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Asked and Answered: Sex Tapes, From Andrews to Hogan

By John DiGiacomo

In this episode, we discuss recent celebrity sex tapes, including the Erin Andrews and Hulk Hogan sex tapes.

Speaker 1: Hello and welcome to Asked and Answered, Revision Legal’s podcast where we talk about today’s topics in internet law and privacy issues and we’re here today to talk about some sex tapes.


Speaker 2: Yeah, sex tapes.


Speaker 1: How about that?


Speaker 2: Yeah. Oh yeah, brother.


Speaker 1: Interesting, I guess not total sex tapes. We have the Erin Andrews spy-cam video and then the Hulk Hogan sex tape, which are kind of dominating the media right now and this is an area that we litigate on a somewhat regular basis and so we thought we’d kind of share some of our thoughts about what’s going on in this litigation, the differences between the two and kind of how this impacts everyone else.


Speaker 2: Yeah, so let’s start with Erin Andrews. My understanding, and I’m not an expert in this case by any means, but my understanding is that Erin Andrews had kind of checked into this hotel and some guy, Michael David Barrett, decided that he wanted to stalk her. Apparently there had been some history there … Allegedly stalker of course. There’d been some history there and he knew that she was checking into this hotel, he decided to convince the Marriott to allow him to check into the room next to her then he secretly found time to either drill or somehow get a peephole into Erin Andrew’s bedroom. Excuse me, it was a bathroom. Is that correct?


Speaker 1: Yeah, that’s how I understand it, that the major error on the hotel’s part was he asked, “I want to be in a room next to Erin Andrews,” they said, “Yes,” and then also documented that he asked and then they granted that request.


Speaker 2: Yeah, that’s pretty crazy. A lot of times celebrities will check in under assumed names. I personally know the assumed name of the person that I like to stalk which is Trent Reznor of Nine Inch Nails, because I’ve been a fan since I was like 15 years old. Reznor checks into hotels under the name Steve … What is it? The Six Million Dollar Man, Steve Austin. Steve Austin.


Speaker 1: Ahh.


Speaker 2: These people have, they kind of have this sense of privacy or they want the sense of privacy when they check in so the hotel did a bad thing here.


Speaker 1: Yeah. It’s a colossal mistake, twenty million dollar mistake, now that we know what happened at trial but it’s the hotel, I guess the problem how this is getting news is I guess it’s an innocent mistake, one would call it. Right? Was it a mistake? Sure. Did they know this guy was a stalker? No, I doubt it. Did they know he was going to videotape her naked in her hotel room? I doubt it, but they’re going to end up paying a lot of money for it.


Speaker 2: Yeah, so if we were defending the hotel, what would be the defenses that we would raise? We would say something like, “Look, our client was not negligent in supervising the hotel room because it had no reason to believe that this individual would drill a hole through the wall and drop a camera in.” Right?


Speaker 1: Yeah.


Speaker 2: Or, it could be something like, “The actions of the hotel employee were an independent tort that were outside of the scope of employment, and therefore the hotel should not be held liable for negligence.”


Speaker 1: Yeah. What you do is you introduce all the manuals and all policies that the corporation has, and all the signatures from all their employees that said they read these policies and agreed to abide by them. You try to have a lot of paperwork showing, “Listen, we did everything we could.” Those policies are important. I mean, we advise our clients all the time to institute those kinds of policies, because when something bad does happen, the first thing you fall back to are your policies. Might not save the day, but it is something to fall back to. I’m sure that’s what they did here, but at the end of the day, it was a big error, and the facts are bad. That’s just what it comes down to.


Speaker 2: Yeah, the facts, they really are bad. There’s a couple of Cause of Action that were asserted here. One is the, and this is in Illinois if I remember correctly, one is the tort of intrusion upon seclusion. That tort basically says that a person who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another person in his private affairs or concerns, is subject to liability for invasion of privacy. A lot of the cases say that this intrusion upon seclusion has to be of the type that mimics being physically present. The fact that that camera was placed in the manner in which it was, where a person was able to obtain film of her naked, in a manner in which a person could have if they were physically present, is basically the idea that meets the cause of action.


