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Suing for Silence: Thiel v. Gawker

Let me begin what may prove to be a controversial post on the battle between billionaire entrepreneur and venture capitalist, Peter Thiel, and the irreverent online publication and media holding company, Gawker Media, with a full-throated commitment to freedom of expression.

Throughout my 19 years at Reuters and beyond, I have zealously defended the right (indeed the necessity) of journalists to report the truth in the face of threat, opposition and all-too-often physical violence. While I have often disliked (and at times felt deeply aggrieved about) individual articles written about friends or me, I prefer to live in a world in which society and the courts err strongly on the side of freedom of expression over the protection of personal privacy and discomfiture.

The Thiel v. Gawker feud has generated much heat, light and media comment following revelations that Peter Thiel spent $10 million to finance Hulk Hogan’s lawsuit against Gawker for posting an unauthorized video of the former pro wrestler having sex with a friend’s wife. Many commentators have expressed the concern that a new chill will descend on journalists and their publications if other aggrieved billionaires follow Peter Thiel’s lead and search for lawsuits to bankroll against the media they feel have done them wrong.

I’m not so worried.

I believe the Gawker case has drawn so much attention because journalists love no subject as much as writing about other journalists, because Peter Thiel is a controversial figure, and (mostly) because many commentators have conflated a series of separate ethical and legal issues into a single one pitting the power of money versus press freedom. While that tension certainly exists in the US and elsewhere, Gawker is not that case.

seeking revenge isn’t pretty, but when pursued via writ rather than violence it is not a mortal sin

That Peter Thiel has a vendetta against Nick Denton and his stable of present and former publications is neither novel nor germane. Lots of wealthy and powerful men have been at odds with the more lurid fringes of the press, from Lord Browne’s tangle with the Daily Mail to Max Mosley’s successful litigation against News of the World. What distinguishes Thiel is that he not only has pressed his own claims but has reached out to finance the claims of third parties such as the wrestler Hulk Hogan in the current controversy.

There are three key elements at play here that we must untangle: 1) Rich guy is ticked off by publication and wants revenge. 2) Did the jury err in awarding the adulterous wrestler $140 million in damages against Gawker? And 3) Should we permit third parties to finance the lawsuits of others?

Thus untangled and simplified I do not find this to be a difficult legal or ethical case - whatever one may think of the controversial Peter Thiel or Nick Denton of Gawker.

First, seeking revenge isn’t pretty, but when pursued via writ rather than violence it is not a mortal sin. Second, the relative merit of Hulk Hogan’s claims is the core issue. If the jury erred in awarding such large damages against Gawker that it threatens the future of the group, the remedy lies in seeking an appeal to a higher court, not in demonizing the motives of the third party who financed the litigation. Third and finally, there is nothing wrong with Peter Thiel providing the funds to bring the Hogan lawsuit, whatever his motive.

To underscore this last point let’s imagine a less contentious lawsuit. What if the victim of a mugging raised money from his friends and family to sue his assailant for battery? I doubt there would be an objection from any quarter that it was somehow unfair to the mugger that his victim did not finance the lawsuit himself.

Thus, I believe what the commentariat finds objectionable is either the identity of the financier (Thiel) or the possibility that under the law a publication could be bankrupted by a large court judgment or well-financed campaign of nuisance lawsuits. While, as stated above, I believe libel and privacy laws should be interpreted to provide maximum leeway for the freedom of expression, I nonetheless believe that the nature and provenance of litigation funding is irrelevant. As for the possibility that wealthy individuals or organizations can finance non-meritorious nuisance litigation, the solution lies in judges using existing legal tools such as summary judgment motions to ensure that the legal process is not abused, not in dictating who may pay for what.

Peter Thiel v. Nick Denton makes for good copy, but not good law.

Tom Glocer was formerly chief executive of Reuters and the first CEO of the merged company Thomson Reuters. This column was first published on his personal blog. It is reproduced here with his permission. ■