Still A Bad Idea: Gawker Exploring Lawsuit Against Peter Thiel

from the this-is-unlikely-to-work dept

Back in June, rumors floated that Gawker was exploring a lawsuit against Peter Thiel for "tortious interference and racketeering" for his decision to fund a series of lawsuits (mostly bogus) against Gawker with the clear aim of destroying the company. Despite the fact that we think this was a really bad thing for Thiel to do, and dangerous for a functioning free press, we felt that suing back would be equally problematic.

But, it's not like Gawker listens to us here. Eriq Gardner has some details from the latest filing in the ongoing bankruptcy proceedings for what's left of Gawker (it sold off most of its content assets to Univision, but the remaining company is still going through bankruptcy -- and still appealing the Hogan verdict). And in that filing, it's clear that Gawker's lawyers are still interested in suing Thiel, though they at least admit that it's a long shot and that they have a "heavy burden" to prove. As summarized by Gardner:

"Given the apparent motive of Mr. Thiel to destroy the Debtors by his financial support of (and actual or de facto control regarding claims of) major alleged creditors, the Debtors require discovery to ascertain whether certain claims exist on behalf of the estates," states Gawker's motion. "For example, the New York Times report of Mr. Thiel’s intent to destroy the Debtors to avenge, inter alia, the Gawker.com’s 2007 publication (of a story about him) raises the possibility that the Debtors have a cause of action for prima facie tort under New York law."

Gawker's lawyer admits that such an action would have a "heavy burden."

According to the court papers, "Such a tort claim would require the Debtors to show: (1) an intentional infliction of harm; (2) without excuse or justification and motivated solely by malice; (3) resulting in special damages; (4) by an act that would otherwise be lawful. As to the second element of prima facie tort, the plaintiff must show that the defendant was 'solely motivated by malice.'Other motives, such as 'profit, self-interest, or business advantage will defeat a prima facie tort claim.'”

The debtor's lawyer goes on to say that articles about Thiel's activity "ambiguously suggest that Mr. Thiel both is and is not motivated by pecuniary gain."

So they're asking to be able to conduct discovery to see if they can clear that hurdle and make the prima facie case. Basically, they want to demand Thiel hand over some information to prove that he was fully motivated by "malice." This is certainly interesting and will be worth watching, but I stand by my initial assessment. I don't like the funding of lawsuits with the sole intent of killing off media properties, but I think that the proper thing to do is to pass a federal anti-SLAPP law to make it much more difficult to do what Thiel and Charles Harder have done.

Of course, if Gawker does move forward with this and it actually works (a big if), that would certainly be one way to limit the likelihood of others following the Thiel plan for shutting down media properties.

Filed Under: anti-slapp, lawsuits, peter thiel, slapp, tortious interference
Companies: gawker

Peter Thiel's Lawyer Says He's Stopped 'Monitoring' Gawker, But Still Sending It Bogus Takedown Demands

from the anti-free-speech-nuttery dept

Remember how the billionaire funder of Facebook and Palantir, Peter Thiel, insisted that he was bankrupting Gawker to protect your privacy? Well, the lawyer, Charles Harder, that Thiel set up with a monthly retainer, specifically to focus on lawsuits that could kill Gawker dead, has become something of a "celebrity" in the "let's stomp out free speech" circle of celebrities. Last month, the Hollywood Reporter did a big profile on Harder and his newfound fame (and rapidly growing client list of famous people upset about press coverage). In some "bonus cuts," reporter Eriq Gardner noted on Twitter that Harder told him he no longer "monitors" what's left of Gawker (now called Gizmodo Media, and owned by Univision). Except... Gizmodo is now pointing out that since Univision took over, Harder has sent them five separate demands to take down information because some of Harder's clients were upset about what Gizmodo Media properties had written about them.

In late August, Harder issued several new legal threats against Gizmodo Media Group over stories that were, in some cases, published years ago. One targeted a 2014 Deadspin story about a former ESPN employee named Heather Paskewich, who claimed in a federal lawsuit that her supervisor, Heli Soto, digitally manipulated photos of her to be more “sexually provocative” and posted them online. Harder, who is now representing Soto, listed nine allegedly “false and defamatory” passages from Deadspin’s coverage of the lawsuit.

Each of the passages that Harder describes as defamatory were sourced from Paskewich’s complaint. American courts have widely recognized the right of media outlets to publish and quote from official court records. (According to the case’s April 30, 2015 docket entry, Paskewich and ESPN reached an out-of-court settlement; the terms were not disclosed.)

Harder has also added I’m Shmacked’s Arya Toufanian to his client roster. (I’m Shmacked hosts and films college parties, which New York Magazine has called “an obvious descendent of Girls Gone Wild.”) In his August 22 letter to Gizmodo Media Group, Harder demanded the removal of a pair of Jezebel stories from 2014 about a tweet from the I’m Shmacked Twitter account. It was directed at Business Insider reporter Caroline Moss after she noticed that the account had copy-and-pasted a joke that had gone viral on Twitter. That tweet, which has since been deleted, read:

“They said make fun of I’m Shmacked.”
“What’s the worst that can happen, they said.”

July 23rd. 9:22AM.
Caroline is prepping her anus.

Harder’s letter acknowledges that the original Jezebel post was “based on Mr. Toufanian’s tweets,” but he nonetheless claims that the stories are “false and defamatory” and amount to “libel, false light invasion of privacy and intentional infliction of emotional distress.”