Speaker 1: Yeah. It makes sense, right?


Speaker 2: It does.


Speaker 1: We don’t expect that to happen to us, and that should be punishable. I think this idea of like, “What is invasion of privacy,” is a question that most people don’t know. There is … It’s a common phrase, everyone says it, but do you really know what it means? It’s actually these four other subsets of invasion of privacy, and intrusion upon seclusion is one of those.


Speaker 2: Yeah, absolutely. A lot of people say, “Oh, they invaded my privacy. They invaded my privacy.” Well, actually, there’s some very specific categories that constitute invasion of privacy, especially in the United States. Another one of those is the public disclosure type of claim. That claim, it occurs where one gives publicity to a matter concerning the private life, in this case Erin Andrews, and is subject to liability for that invasion of privacy, if that matter that’s publicized, the matter that is publicized, would be highly offensive to a reasonable person, and is not of a legitimate concern to the public.


Here, we’ve got, not a sex tape, but a naked film, that probably is highly offensive to the reasonable person. They don’t want to be displayed naked in public. Frankly, it’s probably not a legitimate concern to the public that Erin Andrews be naked, and the public doesn’t really have a need to see that.


Speaker 1: No. I think there’s probably a large part of the public that wanted to see it.


Speaker 2: Yeah, right. Absolutely.


Speaker 1: I don’t think, no, I don’t think, it certainly would not fall under that exception. This kind of gets into the issue of, well, the idea of the public wanting to see this. There’s been kind of mixed reactions to this verdict. I think any time you see large verdict amounts, the jury came back with fifty-five million dollars in damages, roughly split down the middle, almost from the actual dangerous stalker and the corporation that made a mistake. Almost split down the middle, a little bit more in the stalkers ball park, but kind of split reactions on was this the right result? Some people are saying, “Well hey, didn’t Erin Andrews actually benefit from this publicity? Didn’t it actually make her more of a household name and further her career?”


Speaker 2: Yeah, and that’s a really interesting argument. It sounds, intuitively it sounds like a horrible thing to say, right? That, “Well, this victim, she made it big because she’s naked,” but that’s a real defense, because you’re talking about damages. If Erin Andrews’ career skyrocketed after this video was released, there’s at least a tenable argument that there are no damages, that her career has actually increased, and therefore the harm that is attempted to be prevented against by these invasion of privacy torts did not occur. That’s interesting. It’s interesting from a legal perspective. Might not be interesting from a moral perspective, but it’s interesting.


Speaker 1: Yeah. I think it’s, I think you probably had to bring that defense up as an attorney. Although, I feel like it could backfire pretty quickly.


Speaker 2: Yeah, especially with the jury.


Speaker 1: Yeah, a jury may not like that. It just may not like that line of arguments. When you’re in front of a … You know, juries are fickle, right? A couple things they don’t like and that’s more important, all of the sudden, than a lot of evidence. It is a kind of fine line going down this road of, “Oh yeah, she was spied on and she was video taped naked, but it was actually a good thing for her.” It’s a tough one.


Speaker 2: Yeah, it’s a tough one. Definitely. Let’s talk about this other one. Which is interesting. Did you ever watch wrestling when you were a kid?


Speaker 1: I was not a huge wrestling fan. Although, I kind of wish I was, because it seemed like so much fun. Looking back at it now, it just looks so ridiculous and entertaining, I kind of wish I was.


Speaker 2: Well, I kind of grew up like you did, in the Detroit area, and I had an opportunity to go see Hulk Hogan back in the maybe late eighties, early nineties. There’s a photo of me in a Hulkomania t-shirt.


Speaker 1: Oh, wow. We need to get our hands on that.


Speaker 2: Yeah, we should drop that in the show notes if I can find it. The next issue is this Hulk Hogan sex tape. My understanding of this, again, I don’t have a huge depth of knowledge on this particular sex tape, but Hulk Hogan had a friend, his name was Bubba Clem, and this guy invites Hulk Hogan over to have sex with his wife, which is kind of interesting.


Speaker 1: Yeah.


