Hogan v Gawker


#261

Wise words indeed that hold true in just about everything in life.


#262

George Soros, the EFF, NAACP just to name a few on the liberal side. Outside organizations funding lawsuits is not some new conservative tactic to destroy the 1st Amendment.

Outside funding has been integral for so many court cases. Brown vs The Topeka Board of Education was not just funded by the NAACP, they recruited the plantifs. Just because you don’t agree with one person or organization’s views doesn’t mean that they should not have the same legal avenues of the people and organizations that you do support.

If the NY Times added a new section dedicated to revenge porn and then they could destroy their own company despite all the real and good journalism that the rest of the paper does. If, along the way, they flaunted a court order then I am sure that would further hurt them.

This isn’t the end of the 1st Amendment, this isn’t jailed journalists, this isn’t the end of the vast majority of the Gawker empire from publishing the same stuff they always have. This is a company who thought that they could profit off of private nonconsentual recordings of sex acts (plural because the one in this case was not the only one) and a jury in a court of law found that they could not.

I think that the amount of the damages awarded, like always, is up for debate. But painting this as a new kind of case or an actual blow to real journalism or 1st Amendment rights is unrealistic.


#263

The jurors sent a message by the only means they had available, through damages. They appear to have bought the argument that a single popular article, which carried no advertising and which stimulated no sustained increase in traffic, had increased Gawker’s brand value by $15 million, and that the wrestler should be paid $4.95 for each view of the video on Gawker’s sites as well as many others over which we had no control, racking up an additional $35 million.

I think that nobody in the history of ever, of breaking the internet has made 35 million dollars on a post on a website. But, that is fine, the jury figured they made $55 million off of the sex tape.

How did we get to that number, the article… I posted above, goes into detail.

They used some insane formula to “valuate” the website going by increases in monthly unique visitors, which is… I guess… unique?

For each comparable site, Anderson calculated the mean average number of unique users who visited the site at least once a month during the 12 months before the valuation date. Then he divided the site’s valuation by its average number of monthly unique users to arrive at a valuation multiple (i.e. value per average monthly unique user). The multiples ranged from $6.25 for Buzzfeed to $41.44 for Grandparents.com. Anderson calculated the mean average of the six multiples, which was $19.34.

Because definitely each unique monthly user is worth 20 dollars to a website. Definitely, 100% yup. Qt3 is rolling in it right? The hundreds if not thousands of people that read the articles and visit the website are making Tom bank! 20 bucks a person! WOW!

I guess it is only appropriate that in a case involving a wrestler, we use Steiner Math.

Berry: Outside of the work that CONSOR has done, over the past five years, are you aware of any situation in which a web site was valued for commercial purposes based on unique visitors?
Anderson: For commercial purposes? What do you mean by that?
Berry: For sales. Like for the sale of the web site.
Anderson: Typically they don’t make public how they came up to any valuation. I’m sure that viewership was used in some of those sales, but I don’t have data that shows that.
Berry: But you personally are not aware of any situations?
Anderson: I have not — I have not seen or heard of any.
Berry: Are you aware of any situations where investments have been made to content-based web sites based solely on the valuation of the web site using the kind of analysis that you employed here looking strictly at unique users?
Anderson: I don’t have any specific examples.
Berry: But you’re not aware of any?
Anderson: Not that I’m aware of.

Oh… you mean… you have never used this method to evaluate a website that is being sold… to investors, who actually care what the website’s traffic is worth? This shambolic methodology is only being used to come up with the insane valuation that was only inflated by the jury in deliberation? An amount high enough to cripple a website that the billionaire funding this lawsuit hates?

Seems fair to me.


#264

Gawker often pushed against the boundaries of ethics and/or taste on all categories of reporting, and they were bitten plenty of times when it turned out that they had pushed too far. It’s not unusual for someone to sue them and receive a significant payday.

What is unusual is for someone to hire a team of lawyers to go searching for every story where someone might have a beef against them and offer to sue on their behalf, over and over again until they got what they wanted, with settlement explicitly off the table.

This was a personal case involving a celebrity. Also gone now is the company that would shine the same light of full transparency and damn the consequences at executives, corporations, and (the one that killed them) VCs.


