For anyone following sports reporter Erin Andrews’s court case during the last week, there’s no doubt that she was deeply harmed after her privacy was invaded through a hotel peephole and a nude video of her was posted to the Internet by a stalker that quickly spread around the world. It’s also clear in her recent, tearful testimony, that eight years after the incident, her pain has not abated one iota.
In recalling a phone conversation he had with her that day, Steve Andrews, her father, testified, “She is hysterical and out of control screaming, and I couldn’t understand what she was talking about. … She kept screaming, ‘I am on the Internet! I am on the Internet! I am naked! I am naked! Everything I worked for is gone.’”
Here's Andrews in her own words.
As Chad Finn points out in a column for The Boston Globe, “It has been beyond jarring to hear Andrews’s testimony, in part because it jostles memories of the creepy and terrifying invasion of privacy she endured on more than one occasion.”
When the FBI asked her to watch the video in question to help build the case against the stalker, Michael David Barrett, in 2008, she vomited.
On Monday, a jury agreed that Andrews’s privacy was irreversibly harmed – by both the stalker and the Nashville-based hotel that allowed the stalker to purposefully book the room next to hers – and awarded her $55 million in damages. Though she had asked for $75 million in her lawsuit, the monetary damages awarded in this case demonstrate that personal privacy and dignity have significant value in the United States.
To put the jury’s award in context, a wrongful death award tends to come in at a fraction of Monday’s award. Sports Illustrated Legal Analyst Michael McCann noted,
Erin Andrews receiving $55 million is stunning. Jury sending a message. By comparison, average award for wrongful death is about $3 million.
— Michael McCann (@McCannSportsLaw) March 7, 2016
At the time, and privacy invasion aside, Andrews’ reputation was unfairly questioned by some in the public and by her employer. In her testimony, Andrews said that her then employer – ESPN – required her to give a sit-down interview before allowing her back on the air. “Probably for like three months, everybody thought it was a publicity stunt,” she testified. “The front page of the New York Post said, ‘ESPN Scandal.’ To Fox News and CBS, everybody put up that I was doing it for publicity and attention, and that ripped me apart.”
As the Globe’s Finn points out, regardless of the jury’s decision, “anyone in possession of a modicum of sympathy” would recognize that “damage was done, and the damage was amplified by a cruel skepticism regarding her motives.”
A quick Google search on this will reveal the cynicism and lack of sympathy for many on the Internet.
The attorneys representing Marriott in the case, argued the incident didn’t hurt her career, but as her father pointed out in testimony, it hurt her. And that's enough. “She is afraid,” her father said. “My daughter has been scared for eight years. For eight years she has been terrified that there is something else out there – that there is someone else looking for her. … She doesn’t trust anyone. She is a shell of the person she was before this happened.”
It's good to see a jury agree that this kind of personal harm is just as damaging as some kind of career derailment.
Fortunately, we’re also seeing other courts in North America award victims of nonconsensual pornography monetarily. In January, an Ontario Superior Court awarded Jane Doe – a woman who was only 18 when her boyfriend at the time posted a nude video of her online – a precedent-setting award of $141, 708.03. The case is the first in which a revenge porn victim has received compensation in Canada.
The judge in the case, Justice David G. Stinson, said he hope it sends a strong message. “Society has been scrambling to catch up to this problem and the law is beginning to respond to protect victims,” he wrote, adding, “While this case may be novel, it should serve as a precedent to dissuade others from engaging in similar harmful conduct.”
Privacy lawyer David Fraser said the ruling imported a U.S.-based tort related to the digital expectation of privacy. “It’s the first time that tort has been used and it’s also the first time I’ve seen a civil case for damages for something like revenge porn,” he said.
In a different case now underway, former wrestler Terry G. Bollea – better known as Hulk Hogan – is suing media outlet Gawker for $100 million for publishing a sex tape of him. Though his case centers on whether a media outlet is constitutionally protected to publish something it considers as newsworthy, it could make the line less blurry between what’s newsworthy and what kind of privacy a public figure can expect.
Of course, these cases also call to mind Europe’s right to be forgotten. Just as Google this week has begun honoring takedown requests on all versions of Google from those whose takedown request originates in the EU, we now see courts in North America recognizing the monetary value in digital privacy invasions. Perhaps there is a middle ground where the U.S. First Amendment can meet with the right to be forgotten, based on some of these ideas of human dignity.
Hopefully these cases will curb the invasions women like Erin Andrews, Jane Doe, and countless others have faced, and though nonconsensual pornography will never be completely wiped out, it’s clear that people are being harmed by the loss of their privacy, and that this idea is gaining traction in the legal system.
Perhaps these cases will pave the way for more legal recourse and accountability.
— Erin Andrews (@ErinAndrews) March 7, 2016
Video courtesy of Reuters.
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