The article has a few more examples of Harder threat letters to Univision/Gizmodo, but the most ridiculous of all is the most recent letter, sent last month. It's not even about a Gizmodo/Gawker article at all. Rather it's about an article in Forbes (which is not owned by Univision) about Univision's dumb decision to pull a bunch of old Gawker stories over misplaced (and legally clueless) liability worries. In that article, Forbes reporter Ryan Mac got a few comments from John Cook, Gawker/Gizmodo Media's executive editor, who protested the Univision decision vehemently. In the article, Mac quotes Cook saying some things about Harder himself:

“The end goal for Charles Harder is to harm people,” he said. “Whether that’s A.J. Daulerio or Sam Biddle or Nick Denton or me. I do not believe he has his client’s interests at heart.”

That apparently caused Harder's firm (in the form of lawyer Ryan Stonerock, who works for Harder) to send a letter on behalf of Harder himself, arguing that the statement above is defamatory. It's not. But here's what the letter had to say:

The bolded sentence in the Defamatory Statement is false, malicious and highly defamatory. Moreover, both the first and last sentences in the Defamatory Statement constitute tortious interference with contractual relations, namely Mr. Harder’s existing client relationships. The Defamatory Statement also constitutes tortious interference with prospective economic advantage in regard to Mr. Harder’s future clients, among other claims.

Mr. Harder hereby demands an immediate public retraction of the Defamatory Statement and an apology, as well as the payment of damages or an alternative agreeable resolution. If Univision and Mr. Cook fail to comply and respond to these demands immediately, Mr. Harder will not hesitate to exercise his rights in pursuing legal action against Univision, the executives at Univision who are responsible for the hiring of Mr. Cook based upon negligent hiring practices (Mr. Cook has a long line of defamatory activity, and has been sued for it in multiple public lawsuits of which Univision executives have been well aware for months), and against Mr. Cook himself.

This is, to put it mildly, a load of complete bullshit. Harder, who in that profile claims "I believe very strongly in a free press" doesn't seem to understand how the First Amendment works. Cook's statement is clearly one of opinion, and it's clearly protected speech. And despite Harder also saying in that profile that he'd like to change the standard for defamation of public figures, the law as it stands requires not just that the statements be false statements of fact, but also that they be said maliciously. And, yes, Harder is a public figure (remember, there was just a whole Hollywood Reporter feature about him).

What Harder appears to be doing here is little more than threatening a SLAPP suit to try to shut up the press from saying negative things about him. Even the references to Cook being sued in the past are ridiculous, since most of those lawsuits are from Harder himself, and most of them are completely bogus.

So far, it does not appear that Univision is complying with any of these demands (which is good to see). So, let's see what Harder does next. Is he now going to go after Univision too? Will Thiel continue to fund that as well? Because most of the threats seem entirely bogus, and would be laughed out of court.

And, of course, this is yet another reminder of why we really need a federal anti-SLAPP law to stop such bogus threats in their tracks.

Filed Under: censorship, charles harder, defamation, first amendment, free speech, john cook, peter thiel, threats
Companies: gawker, gizmodo media, univision

Deadspin Mocks New Owner Univision By Cleverly Reposting Deleted Mitch Williams Story As New Story About The Lawsuit

from the funny-how-that-works dept

Right, so remember how over the weekend the spineless execs at Univision decided to delete six articles from various Gawker properties? The reasoning made very little sense. The company claimed that since it had only agreed to acquire the assets of Gawker, but none of the liabilities, it felt that it needed to delete the six articles that were part of existing lawsuits (they also changed an image in one that was the subject of a copyright dispute). As we (and basically everyone else) pointed out, this was ridiculous on multiple levels. First, due to the single publication rule, any liability likely would be only for that initial publication. But, more importantly, the lawsuits in question were all pretty obviously bogus.

Univision has been trying to go into damage control mode, including a long interview with JK Trotter at Gizmodo, answering a bunch of questions from angry Gawker reporters. Univision continues to stand by the line that this was solely and 100% about the terms of the transaction, in which they were not acquiring any liabilities, no matter how ridiculous those liabilities might be. They insisted there was no editorial analysis or First Amendment analysis -- it was just about the liabilities. Gawker's reporters are still not happy and have apparently discussed the possibility of a walkout. They've also directly posted their unhappiness about the decision.

But Timothy Burke at Deadspin (one of the former Gawker properties) took things one step further. Somewhat brilliantly, he's written a brand new article about the latest happenings in a lawsuit involving former Major League Baseball pitcher Mitch Williams. If you don't know, two of the articles that were taken down were about Williams, and he had sued Gawker over them. Of course, the court had already tossed out the claims against Gawker, since the statements made in the earlier Deadspin articles were all either substantially true or protected opinion. But the overall case continues. Williams is suing MLB Network, which fired him after Deadspin's original posts. So, in this new article about the lawsuit against MLB Network, Burke uses the opportunity to effectively repost every bit of content that was taken down by Univision management. And this is why it's clever: he's not just reposting it, but reposting it from the lawsuit. For example:

According to the lawsuit, Deadspin posted a follow-up article five days later titled “Witnesses: Mitch Williams Called Child ‘A Pussy,’ Ordered Beanball.” Here is that article as presented in Williams’s complaint (a transcribed version appears beneath it for readability):

You can go to that article to see the images and the transcription, if you'd like.

Now, normally being too clever on something like this could backfire. Courts, especially, dislike people trying to game the system in this manner. But here, this is a pretty savvy move. After all, the statements in the article have already been declared protected speech and not defamatory. And Univision insists that it would actually defend reporters on any new stories. So, if there was a lawsuit over this new article (which seems unlikely anyway) it would be an opportunity to test Univision management on whether or not they'd really stand up for these kinds of stories.

Now, let's see if the other Gawker properties who had those other stories taken down figure out ways to do something similar...