#265

It wasn’t that they made 55 million, they did a percentage of that damage to Hogan, and Hogan did suffer real loss: not just reputation loss. He got fired and declared persona non grata by WWE of all places, and still is to this day. He’ll eventually be forgiven, and getting Hogan off TV is usually a public service, but it was real damage, and there was also reputation damage.

Add in the law of penalty damages when something is willful, the figure actually makes some sort of sense.

Yes, Hogan had a guy with a beef (and a legitimate beef) backing him up, but that doesn’t make him wrong to pursue legal action, and it didn’t make Gawker not some of the biggest scumbags alive.

I welcomed their demise and I welcome their leader’s financial ruin. It was well-deserved.


#266

I think the aim of the judgement was to destroy Gawker, I don’t see how that can be debatable. I’m still ok with it, despite Peter Thiel apparently being generally a villain, because I think revenge porn is abhorrent. I think the entire celebrity gossip industry is abhorrent. People have a right to their private lives. Who you’re fucking, so long as it’s consensual and legal, is no one’s business but your own. It is in no way ever newsworthy.

I loved some of Gawker’s writers. But they started as a filthy gossip blog, and they kept to their roots despite the writing staff’s efforts to move past it.

die die die


#267

With limited exceptions (family values politicians, for one) I agree. I actively hate sites like TMZ and garbage like that. There are times when ones bedroom is of a compelling public interest, but don’t think the Hulkster really fits that bill.

But regardless of my feelings on the Gawker case, I take issue with billionaires attempting to silence critics through litigation. Whether or not you feel this case fits that bill (I certainly find it does, Gawkers culpability in their shutdown notwithstanding), the linked above Mother Jones story clearly does.


#268

See Jon Rowe’s breakdown above of what the settlement was and wasn’t for. The sex tape wasn’t the cause of being blacklisted by the WWE, so those lost earnings shouldn’t matter.

Also, I find it hilarious that anybody would cite lost earnings from the WWE as grounds for a settlement, because you can get hired /fired /blacklisted totally arbitrarily based on Vince’s (and any number of other back office bookers’) whims. The idea that there’s anything like guaranteed income from wrestling is insane, even for Hogan.

Also, and I think we mostly agree on this, at the end of the day, it’s possible for everybody involved in this story to be horrible.


#269

$20 is actually not that crazy an estimate - there are google AdWords with a cost-per-click of $50, implying that a single visit driven by those words is worth more than $50 to the right company. Also, if you are implying that Qt3 is not worth $20,000 I think you are drastically under-estimating the value of it. The approach is not an insane - he took the valuations of similar companies and found the average valuation per user, then averaged them. The main assumptions he’s making there are that Gawker’s revenue per user, brand equity, and assets & liabilities are at or around the average for the companies used as comparison points. These aren’t crazy assumptions if he’s chosen a set of companies that really are similar to Gawker. If he adjusted the increase from the sex tape to account for the prior growth rate, then the estimate is reasonable, if optimistic (i.e. attributing a burst of traffic purely to Hogan and assuming that burst is of equal quality to all other sources of traffic).

LOL. It’s too bad they’re gone, you could write for them.


#270

In the interest of balance (and in support of general amusement), here’s an excerpt from Paul Carr’s satirical recap and heartfelt call to action:

(The link will work for a few days; after that it’ll revert to Pando subscriber’s-only status.)


#271

Ailes has hired Charles Harder to threaten New York magazine for defaming him by saying he preyed on women. https://www.washingtonpost.com/lifestyle/style/roger-ailes-should-be-down-for-the-count-by-now-but-hes-still-hitting-back--and-it-could-get-ugly/2016/09/06/2711695a-7448-11e6-b786-19d0cb1ed06c_story.html


#272

Well, after a few more of these cases come up, I can hope that our possibly democratic majority senate and president can get more anti-SLAPP measures in place. Because, the Hogan lawsuit was an outlier, as it involved public exhibition of a sex tape, reporting on allegations of sexual harrasment from someone who has publicly been sued for that very thing seems pretty safe.

I am wondering if Mr. Harder, high off of his ludicrously high payout win over Gawker was like, “who wants some” and took Ailes’ money, even if it is a bad case, hey… that Fox News money is good though.

In this case, it looks like NY’s anti-SLAPP laws only apply to bloggers or online comments, not news organizations.


#273

anti-SLAPP could easily be used the other way around as well.

As long as these punitive payouts stick to the Gawkers of the world I’m fine with it, even if I’m not the biggest fan of the plaintiffs.


