Like a lot of people, I find myself torn by this case, mostly when thinking about general implications. Getting into the nitty gritty of it, I think the facts would bear out some of Gawker's assertions that Hulk's main motivation was to suppress tapes in which he made racist remarks, that his sex life was pretty public and therefore his privacy lessened in that area, and that he and his lawyers possibly misrepresented facts or that he lied on the stand.
However I have some real concerns about sex tape "leaks" and publication, mostly because of the trickle down effects to real, private, people. The jury blurred this line - in Hogan's favor - but the implication for private citizens is positive.
"Revenge porn" or nonconsensual porn or unlawful dissemination of intimate images is a growing problem for our society, since everyone carries a video camera in their pocket and the internet makes publication easy, widespread, and practically irreversible. Police could not do much about these actions without specific crimes on the books - and even now our culture still has a problem with victim blaming. Yes, this year, after Oregon had passed our law, I know of a person who went to report the crime and was laughed off and told she should not have taken the pictures. (That law enforcement agency has since been educated on the state of the law, and a report has been filed :P)
In 26 states, publicizing non consensual porn (meaning video/images taken without consent, or taken with consent but without consent to publish to others) is now a crime. These laws have varying degrees of mental state attached to them to avoid First Amendment challenges. In my state, to be convicted of the crime, it must be proved that you intended to harass, humiliate, or injure the other person by disseminating the image. (Here is the law: https://olis.leg.state.or.us/liz/2015R1/Downloads/MeasureDocument/SB188/Enrolled).
Guess what? It's a crime in Florida, where this jury took place, and it's called sexual cyberharassment. Law here: https://www.flsenate.gov/Session/Bill/2015/0538/BillText/er/PDF . Now, this law wasn't in effect in 2012, but I'm sure FL citizens are at least somewhat aware of "revenge porn" and the fact that their state and others are taking steps to criminalize it, because of the harm it causes the victims in those cases.
Advocates for these laws seem to be supportive of the Hogan verdict insofar that it is precedent that may be helpful to victims even though they are private citizens - if a jury thinks a celebrity like Hogan deserves privacy and should be compensated for his sex tape being published, that bodes well for other victims who face similar emotional distress and sue their abusers in court for it.
AND YET! I feel unease about the free speech implications. Gawker does have some valid arguments in that arena. These are undermined by the overall tone of the original article, which seemingly did not provide news but instead was meant to titillate and humiliate Hogan (by my reading). I am wary of the fact that affairs or sex with someone other than your spouse is automatically newsworthy. I am wary also of the fact that a public figure might be able to suppress information about who they associate with and the things they say, should it somehow be tied up in a tape that also shows sex.
So I'm not sure where I fall on the spectrum of things. I certainly believe the monetary compensation ordered by the jury is too high, and at the very least, that will be reduced by an appellate court. There are a lot of other issues that are ripe for appeal as well, so it will be interesting to see what happens next. The damage to Gawker may already be done at this point, though.
"Revenge porn" or nonconsensual porn or unlawful dissemination of intimate images is a growing problem for our society, since everyone carries a video camera in their pocket and the internet makes publication easy, widespread, and practically irreversible. Police could not do much about these actions without specific crimes on the books - and even now our culture still has a problem with victim blaming. Yes, this year, after Oregon had passed our law, I know of a person who went to report the crime and was laughed off and told she should not have taken the pictures. (That law enforcement agency has since been educated on the state of the law, and a report has been filed :P)
I awesomed for that last bit there.
I would have much preferred that such a law had been in place and that is what Gawker was caught up by. While these laws still have 1st Amendment concerns they are so much narrower than what this case turned into.
I dislike this idea that if some portion of one's sex life is sufficiently public then people should feel free to invade it as they please, partly because that seems like really arbitrary criteria, partly because it relegates a significant number of people & professions to second class citizen status (effectively taking away their right to privacy).
AND YET! I feel unease about the free speech implications. Gawker does have some valid arguments in that arena. These are undermined by the overall tone of the original article, which seemingly did not provide news but instead was meant to titillate and humiliate Hogan (by my reading). I am wary of the fact that affairs or sex with someone other than your spouse is automatically newsworthy. I am wary also of the fact that a public figure might be able to suppress information about who they associate with and the things they say, should it somehow be tied up in a tape that also shows sex.
Video editing & playback control is also a thing, though. If there's a video of [Presidential Candidate] brokering a drug deal, but then part of that same video also features them going off to have sex with an escort, there's no reason you couldn't simply cut out the part of the video showing the sex... because honestly, what does that do for public good anyway?
Can you posit a plausible scenario (or perhaps an existing case) where showing someone having sex does the public the kind of service that would justify the state saying, 'Yes, this is worth further gashing privacy rights over,' ?
At the bottom, apparently they say there's 3 dvds worth of material, and none of it apparently has the racist Hulk rant? I remember vaguely hearing about that, and it costing him his WWE career (for now) but I never really followed where it all came from.
Honestly, if Gawker dies from this, hooray. If non-consensual celebrity sex tapes die from this, hooray. Seeing Terry Bollea have sex with Heather Clem is frankly not news, nor is it any of my fucking business, nor yours.
At the bottom, apparently they say there's 3 dvds worth of material, and none of it apparently has the racist Hulk rant? I remember vaguely hearing about that, and it costing him his WWE career (for now) but I never really followed where it all came from.
Honestly, if Gawker dies from this, hooray. If non-consensual celebrity sex tapes die from this, hooray. Seeing Terry Bollea have sex with Heather Clem is frankly not news, nor is it any of my fucking business, nor yours.
Pretty much my sentiment.
Gawker went on a long spiel about the potential 'chilling effect' this may have on tabloid Internet journalism, and all I could think was, "Good. I'd be very pleased if the outcome were that someone thinks twice before polluting the blogosphere with another clickbait scandal piece that involves a celebrity or politician doing something rude / showing skin / getting or giving a blowjob."
Maybe some of those blogs will decide that since the clickbait model carries litigation risk now, it's time to go do more traditional journalism and dig-up stories (if there's a sad thing about Gawker, it's that the could and did do pretty excellent journalism whenever it floated someone's boat. But clickbait stories are comparatively easy money, so most of their business model was dedicated to churning out that crap).
"Revenge porn" or nonconsensual porn or unlawful dissemination of intimate images is a growing problem for our society, since everyone carries a video camera in their pocket and the internet makes publication easy, widespread, and practically irreversible. Police could not do much about these actions without specific crimes on the books - and even now our culture still has a problem with victim blaming. Yes, this year, after Oregon had passed our law, I know of a person who went to report the crime and was laughed off and told she should not have taken the pictures. (That law enforcement agency has since been educated on the state of the law, and a report has been filed :P)
I awesomed for that last bit there.
I would have much preferred that such a law had been in place and that is what Gawker was caught up by. While these laws still have 1st Amendment concerns they are so much narrower than what this case turned into.
I guess I have a completely opposite view. Creating a criminal penalty for distributing a video filmed with someones consent is a far broader 1st Amendment problem than a civil suit over a non-consensually filmed video.
"Revenge porn" or nonconsensual porn or unlawful dissemination of intimate images is a growing problem for our society, since everyone carries a video camera in their pocket and the internet makes publication easy, widespread, and practically irreversible. Police could not do much about these actions without specific crimes on the books - and even now our culture still has a problem with victim blaming. Yes, this year, after Oregon had passed our law, I know of a person who went to report the crime and was laughed off and told she should not have taken the pictures. (That law enforcement agency has since been educated on the state of the law, and a report has been filed :P)
I awesomed for that last bit there.
