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Blaming the victim on the wane after Hulk Hogan's $140.1-million verdict in Gawker sex tape trial

Gawker founder Nick Denton appeared on The View on Friday and was pressed to defend his website's posting of the Hulk Hogan sex tape. [Photo from ABC News website]
Gawker founder Nick Denton appeared on The View on Friday and was pressed to defend his website's posting of the Hulk Hogan sex tape. [Photo from ABC News website]
Published Mar. 25, 2016

"What do you think of Matt Damon?" Gawker founder Nick Denton asked the all-female co-hosts of The View on Wednesday, edging toward a celebrity-to-celebrity comparison.

Denton was on the second stop of the media tour he launched days after a St. Petersburg jury ordered him, his company and a former Gawker editor-in-chief to pay a total of $140.1 million in damages to Hulk Hogan for posting the wrestler's sex tape online in 2012.

Gawker's founder said on The View that he didn't know much about Damon himself. The actor was married, Denton said, he may have a stepchild, and maybe once lived in Florida?

"That's basically all I know about Matt Damon and his family situation," Denton said in his British accent, "because he never talked about it."

For that reason, Denton continued, "people have written very, very little about his personal life." The co-hosts nodded along, waiting for the "if you don't want your privacy invaded don't advertise your private life" argument.

When he gave it, co-host Joy Behar quickly cut him off.

"But you're blaming the victim," she said. "You're blaming the victim in this case."

In another time, before concepts like victim-blaming, slut-shaming and sexual consent entered mainstream discourse, Denton's argument might have worked.

It has before. It was used against actress Pamela Anderson and rock star Tommy Lee, who lost a legal battle with Penthouse in 1997 when the magazine published still photos from the honeymoon sex tape the couple made — a tape they claimed was stolen from their home.

Lawyers for Penthouse argued it was justified in publishing the photos and a story about the sex tape because it was newsworthy — and because they'd opened themselves up to it by talking openly about their sex life in the past. A judge agreed.

Gawker's lawyers made the same argument that Hulk Hogan (real name Terry Bollea) had also openly discussed his own sex life in the media.

But in 2016, that same argument doesn't seem to fly anymore.

"When it comes to seeing someone naked or unclothed, we're seeing public pushback against that," said University of Florida media law professor Clay Calvert. "Even in today's sex-saturated society, there are still some lines here. The public is pushing back."

However, University of New Hampshire law professor Ann Bartow is hesitant to read too much into Bollea's victory over Gawker.

A jury of four men and two women from a county once known for its retiree population decided Gawker crossed a line when it posted a short excerpt of Bollea with the wife of his former best friend, radio personality Bubba the Love Sponge Clem. But an appellate court could still disagree.

Until the verdict is upheld, Bartow, the director of the Franklin Pierce Center for Intellectual Property at UNH, said she is leery to call the Gawker verdict evidence of a grand societal shift when it comes to sex culture and privacy.

"I just think the jury would be less sympathetic to a woman," Bartow said. "There's no actual data on this, and there never could be, because no two trials are the same."

Bartow listed similar cases, namely instances of revenge porn, where victims tried to get recourse in a court of law and failed.

But the tide may be turning. Just last week, during the Bollea trial, a jury in Tennessee awarded Fox Sports reporter Erin Andrews $55 million in damages after nude photos of her, taken without her knowledge while she was inside hotel rooms, were leaked online.

But her case was far less controversial, Calvert and Bartow said.

Andrews was also a far more sympathetic victim.

"She never exploited her sex life in any way," Calvert said. "She is a completely innocent victim."

And nobody argued that Andrews, also a public figure, brought this on herself.

In both cases, Andrews and Bollea said they were photographed in the nude without their consent and that those images were published without their permission ( whether Bollea truly did not know he was being filmed will no doubt be part of Gawker's appeal.)

Regardless of the circumstances of each case, Bartow said both Andrews and Bollea were still victims.

Regarding Gawker's argument that Bollea gave up his privacy when he talked publicly about his sex life, the law professor said: "That's crap. He disclosed what he wanted to disclose. He still has a right to privacy."

What kind of precedent Bollea's victory will set has yet to be decided, but Calvert said the verdict still speaks to society's mores in the digital age.

"Today, we almost have to realize we're being watched at any moment, except in a bedroom," he said. "Maybe the bedroom is the last place where people should have an expectation of privacy.

"Maybe that's the last bastion of privacy a celebrity has left."

Contact Katie Mettler at kmettler@tampabay.com or (813) 226-3446. Follow @kemettler.

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