Filed Under: deadspin, defamation, journalism, liability, mitch williams, single publication
Companies: gawker, univision

Univision Execs Have No Backbone: Pull A Bunch Of Gawker Stories Over Legal Disputes

from the no-credibility dept

People celebrating the "demise" of Gawker in being forced into bankruptcy by a questionable lawsuit and ruling from Hulk Hogan, financed by Peter Thiel, keep insisting that it has no real impact on the freedom of the press. And yet... things keep showing that's wrong. Gawker filed for bankruptcy and sold off its assets to media giant Univision, which agreed to close down the flagship Gawker site and redistribute some of the reporters to other sites. But late Friday, Univision management made another decision, and this one is horrific: they agreed to delete six stories on the site (with a seventh one being considered) because those stories were the subject of lawsuits against Gawker.

The reasoning given by Univision is that it only agreed to buy the assets of Gawker, not the liabilities, and keeping those stories posted gave it liability. First of all, this is wrong on the legal side of things. As Gawker's executive editor, John Cook (who fought this decision) notes, Univision doesn't take on the liability here:

Though the posts were published by Gawker Media, and therefore under the so-called “first publication rule” should only be the legal responsibility of the Gawker Media estate being left behind in the transaction, Unimoda’s legal analysis was that the continued publication of the posts under the new entitity would constitute the adoption of liability, and that Unimoda is therefore obligated to delete them.

But that's not the most disturbing thing here. The really problematic issue is that the stories that are being removed involve stories where the lawsuits are almost entirely completely bogus SLAPP suits designed to annoy Gawker, rather than with any serious legal basis -- for example, the two stories that Gawker published about Shiva Ayyadurai, the guy who keeps trying to convince the world that he invented email when he didn't. We've discussed Ayyadurai and his bogus claims many times, and also covered the lawsuit. There is no legitimate reason to take down those posts.

Perhaps even more incredible is that Univision also agreed to take down the story that nutty troll Chuck C. Johnson had filed a lawsuit against Gawker. That's a lawsuit that is so ridiculous it was laughed out of court in Missouri. And while Johnson filed a nearly identical lawsuit (including references to Missouri) in California, it was similarly going nowhere, and Johnson recently said that he'd dropped the case.

And yet Univision voted to delete the story anyway.

This is... bad. It's one thing to make a decision to pull a story once you've analyzed the situation and decided that the story has problems and should be pulled. But that's not what happened here. Univision execs flat out told Cook that this was solely about not taking on the liability. In other words, Univision has absolutely zero backbone to stand up for its journalists. That's shameful.

This move basically immediately does two things. First, it alerts anyone who wants a heckler's veto to threaten Univision with a lawsuit. Second, it should immediately cause any good journalist working for Univision or its properties (including Gawker and Fusion) to start looking for a new job elsewhere. If you can't have your publisher back you up on things like this, that's a dangerous place for a reporter to work. Kudos to Cook for trying to stand up to Univision, but if those execs wouldn't listen to him, the company's got really big problems.

I communicated to Felipe and Jay in the strongest terms that deleting these posts is a mistake, and that disappearing true posts about public figures simply because they have been targeted by a lawyer who conspired with a vindictive billionaire to destroy this company is an affront to the very editorial ethos that has made us successful enough to be worth acquiring. I told them that I am proud that this company refused to delete its accurate posts about Shiva Ayudurrai’s false claim to have invented the email system of communication, and that I am proud that our decision not to take down accurate posts about Mitch Williams’ meltdown at a children’s baseball game was vindicated by a federal judge, who ruled in our favor in his case against us. I am mortified to see them taken down now. We are at the center of an unprecedented assault on the ability of reporters and editors to challenge and critique public figures. While I believe that Univision is a company that values and defends aggressive, independent reporting, the decision to remove these posts is, in my view, at odds with its tradition of confronting bullies with honesty.

Univision just did a big thing badly. And it sullies the company's reputation and brand, and it makes all of the company's remaining journalistic staff look bad.

And, of course, this is the internet, where trying to make stuff disappear never works. I went over to archive.is soon after the announcement came out (and before the stories had been taken down) and every single one had been re-archived (many had been previously archived) within the previous hour. So if you're curious what was in the stories too hot for Univision's backboneless execs, here they are:

• The Inventor of Email Did Not Invent Email?
• Corruption, Lies, and Death Threats: The Crazy Story of the Man Who Pretended to Invent Email
• Man Acquitted Of Sexual Assault Sues Blog For Calling Him Serial Rapist
• Wait, Did Clowntroll Blogger Chuck Johnson Shit On The Floor One Time?
• Uber Driver in California Will Be Considered Employee, Not Contractor
• Mitch Williams Ejected From Child's Baseball Game For Arguing, Cursing
• Witnesses: Mitch Williams Called Child "A Pussy," Ordered Beanball

This is why we need publications that don't back down in the face of SLAPP suits. This is why we need stronger anti-SLAPP laws (and a federal anti-SLAPP law). This is why we express concerns about billionaires ganging up to sue publications out of existence in a vengeance play. Publications are vulnerable, but they're supposed to stand up to bogus threats, not cave in out of fear.

Filed Under: backbone, chuck johnson, defamation, heckler's veto, hulk hogan, journalism, liabilities, shiva ayyadurai
Companies: gawker, univision

Billionaire Backer Of Palantir & Facebook Insists He's Bankrupting Journalists To Protect Your Privacy

from the bullshit-peter dept

We've already made it quite clear where we stand on Peter Thiel financing a number of lawsuits against Gawker Media as some sort of retaliation for some articles he didn't like. Lots of people who really hate Gawker don't seem to care how problematic Thiel's actions are, but you should be concerned, even if you dislike Gawker -- in part, because many of the lawsuits Thiel appears to be backing are clearly bogus and just designed to bankrupt the company, which happened a couple months ago.