I would have much preferred that such a law had been in place and that is what Gawker was caught up by. While these laws still have 1st Amendment concerns they are so much narrower than what this case turned into.
I guess I have a completely opposite view. Creating a criminal penalty for distributing a video filmed with someones consent is a far broader 1st Amendment problem than a civil suit over a non-consensually filmed video.
I think there is a real question of fact as to whether he knew it was being recorded or not.
What is the broader First amendment problem, in your view, with creating a criminal penalty for those who take distribute intimate images without consent? Do you disagree with any of the state laws as they are written?
It seems like there should be some real, legitimate bar of newsworthiness to clear in terms of, specifically, sexually explicit material. This served no journalistic purpose, and as such I can't see any reason to grant it first amendment protection.
While I do loon forward to a more enlightened, accepting society when it comes to sex we still live in an age where having depictions of perfectly ordinary, relatively boring sexual acts you engage in (or just nude pictures) can do real, lasting damage to a person. This makes it distinct from, say, racial tirades (which may be newsworthy, especially for public figures) or other embarrassing video. Even beyond the usual privacy concerns.
This is why revenge porn laws are important. If there's any question as to the consent of parties involved? You shouldn't publish. Doubly so in Gawker's case, where it's pretty clear the intent was to harm.
Their attitude when dealing with the court was pretty shocking too, and probably why they received what amounts to a death sentence. Couldn't happen to a bigger bunch of assholes too. I agree it'll probably be reduced, but hopefully they're sweating.
Another thing to remember is that Heather Clem presumably has some privacy rights here as well. That sort of gets lost in this long saga. Of course her veracity has been questioned as well, but she might have been able to join in a suit for infliction of emotional distress since IIRC they didn't block out her face or anything like that.
"Revenge porn" or nonconsensual porn or unlawful dissemination of intimate images is a growing problem for our society, since everyone carries a video camera in their pocket and the internet makes publication easy, widespread, and practically irreversible. Police could not do much about these actions without specific crimes on the books - and even now our culture still has a problem with victim blaming. Yes, this year, after Oregon had passed our law, I know of a person who went to report the crime and was laughed off and told she should not have taken the pictures. (That law enforcement agency has since been educated on the state of the law, and a report has been filed :P)
I awesomed for that last bit there.
I would have much preferred that such a law had been in place and that is what Gawker was caught up by. While these laws still have 1st Amendment concerns they are so much narrower than what this case turned into.
I guess I have a completely opposite view. Creating a criminal penalty for distributing a video filmed with someones consent is a far broader 1st Amendment problem than a civil suit over a non-consensually filmed video.
As I was responding to the concept of revenge porn laws I was assuming it would have some heavy restrictions on the content it applies to. Sexual images are a fairly narrow scope and recorded images of it having special protections don't strike me as particularly burdensome. Once the existence of these laws is widely understood I don't think it's something you would "accidentally" break.
Not sure where I'd stand if the images were recorded in a public place and how the lack of expectation of privacy should be handled but I'm alright with that being a detail that gets worked out.
You're unclear on what consent you're referring to here. There are two at issue, consent to record and consent to distribute. My understanding is that consent to record is unclear here but consent to distribute is not in question. As this was a private video you'd still need Hulkster's (and Heather Clem's) permission to distribute it even if he did know it was being recorded.
"Revenge porn" or nonconsensual porn or unlawful dissemination of intimate images is a growing problem for our society, since everyone carries a video camera in their pocket and the internet makes publication easy, widespread, and practically irreversible. Police could not do much about these actions without specific crimes on the books - and even now our culture still has a problem with victim blaming. Yes, this year, after Oregon had passed our law, I know of a person who went to report the crime and was laughed off and told she should not have taken the pictures. (That law enforcement agency has since been educated on the state of the law, and a report has been filed :P)
I awesomed for that last bit there.
I would have much preferred that such a law had been in place and that is what Gawker was caught up by. While these laws still have 1st Amendment concerns they are so much narrower than what this case turned into.
I guess I have a completely opposite view. Creating a criminal penalty for distributing a video filmed with someones consent is a far broader 1st Amendment problem than a civil suit over a non-consensually filmed video.
I think there is a real question of fact as to whether he knew it was being recorded or not.
What is the broader First amendment problem, in your view, with creating a criminal penalty for those who take distribute intimate images without consent? Do you disagree with any of the state laws as they are written?
There seems to be some reason to believe he did.
However, I'd rather just skirt the whole issue and criminalize/legislate the conduct rather than the content. In terms of revenge porn and the like, treat it as intellectual property violations/unpaid and involuntary labor with potential for damages both in terms of emotional distress and reduction in future income (or similar). In a case like this, the defense would be fair use (which is likely a higher bar) and there would be more control.
Whay on earth was up with Gawkers court behavior? It looked like they were quipping on a message board.
They're assholes, and probably felt pigeonholed into a certain posture given the testimony made during the deposition, which they apparently thought would never see open court?
Some days Blue wonders why anyone ever bothered making numbers so small; other days she supposes even infinity needs to start somewhere.
I'd really rather not strengthen IP law. It's already an authoritarian shitshow that seeks to suppress entire artistic genres without attaching draconian penalties to every second of footage of every person.
This is an idea that leads directly to someone getting a million views of his NYE antics in Times Square, and subsequently getting sued by 5000 people.
Man, Gawkers shot themselves in the foot so badly during the trial. I think the Editor said that Gawker would post a sex tape even if it included children as young as 4-5 if they thought it was newsworthy. I mean, I can't even....
Imagine even visiting a site with such a tape on it accidentally. If I caught anyone viewing such a video, even on a "non-porn" site, I would fire them without a second thought. I would reprimand anybody that went there.
If that testimony wasn't what sank them, I don't know what did.
The sky was full of stars, every star an exploding ship. One of ours.
"Revenge porn" or nonconsensual porn or unlawful dissemination of intimate images is a growing problem for our society, since everyone carries a video camera in their pocket and the internet makes publication easy, widespread, and practically irreversible. Police could not do much about these actions without specific crimes on the books - and even now our culture still has a problem with victim blaming. Yes, this year, after Oregon had passed our law, I know of a person who went to report the crime and was laughed off and told she should not have taken the pictures. (That law enforcement agency has since been educated on the state of the law, and a report has been filed :P)
I awesomed for that last bit there.
I would have much preferred that such a law had been in place and that is what Gawker was caught up by. While these laws still have 1st Amendment concerns they are so much narrower than what this case turned into.
I guess I have a completely opposite view. Creating a criminal penalty for distributing a video filmed with someones consent is a far broader 1st Amendment problem than a civil suit over a non-consensually filmed video.
I think there is a real question of fact as to whether he knew it was being recorded or not.
What is the broader First amendment problem, in your view, with creating a criminal penalty for those who take distribute intimate images without consent? Do you disagree with any of the state laws as they are written?
There seems to be some reason to believe he did.
However, I'd rather just skirt the whole issue and criminalize/legislate the conduct rather than the content. In terms of revenge porn and the like, treat it as intellectual property violations/unpaid and involuntary labor with potential for damages both in terms of emotional distress and reduction in future income (or similar). In a case like this, the defense would be fair use (which is likely a higher bar) and there would be more control.
That's...kind of what just happened. That was Hogan's argument and the jury agreed he should be compensated - he suffered emotional distress and harm to his reputation by the video being released by Gawker when they didn't have consent or a right to do so. Gawker was arguing it was allowed due to First Amendment freedoms, which are similar to fair use. But I don't see how fair use would apply when they didn't transform the work at all, which is why they probably didn't exactly raise that defense...it wasn't a copy right claim per se, it was invasion of privacy, nonconsentual publicity, and infliction of emotional distress.
