Privacy, Data Protection and Retention
Data Protection Commissioner v. Facebook (Schrems II)
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On Appeal Contracts Expression
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This case involves a dispute between Hogan’s right to privacy and Gawker’s right to freedom of speech and expression, specifically concerning a sex tape posted to Gawker’s website. The jury in this case found in favor of Hogan, that his privacy rights had been violated, and this outweighed Gawker’s right to post news on their site. This case has a colorful procedural history and Gawker has already indicated that it will appeal from which it expects a favorable outcome based on decisions of the federal court and the court of appeal on the preliminary injunction.
The Defendant in this case, Gawker Media, is a celebrity news and gossip website. The Plaintiff is Hulk Hogan, a famous American wrestler and TV personality. This case involves Gawker’s posting of an excerpt of a 30 minute sex tape of Hogan having sex with the wife of one of his friends on their website, which was sent to Gawker from an anonymous source in 2012. The excerpt (one minute and 40 seconds in length), was posted on Gawker’s website along with commentary from then editor. Hogan brought suit against Gawker claiming invasion of privacy, intentional infliction of emotional distress, negligent infliction of emotional distress, publication of private matter, and violation of the right to publicity.
This suit was originally filed in the Middle District of Florida, where the federal judge denied Hogan’s motion for a preliminary injunction, finding that Gawker’s posting was protected under the First Amendment. Hogan then voluntarily dismissed the case in federal court and brought a claim in state court. Hogan again filed a motion for a preliminary injunction, which was granted by the state court judge. The injunction was appealed to the Second District Court of Appeal, which granted a stay on the injunction pending their opinion. The Court of Appeals reversed the state court judge on First Amendment grounds. In the meantime, Gawker removed the video but left up the commentary. Gawker filed a motion to dismiss the case based on this ruling, which the state court denied. Thereafter, Gawker filed a writ with the Court of Appeals, which was dismissed (but not denied), presumably for lack of finality. The suit continued to trial.
Middle District of Florida on Preliminary Injunction
The Middle District of Florida issued an opinion denying Hogan’s original motion for a preliminary injunction in Federal Court. The Court noted the higher standard for granting a preliminary injunction in a freedom of the press case: “publication must threaten an interest more fundamental than the First Amendment itself.” ((Hogan v. Gawker, pg. 2 (2016).)) The Court further discussed the various activities Hogan participates in which puts his private matters in the public interest. This included his reality TV show, his book describing his affairs, and Hogan’s discussion with the public concerning generally private matters. The Court found Hogan could not demonstrate irreparable harm if the video was not removed as embarrassment and economic harm did not meet this threshold. Further, Hogan did not establish on balance, that the removal of the video excerpt would serve the public interest. Therefore, the Court denied Hogan’s request for a preliminary injunction.
Court of Appeals on Preliminary Injunction
The Court of Appeals found that the state court’s grant of a preliminary injunction was “an unconstitutional prior restraint under the First Amendment,” and therefore reversed the injunction. ((Id.)) The Court found that when a temporary injunction is aimed at a form of speech, there is a high burden on the moving party to establish no less extreme measures than the granting of what is essentially a prior restraint. The Court found that Hogan could not meet this high standard, for many of the same reasons discussed by the Middle District of Florida in their opinion.
Gawker argued that the tape was a matter of newsworthy public concern and therefore should be protected under the First Amendment. Gawker further argued that Hogan’s claim of invasion of privacy does not hold up because he has often referred to his sexual activities in a public forum. Gawker argued that a ruling in Hogan’s favor could have a chilling effect on the media in celebrity scandal cases such as this. Hogan, on the other hand, argued that this video caused him harm, was an invasion of his privacy, and was not considered newsworthy. The jury was convinced and awarded Hogan $115 million in compensatory damages for invasion of privacy.
Gawker plans to appeal the verdict, as it believes evidence was improperly withheld during the trial, and it believes it has a strong chance of success based on the Middle District of Florida and the Appeals Court’s previous ruling on the preliminary injunction.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case attempts to balance two very important interests: the right to freedom of expression and the right to privacy. The jury in this case found that Hogan’s right to privacy outweighed Gawker’s right to freedom of expression. However, this case seems to weigh against the freedom of the press. Especially considering the degree to which Hogan interjected his private life into the public eye, this segment of a sex video hardly seems to be an invasion of privacy. Many commentators believe this decision will be overturned on appeal, and Gawker has already indicated that it intends to appeal the decision.
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