Sunday, September 29, 2013

A rat in the cellar

Last month, the Charlotte Observer reported that Gawker was unsuccessful in getting a libel suit dismissed.  The plaintiff in this case was an 18-year-old girl who'd recently graduated from Lake Norman High School.  Her senior yearbook had published a photo in which her upper thighs were visible beneath a graduation gown.  A parent who saw the photo freaked out, mistakenly thinking the student was flashing the camera.

A local station, WSOC-TV, picked up the story, followed by Gawker.  Gawker didn't help matters at all, calling the yearbook a "crotchbook" and using a screenshot from WSOC-TV which wrongly suggested the girl was lifting her gown.  WSOC-TV later retracted their story and issued an apology, however when Gawker was asked to do the same, they of course refused.

And so the girl sued.

The article in the Observer also included part of an e-mail sent to them last year by Gawker's attorney, Cameron Stracher, who was explaining why Gawker's actions weren't a big deal:
"...Gawker merely reported the controversy, never identified the girl, and the only ‘altered’ photo it posted was a smaller version of the original yearbook photo with a black bar obscuring the girl’s face and thighs that had already been published by (WSOC-TV)." 
The part that caught my attention is where Stracher said the student was never identified.  I wondered whether, hypothetically, showing the girl's face would've counted as "identifying" her.  I downloaded the PDF of the judge's order, and noticed this line in the "Analysis and Discussion" section:
"Defendant has responded with a general denial of all allegations in the complaint, and asserts...(3) the article never identifies Plaintiff by name, face, or circumstance, and thus cannot be “of and concerning” her, thus precluding an action for libel per se..."
It's true that Gawker never identified the student by her name.  And the writer, Neetzan Zimmerman, did not post a photo showing her face.  However, if you go read the story in question, and scroll down to the comments section, you'll notice something interesting.  The very first comment, made by Gawker user rraattbbooyyy, shows the girl's face plain as day.  The upstanding rraattbbooyyy writes:
"Because you know you were going to Google it anyway, here's a link to the NSFW-slash-optical illusion photo.  Doesn't look like bunched together thighs to me, but then it is a bit fuzzy."
(To clarify:  He wasn't really sharing a link.  Rather, the photo was embedded in his comment for everyone to see.)

The comment was posted back in May of 2012.  Erasing a comment isn't a lengthy process, and I presume John Cook or A.J. Daulerio could have zapped it within seconds had they chosen to.  Yet the photo remained up even after the girl filed her lawsuit last September in which she claimed emotional distress.  It remained even though the girl specifically said she'd been harassed and ridiculed by strangers because of the story.  So Gawker clearly has no issue with having the girl's face displayed on their site, as long as it was a commenter who posted the photo.  It's a weird little distinction.

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