Hogan v Gawker


Well, when you are someone that uses their hands on a day to day basis, in an industry where important decisions are made off of injuries and health, it is important to know things like this.

Yeah, those records should be private, but a news organization shouldn’t be at fault for publishing it. You can’t let a hot scoop like that go unreported. Even JPP’s lawyers state that the amputation was important news. It could have a major effect on not only his career, but the Giants organization as a whole. ESPN didn’t leak it, they reported the leak.

I don’t know if you remember the JPP incident, but he and the team were being very mum of his health status, and people wanted to know what was going on. Some idiots leaked the info to ESPN, and… well… it is the news.

I don’t get how this is an argument, they redacted literally everything in the record but the sentence saying he had his finger amputated. That was the news they reported, this was the proof.


No, they reproduced medical records. That’s against the law. If they’d stuck to just reporting they would have been fine.

I’ll agree that this is touches on the same issue as Hogan vs Gawker, though not to the same extent because nobody has metaphorically flipped off a judge and ignored a court order yet. But just like Hogan vs Gawker, the core issue is the same. Freedom of the Press doesn’t mean freedom to violate laws. Just like in Hogan vs Gawker, the “But we are just reporting, someone else broke the law!” argument holds no water.


I should add, I could totally see Paul losing the case, but I don’t think it is a clearly frivolous case on the surface.


Oh sure, as someone who knows the HIPAA laws, medical records are sacrosanct, but news organizations have to report the news, and I think they did a very good job of basically redacting everything but the relevant lines, proving their story true.


These “news” organizations aren’t getting the message. There is no such thing as “newsworthy” trumping the law. If ESPN violated any laws (say HIPAA, which it sounds like they did) then they are in trouble. They know this. Again, are they idiots? They must know this. Look at their defense, it makes the opposing counsel’s case for them. What’s the difference in reporting something that may have happened and stealing records and taking pictures? Or publishing pictures of stolen records? Come on, they know what they did was wrong.

Let them get sued into the ground too. Then maybe the editorial staff at these “news” organizations will start teaching their “journalists” the black and white situation of violating the law to get page click ad views.


“excellent” “analysis”

But seriously, they redacted literally everything but the line saying “finger amputated” which his defense isn’t arguing was illegal for them to report. They agree that it was newsworthy. Florida just has some weird laws when it comes to protecting medical records. ESPN has money, and they will settle. Good for them for standing by Schefter through this.


[quote=“JonRowe, post:286, topic:78345”] Florida just has some weird laws when it comes to protecting medical records

I think most people would agree that nobody should be allowed to reproduce their medical records is not only not “weird”, it’s the only just law. It’s not up to third parties to decide “how much is o.k.”, and that determination shouldn’t even be in the subjective discretion of a judge. An absolute prohibition is obviously the clearest, and best, result.


Here is my suggestion. Read that sentence back to yourself a few times and reflect on it. What and who are you arguing for or against here? That the particular law is one you disagree with? I would like to hear the merits of your argument. You disagree with medical records being protected by statute, fine and imprisonment? Why would you overturn those laws and/or policies.

If you are not arguing against that law or policy, then what are you arguing exactly? That some ethereal public demand supersedes this law? Can you define the exactly demand which is the tipping point? If I can convince one other person we’d like see your medical records and all the prescriptions you and your family are on, is that enough? Is my personal interest enough?


As a pretty staunch pro-Manning/Snowdenite, I’ll try to take a bite at this one (though I celebrated just as loudly as anyone when the great Gawker beast finally died, twitching). There are certain medical conditions which could–feasibly–have some significant bearing on our nation as a whole that would probably merit lawbreaking in the interest of the public good.

If we faced a West Wing-esque situation where a President with the earliest touches of MS at the start of his term was falling deeply into that tragic rabbit hole by the end of his second and was faced with a significant international crisis, I could understand being supportive of a White House doctor stepping forward with papers related to the diagnosis, for instance. There can be cognitive impairments, and I think the country would at least want to know who’s making decisions of critical import.

Now, on the flipside, I think that generally, people’s medical records should be sacrosanct, and–for me at least–I’m not really sure that “sportsball player hurts his lil hand” drives far enough into “critical national importance” territory that I’d forgive the dick who leaked his.

I’m sure investors in his sportsball team disagree with me!


Well, in this particular case, he blew up his lil hand in a fireworks accident, and basically nobody would say what was going on. ESPN got sent medical records, reported on those, and that was it. The people who stole the records were punished, as they should be. ESPN reported on it, as they should have, and that is not under dispute in the lawsuit. They posted heavily redacted photos to corroborate their claims, which were the first to come out. This wasn’t a medical history or release of more than the text of the document in question that backed up their claims.

