This week saw the closure of the gossip site Gawker, after it lost a high profile legal case brought by Terry Bollea, better known as Hulk Hogan. Bollea was secretly filmed having sex in a private place, and the subsequent release of the footage on the site was deemed to invade his privacy, with the Judge granting a $140m award to the ex-wrestler.
To further complicate the case, it emerged after the decision that Bollea's legal costs had been paid for by the billionaire Peter Thiel, who had been previously outed as being gay by the site, against his expressed wishes.
The legal case throws up a number of issues around freedom of speech vs the right to a private life, with many using the story to entrench their black or white position on either side of the fence.
Firstly, we must never forget how fortunate we are to have the right to freedom of speech in our personal lives, and in our media. We only have to listen to the stories from people who live in countries where this isn't the case to understand the value this provides to each of us every day. It's therefore very sad when any publication closes down, as has happened to Gawker here.
However, whilst the joy of the internet is in its freedom of sharing, this comes with a responsibility, and Gawker did not seem to understand this. From the outside its MO appeared to be that it was fine to publish anything on anyone vaguely in the public eye (which they themselves defined), regardless of basic journalistic principles of fact-checking and genuine public interest. This led to some deeply offensive articles, often with no better source than an uninformed Twitter account, that caused great hurt to the people they wrote about.
In the final closure article on the site, founder Nick Denton recounted how free his writers were to create and publish stories with near impunity. He states, "Gawker's web-literate journalists picked up more story ideas from anonymous email tips, obscure web forums or hacker data dumps than they did from interviews or parties. They scorned access. To get an article massaged or fixed, there was nobody behind the scenes to call. Gawker was an island, one publicist said, uncompromised and uncompromising."
The notion of a genuinely free press holding public interest bodies and individuals to account is indeed a noble thing. However, Denton's pride in publishing potentially damaging untrue stories with no right to amend appears to be indicative of the arrogance of those who claim anyone in the public eye is 'fair game'. It is worth noting here that he goes on to add that over time a more regular editorial structure was implemented, at least offering an opportunity to amend, although often the damage has been done by the time untruthful stories are removed or amended.
The internet, like any publishing format, shouldn't be the Wild West of unsubstantiated gossip, with limited recourse from injured parties, especially when the people running sites like Gawker are making money.
The truth is that, as a specialist in media law, I am seeing more and more online sites, similar to Gawker, that have a kind of singular 'that's just the way we are' mentality. I have spoken to editors of some such sites who say they are set up in a way to be able to ignore court rulings. They also often believe complaints will just bring more attention to the story, thus creating more traffic and advertising sales.
This case also throws up the age-old media question of 'what is in the public interest?' Just because Terry Bollea was a famous wrestler who, as part of his on screen persona boasted about his sexual prowess, should the fact that he had sex privately with a consenting adult be of anyone else's business? Is this any different to so-called 'revenge porn', which is now rightfully being treated as a sex crime in England? Likewise, what right does a third party have to announce to the world that someone is gay, in a society that still contains strong homophobic elements?
How would you feel if any of this happened to you? Would you want to take action against this intrusion? The chances are, without a super wealthy funder to bankroll the legal fees, as Bollea had in Thiel, you would have little opportunity to do so, and this is yet another reason why this case stands out so much from the crowd.
Those of us who fight for privacy protection certainly don't want draconian laws removing the very fabric of freedom of the press. Yet with a free press comes the obligation for a very real degree of due care and attention, and I hope this very expensive lesson for Gawker and its parent company helps forward this debate into a much more reasoned and sensitive future.
Jenny Afia is a Partner at the international privacy and reputation consultancy, Schillings. www.schillings.co.uk
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