The case saw Hogan, whose real name is Terry Bollea, suing the site over a video, apparently filmed ten years ago, which shows Bollea having sex with Heather Clem, the wife of Todd Clem, his best friend at the time. Gawker published an excerpt from the video in 2012 and argued that this decision was protected under the first amendment, and that as Bollea regularly referred to his sexual exploits in public, it was difficult to claim his privacy was infringed in this area. Bollea’s lawyers said that the tape was not newsworthy and that the release caused him ‘emotional stress and harm.’
The story was widely covered in the media around the world:
- In the US, the New York Times reported that the $115 million damages, a figure greater than the $100 million Bollea asked for, could send a cautionary signal to online publishers. It reported that Samantha Barbaras, a law professor at Buffalo University, said the case “could have a profound impact on privacy rights and also free press rights.”
- The Irish Examiner also reported how the lawyers for Hogan and Gawker discussed themes of personal life versus celebrity and freedom of speech versus the right to privacy.
- The Mirror also reported the wrestling star’s huge damages win, pointing out that the tape also showed Bollea making a racial slur, for which he later apologised.
The jury have not yet considered punitive damages. Gawker has indicated it will appeal.
Gawker founder Nick Denton has said “Given the key evidence and the most important witness in this case were withheld from the jury, we all knew the appeals court would need to resolve this case.” Evidence which was unsealed because a group of media companies, including the Associated Press, sued for access and won, will undoubtedly be key to Gawker in the appeals process. The documents outline allegations, facts and conflicting testimony. Among them: assertions that Hogan filed the lawsuit to hide racist comments made on video, that the woman who Hogan had sex with knew it was being filmed, and that Hogan participated in an FBI investigation and sting because he was being extorted.
The New York Times reported that the damages will probably be reduced, and that any wider effects on press freedoms were ‘likely to be limited.’ It said that ‘a jury decision in one lower court does not set a precedent.’ Several legal experts were quoted saying that the Gawker case would not have a huge impact because it was an unusual and specific case. Erwin Chemerinsky, a professor at University of California Irvine, said
“I think this case establishes a very limited proposition: It is an invasion of privacy to make publicly available a tape of a person having sex without that person’s consent,” he said. “I don’t think it goes any further than that and I do not see a First Amendment basis for claiming that there is a right to do this.”
However Vox claimed that the case ‘will likely have more far-reaching consequences for the media writ large.’ It pointed out that the trial is significant because it is perhaps the first legal test of when deeply private information has been circulated on the internet. The case also has implications for ‘revenge porn’ laws. Joe Mullin in Ars Technica, pointed out that such large damages could potentially wipe out Gawker Media.
In other news, the Guardian is to cut £54 million a year from its annual running costs. They have warned this will mean that 250 staff will have to go, and that proposals for a 30,000 square feet events space at Kings Cross will be scrapped.
In Doncaster the police have issued a warning about the dangers of posting inappropriate comments on social media after a man was convicted of naming a sex offence victim on Facebook.
In the Guardian, Roy Greenslade looked at the new rules introduced by the New York Times relating to the use of anonymous sources. He speculated that if these rules were applied in Britain, it could prohibit the publication of controversial political stories. In a further piece in the Guardian, he insisted that John Whittingdale must think again before appointing the majority of the directors of the BBC board. This move would be at odds with the wishes of the public, which, by and large, want the BBC to continue to remain completely independent of government.
The Law column in Hold the Front Page discussed the recent conviction of the Sun’s former editor David Dinsmore for publishing a picture of the 15 year old victim of the footballer Adam Johnson. The article highlighted the fact that even though the Sun had gone to lengths to change the photo, this was not enough to completely protect the girl’s identity.
Data Protection and Data Privacy
The ICO has set up a web site, dpreform.org, where it will be posting information about the reform of data protection legislation, including under the General Data Protection Regulation and the Directive.
On Monday this week ICO released it’s first guidance on the GDPR: the 12 steps that businesses can take to prepare for the GDPR. These steps were summarised on the Privacy and Cybersecurity Law blog.
Panopticon reported on a case where a journalist in Bolton applied for a FOIA request to Bolton council for the names of all councillors who had received reminders of non-payment since May 2011.
The Spanish Supreme Court has ruled in favour of Google Spain on the right to be forgotten, which means that claims concerning the right to be forgotten should be submitted directly to Google Inc in the United States.