Speaker 2: He brings Hulk Hogan over, and Hulk Hogan has sex with his wife, and it’s taped, and lo and behold, the tape gets out. Right?


Speaker 1: Right. Tape gets out to Gawker Media, which is the website behind, well, Gawker, but I believe also behind like Deadspin. Is that all the same group? I think it is.


Speaker 2: Yeah, yeah, I think it is. I think you’re right. Deadspin, Jalopnick, all that group.


Speaker 1: Yeah. Yeah. They say they get it from an anonymous source, and they publish it. They go for it.


Speaker 2: Yeah, and so interestingly, because this Bubba Clem guy took the video, the copyright’s vested in him. When the video gets out and Hogan starts to get upset, this Bubba Clem guy transfers the copyright to the video to Hogan so that he can have adequate standing to sue for copyright infringement. He eventually sues Gawker for copyright infringement when the video is first released.


Speaker 1: Yeah, and the facts surrounding this one just get stranger and stranger. There’s all kinds of, kind of similar to how the Erin Andrews video went, everyone saying, “Well, maybe she benefited from this.” The kind of argument here is Hulk doesn’t care if this is out. This is his persona, this is what he is all about. He wants, this is a good thing for him. This is nothing out of the ordinary, basically. Right?


Speaker 2: Yeah. They’re basically saying, the defense is saying that, “Look, this is a guy who bragged to the world about his sexual prowess for a number of years, and this is newsworthy. This discusses, or it sheds light on whether or not he has this sexual prowess.” On the other hand, the other defense is that this is a guy who is an all American hero, and the dichotomy between this all American hero who comes out waiving the American flag and was a role model for children, and yet, in the background, was having these, not a threesome, but whatever the technical … Cuckold? Is that the technical term for it?


Speaker 1: I don’t know.


Speaker 2: I think it is. I think it is. I think I got it right. He’s coming over to have sex with somebody else’s wife, whatever that is. There’s a dichotomy there that is worth talking about. That’s kind of the defense that Gawker’s raised, which is really a first amendment defense.


Speaker 1: Bizarre.


Speaker 2: It’s pretty bizarre.


Speaker 1: In law school, I had Clark Johnson for contracts, and he always said, “Having a law degree is having a front row ticket to the best show on Earth.” I think that when you … Can you imagine being the attorneys in this? In these types of discovery requests and questions you’re asking and depositions and everything? This is insane.


Speaker 2: Oh, it would be amazing. You’d sit down and I can’t imagine deposition. “Mr. Hogan, where were you on the night of March sixteenth?” “Well, brother, I went down to the store and I bought some condoms.”


Speaker 1: “What color, what was your bandanna? What color bandanna were you wearing?” You’ve seen the video. He’s got his dress black bandanna on.


Speaker 2: That’s right, that’s right.


Speaker 1: This is just absurd that this is happening, but at the end of the day, the Hulkster is saying, “Well, I am the Hulkster, but I’m also Terry. My name’s Terry, and I don’t want Terry’s sex videos online. That’s not newsworthy. I’m just a normal individual.”


Speaker 2: Yeah, and so the cause of actions that, the cause of actions that Hogan asserted were invasion of privacy, publication of private facts, and a violation of Florida’s right of publicity law. The invasion of privacy and the publication of private facts are the similar causes of action to the Erin Andrews case, but the right of publicity is a little bit different. The right of publicity is the idea that a celebrity has the right to control the use of their name or likeness for commercial purposes. It’s a pretty interesting cause of action. It kind of goes to the assertions that Hogan has made, because Hogan’s saying, “Well, this is not me and my celebrity status. This is me as Terry, and as Terry, I shouldn’t be released to the public.”


If I was the defense, I’d say, “Well, Terry, it sounds like you don’t have a right of publicity claim, do you? Because the name and likeness of Terry is not an issue. You just admitted that it’s not an issue.” There’s all these little interesting things that arise when you try to take the position that the Hulk has taken.