We may need new civil rights of action specific to distribution of intimate images without consent, though, I agree. There can be both criminal penalties for offenders and civil rights of action for victims alongside that.
I'd really rather not strengthen IP law. It's already an authoritarian shitshow that seeks to suppress entire artistic genres without attaching draconian penalties to every second of footage of every person.
This is an idea that leads directly to someone getting a million views of his NYE antics in Times Square, and subsequently getting sued by 5000 people.
Unless this dude was involved in a 5000 person orgy I don't see how that's related to this current discussion.
E: also a 5000 person orgy might clear the bar for newsworthy sexually explicit content /s
Man, Gawkers shot themselves in the foot so badly during the trial. I think the Editor said that Gawker would post a sex tape even if it included children as young as 4-5 if they thought it was newsworthy. I mean, I can't even....
Imagine even visiting a site with such a tape on it accidentally. If I caught anyone viewing such a video, even on a "non-porn" site, I would fire them without a second thought. I would reprimand anybody that went there.
If that testimony wasn't what sank them, I don't know what did.
The child age thing was a joke! Gosh! Why is everyone looking at me that way...
I dislike this idea that if some portion of one's sex life is sufficiently public then people should feel free to invade it as they please, partly because that seems like really arbitrary criteria, partly because it relegates a significant number of people & professions to second class citizen status (effectively taking away their right to privacy).
AND YET! I feel unease about the free speech implications. Gawker does have some valid arguments in that arena. These are undermined by the overall tone of the original article, which seemingly did not provide news but instead was meant to titillate and humiliate Hogan (by my reading). I am wary of the fact that affairs or sex with someone other than your spouse is automatically newsworthy. I am wary also of the fact that a public figure might be able to suppress information about who they associate with and the things they say, should it somehow be tied up in a tape that also shows sex.
Video editing & playback control is also a thing, though. If there's a video of [Presidential Candidate] brokering a drug deal, but then part of that same video also features them going off to have sex with an escort, there's no reason you couldn't simply cut out the part of the video showing the sex... because honestly, what does that do for public good anyway?
Can you posit a plausible scenario (or perhaps an existing case) where showing someone having sex does the public the kind of service that would justify the state saying, 'Yes, this is worth further gashing privacy rights over,' ?
Where evidence of a crime is occurring in the tape, or where a public figure has denied association with the person in the video and that association is newsworthy in some way (I can think of a politician who votes against gay rights having a clearly homosexual encounter, I guess) but even then it doesn't really feel right to me for the tape itself to be fully publicized as news rather than described or summarized.
There is the obvious argument that "I have proof" is not as compelling as seeing reverend Homophobia balls deep in another man, for whatever that's worth.
"Revenge porn" or nonconsensual porn or unlawful dissemination of intimate images is a growing problem for our society, since everyone carries a video camera in their pocket and the internet makes publication easy, widespread, and practically irreversible. Police could not do much about these actions without specific crimes on the books - and even now our culture still has a problem with victim blaming. Yes, this year, after Oregon had passed our law, I know of a person who went to report the crime and was laughed off and told she should not have taken the pictures. (That law enforcement agency has since been educated on the state of the law, and a report has been filed :P)
I awesomed for that last bit there.
I would have much preferred that such a law had been in place and that is what Gawker was caught up by. While these laws still have 1st Amendment concerns they are so much narrower than what this case turned into.
I guess I have a completely opposite view. Creating a criminal penalty for distributing a video filmed with someones consent is a far broader 1st Amendment problem than a civil suit over a non-consensually filmed video.
I think there is a real question of fact as to whether he knew it was being recorded or not.
What is the broader First amendment problem, in your view, with creating a criminal penalty for those who take intimate images and distribute them without consent? Do you disagree with any of the state laws as they are written?
Basically it creates an exception to the general right to publish any image you lawfully own. That is so huge. Name me one other law in the US that does that? It is actual honest to god government censorship.
Given all the issues that have gotten on video in the last few years with cops and the legislative efforts to shield them from those videos; anything that gives the state a crack to start prohibiting the distribution of images is one I am very leary of.
Read that Florida statue, and its loaded with "No Legitimate Purpose", I read that and I'm reminded of all the AZ laws banning ethnic studies classes for 'creating racial animus' or w/e phrase they used was, and can easily see a different statute about "inciting hatred against law enforcement officers"/ e: Or maybe something about 'protecting the investigation and a fair trial'.
Ultimately, if I want to post something I own to Reddit to get fake internet points, its not up to Florida to decide if that's a legitimate purpose or not. Be it my Ex's tits or a cop beating some guys head in. It is my image, my decision.
e: And as more of an aside, it keeps reinforcing very stupid assumptions for the general public namely:
(1) The Legislature finds that:
28 (a) A person depicted in a sexually explicit image taken with the person’s consent has a reasonable expectation that the image will remain private.
No the reasonable expectation is that any image you take of yourself or have taken of you will become public. Because its 1 wrong 'click here to sync' from happening.
There is the obvious argument that "I have proof" is not as compelling as seeing reverend Homophobia balls deep in another man, for whatever that's worth.
I think that's kind of the crux of the issue here! How strong is that argument? How "newsworthy" is seeing it vs an article describing it? Is it just because it's sex that we elevate special privacy concerns to it? Is that correct or incorrect to do so?
I mean part of the reason for the push for unlawful dissemination of intimate images criminal laws is the recognition of the special, horrific harm it can cause the victim, not just immediately but potentially through their whole life.
How we change our ideas around that when the victim is a public figure vs. private citizen is I think a sticky question.
No the reasonable expectation is that any image you take of yourself or have taken of you will become public. Because its 1 wrong 'click here to sync' from happening.
It's interesting that you're willing to completely destroy a broad right in the effort to somehow salvage the concept of "ownership" of a picture of somebody else.
You did get model releases from your ex-wife, right?
Edit: Or at least it was explicitly called out who retained rights to the image in your divorce agreement?
"Revenge porn" or nonconsensual porn or unlawful dissemination of intimate images is a growing problem for our society, since everyone carries a video camera in their pocket and the internet makes publication easy, widespread, and practically irreversible. Police could not do much about these actions without specific crimes on the books - and even now our culture still has a problem with victim blaming. Yes, this year, after Oregon had passed our law, I know of a person who went to report the crime and was laughed off and told she should not have taken the pictures. (That law enforcement agency has since been educated on the state of the law, and a report has been filed :P)
I awesomed for that last bit there.
I would have much preferred that such a law had been in place and that is what Gawker was caught up by. While these laws still have 1st Amendment concerns they are so much narrower than what this case turned into.
I guess I have a completely opposite view. Creating a criminal penalty for distributing a video filmed with someones consent is a far broader 1st Amendment problem than a civil suit over a non-consensually filmed video.
I think there is a real question of fact as to whether he knew it was being recorded or not.
What is the broader First amendment problem, in your view, with creating a criminal penalty for those who take intimate images and distribute them without consent? Do you disagree with any of the state laws as they are written?
Basically it creates an exception to the general right to publish any image you lawfully own. That is so huge. Name me one other law in the US that does that? It is actual honest to god government censorship.
Given all the issues that have gotten on video in the last few years with cops and the legislative efforts to shield them from those videos; anything that gives the state a crack to start prohibiting the distribution of images is one I am very leary of.
Read that Florida statue, and its loaded with "No Legitimate Purpose", I read that and I'm reminded of all the AZ laws banning ethnic studies classes for 'creating racial animus' or w/e phrase they used was, and can easily see a different statute about "inciting hatred against law enforcement officers".