This week is the auction to see who ends up with Gawker, and Thiel is taking a weird victory lap with a silly and misleading oped in the NY Times where he argues that this was really all about making a stand for privacy and has nothing to do with shitting on the First Amendment. There's a lot in the article that's bullshit, and it deserves a thorough debunking, so here we go.

First off, positioning himself as a champion of privacy seems laughable. After all, this is the guy who put the first money into both Palantir and Facebook. Palantir, of course, is the datamining operation used by governments and law enforcement around the globe to snoop through various databases and try to find magical connections. Palantir is rumored to be in trouble lately, in part because its technology isn't that good, and it may have built a multi-billion dollar business on convincing clueless government officials that by sniffing through a variety of databases, it could magically find important "connections." But Palantir is an entire business based on the idea of helping governments undermine citizens' privacy. And then there's Facebook.

As for Facebook, I actually think the company has something of an unfair reputation as a "privacy destroyer," but it is true that the FTC dinged Facebook for a series of "unfair and deceptive practices" around respecting the privacy wishes of users, and the company is required to go through regular FTC privacy audits for a 20 year period over it. Whether this was due to carelessness or malfeasance (I believe the former, though many believe the latter), Facebook isn't exactly known as a paragon of protecting people's privacy wishes.

Thiel remains on the board of both companies. If he were truly about standing up for people's privacy -- why not start with those two companies?

From there, he talks about the Hulk Hogan lawsuit, Thiel insists that Gawker's editorial decision in publishing a heavily edited clip of a sex tape involving Hogan was "beyond the pale." Personally, I agree. I wouldn't have done it. But there were editorial reasons why Gawker did so, and as I've stated, I have tremendous concerns about juries retroactively determining if editorial decisions were appropriate or not. That seems to go very much against the First Amendment -- as a few courts have already found in the Gawker/Hogan case (though, yes, the judge and jury in the current case disagreed -- but if the case actually makes it to appeal, there's a fairly high likelihood of the original ruling being overturned).

Sure enough, in October 2012 Gawker did something beyond the pale: They published a sex tape without the consent of the people in the video. Unfortunately for Gawker, they had targeted someone who was determined to fight back. Terry Bollea is better known as the wrestler Hulk Hogan, a fact that Gawker claimed justified public access to his private life. Mr. Bollea disagreed. At first he simply requested that Gawker take down the video. But Gawker refused. It was getting millions of page views, and that was making money.

A few things on this. I think that Hogan would have a legitimate legal gripe against whoever filmed the sex tape, if it were truly done without his knowledge (there's some dispute on this), and possibly with whoever leaked it. But the decision to publish a few clips from it is protected by the First Amendment. Whatever privacy violation occurred, if there was one, was done by whoever filmed the video.

Second, the reason that Hogan was willing to "fight back" was that he didn't have to pay for the lawsuit, and instead had a vindictive billionaire with an axe to grind to help him finance it. Not only did Hogan reject a supposed $10 million settlement offer from Gawker, his lawyer (who an organization owned by Thiel was paying regularly) deliberately made decisions designed to bankrupt Gawker, including dropping a specific claim to get an insurance company out from covering the lawsuit (which is the opposite of how these things normally work, where plaintiffs want the insurance company involved in order to get more money).

Third, it's ridiculous to argue that Gawker kept the video up solely because it was making money. I'm sure that was part of the calculation, but it's pretty clear that they kept it up based on the principle of the thing -- which is that we live in a country that values freedom of the press, and you don't back down when someone doesn't like your coverage. It's the same thing we do when we receive bogus legal threats. We don't keep stories up because of "the clicks" but because we don't give in to bullies demanding we take down stories.

Four years later, the financial calculus has changed. Gawker Media Group has put itself up for sale (bids are due Monday afternoon) in part to satisfy the legal judgment of a unanimous jury that ruled against Gawker and assessed damages of $140 million, proving that there are consequences for violating privacy. Mr. Bollea could not have secured justice without a fight, and he displayed great perseverance. For my part, I am proud to have contributed financial support to his case. I will support him until his final victory — Gawker said it intends to appeal — and I would gladly support someone else in the same position.

Yeah, the calculus has changed due to a deliberate gaming of the judicial system by Thiel. As for Thiel being "proud to have contributed financial support" that's again misleading in the extreme. Thiel specifically had a law firm basically on retainer and told to go searching for lawsuits to bring down Gawker. It was not about "securing justice" for anyone. It was about destroying Gawker.

And it's odd that someone so proud of funding such lawsuits hid that fact for many years until some reporters finally broke the story that he was behind it.

As for the "gladly support someone else in the same position," Thiel has already noted that he's funding other lawsuits against Gawker, and as we've noted, if you look through all of the other lawsuits against Gawker, most of them are absolutely ridiculous including the patently silly lawsuit by Shiva Ayyadurai against Gawker for accurately reporting that Ayyadurai did not invent email, no matter how many times he insists he did.

As a site that has regularly reported on Ayyadurai's ridiculous claims ourself, the fact that Thiel may be supporting his lawsuit against Gawker certainly hits home for us. And how the fuck does that have anything at all to do with "protecting privacy"? Ayyadurai has basically been a publicity hound for the last decade or so, effectively demanding credit for something he did not do.

From there, Thiel shifts tone and pretends that he's a supporter of press freedoms -- despite the fact that he's funding a series of cases designed to destroy a media outlet.