JPP’s lawyers think that posting medical records that were redacted heavily and simply stated exactly what they reported, and nothing more, were damaging to himself personally. Which in a way is ludicrous, as they don’t argue that the story wasn’t newsworthy.

ESPN’s lawyers say that it is pretty ridiculous to say it is OK to report on something you obtained, but not be able to back that up in a responsible manner, i.e. heavily redacted records. Like, you can have the smoking gun, you can say that you have the smoking gun, but you can’t show any proof that you have the smoking gun.

Now, had Deadspin been given this scoop, you better believe they would have just posted the whole shebang. ESPN thought they were using enough restraint, walking a thin line there, and I am sure they would rather settle with the athlete.


I just don’t understand why the “newsworthy” bit supersedes the privacy of medical records. It’s ok to publish his medical records simply because some people’s fantasy teams might be affected?


I guess I still don’t get what corroborating claims or backing up a claim you make has anything to do with publishing private and protected medical records to get ad clicks on your website or ad views on your channel. I mean maybe if you are saving lives by reporting some drug has killed hundreds of people and the drug company is covering it up. There are small exceptions like that for public safety, or government abuse and corruption. Or exposing criminal acts. But this story? No way. A sports story does not come anywhere near the litmus test.


In news that goes back to the end of Gawker…

Earlier this evening, our acquirer Unimoda invoked the provision in the Gawker Media Group WGA-East contract regarding the removal of posts. I was informed that Felipe Holguin, the chief operating officer of Fusion Media Group, had been named interim CEO of Gawker Media, and Jay Grant, the general counsel of Fusion Media Group, had been named interim general counsel of Gawker Media. As you know, the collective bargaining agreement calls for a majority vote among the general counsel, CEO, and executive editor before a post is removed. Taken together, the persons occupying those roles comprise an Editorial Independence Committee under the agreement.

Felipe and Jay proposed that seven posts—all on Jezebel, Deadspin, or Gizmodo—be deleted.[/quote]

Felipe and Jay explained that they proposed deleting those seven posts because they are currently the subject of active litigation against Gawker Media, and that Unimoda had been authorized only to purchase the assets, and not the liabilities, of the company. Though the posts were published by Gawker Media, and therefore under the so-called “first publication rule” should only be the legal responsibility of the Gawker Media estate being left behind in the transaction, Unimoda’s legal analysis was that the continued publication of the posts under the new entitity would constitute the adoption of liability, and that Unimoda is therefore obligated to delete them. Felipe and Jay represented to me that their decision to propose deletion of the posts was purely a function of the terms of the transaction, and that Univision and Unimoda are committed to defending our journalism against any future legal threats or attacks.

I communicated to Felipe and Jay in the strongest terms that deleting these posts is a mistake, and that disappearing true posts about public figures simply because they have been targeted by a lawyer who conspired with a vindictive billionaire to destroy this company is an affront to the very editorial ethos that has made us successful enough to be worth acquiring. I told them that I am proud that this company refused to delete its accurate posts about Shiva Ayudurrai’s false claim to have invented the email system of communication, and that I am proud that our decision not to take down accurate posts about Mitch Williams’ meltdown at a children’s baseball game was vindicated by a federal judge, who ruled in our favor in his case against us. I am mortified to see them taken down now. We are at the center of an unprecedented assault on the ability of reporters and editors to challenge and critique public figures. While I believe that Univision is a company that values and defends aggressive, independent reporting, the decision to remove these posts is, in my view, at odds with its tradition of confronting bullies with honesty.

I cast my vote against taking down each of the posts. I lost. With the exception of #5, which is the target of a copyright complaint, Felipe and Jay cast their votes in favor of removal. The transaction is expected to close at 11:59 p.m. tonight. The posts will be removed over the weekend. With respect to #5: I argued that removing the photo that was targeted in the copyright complaint, but keeping the text of the post online, should satisfy Unimoda’s concerns about liability. Jay agreed to table a decision on that post pending further legal analysis.

I asked that I be able to propose language to replace each post indicating that it had been taken down, why, and by whom. Jay agreed to consider that request and to review my proposed text.

I am proud to have worked for a company that has fought, to the bitter end, against cynical and craven attempts to silence our work. Despite this defeat, I hope that Univision’s attitude to our journalism going forward will permit me to regain that sense of pride.

John Cook[/quote]

The list of posts getting deleted is in the full article.