Ultimately, if I want to post something I own to Reddit to get fake internet points, its not up to Florida to decide if that's a legitimate purpose or not. Be it my Ex's tits or a cop beating some guys head in. It is my image, my decision.
e: And as more of an aside, it keeps reinforcing very stupid assumptions for the general public namely:
(1) The Legislature finds that:
28 (a) A person depicted in a sexually explicit image taken with the person’s consent has a reasonable expectation that the image will remain private.
No the reasonable expectation is that any image you take of yourself or have taken of you will become public. Because its 1 wrong 'click here to sync' from happening.
Two things here:
First: Did Gawker lawfully own the image? I was under the impression the copyright belonged to Bubba and later to Hogan, and that Gawker was arguing that despite acting to harm and despite not having ownership, they were attempting to publish. Maybe I have misunderstood the case, though.
Second: To answer your "name one other law": 18 U.S. Code § 2257. Gotta have records of the performers age and identity etc. or else you can't distribute pornography you own. E: as far as I can tell pornography case law in general isn't all that well settled, which is why it's mostly made in California. Kinda like corporations in Delaware, but sexier.
"Revenge porn" or nonconsensual porn or unlawful dissemination of intimate images is a growing problem for our society, since everyone carries a video camera in their pocket and the internet makes publication easy, widespread, and practically irreversible. Police could not do much about these actions without specific crimes on the books - and even now our culture still has a problem with victim blaming. Yes, this year, after Oregon had passed our law, I know of a person who went to report the crime and was laughed off and told she should not have taken the pictures. (That law enforcement agency has since been educated on the state of the law, and a report has been filed :P)
I awesomed for that last bit there.
I would have much preferred that such a law had been in place and that is what Gawker was caught up by. While these laws still have 1st Amendment concerns they are so much narrower than what this case turned into.
I guess I have a completely opposite view. Creating a criminal penalty for distributing a video filmed with someones consent is a far broader 1st Amendment problem than a civil suit over a non-consensually filmed video.
I think there is a real question of fact as to whether he knew it was being recorded or not.
What is the broader First amendment problem, in your view, with creating a criminal penalty for those who take intimate images and distribute them without consent? Do you disagree with any of the state laws as they are written?
Basically it creates an exception to the general right to publish any image you lawfully own. That is so huge. Name me one other law in the US that does that? It is actual honest to god government censorship.
Given all the issues that have gotten on video in the last few years with cops and the legislative efforts to shield them from those videos; anything that gives the state a crack to start prohibiting the distribution of images is one I am very leary of.
Read that Florida statue, and its loaded with "No Legitimate Purpose", I read that and I'm reminded of all the AZ laws banning ethnic studies classes for 'creating racial animus' or w/e phrase they used was, and can easily see a different statute about "inciting hatred against law enforcement officers".
Ultimately, if I want to post something I own to Reddit to get fake internet points, its not up to Florida to decide if that's a legitimate purpose or not. Be it my Ex's tits or a cop beating some guys head in. It is my image, my decision.
e: And as more of an aside, it keeps reinforcing very stupid assumptions for the general public namely:
(1) The Legislature finds that:
28 (a) A person depicted in a sexually explicit image taken with the person’s consent has a reasonable expectation that the image will remain private.
No the reasonable expectation is that any image you take of yourself or have taken of you will become public. Because its 1 wrong 'click here to sync' from happening.
If the image you have is your "ex's tits" then she has a privacy interest in it as well as a publicity interest since it is an image of her. So it is NOT your image, your decision, at all, under current law. She could sue you. And now in 26 states, you could be criminally liable if you have proper criminal intent when you post that image.
"Any image you take of yourself or have taken of you should be assumed will become public at some time in the future" - I absolutely reject this premise and do not agree this is a reasonable stance to take. Intimate photographs or videos taken in private, for private purposes only, should not become public without the person's permission.
Your slippery slope argument is not compelling. The laws, when drafted, absolutely take into account First Amendment concerns and imo address them reasonably.
No the reasonable expectation is that any image you take of yourself or have taken of you will become public. Because its 1 wrong 'click here to sync' from happening.
It's interesting that you're willing to completely destroy a broad right in the effort to somehow salvage the concept of "ownership" of a picture of somebody else.
You did get model releases from your ex-wife, right?
"Revenge porn" or nonconsensual porn or unlawful dissemination of intimate images is a growing problem for our society, since everyone carries a video camera in their pocket and the internet makes publication easy, widespread, and practically irreversible. Police could not do much about these actions without specific crimes on the books - and even now our culture still has a problem with victim blaming. Yes, this year, after Oregon had passed our law, I know of a person who went to report the crime and was laughed off and told she should not have taken the pictures. (That law enforcement agency has since been educated on the state of the law, and a report has been filed :P)
I awesomed for that last bit there.
I would have much preferred that such a law had been in place and that is what Gawker was caught up by. While these laws still have 1st Amendment concerns they are so much narrower than what this case turned into.
I guess I have a completely opposite view. Creating a criminal penalty for distributing a video filmed with someones consent is a far broader 1st Amendment problem than a civil suit over a non-consensually filmed video.
I think there is a real question of fact as to whether he knew it was being recorded or not.
What is the broader First amendment problem, in your view, with creating a criminal penalty for those who take intimate images and distribute them without consent? Do you disagree with any of the state laws as they are written?
Basically it creates an exception to the general right to publish any image you lawfully own. That is so huge. Name me one other law in the US that does that? It is actual honest to god government censorship.
Given all the issues that have gotten on video in the last few years with cops and the legislative efforts to shield them from those videos; anything that gives the state a crack to start prohibiting the distribution of images is one I am very leary of.
Read that Florida statue, and its loaded with "No Legitimate Purpose", I read that and I'm reminded of all the AZ laws banning ethnic studies classes for 'creating racial animus' or w/e phrase they used was, and can easily see a different statute about "inciting hatred against law enforcement officers"/ e: Or maybe something about 'protecting the investigation and a fair trial'.
Ultimately, if I want to post something I own to Reddit to get fake internet points, its not up to Florida to decide if that's a legitimate purpose or not. Be it my Ex's tits or a cop beating some guys head in. It is my image, my decision.
e: And as more of an aside, it keeps reinforcing very stupid assumptions for the general public namely:
(1) The Legislature finds that:
28 (a) A person depicted in a sexually explicit image taken with the person’s consent has a reasonable expectation that the image will remain private.
No the reasonable expectation is that any image you take of yourself or have taken of you will become public. Because its 1 wrong 'click here to sync' from happening.
And if your ex has their life ruined because you posted their breasts online, hey, that's not your fault?
There is the obvious argument that "I have proof" is not as compelling as seeing reverend Homophobia balls deep in another man, for whatever that's worth.
I think that's kind of the crux of the issue here! How strong is that argument? How "newsworthy" is seeing it vs an article describing it? Is it just because it's sex that we elevate special privacy concerns to it? Is that correct or incorrect to do so?
I think with compelling, I was trying to combine both newsworthiness and trustworthiness, e.g. you could make the argument that without actually showing (unedited) proof, claims to have legitimate evidence are incredibly weak.
No the reasonable expectation is that any image you take of yourself or have taken of you will become public. Because its 1 wrong 'click here to sync' from happening.
It's interesting that you're willing to completely destroy a broad right in the effort to somehow salvage the concept of "ownership" of a picture of somebody else.
You did get model releases from your ex-wife, right?
Who got Walter Scott's release form?
This seems like a completely irrelevant and classless argument.
There is the obvious argument that "I have proof" is not as compelling as seeing reverend Homophobia balls deep in another man, for whatever that's worth.
I think that's kind of the crux of the issue here! How strong is that argument? How "newsworthy" is seeing it vs an article describing it? Is it just because it's sex that we elevate special privacy concerns to it? Is that correct or incorrect to do so?