The defense of privacy in the digital age is an ongoing cause. As for Gawker, whatever good work it did will continue in the future, and suggesting otherwise would be an insult to its writers and to readers. It is ridiculous to claim that journalism requires indiscriminate access to private people’s sex lives.

This is ridiculous on multiple levels. First off, it's crazy for Thiel to suggest here that Gawker's writers will "continue" to do what they do in the future when he's actively working to bankrupt them. Just last week, in the Hogan lawsuit, the reporter AJ Daulerio told the court that he was down to last $1,500 and Hogan (via Thiel funded lawyers) was trying to get whatever they could from him. Because of Gawker's bankruptcy, Daulerio could no longer rely on Gawker's lawyers, and he admitted that he could not afford to get his own. It appears that Thiel is doing the same thing to Sam Biddle, who worked at Gawker and is now at the Intercept. Personally, I think Biddle is one of the absolute worst reporters on the tech beat. He frequently confuses some basic things, draws connections that don't exist, exaggerates fiercely and misleads readers consistently. And yet, I'd side with him every day on the Thiel-funded lawsuits against him. And that's because that's how press freedom works. Even if I think Biddle is a terrible reporter, he should have every right to publish his terrible reporting without fear of being driven into bankruptcy by a vindictive billionaire.

And, again, if this were just about "sex lives", why do so many of the other lawsuits against Gawker, that appear to be funded by Thiel (using the same lawyer, Charles Harder), have absolutely nothing to do with privacy or sex lives? And, also, the claim that this is about "indiscriminate access to private people's sex lives" is simply false. It's a false statement that Thiel has every right to publish because of the freedom of the press that he's currently spitting on. Gawker made it clear that they published the story because Hogan -- a very public person -- had a history of bragging publicly about his sex life. That's what made it newsworthy. Nowhere did Gawker claim that it would publish just anyone's sex tapes.

A free press is vital for public debate.

That must be why he told a law firm to find lawsuits with the specific goal of bankrupting a media company he disliked.

Since sensitive information can sometimes be publicly relevant, exercising judgment is always part of the journalist’s profession. It’s not for me to draw the line, but journalists should condemn those who willfully cross it.

Wait. Thiel is totally claiming to draw the line in this very article. And he put his money behind his line drawing. Shouldn't we all be a little concerned when a billionaire gets to decide which reporting is on which side of the line?

The press is too important to let its role be undermined by those who would search for clicks at the cost of the profession’s reputation.

I'd argue that the press is too important to let its role be undermined by a petty and vindictive billionaire who would then totally misrepresent the truth later (after hiding his involvement). This is why we have anti-SLAPP laws.

And, from there, Thiel makes a weird pivot into backing an almost certainly unconstitutional anti-revenge porn bill put forth last month by Rep. Jackie Speier.

The United States House of Representatives is considering the Intimate Privacy Protection Act, a bipartisan bill that would make it illegal to distribute explicit private images, sometimes called revenge porn, without the consent of the people involved. Nicknamed the Gawker Bill, it would also provide criminal consequences for third parties who sought to profit from such material.

First of all, it's not nicknamed the Gawker Bill. I've been following both the Gawker lawsuits and various efforts to get revenge porn bills passed for years and until reading this article, I've never once heard anyone refer to it as the Gawker Bill. Even Rep. Jackie Speier has denied that anyone has called it the Gawker Bill.

On top of that, as mentioned, the bill is almost certainly unconstitutional. In the last few months we've seen a few state revenge porn bills dumped as unconstitutional, and should Speier's bill actually go anywhere, it too would almost certainly be declared unconstitutional too.

So now we have Thiel not just pretending to support the First Amendment, but he's both suing to kill a media property and supporting a law that is unlikely to live up to First Amendment scrutiny.

This is a step in the right direction. Protecting individual dignity online is a long-term project, and it will require many delicate judgments.

Those "delicate judgments" include suing a publication for accurately calling out a guy for pretending to invent email? Really? And for personally destroying the lives of reporters? Those don't seem like very good judgments. And, again, this sudden concern for "individual dignity" is coming from the guy who put the first money into both Palantir and Facebook.

We can begin on solid ground by acknowledging that it is wrong to expose people’s most intimate moments for no good reason. That is the kind of clear moral line that Gawker and publishers like it have sought to blur. But they can’t do it if we don’t let them.

I think it's wrong to try to stifle a free press. I think it's wrong to misrepresent the reasoning behind editorial decisions. I think it's wrong to pretend you support privacy when you're responsible for funding two multibillion dollar businesses built on doing the opposite.

Here's the thing: until all of this came out, I had a lot of respect for Thiel. I thought he was one of the more interesting and principled entrepreneurs out there. I thought that his views on investments and entrepreneurship were a lot more intriguing and insightful than many gave him credit for. But these actions and this bogus after-the-fact justification for his actions are just a bunch of cowardly bullshit. Thiel should just admit that he set out to destroy Gawker because he could. There's nothing principled or honorable about it.

Filed Under: aj daulerio, first amendment, freedom of the press, peter thiel, privacy, sam biddle
Companies: facebook, gawker, palantir

Nick Denton Bucks The Trend Du Jour, Thinks News Comments Are Worth Saving

from the baby,-bathwater dept

Last week, new New York Times public editor Liz Spayd said something completely and utterly crazy: she suggested that news outlets and websites should actually listen to and interact with their visitors in news comment sections. Given this is the age where most "enlightened" media outlets are now closing their comment sections and pretentiously pretending it's because they "value conversation," Spayd's comments were treated like the incoherent ramblings of a mad woman on some fronts, people claiming actually caring about readers was a form of "phony populism" and the "willfully naive" rhetoric of a bygone era.