Gawker’s Editorial Union responds

Univision has said that it bought Gawker Media because it believed in the
work that our publications do. That work, for well over a decade, was only
possible because we knew that our company leadership would defend it if it came
under frivolous legal attack.

Univision’s first act on acquiring the company was
to delete six true and accurate news stories from our archive, because
those stories had been the targets of frivolous or malicious lawsuits. This
decision undermines the foundation of the ability of Gawker Media’s employees
to do our work. We have seen firsthand the damage that a targeted lawsuit campaign
can do to companies and individual journalists, and the removal of these posts
can only encourage such attempts in the future.

We condemn this action by Univision’s executives in the strongest possible
terms. It sets an alarming precedent both for our relationship with our new
owners and for the business of journalism as a whole. It is unacceptable for a
publisher to delete legitimate and true news stories for business reasons.

We now face the task of trying to rebuild trust with Univision and find a
resolution that will allow us all to once again do the work that we were all
hired to do without fearing that our parent company might fail to support us
when we need it most. We hope that Univision will take extremely seriously its
responsibility to reach an agreement with this company’s writers and editors
that will allow us to safely do our jobs here.

—The Gawker Media Editorial Union

Basically the editorial version of caving in to the kidnapper’s demands. We can get stories pulled? Threaten to sue!!!


Silly response by Gawker Media Editorial Union, which I guess isn’t surprising – all that happened here was an acquirer had no interest in acquiring pre-acquisition liabilities - something that happens in every sale transaction.

What should matter to them is how Univision runs the shop post-acquistion- the fact that its owners are sensible enough to not want to acquire pre-existing liabilities is only a plus.


I don’t think it’s silly at all. This is exactly what a chilling effect looks like. When applied to journalists, that matters.


It’s ridiculous and naive - they were buying assets they wanted, not historical liabilities. It would only be a chilling effect if it happened post-acquisition when they were governing the business. The fact that it occurred in connection with (and prior to) the acquisition is crucial to understanding this context. This happens in every single acquisition, and anyone who isn’t ignorant of such transactions would understand that.


Well I do see the point, as they had no editorial direction over those posts, why would they want responsibility of future legal action for them? It doesn’t make sense to keep those legally. They did their due diligence in removing those posts, they can say, when they acquired Gawker media, they removed the posts, they are not liable.

But, in my eyes, this definitely isn’t good news for writers in the union. Can you trust that they will be willing to go to bat for you in the future? Who knows. I might not be bad news, but if you had to say this was good or bad, it would fall in the bad side of the spectrum.

But, that is probably why they just responded with a letter saying “We don’t like this” and nothing more. No walkout or strike or anything, a strongly worded letter stating their disapproval. Just a response to the actions of their overlords, who would be phenomenally stupid to change anything about sites like Deadspin, that drive mega traffic.

And I think that is the issue here. Worry that Univision doesn’t want to stand up its writers the way Deadspin and Gawker did. Say what you will about the Hogan trial, but Gawker majorly went to bat for AJ Daulerio. It cost them the company! In hindsight, it might have been a stand taken too far, but they definitely supported their writers in court.

The reason I read Deadspin daily, apart from them having some excellent writers, is that they are truly “Sports without Access”, and don’t cozy up to athletes and teams. You know that you are going to get some writing that isn’t being safe as to not piss off contacts in teams, you can get pure unadulterated Drew Magary spouting off about the insane B.S. Dan Snyder is up to, or how dumb Jerry’s 15th private bathroom in the stadium is.

It is kind of sad that Deadspin has to exist to get stories like this, but the truth of the sports beat writer is that you have to live with a team day in and day out, and if you say things that might be true, but aren’t kind, you might just not get an interview that someone else can get. And you hear lots of stories from people who have moved to national publications beyond beat writing about how they said X in an interview, and never got interview time with player Y again.


Those are all fair points, Jon. I really do want to emphasize how “ordinary course” this is though, in the context of an acquisition. I’ve done over 500 similar acquisitions over the past 25 years, and in exactly zero of them did the acquirer take on pre-existing litigation risk. It essentially never makes sense to do so.

There no doubt will be legit reasons for the existing editorial team/writers to get upset about the policies and actions of the new owners, since they presumably have their own plans for the business, but his really isn’t one of those reasons.


So a Deadspin post was taken down by the new ownership.

Today they published a new post on the subject, merely recapping the history of this Mitch Williams lawsuit business. It just so happens to include documents filed with the court, which in turn happen to include the original Deadspin post in its entirety.