October 18, 2012
When it does, however, the results can be fairly entertaining.
The latest such intersection: Terry Bollea, better known by his professional wrestling ring name “Hulk Hogan,” is suing over the release of a sex tape.
The sex tape, recorded in 2006, features Hogan having sex with a woman later revealed to be Heather Clem, who was at the time married to Hogan’s close friend Todd Clem, who is more popularly known as the Tampa, Florida shock jock “Bubba the Love Sponge.”
The excerpts of the sex tape were released online by celebrity gossip site Gawker on October 4, 2012, and Hogan filed suit against the site in the U.S. District Court for the Middle District of Florida on October 15.
He also filed suit against the Clems in Florida state court on the same day.
The claims in both lawsuits are largely the same: invasion of privacy by intrusion upon seclusion, invasion of privacy by publication of private facts, intentional infliction of emotional distress (IIED) and negligent infliction of emotional distress (NIED).
All of those claims are legally complex and very fact-sensitive.
On the other hand, they all hinge on a few facts.
For the suit against the Clems, two factual questions will essentially determine the success of the lawsuit:
- whether Hogan knew he was being videotaped (and impliedly consented to it), and
- whether the Clems are responsible for the video’s public release.
These questions have been answered in the affirmative and in the negative, respectively, by Todd Clem.
If that is truly the case, Hogan’s claims against the couple would be in trouble.
Hot Doc: Bolea v. Gawker Media, LLC
The intrusion upon seclusion claim can be defeated under Florida law by a sufficient showing of the plaintiff’s consent to that intrusion.
In this case, if the Clems can demonstrate that Hogan knew that he was being videotaped during his tryst, then Hogan has waived his right to privacy and has no legal tort claim.
If the Clems sufficiently demonstrate that they were not the ones responsible for the tape’s public release, Hogan’s claim of publication of private facts would be defeated.
If both fact questions come out in favor of the Clems, the emotional distress claims would be defeated in a similar fashion to the privacy invasion claims: if the Clems were only responsible for the original video recording of the sexual encounter, and Hogan had knowledge of and impliedly consented to the recording, he cannot justifiably claim emotional distress.
Hogan’s claims against Gawker are a bit trickier.
Even if those same factual questions were resolved in favor of the Clems, Gawker would have some extra hurdles.
First, there is no question that the gossip site published the sex tape.
Thus, Gawker only has two ways to defeat Hogan’s claims (assuming Clems’ claims are true):
- successfully argue that Hogan knew or should have known that by consenting to the video recording, he was also consenting to the possibility of its public release; or
- successfully argue that the publication of the tape is a matter of legitimate public interest.
Neither is a particularly easy argument to make.
Yet, considering the nature of the subject matter of Gawker’s stories and of the video (sexual acts between two public figures), the success of the second argument isn’t as remote as it may initially seem.
However these lawsuits turn out, they, much like the rest of the Hulkster’s fights, have some entertainment value.