But we've noted time and time again that by muzzling them or shoveling off your community to the homogonized blather of Facebook, you're pretty clearly saying you don't think your audience really matters. Countless editors refuse to believe this, by and large because nobody at a multi-million dollar media empire wants to actually have real conversations with the dirty plebeians they profess to be so selflessly dedicated to. The entire mechanism should be demolished, they argue, because commenters are mean and say bad things -- ignoring studies suggesting this can be easily fixed by giving a damn.

Nick Denton, likely overjoyed to talk about something other than Peter Thiel, last week indicated he's among this "willfully naive" minority that believes news comments are worth saving. Regardless of whether or not you like the Gawker empire, Denton makes it clear that maintaining communication with the company's customers is not only common sense, but embracing on-site comments makes money:

"The key is to distribute the moderation, to make every editorial team responsible for the discussions that their stories instigate. It’s not that hard—though it took several years and several million dollars for us to get it right. The commitment to quality discussions was one of the smartest decisions we made. In economic terms, we see a payoff not just in greater editorial leverage, but in time spent on page. On mobile, for instance, we outperform the other publishers by more than half: 81 seconds compared with a Google Analytics benchmark of 53 seconds. I think that’s largely because the pages are more interesting, for longer."

Again, it's worth noting that while Gawker spent a significant amount of money on its Kinja commenting platform with some mixed results, data has suggested that just having writers show up to talk can have a profound impact on the quality of comments. But Denton also focuses on the fact that stifling the inherent bi-directional communication nature of the Internet is just dumb, and many outlets just don't like comments because they advertise errors made in their reporting or commentary:

"Above all, this is just the way that Internet news should be. Why wouldn’t you want to tap the opinions and expertise of your readership? Unless you are embarrassed by them."

Despite all the media's bluster about social media being an adequate replacement for an "unsavable" comment section, the reality is many bigger media brands just don't like having real human beings pointing out when they're wrong in such an obvious and public fashion. If you've spent any time writing on the Internet, you probably know that the comment section, warts and all, is also stocked with some very bright people with wide ranging expertise who'll often provide invaluable corrections. Possibly right after they make a joke about your mom, but still.

Throwing out the entire concept of on-site comments because a jackass said something mean or pointed out you were wrong about something has never been much of a solution. Subsequently claiming you muzzled your customers because you wanted to "build relationships" and "value conversation" only informs these muted community members you also think they're all incredible, irredeemable morons. If that's the brand message you're actually pursuing in your quest to nab more advertising eyeballs? Phenomenal job.

Filed Under: comments, liz spayd, nick denton, websites
Companies: gawker

Peter Thiel's Gawker-Killing Lawyer Now Issuing Bogus Defamation Threats Over Story On Donald Trump's Hair

from the this-is-philanthropy? dept

Earlier this week we noted that Peter Thiel's legal vendetta against Gawker went way beyond just the Hulk Hogan case. In fact, it appeared that Thiel not only paid the lawyer, Charles Harder, to set up his own legal practice (without revealing to Holder who was really paying the bills), but basically sought to help pay the bills of lots of folks pushing legal claims on Gawker, no matter how tenuous. That included a questionable labor dispute (where even the plaintiff said he felt used by the lawyer) and a weird defamation case in which the court easily tossed out the defamation claim against Gawker, but the plaintiff, Meanith Huon, settled the claim against Above The Law (where his argument was marginally stronger), but appealed the ruling against Gawker, telling the court that he wasn't concerned about the appeal because he was "getting support from Hulk Hogan's lawyers in California." The deeper you look at the Huon case, the more ridiculous it seems. The Forbes report (adblocker blocker warning) noted at one point:

Harder didn’t even know who was funding the litigation until FORBES broke the news in May. What he surely did know: The checks cleared. And there was presumably more where that came from, if he could find more cases.

It would appear that the checks are still clearing, because Harder is threatening Gawker with yet another defamation lawsuit, this time involving a silly story about Donald Trump's hair. He's not threatening on behalf of Trump, but rather on behalf of the firm that the Gawker piece suggests may be "treating" Trump's hair, a company called Ivari International.

Gawker originally did not actually post Harder's threat letter, because it included a completely bogus claim that the letter itself could not be republished due to copyright:

This letter is confidential and protected by applicable Copyright law, and therefore may not be copied, published, disseminated or used by any person for any purpose, other than internally at your company and its outside legal representatives for purposes of evaluating the claims herein and complying with the foregoing demands.

We see these kinds of notices all the time, and know that you absolutely can republish such threat letters without fear of actual infringement, but as Gawker's reporter rightly notes, doing so might only give Harder yet another opportunity to pile on a questionable lawsuit. After some consideration, however, Gawker changed its mind and posted the letter. It's as ridiculous as you'd expect. It lists out 19 specific statements from the original article, which it claims are false and defamatory. At the very least, that's more advanced than most purely bogus threats that don't highlight exact statements.

Still, the key statements that Harder claims are defamatory are taken directly from other lawsuits against Ivari, and there's what's known as fair reporting privilege, which allows you to quote what's found in a lawsuit and not be liable as if you'd said it yourself. Many of the other statements are minor issues that hardly rise to the level of defamation in any sense of the term, let alone hitting the necessary standards of being done recklessly with malicious intent, as would be necessary for a defamation claim to succeed. Incredibly, in the very first item, Harder even changes a word to misrepresent what Gawker's article said. Here's from the Gawker article:

What’s more, Ivari’s New York location was inside Trump Tower—on the private floor reserved for Donald Trump’s own office.

Note the "was inside" statement? Here's the line that Harder claims is defamatory:

"What's more, Ivari's New York location is inside Trump Tower—on the private floor reserved for Donald Trump’s own office."

