United States: Sex, Lies, And The First Amendment (But No Copyright): Hulk Hogan's Leg Drop On Gawker

On Friday night, a Florida jury delivered a stunning verdict in Hulk Hogan's lawsuit against Gawker Media LLC and its sundry entities, awarding the former wrestler and movie and television personality $115 million on claims that Gawker invaded Hogan's privacy rights, and caused emotional distress.

Although Hogan demanded only $100 million in damages, the jurors decided it should be more. After deliberating for less than six hours, they awarded Hogan $55 million for economic injuries and $60 million for emotional distress. These amounts do not include the punitive damages, which the jury is scheduled to consider later today. The case touched upon several legal and journalistic issues, most notably the question of what is protected free speech under the First Amendment. The claims on which this verdict was based, however, were only brought after a prior unsuccessful attempt to enforce Hogan's copyright of the videotape Gawker posted on its website.

Sex

The case began in October 2012, after a Gawker editor posted a story ("Even for a Minute, Watching Hulk Hogan Have Sex in a Canopy Bed is Not Safe For Work but Watch it Anyway") on the news-gossip website that included a 1 minute, 41 second video clip featuring Hogan (whose real name is Terry Bollea) having sex with Heather Clem, the wife of Hogan's former friend, Bubba the Love Sponge Clem (f/k/a Todd Clem). The incident took place some six years prior while Hogan was still married to his first wife. Hogan denied any knowledge or involvement in the taping of the encounter.

Though the excerpt Gawker posted was blurry, apparently as a result of being taken with a black-and-white security camera from a distance, Hogan and Mrs. Clem are easily identifiable and clearly engaged in sexual activity. Gawker maintained that it received the tape from an anonymous source whose identity is still unknown.

Hogan's claims against the Clems were brought in Florida state court on the same day he sued Gawker in the Middle District of Florida. In addition to the privacy and emotional distress claims, Hogan also sought relief for copyright infringement. He attempted more than once to enjoin Gawker from continuing to post the video clip in his federal case, but the district court denied both motions. Still, Gawker voluntarily removed the video portion of the article pending the outcome of the litigation.

Lies

After the sex tape was published, both Hogan and Mr. Clem made separate appearances on the Howard Stern radio show. Whereas Hogan denied knowing that he was being filmed, Mr. Clem told Howard Stern that Hogan had known about the camera the whole time. But, just days after the Howard Stern appearance, Mr. Clem changed his story claiming that Hogan was not aware of the camera's presence. Shortly thereafter, Hogan dropped the Clems from his state court suit, at which point Mr. Clem transferred his copyright of the videotape to Hogan.

Likewise, Mrs. Clem claimed in a taped deposition played at the trial that she had no idea that she was being videotaped during the tryst with Hogan. These claims were contradicted, however, by statements she made to the police saying that it was Mr. Clem's idea to videotape her encounter with Hogan and that Hogan was unaware of the camera's presence.

The First Amendment

Throughout the trial, Hogan's attorneys sought to show that, in posting the video, Gawker acted with a reckless disregard for his privacy, pointing to jokes about the tape made by editors in a private chat at the time. Gawker's attorneys, on the other hand, argued that posting the article and video was protected by the First Amendment, because it was a matter of public concern. They pointed to the fact that other publications had already broken news of the tape, and that Hogan had spoken openly about his family and sex life for years, including his book describing an affair he had during his marriage, and public discussions of issues relating to his marriage and sex life, as evidence of the tape's general interest and concern to the community.

Hogan sought to distinguish his real life persona from the wrestling character he portrayed with "artistic liberty." The separation between the attention-seeking celebrity Hulk Hogan and ordinary man Terry Bollea was the central theme of Hogan's case. When the sex tape was shot, the argument goes, Bollea, not Hogan, was the participant. Thus, it was Terry Bollea's reasonable expectation of privacy that was violated, not Hulk Hogan's.

But, No Copyright

Shortly after Mr. Clem transferred his copyright to the video to Hogan, Hogan amended his federal court complaint to include the copyright infringement claims against Gawker. The district court's December 2012 decision came in response to Hogan's motion for preliminary injunction to enjoin the infringement of his copyright in the videotape. The focus of the court's decision was on Hogan's failure to establish a likelihood of success on the merits of the infringement claim. U.S. District Court Judge James Whittemore ruled for Gawker, citing the Eleventh Circuit's recognition that "the balance between the First Amendment and copyright is preserved, in part, by the doctrine of fair use." According to the court, the three pages of commentary and editorial describing and discussing the videotape in a manner designed to comment on the public's fascination with celebrity sex in general amounted to fair use.

While commentators are worried about the chilling effect Hogan's victory could have on all media who report on public figures, Hogan's victory may be short-lived. Gawker plans to appeal immediately, and is confident that the appeals court will rule in favor of the company. The convoluted procedural history of the case appears to support Gawker's confidence. When Hogan dismissed his federal claims and added Gawker to the state court action, he asked state court Judge Pamela Campbell for the temporary injunction that Judge Whittemore had denied him. Judge Campbell granted Hogan's motion for an injunction, and Gawker appealed. A Florida appellate court overturned Judge Campbell's order on the grounds that the video was newsworthy and therefore Gawker's publication of it was protected by the First Amendment. To Gawker's attorneys, the appellate court's finding of First Amendment protection is an indication that it agrees with Gawker's legal arguments and will likely rule in Gawker's favor when the case goes up on appeal.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions