Celebrity Sex and the Gawker Case

Celebrity sex is in the news again with the bankruptcy of Gawker after the multimillion-dollar lawsuit brought against it by Hulk Hogan. It is unlikely, however, that the success of the Hogan suit — which was recently settled for $31 million — will lessen the public’s interest in celebrity sex. Apparently many people get their jollies from seeing famous people engaging in sex, and some celebrities even encourage such voyeurism.

We must be careful, however, to distinguish among the different kinds of celebrity sex. First, there are celebrities who deliberately make sex videos and distribute them in order to enhance their popularity and their careers. The distribution may be overt or subtly leaked, but any celebrity who actively participates in the public dissemination of a sex film has no grievance, though some feign outrage in an effort to have it both ways.

Second, there are celebrities who willingly partake in sexual activities, agreeing to have themselves filmed by their partner in the expectation that the videos will be kept private. The partner then breaks the promise and leaks the tape, either in revenge or for money, in an attempt to bolster his own career. In that case, the grievance is with the partner, and there may be a potential lawsuit against him or her with megabucks recovery, if the video is widely distributed. If one partner tries to blackmail the other, it may even be a crime. Some states have recently criminalized such “revenge porn.”

Third, there are cases where neither party is aware that their sex act is being surreptitiously filmed by a third party. That is a crime in many states and a civil tort (i.e., wrongful act) in every state — also with possible megabuck recoveries.

Fourth, there is the rare case where government surveillance may incidentally include a videotape of an amorous couple. In that case, the government has no right to reveal that tape, unless it is relevant to a criminal trial. It is widely believed that J. Edgar Hoover’s FBI made secret audio recordings of Martin Luther King Jr.’s extramarital activities and threatened to make them public, but I haven’t heard of any comparable abuses in recent years.

Fifth, there are the fake celebrity videos that superimpose the faces of celebrities on the bodies of porn actors in order to create the illusion of a celebrity sex tape. I had such a case many years ago in which I represented a prominent actress who was furious when she learned that a fake sex photo was being circulated. Ultimately, she decided to not file a lawsuit, which would have called more attention to the photo.

Sixth, there are celebrity look-alikes who take advantage of their doppelgängers by making sex tapes and marketing them as the real thing. The real celebrity may have legal recourse, but is unlikely to pursue it. If the video leaves it to the imagination of viewers to make a connection to the celebrity, there would be no legal consequence.

New technologies always bring new legal problems. When celebrities are involved, the problems are more likely to be addressed by the law.

Finally, if either or both participants are underage, the distributor of the video or photo may be guilty of disseminating child pornography, which is a serious crime.

The fact that a celebrity is the subject of a pornographic video does not generally change the legal consequences, though it will likely bring more attention to the issue, as the filming of Hulk Hogan did. A celebrity victim may also generate a legislative response from politicians hoping to reap the benefits of publicity associated with celebrities.

There should be laws protecting the privacy of all people who are victimized by unconsented distribution of recordings of their sexual activities. What constitutes “consent” in the context of videotaped sex acts may sometimes be a matter of degree: Consent to be videotaped does not constitute consent to have the video publicly distributed. This issue will likely become more widespread as more and more people record their sex lives. The pervasiveness of sexting — including emailing nude photos, sometimes by underage kids — will also make it easier for recipients to take revenge, or to try to blackmail the senders.

People who make and send videos or selfies should be aware of the risk that the recipient may make public that which was intended to be private.

New technologies always bring new legal problems. When celebrities are involved, the problems are more likely to be addressed by the law. The bankrupting verdict in the Hulk Hogan case is likely to deter some companies and individuals from doing what Gawker did, but others will persist while the law tries to catch up with technology. That is what we are experiencing today. It is a work in progress. Stay tuned.

PHOTOS: GETTY IMAGES / JOHN LUND / COMPOSITED PHOTO