Irina Manta: Privacy v. Freedom of the Press

The topic of the panel was the conflict that
we have to some extent between our desire as a society to protect privacy, uh, but also
to have a free press. And so, one of key questions we were answering
is whether we should have more regulations in the age of new sites, such as Gawker, and
others. The concern, uh, that people have, uh, is
that we are going to either allow for people’s privacy to be violated, and for certain details
about their lives to be disclosed on the internet forever and that they can never get rid of,
and can never repair. Or on the other hand, that we are not going
to be able to, uh, to protect speech. I came out on the side of saying that we should
have no more regulations than we currently do because the common law is able to deal
more flexibly with the kinds of questions that arise. Hulk Hogan was the subject of a sex tape,
uh, when he had an extramarital affair with his best friend’s wife. And his best friend ended up disclosing that
tape to Gawker, and Gawker showed a 30-second excerpt from the about half hour tape. Hulk Hogan sued, uh, claiming that this had
been an [invasioning 00:03:08] to his privacy, and making other claims, and he won at the
trial court level, because the trial court, court held that this was not a, uh, a news-worthy
event, uh, and awarded him 140 million dollars. The cost of, uh, of the settlement, and in
of this entire lawsuit ended up, uh, bankrupting Gawker. Right now, the courts mainly focus on whether
an event is newsworthy, uh, to see whether it’s something that the press can report on,
and I think that that’s, uh, sufficient, uh, and, uh, even though that the facts are often
complex, it’s the best way to address it, and it is in fact, the type of framework that
will maximize the kinds and quality of choices that people can make in our society. At times, people think that if we only had
regulations, the rules would be clearer. In the law, there is a big debate in a number
of, uh, subfields, uh, between whether we should have rules, or have standards. Rules set out ex-ante what behavior is acceptable,
and what behavior isn’t, and while it provides a greater degree of notice to individuals,
it also takes away from the flexibility of judges to deal with very specific facts. Standards pretty much have the opposite advantages
and disadvantages. Individuals don’t always know what is going
to be acceptable in advance, but courts can adapt more flexibly to individual circumstances. And what we currently have here is more into
the standards’ area, and I believe that it has to. Regulations run the risk of being either over-inclusive,
or under-inclusive, and, and so is pulling us too hard either in the direction of, uh,
hurting privacy or to too hard in the direction of hurting free speech.

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