogan sex tape somewhere. If you worked hard enough, the killers of James Bulger too.

      One exception to this might be child rape images, where those who echo them must also be punished. Though I think that works because the “Is it consensual? How am I meant to know?” line of thinking doesn’t hold up since a child cannot consent whatsoever. And the presumption must be made that those who possess such images must also have knowledge of and history with child rape criminal gangs who profit from the slavery, so it is easily justified to say why law must fight against it. And it succeeds very well because the majority will report and fight against child rapists, not spread evil images.

      …so again, law only “works” because the masses follow it.

      Therefore, in regards to the stuff where you’ve got to stop the point of the leaks, we may have to simply face the fact that we’re in an age where you can’t just walk up to printing-press bottlenecks anymore and put a hold on them. You’re up against a massive ball of rubberbands the moment something leaks, and even if you get 99% of them that 1% still lingers waiting to instantly turn into the big ball again (I’m sure there’s a better metaphor… probably the ProtoPets from Ratchet and Clank 2). So in this day and age, it makes more sense to focus all your justice on those who take something out of your private sphere initially into the public sphere without permission. Because chasing the echoes is only going to be horrible and ugly.

      – – –

      So to reiterate, there is such a thing as privacy invasion, but damages must be saught from the leaker, not the echo chambers (this is also why any US state grievance against leaks must be aimed at, say, Bradley Manning instead of Julian Assange). There are bound to be many sites out there that still have a copy of the Hulk Hogan tape but lawsuits haven’t been aimed at them.

      However, at least a degree of suspicion must be cast. I am one of those against “publicity rights” and the like, and am also heavily against “the right to be forgotten” in the EU (also known as the non-right to make others forget, in complete disregard for my right to remember), plus I am against the ongoing Leveson nonsense in my home country which seems to think the appropriate way of punishing Murdoch’s phone hackers is not to use the law which was used to prosecute such folk, but to have a farcical “Royal Charter” which all papers who had nothing to do with any of this must abide by, else they pay for their own legal costs which force them to be silent instead. Whereas unpunished mass hackers like GCHQ already have odds heavily in their favour against journalists as it is, including the hacking of the phones of journalists themselves.

      It’s all part of the same trend, which is why I bring it up. We are in the middle of a generation where folk take the principle of free expression for granted in fortunate, spoiled democratic societies that are also somehow the root cause of all terrorism in the world. Where we’d rather condemn Charlie Hebdo than defend them, when the same disgraceful attitude would have also meant the condemnation of Eagles Of Death Metal had this disgrace been the least bit consistent. Because Islamofascists see both those artists as being just as blasphemous as each other. Never forget it.

      So I don’t accept that the right to know needs a “proper perspective”. The default assumption must be that the silencers are not on the level. Otherwise we should start campaigning for the First Amendment to be repealed since the founding fathers supposedly got it wrong when they said nothing is sacred.

      • I’ve not read anything so confused as that in a long, long time. Publishing details online can interfere with justice:

        You can also find yourself in court for libel,

        and the little-bag-of-wank also needs to understand that some private citizen’s financial issues of 10 years previously does not need to appear on the front page of his paymasters search engine.

      • David Newhoff

        Clearly, James, you’ve brought up several subjects here, and although they are all interesting, I would not agree that they are all directly or even tangentially related to the Gawker/Hogan story. That story is pretty straightforward I think. Regardless of how a publisher comes into possession of material, the entity has a responsibility to decide whether or not its publication is warranted. If the editors choose to publish otherwise private material that in no way serves the public interest, but is exclusively used to drive ratings or traffic, then the publisher should be prepared to be sued and should be prepared to lose. This is actually an important a feature of preserving a press worth having at all.