I think with compelling, I was trying to combine both newsworthiness and trustworthiness, e.g. you could make the argument that without actually showing (unedited) proof, claims to have legitimate evidence are incredibly weak.
I would presume that proper authorities/whatever could be sourced the video for confirmation. That would be one way to do it without actually publicizing the images themselves.
There is the obvious argument that "I have proof" is not as compelling as seeing reverend Homophobia balls deep in another man, for whatever that's worth.
I think that's kind of the crux of the issue here! How strong is that argument? How "newsworthy" is seeing it vs an article describing it? Is it just because it's sex that we elevate special privacy concerns to it? Is that correct or incorrect to do so?
I think with compelling, I was trying to combine both newsworthiness and trustworthiness, e.g. you could make the argument that without actually showing (unedited) proof, claims to have legitimate evidence are incredibly weak.
I would presume that proper authorities/whatever could be sourced the video for confirmation. That would be one way to do it without actually publicizing the images themselves.
Yeah, but then we get into the argument about whether even "trustworthy" authorities saying "we totally verified this, it's true!" are as trustworthy as the images themselves. It's a headache alright.
I dislike this idea that if some portion of one's sex life is sufficiently public then people should feel free to invade it as they please, partly because that seems like really arbitrary criteria, partly because it relegates a significant number of people & professions to second class citizen status (effectively taking away their right to privacy).
AND YET! I feel unease about the free speech implications. Gawker does have some valid arguments in that arena. These are undermined by the overall tone of the original article, which seemingly did not provide news but instead was meant to titillate and humiliate Hogan (by my reading). I am wary of the fact that affairs or sex with someone other than your spouse is automatically newsworthy. I am wary also of the fact that a public figure might be able to suppress information about who they associate with and the things they say, should it somehow be tied up in a tape that also shows sex.
Video editing & playback control is also a thing, though. If there's a video of [Presidential Candidate] brokering a drug deal, but then part of that same video also features them going off to have sex with an escort, there's no reason you couldn't simply cut out the part of the video showing the sex... because honestly, what does that do for public good anyway?
Can you posit a plausible scenario (or perhaps an existing case) where showing someone having sex does the public the kind of service that would justify the state saying, 'Yes, this is worth further gashing privacy rights over,' ?
Where evidence of a crime is occurring in the tape, or where a public figure has denied association with the person in the video and that association is newsworthy in some way (I can think of a politician who votes against gay rights having a clearly homosexual encounter, I guess) but even then it doesn't really feel right to me for the tape itself to be fully publicized as news rather than described or summarized.
That's my thought as well: preserving child pornography for police analysis / prosecution evidence is clearly in the public interest, but publishing it to a website (IMHO) clearly isn't.
I don't really agree that it's in the public interest to publish a video of a bigoted, self-hating homosexual politician or preacher having hypocritical sex; being a hypocrite isn't really a legal matter, and bigotry / homophobia is a problem regardless of whether or not the bigot / homophobe in question is themselves gay.
No the reasonable expectation is that any image you take of yourself or have taken of you will become public. Because its 1 wrong 'click here to sync' from happening.
It's interesting that you're willing to completely destroy a broad right in the effort to somehow salvage the concept of "ownership" of a picture of somebody else.
You did get model releases from your ex-wife, right?
Who got Walter Scott's release form?
He was in public so your argument makes no sense.
Are you just woefully uninformed about how photography in public works legally? It is very much NOT what we are discussing here.
"Revenge porn" or nonconsensual porn or unlawful dissemination of intimate images is a growing problem for our society, since everyone carries a video camera in their pocket and the internet makes publication easy, widespread, and practically irreversible. Police could not do much about these actions without specific crimes on the books - and even now our culture still has a problem with victim blaming. Yes, this year, after Oregon had passed our law, I know of a person who went to report the crime and was laughed off and told she should not have taken the pictures. (That law enforcement agency has since been educated on the state of the law, and a report has been filed :P)
I awesomed for that last bit there.
I would have much preferred that such a law had been in place and that is what Gawker was caught up by. While these laws still have 1st Amendment concerns they are so much narrower than what this case turned into.
I guess I have a completely opposite view. Creating a criminal penalty for distributing a video filmed with someones consent is a far broader 1st Amendment problem than a civil suit over a non-consensually filmed video.
I think there is a real question of fact as to whether he knew it was being recorded or not.
What is the broader First amendment problem, in your view, with creating a criminal penalty for those who take intimate images and distribute them without consent? Do you disagree with any of the state laws as they are written?
Basically it creates an exception to the general right to publish any image you lawfully own. That is so huge. Name me one other law in the US that does that? It is actual honest to god government censorship.
Given all the issues that have gotten on video in the last few years with cops and the legislative efforts to shield them from those videos; anything that gives the state a crack to start prohibiting the distribution of images is one I am very leary of.
Read that Florida statue, and its loaded with "No Legitimate Purpose", I read that and I'm reminded of all the AZ laws banning ethnic studies classes for 'creating racial animus' or w/e phrase they used was, and can easily see a different statute about "inciting hatred against law enforcement officers".
Ultimately, if I want to post something I own to Reddit to get fake internet points, its not up to Florida to decide if that's a legitimate purpose or not. Be it my Ex's tits or a cop beating some guys head in. It is my image, my decision.
e: And as more of an aside, it keeps reinforcing very stupid assumptions for the general public namely:
(1) The Legislature finds that:
28 (a) A person depicted in a sexually explicit image taken with the person’s consent has a reasonable expectation that the image will remain private.
No the reasonable expectation is that any image you take of yourself or have taken of you will become public. Because its 1 wrong 'click here to sync' from happening.
If the image you have is your "ex's tits" then she has a privacy interest in it as well as a publicity interest since it is an image of her. So it is NOT your image, your decision, at all, under current law. She could sue you. And now in 26 states, you could be criminally liable if you have proper criminal intent when you post that image.
Sure, but this is the civil vs criminal distinction. She has rights to the publication of the image, but does not own the image. She could not demand it from me, nor make me destroy it. Additionally when you willful pose for a picture, the idea you have a privacy expectation that the picture violated it is asinine.
"Any image you take of yourself or have taken of you should be assumed will become public at some time in the future" - I absolutely reject this premise and do not agree this is a reasonable stance to take. Intimate photographs or videos taken in private, for private purposes only, should not become public without the person's permission.
Your slippery slope argument is not compelling. The laws, when drafted, absolutely take into account First Amendment concerns and imo address them reasonably.
Should and Will are different words. The reasonable expectation for the public to operate under is that recordings of you will become public. Be they naked pictures, racist rants, or random stupid internet stuff. Operating under a different assumption is shouting at the tide.
Stories I have heard (some are represented in the video):
- offender sends explicit photos to family members and friends
- offender creates new profiles on Facebook, backpage.com, craigslist.org impersonating the victim and asking men to literally show up at victim's home and fulfill her "rape fantasies", spelling out that the men should go right into her home and upstairs to have sex with her - victims have experienced men showing up to do this
- middle and high schoolers who commit suicide after images are distributed throughout school and to peers
- specific "revenge porn" sites that exist only for the purpose of facilitating this type of behavior by offenders (the FTC can order such sites to cease and desist basically: https://www.ftc.gov/system/files/documents/cases/160108craigbrittaindo.pdf)
"Revenge porn" or nonconsensual porn or unlawful dissemination of intimate images is a growing problem for our society, since everyone carries a video camera in their pocket and the internet makes publication easy, widespread, and practically irreversible. Police could not do much about these actions without specific crimes on the books - and even now our culture still has a problem with victim blaming. Yes, this year, after Oregon had passed our law, I know of a person who went to report the crime and was laughed off and told she should not have taken the pictures. (That law enforcement agency has since been educated on the state of the law, and a report has been filed :P)
I awesomed for that last bit there.
