The naked truth about celebrity sex tapes

Celebrity, Bizarre, NakedLaw, News

Note: This post has been updated since it was originally published.

Of the many ways that technology collides with privacy, the leaked sex tape is likely the most notorious. The latest sordid episode of recorded bedroom shenanigans involves retired wrestler Hulk Hogan, who recently snagged a victory in his lawsuit against Gawker, winning total damages in excess of $140 million.

The lawsuit, arising from a leaked sex tape starring Hogan (whose real name is Terry Bollea) and the wife of a friend, accused Gawker Media of violating the former wrestling champion’s privacy rights. The judge had previously ruled that evidence in the case was to remain sealed, including the sex tapes themselves. Most importantly, the judge permitted Hogan to examine Gawker’s computer systems to determine if they were behind the leak.

In the wake of the ruling, how has the law evolved to address the circumstances under which a leaked tape is grounds for dragging someone into court?

Public behavior is not private behavior

Central to Gawker’s defense was that, due to the ease with which Hogan had publicly discussed his sexuality, it was ethical and legally acceptable to share Hogan’s personal details. “If Hulk Hogan hadn’t talked about his sex life so much … there would be less interest,” said Nick Denton, founder of Gawker, in an interview with BuzzFeed News.

It’s true that Hogan has been open about his sexual escapades; he has referred to his penis as “the Loch Ness monster” in interviews (as well as in both his book, My Life Outside the Ring, and on his reality show, Hogan Knows Best). However, unlike most sex tape cases, Hogan’s tape was filmed without his permission, by the security cameras of his friend, the wife’s husband. And regardless, is public behavior a legal justification for exposing an individual’s private, consensual sexual encounters?

Denton was already in hot water over another scandal last year involving the outing of a married executive who texted a gay escort. After ordering the article pulled, two Gawker senior editors resigned over claims that Denton was caving in to advertisers.

Columbia Law School professor John Coffee said at the time that the handling of the escort incident could haunt Denton during a Hogan trial. “Someone’s going to say to [Denton], ‘You took this [the escort story] off of your website, even though you had violent opposition from two leading staffers who resigned. You must have thought it was wrong!’ And he’ll have to say ‘yes’,” says Coffee, who adds, “If [the escort story] is an invasion of privacy, why isn’t it an invasion of privacy when you have a video of what happened?”

It appears that logic persuaded the jury as well.

A rift between privacy and property rights

The defense in sex tape lawsuits is nearly always the same: Because the creator of the tape is the copyright owner, and because the plaintiff consented to be filmed, knowing the inherent risks associated with creating sex tapes, the defendant should be permitted to publish the sex tape.

In other words, the defense employs variations of “if you don’t want people to see your sex tape, don’t make a sex tape.”

Larry Walters, an attorney and advocate for the adult website industry, says things are not so simple. There are requirements around performer identity and age requirement documentation that need to be taken into account. “If those records were not created beforehand … the content is presumptively illegal,” says Walters. The original producer must keep the original records, and all secondary producers must keep copies of the records.”

It may not be fair, but it does become more difficult to enforce privacy rights using adult content regulation when a plaintiff, such as Hulk Hogan or Pamela Anderson, has an outwardly “sexualized” persona. And then there’s the Streisand effect, which describes how the more a celebrity tries to suppress unwanted details of their private lives, the more those details spread across the internet.

Writing in 1890 for Harvard Law Review, Justice Louis D. Brandeis said, “recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual…the right ‘to be let alone.’” In the age of broadband video sharing and social media shaming—what Justice Brandeis would have no doubt referred to as “recent inventions”—determining the boundaries of the individual’s right to privacy is a quandary we are still collectively wrestling with.

Image used courtesy of

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