Celebrity ex pro-wrestler Terry Bollea, better known as “Hulk Hogan,” was awarded $140 million from Gawker Media. This was in a lawsuit for “shameful and outrageous invasion of privacy”. This is after the online media company posted a sex tape of him and Heather Cole, his best friend’s wife. Hogan claimed the website exploited his name for commercial gain and the humiliation has caused him severe emotional distress. Former Gawker editor A.J. Daulerio, who posted the video in 2012, company founder Nick Denton, and Gawker’s parent company are all named defendants in the case. The testimony of several expert witnesses with various specializations was at the heart of the case. It undoubtedly played a major role in jury deliberations at the end of the trial.
In an attempt to attack Gawker’s journalistic credibility as an online media source, Hogan’s legal team first called University of Florida journalism professor Mike Foley as an expert on the fourth day of trial. However during an intense cross examination, Gawker’s attorney, Michael Sullivan, attacked Foley’s career and credentials.
He challenged Foley’s experience. This was done by highlighting that Foley had not worked in a newsroom as a journalist in 24 years. Also that he hadn’t worked as a news reporter in 43 years. Sullivan repeatedly referred to Foley’s career as occurring “back in the day.”. He moved to expose the expert’s lack of knowledge regarding social media outlets to the jury. Sullivan asked, “When you were last in the newsroom, there was no Facebook, right? There was no YouTube, right?” Foley responded that these media sources did not exist when he was a journalist. Foley’s potentially damaging admissions about his career and background are but one example of why it is so important to properly vet expert witnesses to ensure they are right for that specific case, no matter how impressive the credentials.
Responses to Foley’s comments on direct appeared to do little to help Hogan’s case. Foley testified on direct examination that the release of the sex tape violated the code of ethics of the Society of Professional Journalists. Gawker insists the posting was protected by the First Amendment. However, Foley testified that the constitution only protects Gawker’s written commentary regarding the sex tape, not the video itself. More importantly, Society of Professional Journalists Chairman Andrew Seaman comments that “[t]he SPJ Code of Ethics is not relevant to whether an act is or is not legal. The words ‘ethical’ and ‘legal’ are not synonyms.”
In support of Hogan’s claim that Gawker exploited his name and violated his privacy for commercial gain, Hogan’s attorney Shane Vogt called Shanti Shunn. He was an expert in digital marketing and information architecture. Shunn discussed website traffic and estimated the number of times the sex tape was viewed on various websites. On the fifth day of trial, Shunn testified that, based on the number of screenshots taken by viewers before the post was removed, the clips were watched at least 99,149 times on YouTube and 4,452,266 times on other sites. This was not including the estimated 2.5 million views on Gawker’s website. Digital media, marketing and information architecture experts like Shunn are popular in contemporary litigation. However, they are becoming essential witnesses where legal causes of action occur online, like identity theft and invasion of privacy.
Hogan’s attorneys also called Jeff Anderson, an expert in the valuation of intellectual property, including websites, to testify to the value of the company before and after the video had been posted. According to his calculations, the video had increased Gawker’s worth by $54 million. He stated that web traffic to Gawker’s media site rose exponentially. Thus increasing their profits by at least $5 million more than they would have made without the publicity generated from posting the sex tape video.
$5 million was on the lower end of the estimate. Anderson contends that $15.4 million is a more likely estimate of the value of increase in Gawker’s profits in that time period. In further support of this opinion, Anderson pointed out a dramatic drop-off in viewer statistics. This happened once the tape became “old news.”. Anderson further made the specific conclusion that Hogan’s sex tape was responsible for 28% of Gawker’s increase in company value in 2012-2013.
Gawker’s defense team argued that the methodology used in the valuation of the website led to inflated numbers. These are rarely used in commercial deals. In order to attack Anderson’s credibility as an expert, the defense counselor Michael Berry attacked Anderson’s methodology on cross-examination and poked holes in Anderson’s analysis. Under F.R.E. 702, expert testimony must be the product of reliable principles and methods. However, the defense was able to elicit testimony from Anderson. He stated he knew of no other instance where the methodology he used in the present case had been used to measure a website’s increased value based on an isolated post.
All the above-mentioned experts were just for the initial phase of trial, where plaintiffs presented their side of the case. Gawker’s defense began on March 14th and presented experts who came to conclusions opposite those of the plaintiff’s experts.
The jurors deliberated for three hours before awarding Hogan $55 million for economic harm, $60 million for emotional distress, and tacking on another $25 million in punitive damages. President and general counsel for Gawker, Heather Dietrick, believes the company will prevail on appeal. This is since the appellate court will have access to information which was undisclosed to the jury. She states, “There is so much this jury deserved to know and, fortunately, that the appeals court does indeed know… We are confident we will win this case ultimately based on not only the law but also the truth.”
The jury was unaware three state appeals courts and a federal judge previously ruled Gawker’s post was protected by the First Amendment. Additionally, the jury was prohibited from hearing testimony from Bubba Clem, Heather Cole’s husband at the time. He indicated Hogan knew he was making a sex tape. Hogan’s lawyers expressed feelings of vindication and hope that this case will “deter others from victimizing innocent people.”. The exorbitant size of the verdict will likely pose a challenge to Hogan’s legal team on appeal as Gawker will request it be overturned or reduced. Lucy Dalglish is an experienced attorney in media litigation and dean of the University of Maryland Journalism school. She states it will be a challenge to prove to the judge these are actual damages worthy of $140 million.