I would have much preferred that such a law had been in place and that is what Gawker was caught up by. While these laws still have 1st Amendment concerns they are so much narrower than what this case turned into.
I guess I have a completely opposite view. Creating a criminal penalty for distributing a video filmed with someones consent is a far broader 1st Amendment problem than a civil suit over a non-consensually filmed video.
I think there is a real question of fact as to whether he knew it was being recorded or not.
What is the broader First amendment problem, in your view, with creating a criminal penalty for those who take intimate images and distribute them without consent? Do you disagree with any of the state laws as they are written?
Basically it creates an exception to the general right to publish any image you lawfully own. That is so huge. Name me one other law in the US that does that? It is actual honest to god government censorship.
Given all the issues that have gotten on video in the last few years with cops and the legislative efforts to shield them from those videos; anything that gives the state a crack to start prohibiting the distribution of images is one I am very leary of.
Read that Florida statue, and its loaded with "No Legitimate Purpose", I read that and I'm reminded of all the AZ laws banning ethnic studies classes for 'creating racial animus' or w/e phrase they used was, and can easily see a different statute about "inciting hatred against law enforcement officers".
Ultimately, if I want to post something I own to Reddit to get fake internet points, its not up to Florida to decide if that's a legitimate purpose or not. Be it my Ex's tits or a cop beating some guys head in. It is my image, my decision.
e: And as more of an aside, it keeps reinforcing very stupid assumptions for the general public namely:
(1) The Legislature finds that:
28 (a) A person depicted in a sexually explicit image taken with the person’s consent has a reasonable expectation that the image will remain private.
No the reasonable expectation is that any image you take of yourself or have taken of you will become public. Because its 1 wrong 'click here to sync' from happening.
If the image you have is your "ex's tits" then she has a privacy interest in it as well as a publicity interest since it is an image of her. So it is NOT your image, your decision, at all, under current law. She could sue you. And now in 26 states, you could be criminally liable if you have proper criminal intent when you post that image.
Sure, but this is the civil vs criminal distinction. She has rights to the publication of the image, but does not own the image. She could not demand it from me, nor make me destroy it. Additionally when you willful pose for a picture, the idea you have a privacy expectation that the picture violated it is asinine.
"Any image you take of yourself or have taken of you should be assumed will become public at some time in the future" - I absolutely reject this premise and do not agree this is a reasonable stance to take. Intimate photographs or videos taken in private, for private purposes only, should not become public without the person's permission.
Your slippery slope argument is not compelling. The laws, when drafted, absolutely take into account First Amendment concerns and imo address them reasonably.
Should and Will are different words. The reasonable expectation for the public to operate under is that recordings of you will become public. Be they naked pictures, racist rants, or random stupid internet stuff. Operating under a different assumption is shouting at the tide.
"She willfully pose for the photo" does not mean it can then be used in any way without her consent. If you then distribute it with the proper criminal intent as defined by all those laws then you are criminally liable. I do not see the problem. Why does your (assumed) property right in the photo trump her privacy rights, rights to publicity, potential copyrights, and right to be free from the infliction of emotional distress? Why does your decision get to override her non-consent?
It may be reasonable to assume that recordings of you in public may become public (though you will notice that if a news crew is capturing video, they blur people's faces in the background unless they get a release from them!). It is not reasonable to expect private pictures intended only for private use will become public without your consent, and just shrug and say there's nothing you can do about it. That's not how society should work nor how it does work, currently.
And
Banning recording the police is a completely separate issue. I don't deny states are trying to do that. But do you have any basis to say that passing a law making it illegal to disseminate intimate images without consent has anything to do with those laws being proposed? Is there any nexus between the two? Because there seems to be totally different reasonings for the two different types of laws. Police operate in a public capacity.
"Revenge porn" or nonconsensual porn or unlawful dissemination of intimate images is a growing problem for our society, since everyone carries a video camera in their pocket and the internet makes publication easy, widespread, and practically irreversible. Police could not do much about these actions without specific crimes on the books - and even now our culture still has a problem with victim blaming. Yes, this year, after Oregon had passed our law, I know of a person who went to report the crime and was laughed off and told she should not have taken the pictures. (That law enforcement agency has since been educated on the state of the law, and a report has been filed :P)
I awesomed for that last bit there.
I would have much preferred that such a law had been in place and that is what Gawker was caught up by. While these laws still have 1st Amendment concerns they are so much narrower than what this case turned into.
I guess I have a completely opposite view. Creating a criminal penalty for distributing a video filmed with someones consent is a far broader 1st Amendment problem than a civil suit over a non-consensually filmed video.
If there isn't consent to distribute then its the same question. I am pretty sure that the law always held that you have image rights regardless of the picture type. There are exceptions but they're reasonable (iirc when the picture isn't of an individual or group of individuals, but a group or crowd)
I don't really agree that it's in the public interest to publish a video of a bigoted, self-hating homosexual politician or preacher having hypocritical sex; being a hypocrite isn't really a legal matter, and bigotry / homophobia is a problem regardless of whether or not the bigot / homophobe in question is themselves gay.
If the description isn't enough maybe. But otherwise the integrity of public officials and public persons is in the public interest
Man, Gawkers shot themselves in the foot so badly during the trial. I think the Editor said that Gawker would post a sex tape even if it included children as young as 4-5 if they thought it was newsworthy. I mean, I can't even....
Imagine even visiting a site with such a tape on it accidentally. If I caught anyone viewing such a video, even on a "non-porn" site, I would fire them without a second thought. I would reprimand anybody that went there.
If that testimony wasn't what sank them, I don't know what did.
That was in deposition, but definitely an unforced error.
Basically Hogans lawyer asks
"Would you consider posting a sex tape of a child?
Denton replied "no"
Hogan's lawyer repeats "how young would a child have to be to you to not publish?"
Denton replied "4" probably snarkily.
In a conversation this make sense. Because the lawyer is being an ass in repeating the same question. People in the court or the jury might have even laughed. But it wasn't said in court it was said in deposition
So then the lawyer gets to read the deposition back in court "when asked how young a child would have to be for you to not publish did you give the answer 4?" and Denton basically has to say "yes", or "as a joke". Hogan's attorney never has to mention the entire discussion.(and for various reasons the entire discussion might not come in) and so there you have the shitshow without the context.
Posts
I'm sure Gawker will include all possible avenues in their appeal, including appealing the decision to exclude certain evidence from the jury.
Perjury would be up to the appropriate state law enforcement to decide if they want to pursue or not. My bet is they stay out of it.
However I have some real concerns about sex tape "leaks" and publication, mostly because of the trickle down effects to real, private, people. The jury blurred this line - in Hogan's favor - but the implication for private citizens is positive.
"Revenge porn" or nonconsensual porn or unlawful dissemination of intimate images is a growing problem for our society, since everyone carries a video camera in their pocket and the internet makes publication easy, widespread, and practically irreversible. Police could not do much about these actions without specific crimes on the books - and even now our culture still has a problem with victim blaming. Yes, this year, after Oregon had passed our law, I know of a person who went to report the crime and was laughed off and told she should not have taken the pictures. (That law enforcement agency has since been educated on the state of the law, and a report has been filed :P)
In 26 states, publicizing non consensual porn (meaning video/images taken without consent, or taken with consent but without consent to publish to others) is now a crime. These laws have varying degrees of mental state attached to them to avoid First Amendment challenges. In my state, to be convicted of the crime, it must be proved that you intended to harass, humiliate, or injure the other person by disseminating the image. (Here is the law: https://olis.leg.state.or.us/liz/2015R1/Downloads/MeasureDocument/SB188/Enrolled).
