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The Internet, newsworthiness, and invasion of privacy

Has the Internet blurred the line between newsworthiness and invasion of privacy? It’s one of the central questions in the ongoing jury trial pitting former pro wrestler Hulk Hogan against gossip site Gawker.

In 2012, Gawker posted a short clip of Hogan, whose real name is Terry G. Bollea, having sex with his friend’s wife. Hogan, in return, filed a $100 million lawsuit against Gawker, claiming a “massive, highly-intrusive, and long-lasting invasion of [his] privacy.” Gawker, meanwhile, has argued that it is constitutionally protected to publish newsworthy information about a public figure, particularly one like Hogan who has openly discussed his sex life in books and radio interviews.

How will the outcome of this case impact future litigation and the freedom of the online press? We asked Northeastern’s Jessica Silbey, a law professor and nationally recognized expert in the use of film to communicate about the law, and Dale Herbeck, a communication studies professor with expertise in communication law, cyberlaw, and freedom of expression.

What is newsworthy?

Some First Amendment law experts believe that the outcome of the Hogan-Gawker case will hinge on whether the sex tape is deemed “newsworthy.” And, Herbeck said, there is good reason to believe that it will be. “The Supreme Court has never defined the word ‘newsworthy,’” he explained, “and lower courts interpret it as broadly as possible.”

Narrowing the definition of “newsworthy,” he said, could cripple press freedom and increase the media’s susceptibility to future litigation. “If you have a narrow definition of newsworthiness,” Herbeck said, “then it will allow people to file more actions against news organizations.”

For Silbey, Hogan is clearly a person of public interest, no different from a rock star or U.S. Olympian. As such, he must play by a different set of rules than the average Joe. “When these people are put in the public eye,” she explained, “they lose their right to control what is said about them more than private people.”

The Erin Andrews case

The Hogan-Gawker trial is not the only celebrity privacy case that’s been making headlines this week. On Monday, a jury awarded sportscaster Erin Andrews $55 million in her civil lawsuit against a Marriott Hotel in Nashville, Tennessee, where a stalker secretly recorded nude video of her in 2008.

But the similarities between the two cases end there, and Herbeck stopped short of equating them. “This,” he said, referring to the Andrews trial, “is a classic peeping-tom case.” It doesn’t delve into complex legal issues like the Hogan-Gawker case, which, he explained, is taking a hard look at the gossip site’s “First Amendment rights to comment on a matter of public concern.”

According to Herbeck, the Hogan-Gawker case also raises questions about shield laws as well as the precise definition of a news organization: “Could a blogger post something on the Internet and then say, ‘I’m a reporter and this is journalism’ even though he is not employed by a media organization?” Herbeck wondered.

The Internet is ‘anarchic’

Silbey and Herbeck agreed that the Internet makes it easy to violate people’s privacy. It is there that everyone can stand on his own soapbox, a platform from which to disseminate information on a global scale. As Herbeck put it, “Anyone with a modem and an account can post whatever they want.” In the pre-Internet days, he explained, ‘”people wrote graffiti on bathroom walls. Now they post stuff on the Internet.”

Silbey, for her part, questioned the notion that the size of the Internet could obscure the stuff we don’t want others to see. “Although everything survives forever,” she explained, “better technology and better search functions will make it less likely obscurity will protect us.”

For her, the Internet knows no bounds. It’s jurisdiction-free. “It’s anarchic.”