Hulk Hogan's Fight for Privacy
It’s a matchup of titans: in this corner, Hulk Hogan and the right to privacy; and in the other corner, news website Gawker and freedom of the press.
Terry Bollea — Hulk Hogan’s real name — is a professional bad boy.
He’s gone from being a pro wrestler to being a reality TV star. As “Hulk Hogan,” Bollea is very “out there” — and since sex sells, he hasn’t been at all shy about providing the public with salacious details about his sex life.
In 2007, Bollea was filmed (apparently without his knowledge) having sex with Heather Clem, the wife of his then-friend, radio shock jock “Bubba the Love Sponge Clem” (yes, that’s his legal name).
The film seems to come from a security camera in the Clem home.
The existence of the affair and the film was a topic of public discussion for some months before Gawker managed to obtain a copy of the tape. Gawker has not said how it acquired the tape. Clem claims a copy was stolen from his office.
Gawker published some juicy excerpts of the tape online — racking up 7 million views, which, in an online world driving by advertising, is worth real money.
Bollea filed a lawsuit, claiming the film was made without his knowledge and posting it online is an invasion of his privacy. Gawker claims the film is news, and protected by the constitutional guarantee of freedom of the press.
The Right to Privacy
You often hear about the “right to privacy,” but if you look in the US Constitution, you won’t find such a right. The closest the Constitution comes is the 4th Amendment’s protection against government intrusion — against “unreasonable search and seizure.”
Since there is no clear constitutional guarantee of a right to privacy, privacy laws have evolved on a state-by-state basis. Different states use different combinations of common law and statutes in defining a “right to privacy.”
Privacy is a murky and evolving area of law. A primer on privacy from Reporters Committee for Freedom of the Press cites a case that came before the California Supreme Court in 1999 that involved a surreptitious recording of a conversation held in an open office, which resulted in a ruling that privacy is NOT an “all or nothing” concept. Just because you said something in a public space doesn’t mean you’ve waived all rights to privacy and can’t object to an unknown party surreptitiously recording what you say.
Some states, such as New Jersey, have explicit laws that prohibit publishing sexually explicit pictures or films of a person without the approval of the people depicted.
In a report in the New York Times, Bollea’s lawyer, David Houston, said that if Bollea doesn’t win “absolutely nothing will be private anymore.”
Freedom of the Press
The First Amendment to the Constitution, part of the Bill of Rights, explicitly states:
Congress shall make no law…abridging the freedom of speech, or of the press;
Gawker claims the tape is “news.” The company’s lawyer, Seth Berlin, said:
Gawker is defending its First Amendment right to join an ongoing conversation about a celebrity when others are talking about it and the celebrity is talking about it.
Not mentioned in the Times article is the fact that there is also potentially a copyright issue here. If the copy of the film used by Gawker was stolen, the owner of the copyright — Clem, or possibly Bollea — could force the film to be taken down as a violation of copyrights.
As mentioned in my earlier post on Using Copyright Law to Fight Revenge Porn, in at least one case a woman who appeared in a film was ruled to own the copyright to her “performance.” Bollea could try claiming he owns the copyright in his appearance in the film.
The case is being watched closely because the law is not at all clear on how to set the boundaries between an individual’s right to privacy and constitutionally guaranteed freedom of the press. Bollea is not trying to stop the discussion of the affair and the tape — but he claims discussing the subject isn’t the same as publishing the actual tape.
Courts have gone both ways on this issue. In some cases, outraged juries have awarded large amounts of money to individuals claiming to have had their privacy invaded, only to have those awards later reversed by appeals courts that give the constitutional freedom of the press greater weight.