Guess what? It's a crime in Florida, where this jury took place, and it's called sexual cyberharassment. Law here: https://www.flsenate.gov/Session/Bill/2015/0538/BillText/er/PDF . Now, this law wasn't in effect in 2012, but I'm sure FL citizens are at least somewhat aware of "revenge porn" and the fact that their state and others are taking steps to criminalize it, because of the harm it causes the victims in those cases.
Advocates for these laws seem to be supportive of the Hogan verdict insofar that it is precedent that may be helpful to victims even though they are private citizens - if a jury thinks a celebrity like Hogan deserves privacy and should be compensated for his sex tape being published, that bodes well for other victims who face similar emotional distress and sue their abusers in court for it.
AND YET! I feel unease about the free speech implications. Gawker does have some valid arguments in that arena. These are undermined by the overall tone of the original article, which seemingly did not provide news but instead was meant to titillate and humiliate Hogan (by my reading). I am wary of the fact that affairs or sex with someone other than your spouse is automatically newsworthy. I am wary also of the fact that a public figure might be able to suppress information about who they associate with and the things they say, should it somehow be tied up in a tape that also shows sex.
So I'm not sure where I fall on the spectrum of things. I certainly believe the monetary compensation ordered by the jury is too high, and at the very least, that will be reduced by an appellate court. There are a lot of other issues that are ripe for appeal as well, so it will be interesting to see what happens next. The damage to Gawker may already be done at this point, though.
I awesomed for that last bit there.
I would have much preferred that such a law had been in place and that is what Gawker was caught up by. While these laws still have 1st Amendment concerns they are so much narrower than what this case turned into.
Video editing & playback control is also a thing, though. If there's a video of [Presidential Candidate] brokering a drug deal, but then part of that same video also features them going off to have sex with an escort, there's no reason you couldn't simply cut out the part of the video showing the sex... because honestly, what does that do for public good anyway?
Can you posit a plausible scenario (or perhaps an existing case) where showing someone having sex does the public the kind of service that would justify the state saying, 'Yes, this is worth further gashing privacy rights over,' ?
http://adland.tv/adnews/nick-denton-fires-back-we-will-win-appeal-because-hulk-racist-pretty-much/907709891
At the bottom, apparently they say there's 3 dvds worth of material, and none of it apparently has the racist Hulk rant? I remember vaguely hearing about that, and it costing him his WWE career (for now) but I never really followed where it all came from.
Honestly, if Gawker dies from this, hooray. If non-consensual celebrity sex tapes die from this, hooray. Seeing Terry Bollea have sex with Heather Clem is frankly not news, nor is it any of my fucking business, nor yours.
Pretty much my sentiment.
Gawker went on a long spiel about the potential 'chilling effect' this may have on tabloid Internet journalism, and all I could think was, "Good. I'd be very pleased if the outcome were that someone thinks twice before polluting the blogosphere with another clickbait scandal piece that involves a celebrity or politician doing something rude / showing skin / getting or giving a blowjob."
Maybe some of those blogs will decide that since the clickbait model carries litigation risk now, it's time to go do more traditional journalism and dig-up stories (if there's a sad thing about Gawker, it's that the could and did do pretty excellent journalism whenever it floated someone's boat. But clickbait stories are comparatively easy money, so most of their business model was dedicated to churning out that crap).
I guess I have a completely opposite view. Creating a criminal penalty for distributing a video filmed with someones consent is a far broader 1st Amendment problem than a civil suit over a non-consensually filmed video.
I think there is a real question of fact as to whether he knew it was being recorded or not.
What is the broader First amendment problem, in your view, with creating a criminal penalty for those who take distribute intimate images without consent? Do you disagree with any of the state laws as they are written?
While I do loon forward to a more enlightened, accepting society when it comes to sex we still live in an age where having depictions of perfectly ordinary, relatively boring sexual acts you engage in (or just nude pictures) can do real, lasting damage to a person. This makes it distinct from, say, racial tirades (which may be newsworthy, especially for public figures) or other embarrassing video. Even beyond the usual privacy concerns.
This is why revenge porn laws are important. If there's any question as to the consent of parties involved? You shouldn't publish. Doubly so in Gawker's case, where it's pretty clear the intent was to harm.
Their attitude when dealing with the court was pretty shocking too, and probably why they received what amounts to a death sentence. Couldn't happen to a bigger bunch of assholes too. I agree it'll probably be reduced, but hopefully they're sweating.
Well, when that's literally the only 'culture' you've ever known...
As I was responding to the concept of revenge porn laws I was assuming it would have some heavy restrictions on the content it applies to. Sexual images are a fairly narrow scope and recorded images of it having special protections don't strike me as particularly burdensome. Once the existence of these laws is widely understood I don't think it's something you would "accidentally" break.
Not sure where I'd stand if the images were recorded in a public place and how the lack of expectation of privacy should be handled but I'm alright with that being a detail that gets worked out.
You're unclear on what consent you're referring to here. There are two at issue, consent to record and consent to distribute. My understanding is that consent to record is unclear here but consent to distribute is not in question. As this was a private video you'd still need Hulkster's (and Heather Clem's) permission to distribute it even if he did know it was being recorded.
There seems to be some reason to believe he did.
However, I'd rather just skirt the whole issue and criminalize/legislate the conduct rather than the content. In terms of revenge porn and the like, treat it as intellectual property violations/unpaid and involuntary labor with potential for damages both in terms of emotional distress and reduction in future income (or similar). In a case like this, the defense would be fair use (which is likely a higher bar) and there would be more control.
QEDMF xbl: PantsB G+
They're assholes, and probably felt pigeonholed into a certain posture given the testimony made during the deposition, which they apparently thought would never see open court?
This is an idea that leads directly to someone getting a million views of his NYE antics in Times Square, and subsequently getting sued by 5000 people.
Imagine even visiting a site with such a tape on it accidentally. If I caught anyone viewing such a video, even on a "non-porn" site, I would fire them without a second thought. I would reprimand anybody that went there.
If that testimony wasn't what sank them, I don't know what did.
That's...kind of what just happened. That was Hogan's argument and the jury agreed he should be compensated - he suffered emotional distress and harm to his reputation by the video being released by Gawker when they didn't have consent or a right to do so. Gawker was arguing it was allowed due to First Amendment freedoms, which are similar to fair use. But I don't see how fair use would apply when they didn't transform the work at all, which is why they probably didn't exactly raise that defense...it wasn't a copy right claim per se, it was invasion of privacy, nonconsentual publicity, and infliction of emotional distress.
We may need new civil rights of action specific to distribution of intimate images without consent, though, I agree. There can be both criminal penalties for offenders and civil rights of action for victims alongside that.
Unless this dude was involved in a 5000 person orgy I don't see how that's related to this current discussion.
E: also a 5000 person orgy might clear the bar for newsworthy sexually explicit content /s
The child age thing was a joke! Gosh! Why is everyone looking at me that way...
Where evidence of a crime is occurring in the tape, or where a public figure has denied association with the person in the video and that association is newsworthy in some way (I can think of a politician who votes against gay rights having a clearly homosexual encounter, I guess) but even then it doesn't really feel right to me for the tape itself to be fully publicized as news rather than described or summarized.
Basically it creates an exception to the general right to publish any image you lawfully own. That is so huge. Name me one other law in the US that does that? It is actual honest to god government censorship.
Given all the issues that have gotten on video in the last few years with cops and the legislative efforts to shield them from those videos; anything that gives the state a crack to start prohibiting the distribution of images is one I am very leary of.