        Invoking the Framers and the First Amendment in this context is misguided, as Gawker’s role in this case could not be further from what those authors had in mind when they added the amendment. The freedoms of the press and speech were entirely predicated on a leap of faith that the electorate would eventually be well-informed enough to sustain the republic, and not that the public should have the right to know–or that it should care to know–the intimate details of one another’s personal lives. The internet has naturally spawned more junk journalism as well as an exaggerated sense, for some, of the purpose and nature of free speech. But one would be hard pressed to demonstrate that society is largely benefitting from any of this. I give you the rise of Donald Trump.

      • They are related because the attitudes to free expression have been very shody the past few years. It was lengthy, I know. But I thought it best to home in on it.

        For example, the attitude can be found with the very example you gave:

      • David Newhoff

        Fair enough. And I don’t mean to suggest the thoughts are not appreciated. If I get time, I’ll respond more fully, or perhaps someone else might. Thanks.

      • OK, so I’m going to sail into this conversation with a thought that might be a provocative, but isn’t intended to be incendiary: Perhaps “the attitudes to free expression have been very shody the past few years” (to use James’ words) because expression has become so unfettered.

        When I was a bit younger, it was fashionable to berate people generally and the media particularly for “self-censorship.” The concept was that when people exercised judgement about whether it was wise to say something – or repeat something – and that this was a form of self betrayal and or lying through omission that was depriving society of the nutrients it needed to be free and healthy.

        This charge was part of a larger extension of the idea of censorship from meaning an interdiction by someone with some level of official authority to anyone trying to convince any one the shut the hell up about anything at all for any reason under any circumstance.

        Now we live in an age of free speech maximalism, in which judgements of what constitutes a reasonable restraint become ever narrower both legally and culturally. We are daily exposed to a much wider array of opinions and perspectives on a much greater number of topics then even 30 years ago. And much of this exposure is unbidden and even coerced (omnipresent media and technology plays a big role in that.)

        When something becomes so ubiquitous and easily accessible, it is loses value to people. When something is persistently pressed upon the unwilling, they resent it. And what does someone who resents it do? Well, when a rich person is offended by someone else’s speech, they use the courts, as Thiel has. But we have made that path – never cheap – increasingly expensive and difficult. We have also concurrently adopted a zero tolerance attitude to poor people’s traditional tools of shutting down offensive speech – violence and biased-based exclusion.

        So where does that leave people who need to feel some agency? Contemptuous of free speech and anxious to subvert it by abusing it themselves to avenge themselves. Hence, the myth of political correctness, Trumpism, etc.

        Just a thought.

      • I might have said this before but it is worth repeating. Years ago I’d take photos at community events and at social gatherings. Candid photos of people and their kids. Mostly the people at the events would get prints etc. Years later I reposted some of the photos into a facebook group where many of the people at some of those events were hanging out. It was “Oh that’s me 30 years ago. Damn that’s Jimmy when he was 10, oh and Sally when she was 6. I don’t remember looking like that, etc, etc. Would I take candid photos nowadays. No of course not. People are far too scared that the images may be used inappropriately.

        The problem is that nowadays you have people staking out the mall toilets waiting for a wardrobe mishap. Or prowling car parks waiting for some woman to bend over to put her kids or shopping in the car. Telephoto lens on beaches taking groin and breast shots of pubescent kids.

        Photos of kids taken from flickr and added to forums discussing molesting them, or what they’d like to do to them if they were 5 years older etc. Photos added to facebook groups where the person depicted is ridiculed.

        Surely we have enough intelligence to enable powerful people to held to account without any of this?

  • Interesting insights David. But let me go a step further:

    Thiel is also not responsible for the jury’s verdict in the Hogan case.

    The extent to which this seems counterintuitive is a measure of how well Gawker’s PR team has muddied the waters, how little faith people have in the US legal system, or both.

    Stripping away the hyperventilating (by others in the media, not you) about a free press, what exactly did Thiel do? He paid the bills for a plaintiff who had, in his view (and the jury’s, apparently), a legitimately actionable grievance, but not the money to pursue it in the ridiculously expensive US court system. That happens everyday in America. Indeed, there is a good argument to be made that it doesn’t happen enough – that many injustices stand and worthy goals are thwarted simply because it is too expensive to bring a case and/or to continue to press it in the face of mounting costs.

    Since who was paying Hogan’s legal bills isn’t relevant to the issues, it shouldn’t affect the jury’s decision on the merits – and as it wasn’t revealed, we know it didn’t.

    Thiel’s involvement in this case doesn’t trouble me at all. What does trouble me is the reality of a legal system where even well-known, highly-paid people like Hogan can’t pursue their legitimate right to legal redress without a financial angel. What troubles me is the apparently universal presumption that irrelevant facts about a litigant would and should sway the verdict regardless of the merits of the case.

    Yes, I am also troubled with income inequality. WIth the threat to liberty presented by the existence of a super-rich class. With the fact that Thiel appears to be a wing-nut. But all that is background in this case.

    • Sam Flintlock

      I agree with Cormac on this. The case arguably illustrates the problem with the influence of wealth on the legal system, but that’s way wider than this specific case. In terms of Thiel though, he merely did what many rich people did and funded a legal case relevant to his interests. Any danger is in the fact that’s possible. I have trouble caring that much about Gawker going under.

    • David Newhoff

      All very good points as always, Cormac. You are, of course, right that it is an unfortunate commentary on our legal system that one must, perhaps, be Peter Thiel in order to pursue justice. I also personally agree with Sam’s follow up that I don’t really care if Gawker tanks, which I think I make clear in the opening paragraph of the post.

  • I thought I should mention this article because it stumbles upon something crucial:

    The picture, taken outside a simulator designed to test the effects of driving the morning after the night before, pops up on the first page of my search results, linked to a stock-photography website (it’s hard to imagine when it would be a useful illustration). Apart from anything, I was wearing terrible jeans, so I start Googling: “How do I get rid of a bad photo of me?”

    “Do you own the copyright for the photo?” asks Jeremy Harris, a partner at Kemp Little, a London law firm specialising in tech and digital media. I never did, and assume the stock photo website now does. Owning copyright, as Rose is claiming he does under the US Digital Millennium Copyright Act, makes things much easier. “Once a hosting website has a notice of a copyright infringement, they have an obligation to take down the photo,” Harris says.

    In other words, if somebody else has the copyright to the photo besides the actual person in the photo, according to copyright ideology the photographer should be at liberty to do what he likes with it against the wishes of person being photographed. What would Hulk Hogan had done if it were somebody else doing the filming? From my previous post I did acknowledge that lack of control of what goes viral should give everyone pause. Though it is interesting to note the contradiction between the “right to be forgotten” and copyright, that draws comparisons with Cindy Lee Garcia’s case.

    Suddenly the idea that copyright is “property”, and that once something is filmed that’s consent enough for a copyright owner to do what he wants with his own work, including ridiculous dubbing over Garcia, seems rather unstable.

    If you try to solve the contradiction by saying copyright is an individual right that can be retracted even if you sign a contract (e.g. with Garcia) you can’t really continue to call copyright property in that regard, since an individual right that cannot be signed off by definition cannot be “traded”, a crucial component of the rights of property.

    You can however resolve it by saying things like libel, privacy, plagiarism etc are separate issues from copyright, which would involve conceding that any “moral rights” copyright claims to be supporting are actually their own ethical sphere, and completely unrelated to copyright which is purely a property question. This is the position I take.

    Would anyone support a hypothetical cameraman’s right to copyright property in the Hulk Hogan case? If not why not?

    • Certainly the photographer has a copyright to the image/film but that is only one of the rights involved. The subject may also have rights, models will give permissions for images to be used for certain purposes. there may also be privacy rights involved and those don’t evaporate just because you agreed to being photographed.

      • David Newhoff

        This is correct. In fact, many stock photos actually require separate clearances for each specific use with the models who appear in them.

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