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Is a Sex Tape ‘Newsworthy’? The Hulk Hogan Trial Tests the Limit

At the center of the Hulk Hogan privacy invasion trial is the question of whether a sex tape is newsworthy.

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Should a video of a celebrity having sex be considered news? What about a drunk college woman having sex in a bathroom? These questions are at the center of Hulk Hogan’s $100 million privacy invasion case against the New York-based company Gawker Media, owner of the website Gawker.

In 2012, Gawker posted an edited video of the wrestler and TV star having sex with the wife of his former best friend, the local radio shock jock who legally changed his name to Bubba the Love Sponge Clem. At the center of the arguments by lawyers on both sides is one question: Are videos of people having sex that are not intended for public consumption actual news or breaches of privacy?

One factor at play is whether Hulk Hogan is a person or a persona. He’s going by his given name, Terry Bollea, in court. Earlier this week he testified that there is a difference between the cocky, boastful public persona and his private life. Gawker’s position is that Hulk Hogan is a public figure. They also contend that the video had been written about by other outlets, supporting the notion that it was newsworthy. Gawker was the first to show it, and contends it is protected under the First Amendment.

Defining what makes something newsworthy is a matter that the jury will have to interpret. In previous cases, the mere presence of a sex tape can be considered newsworthy. In the 1994 case involving a sex tape of Pamela Anderson and Poison band leader Brett Michaels, the production company defending themselves explained that Anderson was a sex symbol, and therefore her sex life was a public matter. The court ruled differently. “The fact that she performed a role involving sex does not, however, make her real sex life open to the public,” the court found.

Depositions of one of the defendants, A.J. Daulerio, the former Gawker editor who posted the video, have been presented to the court, and reveal that he called celebrity sex tapes newsworthy unless they involve a child. When asked if there was a limit on age, he drew the line at 4 or younger.

Hulk Hogan’s lawyers also presented emails from 2010, when Daulerio worked at Gawker Media’s sports site Deadspin. Daulerio had posted a video of a drunken woman having sex on the floor of a bar bathroom. The woman asked him to take down the post.

“I’m writing in regard to having the post be removed from the website,” the unidentified woman wrote to Gawker. “I’m asking you to cease and desist the use of that video. I am the girl in it and it was stolen from me and put up without my permission.”

“Blah, blah blah,” Daulerio replied. “We’re not going to take it down.” He added, “I’m sure it’s embarrassing but these things do pass, keep your head up.”

The woman emailed back, pleading again.

Gawker’s attorney, Gaby Darbyshire, got involved. “This is a news story, and completely newsworthy,” she told the woman in an email. “It’s the truth, which can be hurtful, granted, but one’s actions can have unintended consequences … we believe that we are publishing this legitimately and as such, we will not remove the clip.”

Hulk Hogan’s lawyers rested their case on Friday.

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