Read that Florida statue, and its loaded with "No Legitimate Purpose", I read that and I'm reminded of all the AZ laws banning ethnic studies classes for 'creating racial animus' or w/e phrase they used was, and can easily see a different statute about "inciting hatred against law enforcement officers"/ e: Or maybe something about 'protecting the investigation and a fair trial'.
Ultimately, if I want to post something I own to Reddit to get fake internet points, its not up to Florida to decide if that's a legitimate purpose or not. Be it my Ex's tits or a cop beating some guys head in. It is my image, my decision.
e: And as more of an aside, it keeps reinforcing very stupid assumptions for the general public namely:
No the reasonable expectation is that any image you take of yourself or have taken of you will become public. Because its 1 wrong 'click here to sync' from happening.
I think that's kind of the crux of the issue here! How strong is that argument? How "newsworthy" is seeing it vs an article describing it? Is it just because it's sex that we elevate special privacy concerns to it? Is that correct or incorrect to do so?
How we change our ideas around that when the victim is a public figure vs. private citizen is I think a sticky question.
It's interesting that you're willing to completely destroy a broad right in the effort to somehow salvage the concept of "ownership" of a picture of somebody else.
You did get model releases from your ex-wife, right?
Edit: Or at least it was explicitly called out who retained rights to the image in your divorce agreement?
Two things here:
First: Did Gawker lawfully own the image? I was under the impression the copyright belonged to Bubba and later to Hogan, and that Gawker was arguing that despite acting to harm and despite not having ownership, they were attempting to publish. Maybe I have misunderstood the case, though.
Second: To answer your "name one other law": 18 U.S. Code § 2257. Gotta have records of the performers age and identity etc. or else you can't distribute pornography you own. E: as far as I can tell pornography case law in general isn't all that well settled, which is why it's mostly made in California. Kinda like corporations in Delaware, but sexier.
If the image you have is your "ex's tits" then she has a privacy interest in it as well as a publicity interest since it is an image of her. So it is NOT your image, your decision, at all, under current law. She could sue you. And now in 26 states, you could be criminally liable if you have proper criminal intent when you post that image.
"Any image you take of yourself or have taken of you should be assumed will become public at some time in the future" - I absolutely reject this premise and do not agree this is a reasonable stance to take. Intimate photographs or videos taken in private, for private purposes only, should not become public without the person's permission.
Your slippery slope argument is not compelling. The laws, when drafted, absolutely take into account First Amendment concerns and imo address them reasonably.
Who got Walter Scott's release form?
And if your ex has their life ruined because you posted their breasts online, hey, that's not your fault?
I think with compelling, I was trying to combine both newsworthiness and trustworthiness, e.g. you could make the argument that without actually showing (unedited) proof, claims to have legitimate evidence are incredibly weak.
This seems like a completely irrelevant and classless argument.
I would presume that proper authorities/whatever could be sourced the video for confirmation. That would be one way to do it without actually publicizing the images themselves.
Yeah, but then we get into the argument about whether even "trustworthy" authorities saying "we totally verified this, it's true!" are as trustworthy as the images themselves. It's a headache alright.
That's my thought as well: preserving child pornography for police analysis / prosecution evidence is clearly in the public interest, but publishing it to a website (IMHO) clearly isn't.
I don't really agree that it's in the public interest to publish a video of a bigoted, self-hating homosexual politician or preacher having hypocritical sex; being a hypocrite isn't really a legal matter, and bigotry / homophobia is a problem regardless of whether or not the bigot / homophobe in question is themselves gay.
He was in public so your argument makes no sense.
Are you just woefully uninformed about how photography in public works legally? It is very much NOT what we are discussing here.
Sure, but this is the civil vs criminal distinction. She has rights to the publication of the image, but does not own the image. She could not demand it from me, nor make me destroy it. Additionally when you willful pose for a picture, the idea you have a privacy expectation that the picture violated it is asinine.
Should and Will are different words. The reasonable expectation for the public to operate under is that recordings of you will become public. Be they naked pictures, racist rants, or random stupid internet stuff. Operating under a different assumption is shouting at the tide.
also:
NOT
http://arstechnica.com/tech-policy/2014/12/illinois-again-moves-to-ban-recording-the-police/
SO
http://www.huffingtonpost.com/2015/03/13/bill-recording-police-illegal_n_6861444.html
SLIPPERY
http://www.usnews.com/news/articles/2016-01-11/arizona-may-criminalize-recording-cops-in-public
http://www.buzzfeed.com/katiejmbaker/sent-home-from-middle-school-after-reporting-a-rape#.rc16kzK1l
VICE video: https://broadly.vice.com/en_us/video/inside-the-torturous-fight-to-end-revenge-porn
**this video is 25 min long and I think really good**
A proposed bill in NY to create civil right of action alongside criminal penalty: http://assembly.state.ny.us/leg/?default_fld=&bn=A00571&term=&Summary=Y&Actions=Y&Text=Y
Stories I have heard (some are represented in the video):
- offender sends explicit photos to family members and friends
- offender creates new profiles on Facebook, backpage.com, craigslist.org impersonating the victim and asking men to literally show up at victim's home and fulfill her "rape fantasies", spelling out that the men should go right into her home and upstairs to have sex with her - victims have experienced men showing up to do this
- middle and high schoolers who commit suicide after images are distributed throughout school and to peers
- specific "revenge porn" sites that exist only for the purpose of facilitating this type of behavior by offenders (the FTC can order such sites to cease and desist basically: https://www.ftc.gov/system/files/documents/cases/160108craigbrittaindo.pdf)
"She willfully pose for the photo" does not mean it can then be used in any way without her consent. If you then distribute it with the proper criminal intent as defined by all those laws then you are criminally liable. I do not see the problem. Why does your (assumed) property right in the photo trump her privacy rights, rights to publicity, potential copyrights, and right to be free from the infliction of emotional distress? Why does your decision get to override her non-consent?
It may be reasonable to assume that recordings of you in public may become public (though you will notice that if a news crew is capturing video, they blur people's faces in the background unless they get a release from them!). It is not reasonable to expect private pictures intended only for private use will become public without your consent, and just shrug and say there's nothing you can do about it. That's not how society should work nor how it does work, currently.
And
Banning recording the police is a completely separate issue. I don't deny states are trying to do that. But do you have any basis to say that passing a law making it illegal to disseminate intimate images without consent has anything to do with those laws being proposed? Is there any nexus between the two? Because there seems to be totally different reasonings for the two different types of laws. Police operate in a public capacity.
If there isn't consent to distribute then its the same question. I am pretty sure that the law always held that you have image rights regardless of the picture type. There are exceptions but they're reasonable (iirc when the picture isn't of an individual or group of individuals, but a group or crowd)
@tinwhiskers
This isn't the reason we have "no recording the police" laws. Its disingenuous to conflate them
If the description isn't enough maybe. But otherwise the integrity of public officials and public persons is in the public interest
That was in deposition, but definitely an unforced error.
Basically Hogans lawyer asks
"Would you consider posting a sex tape of a child?
Denton replied "no"
Hogan's lawyer repeats "how young would a child have to be to you to not publish?"
Denton replied "4" probably snarkily.
In a conversation this make sense. Because the lawyer is being an ass in repeating the same question. People in the court or the jury might have even laughed. But it wasn't said in court it was said in deposition
So then the lawyer gets to read the deposition back in court "when asked how young a child would have to be for you to not publish did you give the answer 4?" and Denton basically has to say "yes", or "as a joke". Hogan's attorney never has to mention the entire discussion.(and for various reasons the entire discussion might not come in) and so there you have the shitshow without the context.