Speaker 1: Yeah, yeah. It’s … Trying to make sense of all this is difficult. On the other end of it, you have, is Gawker news? I mean, is what they do news? I know I heard that part of Gawker’s … part of Hulk Hogan’s defense was they had a expert, journalism professor, come in and talk about the thirty tenants of journalism, and like these are the ethics that a journalist would take. From the quick news article on this, Gawker’s response was, “Well, we’re a different kind of journalism.” Right? “We don’t care about any of those rules.”


Is that right? Can you just define your own form of journalism and now you are a news outlet? Now you can … You are helped … I mean there are help … Why is this newsworthy? I mean, this is more newsworthy because of Gawker being around then it was before they were around. Right? No one would have said there’s kind of some similarities dating back to the Pam Anderson, Tommy Lee sex tape. No one was talking about that being newsworthy, but the whole kind of concept of clickbaity websites that are gossip slash something, constituting news was ever even an idea.


Speaker 2: No, you’re absolutely right. It’s interesting that the prior tactic was, the Pamela Anderson and Brett Michaels era, the tactic was, “Well, it’s been leaked, so we might as well monetize it. I guess people already have it in their hands. Let’s just try to sell it to people and try to make some money off of it.” The damage is already done. In this case, it’s different, it’s obviously that Gawker is raising this defense that, “Well, this is newsworthy, and we have a first amendment right to give the public what they want, which is the news on Hulk Hogan’s sex life.”


You’re right, is it newsworthy? Would the New York Times publish an article about Hulk Hogans sex tape? Probably not. It probably would have larger standards then this, but in the era in which we have TMZ and Gawker digging into the private lives of these individuals, it’ll be interesting to see whether or not we get a stronger recognition of the right of publicity coming out of these types of cases.


Speaker 1: Yeah, yeah, definitely. It really puts the idea of celebrity and the different kind of setting here. I think that our whole country is undergoing a whole different idea of what celebrity is, and who is a celebrity? What can celebrities do? It’s, you know, Donald Trump is probably a good example of that. Taking that celebrity and looking like he’s going to get the Republican nomination. It’s just fitting these very old, these are historic causes of action, invasion of privacy, intrusion upon seclusion, these are things that have been around for forever, and fitting in Gawker, and in newsworthy, and first amendment stuff into it, is just a really interesting way of how the law shifts and adjusts to the time and the reality of what’s going on. Not exactly sure how it’s going to come out. If I had to bet, I’d say Hulk Hogan’s going to win.


Speaker 2: Yeah, I would assume that he would win. I think that like California, Florida is a haven for celebrities, especially in the Miami area. I think that Florida has an overwhelming interest to protect the privacy of the lives of the people who pay property taxes. I think there’s a huge incentive for a Florida court to recognize that this type of action is not okay, and therefore it should reward a celebrity damages for it. I think … I don’t think Gawker’s defense is as solid as they think it is, and I question why the case didn’t settle at the outset. I think a lot of this has to do with, and this is just my opinion from a thousand feet away, Gawker’s management seems to be pretty arrogant. It seems to think that it’s untouchable. I think in this case, it may get touched.


Speaker 1: Yeah. I definitely think Gawker was in for the long run here. I doubt, we’re totally speculating, making things up, but I imagine Hulk Hogan was probably making enormous settlement demands, and Gawker, if they’re going to do anything, I guess it’s probably stick by their journalistic ability to tell the news, I guess. It would look pretty bad if they just took it down, I’m guessing, from their standpoint also. I don’t know, how many times have we said, “Gawker,” in the last five minutes?


Speaker 2: That’s true. Yup, it’s all [crosstalk 00:20:36]


Speaker 1: I’m on their website right now because of this, reading comments. They actually have the trial live streaming on their website, if you’re interested.


Speaker 2: Wow. Wow, that’s … I mean you take a … It’d be interesting to see whether the revenue obtained from the live streaming of the trial exceeds the revenue of the judgement.


Speaker 1: Yeah, true. It’s funny, I’m reading the comments. This one says, “I wasted about a hundred and fifty dollars of my firms money on Lexis, reading all the court papers to catch up on this.”


Speaker 2: Drew, that better not be you.