On Lexology, Loyens and Loeff have discussed several publications of the Dutch DPA and given an update on the Privacy Shield.
Field Fisher’s Privacy and Information Law blog discussed the GDPR’s impact on cloud service providers.
Surveillance and Information Gathering
The so-called ‘Snoopers Charter’ bill has passed its second reading, but Andy Burnham said that the government needs to do ‘further work’ on the bill to win the trust of journalists. Labour and the SNP abstained from the vote, and the position of the opposition parties, as well as the unease of Tory backbenchers who have voiced concerns over safeguards, privacy, and powers to allow security services to hack into devices, could force the Government to grant concessions as the bill passes through Commons.
Graham Smith has published his tweets about the draft bill on his cybereagle blog.
Paul Bernal also blogged about the issue, particularly looking at the discussion of ‘Internet Connection Records.’
On Internet Policy Review Monika Ermet looks at European cases against government surveillance in the wake of the Snowden revelations.
Statements in Open Court and Apologies
There was a statement in Open Court in the case of Lisle-Mainwaring v Associated Newspapers Ltd, before Nicol J. In the case the Daily Mail settled a libel action brought by a property developer over inaccurate allegations she mistreated her late husband’s son and his family over inheritance claims, as reported in the Guardian and Press Gazette. She has separately lodged a claim against Associated Newspapers for “harassment” over its coverage of her and for breach of copyright over its reproduction of watercolours and paintings.
Newspapers Journalism and Regulation
IPSO have upheld a privacy complaint against the Argus over a story entitled “Update: teenager arrested on suspicion of fraud following Bestival ticket upset.” The paper have published the decision on their website.
A weekly newspaper which named a child in a court report has been absolved of any wrongdoing by the regulator. IPSO judged that it did not consider that any intrusion had been unjustified given that the newspaper was unaware of the child’s age and circumstances.
A picture agency boss has told Press Gazette that IPSO is “used as a tool by celebrities” to scare publishers off using legitimate photographs.
Boris Johnson has written a piece in the Telegraph claiming there are EU laws banning children under eight from blowing up balloons. He wrote “Sometimes these EU rules sound simply ludicrous, like the rule that you can’t recycle a teabag, or that children under eight cannot blow up balloons.” The EU made clear that this was not the case in 2011, when a number of national newspapers published this mistruth.
Last week in the Courts
We have mentioned the Statement in Open Court in the case of Lisle-Mainwaring v Associated Newspapers Ltd on Monday 14 March 2016.
On 16 and 17 March 2016, there was a two day hearing in Decoulos v Axel Springer Schweiz AG & ors
On 11 March 2016 there was a judgement in the case of Monarch Airlines Ltd v Yaqub. The judge found in favour of Monarch Airlines and granted them an anti-harassment injunction.
In its decision in Liffers, C-99/15, the Court of Justice of the European Union (CJEU) they say that the victim of IP infringement can also seek compensation for moral prejudice suffered.
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Media Law in Other Jurisdictions
At the conclusion of the trial of the claim of “sports scientist” Stephen Dank, McCallum J gave judgment for the plaintiff on one of three articles but awarded no damages (Dank v Nationwide News Pty Ltd  NSWSC 295)
The jury found that two articles published in the Daily Telegraph in 2013 that included a report that questioned whether an NRL player’s cancer relapse could be linked to perpetide use were defamatory but substantially true. They ruled that he should receive the bare minimum in damages because a jury found he did “much, much worse.” Dank has been ordered to pay the legal costs of the publisher of The Daily Telegraph and The Sunday Telegraph. The Daily Telegraph also reported on the outcome of the case.
In the Guardian, Richard Ackland wrote an Opinion piece about privacy recommendations in South Australia and New South Wales. The SA Law Reform Institute is recommending the state government establish a civil law, with a public interest test, to cover serious invasions of privacy in the digital era.
In the case of Brissette v. Cactus Club Cabaret Ltd., 2016 BCSC 459, Gropper J granted summary judgment to the defendant in a defamation action, finding that the defences of justification were established. This was a claim by a construction company executive against a Cactus Club restaurant and its employees. The Judge found he inappropriately touched the server and called her “Kitty Kat.” The plaintiff sued for defamation after alleging that slanderous comments had been made in front of another table after a June 2013 incident in which the restaurant said he touched the waitress’ backside, called her a name and then swore at the manager when she asked his party to leave. Justice Miriam Gropper said she took the words of the restaurant employees over the word of Brissette, whose memory she said might have been impaired by the quantity of alcohol he drank.