Notice a difference? That's right, in Harder's version he changes "was" to "is." Many of the other claims are of a similarly dubious nature.

Separately, Harder's letter claims this is a defamatory statement:

Ivari's business brochure refers to microcylinders as "microextensions."

Except... the Gawker article doesn't actually do that. Rather it just asks a question about whether or not the two things are the same:

At the very least, microcylinders would certainly explain how a 69-year-old man could grow hair with the capacity to effectively wrap itself around the circumference of his head several times over. Without having direct access to Donald Trump’s head, of course, it’s difficult to say for sure exactly how these attachments would function. Are they simply a web of additional hair as described in the Roach lawsuit? Do the microcylinders include what the Ivari brochure dubs “microextensions,” ensuring extraordinary length?

That's not what the Harder lawsuit implies Gawker said at all.

Then there are clear statements of opinion, such as the Gawker author stating that a hair treatment method from Canada "appears to be fairly similar to" Ivari's process. "Appears." In other words, it's an opinion, not a statement of fact. You can't sue over statements of opinion. There's the claim in the threat letter that Ivari "often depicts himself as a doctor." By itself, that claim could potentially be defamatory, but Harder leaves out that Gawker didn't actually say that. Rather it quoted a lawsuit that said that, and that's protected under the fair reporting privilege. The only other claim that could be possibly defamatory is one claiming that Ivari had its license suspended in California for tax-related reasons. Gawker's original story links to the California Secretary of State's website from which it pulled the records. It's possible that Gawker's reporting was wrong from its research, but making a good faith error hardly would rise to the level necessary for a defamation claim.

Gawker has also published its own response to Harder, which is worth a read.

I write in response to your June 9 letter in which you demand that an article about Donald Trump's hair be unpublished. You are requesting the retraction of an investigatory news article revealing information about the presumptive Republican presidential nominee that he might consider unflattering. Yet, you say your takedown demand is made on behalf of Edward Ivari. This is a vastly overbroad demand to be made for Mr. Ivari, who plays only a part in the article about Donald Trump. It's also a surprising demand to be made by Mr. lvari considering that he had ample requests from our reporter to contribute to the article, and because you take no issue with the central thesis of the piece that Mr. Ivari has worked on Donald Trump's hair. Further, you declare as libelous 19 statements in the article, all of which are from "lawsuits" or are innocuous on their face, such as the statement about the location of Mr. Ivari's office. Accurate descriptions from court records and non-defamatory statements do not create viable claims for libel and are not cause to "immediately and permanently" remove a news article.

Gawker also takes issue with the demand that the threat letter not be shared:

You also demand that your letter be maintained in secret. You declare it "confidential and protected by applicable Copyright law," and explain that this means it "may not be copied, published, disseminated or used by any person or for any purpose, other than internally at [Gawker Media] and its outside legal representatives for purposes of evaluating the claims [] and complying with the [] demands." We have never agreed to such confidentiality or to limitations on what purposes we may use your letter. It is understandable, as explained above, why you would want to keep the substance of your letter private, but it is still remarkable that you would try to prevent us from making it public. At least one litigation you are responsible for is part of an admitted effort to use the legal system to destroy Gawker Media, a controversy that has vast public interest and implications. The plan was effectuated confidentially for years until the press brought it to light. We will not voluntarily keep hidden your latest legal effort against us.

Gawker's letter further notes that if Harder provides any actual evidence of false statements, the company will correct them, but they note that nothing in the original reporting is false or inaccurate. Once again, the threat appears to be ridiculous, and little more than yet another questionable lawsuit to toss on the file against Gawker to bury the company in legal fees.

Thiel often claims to be about supporting big disruptions in technology. If he dislikes Gawker this much, why not fund competitors who will drown Gawker out of the market, rather than abusing the judicial system to have regular SLAPP-style threats made against a publication that he doesn't like?

Filed Under: charles harder, defamation, donald trump, donald trump's hair, peter thiel, press freedom
Companies: gawker, ivari

Also A Bad Idea: Gawker Exploring Lawsuit Against Peter Thiel For Tortious Interference & Racketeering

from the not-a-good-move dept

There ought to just be a rule that if you're even threatening to sue someone for "tortious interference" or "racketeering" that you should recognize that your claims are probably bogus and you should probably take a deep breath and think again. I've been quite clear that I have serious problems with Peter Thiel's aggressive campaign to bankrupt Gawker by funding a variety of (mostly specious) lawsuits, but I don't think the answer is to hit back with a similarly ridiculous lawsuit. However, Forbes (warning: adblocker blockers in play) is reporting that Gawker's lawyers are exploring a potential lawsuit against Thiel for tortious interference and racketeering:

“The lawyers are exploring whether this could be a case of tortious interference, racketeering or other potential claims,” said the source.

The thing is, these are the kinds of charges that you throw in to a case when you're just really annoyed at what someone or some company did to you, and you don't have any actual laws you can show they broke. I do think there could be an argument for some sort of anti-SLAPP law that allows companies to go after those financing questionable lawsuits for legal fees of such lawsuits, but expanding that to racketeering just seems extreme (and, also, very unlikely to succeed -- as Ken White has pointed out repeatedly, judges hate civil racketeering claims, as they recognize that they're frequently bogus).

So I'm all for looking for reasonable ways to prevent billionaires from overloading small publications with bogus legal fees, but I don't think making questionable arguments around tortious interference and racketeering are a reasonable approach.