Speaker 1: Exactly. Interesting. Yeah, it is … Like you said, you can’t make it up. Where’s the law going to go? It’s adapting to this new world in which Gawker’s the news, I guess. It just seems, at the end of the day, it’s a sex tape, and he certainly didn’t, maybe did he brag about his sex life? Maybe. Did he know it was being taped? Potentially. I don’t know that means I expect it to be broadcast on one of the most popular websites in the world.


Speaker 2: Yeah. I think that, so in the copyright law context, there was a case in which President Ford’s memoir was leaked prior to its release, and there was a copyright lawsuit that arose over it. Basically, there was this assumption that it wasn’t yet fit for public dissemination, and that the copyright should extend to protect this leaked release, and the court looked at the newsworthiness of the claim at that time. It’s a far different case from the newsworthiness of Gawker, right? The presidential memoirs, especially during the era in which those were released, Vietnam War era, lots of things going on at that time, it seems to be an entirely different analysis, or locus of analysis then this stuff. It’ll be interesting to see what the court does with this. I hope that the court finds that this is not newsworthy. That’s all I can say, because if we live in a world in which this is newsworthy, what the hell is going on?


Speaker 1: I have no idea. I completely agree. Scrolling through some of these comments, there’s another issue that’s kind of interesting. We were talking and making fun of the Hulkster’s black bandanna in court. One of the comments, they’re like, “Well, didn’t they have him dress more normal? Maybe shave the goatee.” If your position is, “I’m a civilian, not a celebrity,” then why don’t you look like one instead of looking like Hulk Hogan. Then, on the other side, Erin Andrews comes into court with a plain ponytail and no makeup on. It was glaring that she was trying to look as plain Jane as possible.


Speaker 2: Yeah, strategy of, “I’m somebody’s daughter,” as opposed to, “I’m a cartoon.”


Speaker 1: Yeah, two plaintiffs in somewhat similar positions, completely opposite approaches. I’m reading here, and I don’t know if it’s true or not, they actually had to … Hulk Hogan had to request permission from the judge to wear that bandanna.


Speaker 2: Wow, could you imagine that? What is it, a motion?


Speaker 1: A motion-


Speaker 2: A motion to wear a bandanna?


Speaker 1: A motion to wear a bandanna. I guess. It is amazing.


Speaker 2: Wow.


Speaker 1: That idea of, you know, and I think from a non-lawyers perspective, those things are really interesting, like how you dress your clients for trial and how you approach it and all the little theatrics that go on in a court room really, they really matter, they’re really funny, and they’re really interesting. You can feel it. You can feel things happen in the court room. No matter what the facts are like, there is a kind of live environment when these trials are going on, and they can kind of get momentum in one way or the other.


Speaker 2: Yeah, absolutely. I’d love to see what his trial testimony was like. I wonder if he took the kind of, if he was this boisterous guy or if he was more introspective and discussed how he was harmed? It would be interesting to watch the tapes.


Speaker 1: Which one are you guessing?


Speaker 2: I think that-


Speaker 1: I’m going boisterous.


Speaker 2: Yeah, he’s probably got a pretty huge ego.


Speaker 1: Yeah.


Speaker 2: He’s living in somewhat of a feedback loop, and I think at this point he probably got a lot of, “Oh yeah.” Wait no, that’s Macho Man, isn’t it?


Speaker 1: Yeah, that’s Macho man, or maybe the Kool Aid guy, I don’t know which. I can’t imagine the Hulkster tamed it down at all.


Speaker 2: No, I can’t either. That’s all we’ve got this week. If we could afford to play, I Am a Real American, for you, if we could afford the license for that, I would do that now, so I’m going to spare you my singing of it. That’s it. You got anything else?


Speaker 1: No, no, that’s it. I think this was an entertaining topics, and I hope you all enjoyed it. If anyone has questions, or other topics they think are interesting, certainly find us on Facebook or iTunes. Leave a comment, leave a review. We’d greatly appreciate it. We’re always looking for interesting topics to talk about that you want to hear, so feel free to contact us on Facebook, Twitter, through the website, wherever.


Speaker 2: Yeah, and have a great week.


Speaker 1: All right, we’ll see you later.


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