Michael Geist has written an article examining the misleading claims about the state of Canadian publishers.
The Globe and Mail’s recently filed defence statement in a close to $5 million lawsuit by Ontario Immigration Minister Michael Chan says the paper was acting in the public good by exposing the minister’s questionable dealings with China and the concerns they sparked at CSIS.
Libertas founder Declan Ganley has said that a High Court judge should not hear his action alleging defamation against RTÉ because the judge had expressed views about him in the past.
A court has thrown out a criminal libel case filed by former Home Affairs Minister Manuel Mallia and Labour Party election candidate David Farrugia Sacco against former Nationalist Party general secretary Paul Borg Olivier.
Court says that Malta Independent columnist Daphne Caruana Galizia does not have to identify her sources, following a request from Energy and Health Minister Konrad Mizzi, his wife and communications coordinator.
The Senate voted in favour of the government’s controversial new media law, which aims to reduce the amount of populist entertainment on the Dutch public broadcasters. However most of the law will not yet be enacted.
The Scottish Law Commission has published a discussion paper on defamation law, dealing with how it should should respond to the 2013 changes in defamation law in England & Wales. This law aimed to tackle ‘libel tourism,’ which was said to have had a chilling effect on freedom of speech. The paper explains Scots law in key areas and examines possible improvements. It discusses, for example, whether there should be a new threshold test so that a claim can be brought only where a publication has caused a certain level of harm to a claimant’s reputation. A further issue considered is where responsibility for online publication should lie. We had a post about the report.
Blogger Roy Ngerng has finally settled the claim brought against him by Prime Minister Lee Hsien Loong. Ngerng wrote a blog post in which he alleged that Mr Lee had misappropriated money from Singapore’s state pension, the Central Provident Fund (CPF).The judge said that it was likely the blogger “cynically defamed” Mr Lee to increase traffic to his blog.
The owners of a local restaurant in Texas called El Taco Tako have filed a petition for a defamation lawsuit after a video started trending on social media which they claim is fake, and say is hurting their business. The video allegedly shows a worm wriggling out of minced beef.
Dune Lawrence, a Bloomberg journalist, has written an article about being the target of online trolling from a man named Benjamin Wey, who was found guilty of defamation and sexual harassment.
Research and Resources
- Case Law Overview, 1 Dec 2014 to 31 Dec 2015, CJEU, ECtHR and Pending Cases, European Data Protection Supervisor.
- Restoring Lost Honour: The Assessment of Libel Damages in Germany. Entertainment Law Review 2016, Issue 4, Corinna Coors, University of West London – Ealing Law School.
- ‘I’ll See’: How Surveillance Undermines Privacy by Eroding Trust, Robert H. Sloan an Richard Warner, University of Illinois at Chicago and Chicago-Kent College of Law.
- The Role of Anonymisation and Pseudonymisation Under the EU Data Privacy Rules: Beyond the ‘All or Nothing’ Approach, European Journal of Law and Technology, Vol 6, No 2, 2015, Samson Yoseph Esayas, University of Oslo – Norwegian Research Center for Computers and Law (NRCCL).
- Opinion or Defamation? Limits of Free Speech in Online Customer Reviews in the Digital Era Communications Law – The Journal of Computer, Media and Telecommunications Law 2015, Volume 20, Number 3, pp 72-76, Corinna Coors, University of West London – Ealing Law School
- Collateral Visibility: Police Body Cameras, Public Disclosure, and Privacy Indiana Law Journal, Forthcoming. Bryce Clayton Newell. Tilburg University – Tilburg Institute for Law, Technology, and Society (TILT)
Next Week in the Courts
The case of CNR Removals v Pearson has settled. The PTR was due to be heard on 21 March 2016.
On 22 March 2016, Warby J will hear an application in the case of Harinth v Stand for Peace Limited.
The case of Optical Express v Associated Newspapers Limited has been listed for trial on 31 January 2017, with a time estimate of 15 days.
The following reserved judgment in a media law cases is outstanding:
Axon v Ministry of Defence, heard 1, 2 and 4 March 2016 (Nicol J)
This Round Up was compiled by Georgia Tomlinson, a researcher.