Magazine article The News Media and the Law (Online)

Courts Wrestle with Defining Newsworthiness in Privacy Cases

Magazine article The News Media and the Law (Online)

Courts Wrestle with Defining Newsworthiness in Privacy Cases

Article excerpt

Michael Lambert

What is newsworthy?

When deciding whether to publish certain content, members of the news media answer this question on a daily basis.

But when courts attempt to define newsworthiness, the inquiry can be more complicated and could dictate the outcome of many high-stakes trials.

This March, a St. Petersburg, Florida court is set to consider the news value of a video clip featuring 62-year-old former professional wrestler Hulk Hogan having sex with Heather Cole Clem, the then-wife of Hogan's friend and radio personality Bubba the Love Sponge Clem.

Gawker, the online blog that published the 101-second video clip of the 30-minute sex tape in 2012 after receiving the tape from an anonymous source, will be flanked opposite Hogan in court.

Hogan, who has lived his life in the public eye and has been outspoken about his sex life in a book and radio appearances, claims the release of the clip of the sex tape violated his privacy. After initially suing Gawker for copyright infringement in Florida federal court, Hogan later brought suit in Florida state court for $100 million in damages, asserting a claim of publication of private facts.

Under the theory of publication of private facts, Hogan, whose real name is Terry Bollea, alleges Gawker's release of the video clip without his consent disclosed highly offensive private facts about himself. However, Gawker insists the video was newsworthy - a bar to private-fact claims under the First Amendment.

Thus, the question underlying the private-facts claim is whether Hogan's sex tape is of a "legitimate public concern." If the court concludes the publication of the video was newsworthy, the publication of private facts claim against Gawker will be dismissed.

Reporters should know that courts often assess newsworthiness differently than a journalist would in deciding whether to publish an article.

The standard to define newsworthiness and which party has the burden of proof varies state-by-state. In some states, plaintiffs bringing a publication of private facts claim must show the information disclosed was not newsworthy, but in other states, the defendant must raise newsworthiness as a defense. Some courts deem publishers to have a constitutional privilege to publish truthful information about newsworthy occurrences.

Generally, courts have taken an expansive view of newsworthiness, giving deference to the news media in order to encourage speech. In Shulman v. Group W Productions, Inc., the California Supreme Court wrote in 1998 that "liability for disclosure of private facts is limited 'to the extreme case, thereby providing the breathing space needed by the press to properly exercise effective editorial judgment.'"

Although there is no streamlined test across the country to determine what is a legitimate public concern, various courts have opined on the subject and provided guidance for reporters.

Some questions a court may ask in deciding newsworthiness:

Does the information relate to any matter of political, social, or other concern to the community?

In Snyder v. Phelps, the U.S. Supreme Court considered a claim of emotional distress stemming from protests at a military funeral. Although the case did not involve a publication of private facts claim, the Court discussed what it considers newsworthy. In Snyder, the Court in 2011 found that speech is considered a matter of public concern when it can be "fairly considered as relating to any matter of political, social, or other concern to the community" or when it "is a subject of general interest and of value and concern to the public."

The Court in Snyder also wrote that the provocative nature of speech should not factor into the question of newsworthiness, writing that a "statement's arguably 'inappropriate or controversial character . . . is irrelevant to the question whether it deals with a matter of public concern.'"

In Shulman v. …

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