Filed Under: peter thiel, racketeering, slapp, tortious interference
Companies: gawker

Peter Thiel's Plan To Destroy Gawker Went Way Beyond Hogan's Case

from the this-was-not-a-one-off dept

At this point, I've written a bunch of stories about Peter Thiel and his (largely successful) plans to bring down Gawker with lawsuits. I've made it clear why I think this is a bad thing -- and I've learned that many Techdirt readers disagree with me on that (though I appear to have won a few people over to my point of view after a bunch of discussions on this). Part of the issue, I believe, is that there are a few separate things at stake here, all of which get conflated and lumped together when it's important to look at them separately. There are questions about privacy violations, about the role and protections of the press, about the validity of financing lawsuits and about the way in which the judicial system works. I may try to unpack all of these in a separate post, but I did want to focus on one aspect that I find troubling that often gets dropped from the debate: and it's that this was not about financing one lawsuit against Gawker, but about finding any way to bring the company down.

Leaving aside, for now, the question of the Hogan lawsuit, it's becoming abundantly clear that Thiel's plan was to find any way possible to destroy Gawker through lawsuits. That link goes to a much more detailed report at Forbes (yes: warning that it hates people who use ad blockers), describing how Thiel's efforts here more or less financed an entire law firm to focus on hunting down anything to attack Gawker over. The article reports that someone working for Thiel approached the lawyer Charles Harder while he was working for another law firm. Soon after, Harder left to launch his own firm -- and his first client was Hogan and the first case against Gawker. And since then, Harder or Harder's fingerprints have shown up in a variety of cases involving Gawker, including labor cases:

Enter the new attorney, Harder, who has made pursuing Gawker a focal point of his new firm, Harder Mirell & Abrams. According to a former employee of Harder’s, someone in Thiel’s camp cold-called Harder at his previous law firm, Wolf Rifkin Shapiro Schulman & Rabkin, “looking for an entertainment lawyer.” By mid-October 2012 Harder had taken on Hogan as a client. Two months later, even though he was a partner at Wolf Rifkin, the 46-year-old with a southern California tan and bleach-white smile left to set up his own shop, taking the wrestler’s case with him. When Harder announced his new company in January 2013, he made his firm’s first filing on behalf of Hogan.

[....]

Beyond Hogan, who filed a second suit against Gawker in May alleging extortion in the dissemination of his sex tape, Harder has taken on at least two other clients with cases involving Gawker’s reporting. In January 2016 Harder filed suit against Gawker on behalf of Ashley Terrill, a writer who originally came to Gawker with a story involving the cofounders of dating app Tinder. Gawker writer Sam Biddle, in turn, published an unfavorable piece on Terrill, highlighting her own alleged inconsistencies and personal issues.

Harder also represents Shiva Ayyadurai, a former lecturer at the Massachusetts Institute of Technology who claims to have invented e-mail. In 2012 Biddle published a story on Gizmodo that undermined that assertion and called Ayyadurai a fraud.

Now we've already discussed in great detail the sheer ridiculousness of Ayyadurai's case, because as we've explained a bunch of times, Ayyadurai didn't invent email. But the Forbes article notes even more efforts by Harder to help anyone attacking Gawker -- sometimes with somewhat questionable means, including leading one person to feel used:

Dating back to January 2013–the same month Harder Mirell was formed–e-mails obtained by FORBES show that Harder was actively vetting unpaid interns for a labor case against Gawker. A former journalist named Phil Linsalata was e-mailing former Gawker interns at the time, saying that he was working on academic research “focusing on labor conditions in digital media.” After speaking with them on the phone, he would then send them to Harder’s firm for what he framed as a free “consultation.”

A former Gawker intern named David Matthews even signed a retainer agreement with Harder Mirell. Ultimately Harder passed the interns off to a New York-based law firm specializing in labor claims, which brought a class action against Gawker in June 2013 that was dismissed and later privately settled. Matthews claims that the lawyers misrepresented their intentions and now says he feels “the sense of being a pawn or an item in a ledger.”

The article also notes another lawsuit, filed by Meanith Huon, against both Gawker and AboveTheLaw for defamation. According to Forbes, Huon agreed to settle the lawsuit against ATL, but continued the one against Gawker on appeal (after the defamation claim was tossed out of court) because he was receiving financial support from Harder:

In a hearing last year Huon said that he had decided to settle with the former–but continue his crusade against Gawker in a higher court even after a judge dismissed claims of defamation. According to Steve Mandell, an attorney for Above the Law who was present at the hearing, Huon told the judge in open court that he wasn’t worried about his appeal because he was “getting support from Hulk Hogan’s lawyers in California.”

One oddity in all of this: Harder apparently never knew that it was Thiel financing all of this -- just that someone was willing to pay them to basically find any lawsuit to help burden Gawker. I'm not against the idea of third parties funding lawsuits. I see how that can be very helpful in many situations. But you have to recognize that this was not just about funding Hogan's lawsuit, but about funding a series of cases -- many of which appear to be highly questionable and done with highly questionable motives -- solely to burden a publication that Thiel disliked. That's what's so concerning about this.

And we've seen how this can impact others as well. Less than a year ago we wrote about a billionaire that not only filed a bogus defamation lawsuit against Mother Jones, but also had offered to fund others suing the site -- even after the defamation claim was thrown out. Merely defending that lawsuit cost Mother Jones and its insurance company over $2 million. Leaving aside the reasonableness or not of the Hogan verdict (we'll get to that later), the idea that this entire law firm was propped up to support basically any and all legal actions against Gawker -- not for purposes of getting justice, but clearly with the sole intent of taking down the company -- should raise many concerns.

Filed Under: anti-slapp, charles harding, lawsuits, peter thiel, shiva ayyadurai, slapp
Companies: gawker