#274

Well, Mr. Harder has joined the Trump train as well.
Melania Trump Lawsuit - Beta Test of Trump Presidency?

When you run for office, this kind of stuff happens to you and your
family. Most politicians look away and focus on the issues 90 percent of
the electorate cares about.

Not team Trump. A key part of Trump’s campaign is to demonize and
de-legitimize the media. The scariest thing Trump has said during this
campaign, to me, is not about deportation forces or punching opponents,
it’s when he said he would “open up libel laws,” whatever the hell that means.

Can she win a libel suit?

Through her lawyers and in the lawsuit itself, Melania Trump
unequivocally denied both Tarpley’s and the Daily Mail’s
claims. “[She] did legitimate and legal modeling work for legitimate
business entities,” her lawsuit said. “[She] was not an escort or
prostitute. [She] did not have an apoplectic fit, apoplectic tantrum,
nervous breakdown or mental breakdown, nor is she terrified or obsessed
by fear about revelations from her past.”Melania
Trump’s lawsuit describes both publishers’ conduct as “despicable,
abhorrent, intentional, malicious, and oppressive.” But the legal battle
will hinge on a specific descriptor her lawsuit used to describe
Tarpley and the Daily Mail’s actions: “actual malice,” which
basically means that the publishers knew, or should have known, that
something they published was false.

I guess we will see.


#275

You would think Trump’s friends over at the Enquirer would prefer that he not set precedent for this kind of thing. Half the crap they publish could run afoul of this kind of lawsuit. “Kristi Alley devastated by accusations of over-eating” - “I at no point have been devastated. Lawsuit incoming”


#276

Not trying to sound snarky, but we won’t at all. Trump’s lawyers will drag their feet and eventually drop it.

There’s no way Melania Trump is going to go to discovery where an entire newsroom of reporters get to drive discovery into her past work history and visa status:
https://www.washingtonpost.com/news/the-fix/wp/2016/09/02/weeks-after-pledging-answers-big-questions-about-melania-trumps-immigration-status-linger/


#277

Perhaps Michelle Obama should start suing right wingers for calling her a man. Or Barack Obama should sue Donald over the whole birther issue. Might put some better perspective on using the courts for actual slander and libel.


#278

I mean, I guess:

Like Ralphie says in A Christmas Story while stroking the leg lamp: “Yeaaaaah, art.”


#279

Jason Pierre Paul sues ESPN

He is suing ESPN for posting photos it obtained of his medical record to corroborate their claims that he had surgery to amputate his finger after a fireworks accident.

Note the similarities here, in this invasion of privacy suit. Not a sex tape, but a medical record.

A medical record that was obtained illegally, and got 2 employees fired for leaking it. But, ESPN had redacted all of the document save the part that corroborated their story.

ESPN’s defense:

Plaintiff’s lawsuit proceeds on the theory that while it was legitimate
for Mr. Schefter to report the details of Plaintiff’s medical treatment
in the form of words contained in a news report, it was unlawful for him
to definitively corroborate his reporting by also providing two photos
of a small portion of a page of hospital records that contained
essentially the same words. Put another way, Plaintiff’s theory
is that it is fine to quote from a document, but it is unlawful to
attach a photo of similar words as they appear in the document. That
proposition is meritless, as a matter of both law and common sense.

This is basically the same case Hogan made, and won. Other than the “document” corroborating the report in this case is not security footage of a sex act, but heavily redacted photos of a medical record.

This case is definitely far less graphic and lascivious, but the intent remains the same. How JPP’s lawyers can spin “you can report the news, but not prove it” is a bit farcical. Which is how the decision with Hogan felt in some ways.

But, to be fair to ESPN, JPP’s hand condition, as a pro athlete, is far more newsworthy than his sex life, which is what Gawker did with Hogan. Like… ESPN had to report this, or what kind of news organization are they? You have to report player injury updates as much as you can. That is very important news.


#280

This part below I was wrong, the judge did dismiss that part. I read a summary that made it seem not to be the case. I will leave it in as a record of my idiocy.

Also, when a celebrity announces the birth of their child should all medical records of their delivery be fair game? If a public figure announces a heart attack, disease, stroke? If a celebrity admits to being in rehab should all their patient notes be fair game? Did Miley (pick a random celeb) really check in for exhaustion or is it cocaine? Tweet those records right out?