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The law shouldn’t rely on good behavior from Billionaires

Gawker is the internet’s most slimy news organization, a online website that has no qualms disclosing people’s sexual infidelities regardless of the cost such disclosures have on their personal lives.

So for most people, seeing WWF superstar Hulk Hogan win a lawsuit against Gawker to the tune of $140 Million dollars was a real sight for sore eyes. But when it was revealed that Hogan was funded by Billionaire Peter Thiel, the internet suddenly lost its damn mind.

Peter Thiel is a giant of the Venture Capitalist industry, a co-founder of Paypal, and an early investor a Facebook he’s earned his VC hall of fame status, but despite all his successes he’s remained deeply private. His feud with gawker started way back in 2007, when Gawker published an article (not linked to here), claiming he was ‘totally gay’.

Thiel didn’t earn his Billions sitting on your arse, and so he turned his laser intellect and vast resources to enact revenge on gawker for the personal grief and hurt the online publication caused him.

He launched a ‘proxy war’ against gawker, using a Wrestler (of all things), and going straight for the jugular. If gawker loses the appeal, the hundreds of millions in damages it must pay to Hulk Hogan would bankrupt the company, so claiming Gawker is literally fighting for its life is not an understatement.

Essentially, Peter Thiel may have pushed Gawker to bankruptcy with nothing more than pocket change and a retired WWF superstar.

The fact that a Billionaire could potentially shutdown a news outlet (even one as disgusting as gawker) is appalling and goes against the grain of that most cherished of Constitution amendments. The first thing the founding fathers of that great country chose to amend in their constitution was a guarantee for Freedom of Speech, and while the law may be in effect–it isn’t effective– especially against someone with ridiculous wealth on their side.

To most non-Americans this seems a bit odd. After all, isn’t America the land where everyone sues everyone, and where the legal system is choked to the brim with cases of people suing McDonalds because the coffee was too hot.

So allow me to correct some misconceptions.

While America is choked full of Libel and Slander suits, a Supreme court case in 1964 made a clear distinction if the victim was a “Public Figure”, setting the bar to an almost impossibly high standard.

If you’re a Public Figure, suing someone for slander or libel is damn near impossible, because you have to prove the statements were made with ‘actual malice’—that is with reckless disregard to whether it was false. Needless to say, trying to prove someone did something is easy, trying to prove they did it with ‘actual malice’ is not.

In fact, it’s ridiculously difficult, Hulk Hogan’s legal bills ran up to $10 million US dollars, and even a successful show person (yes, folks Wrestling isn’t real) like Hulk Hogan can’t afford that sort of funding.

And not to get too political, but if our ‘beloved’ Prime Minister ever decided to sue the Wall Street Journal, he’ll have to prove the ‘actual malice’ component as well, something it seems only Hulk Hogan and $10 million dollars have succeeded in doing. Suing the Wall Street Journal may send a political message, and a signal confidence, but legally speaking it will end up nowhere, unless Najib has $10 million–oh wait, he does.

But for those defenders of the first amendment who are so adamantly opposing Peter Thiel’s proxy vendetta, aren’t you missing the point?

The law shouldn’t depend on Billionaires behaving well–it should be water-tight to the point where even Billions isn’t going to get anywhere. If your legal system is at the mercy of a the top 1-percenters behaving, you’ve got a pretty shitty legal system.

Fortunately, Gawker would most likely succeed on appeal, and all should be well in the world, but shouldn’t this indicate that stronger and higher bars be set for court cases regarding public figures.

In Malaysia of course, this bar is far lower, which explains why many politicians have already sued news outlets and succeeded. Shouldn’t this indicate to us as well, that our laws need to be strengthened to allow for freedom of expression?

Many don’t believe this of course, because few Malaysians believe in having a truly robust freedom of speech framework. We still would like a few ‘clauses’ here and there to prevent hate speech, and political speech and ‘sensitivities’.

But unless we open up the marketplace of ideas, the rich and powerful will always dictate the narrative.

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Ben Thompson wrote a great piece in Stratechery that put this story in a fascinating perspective:

Thiel made the largest part of his fortune by investing in Facebook, where he still sits on the board. Facebook specifically and the Internet broadly has made it possible for sensationalistic rags like Gawker to exist, even as it has fundamentally weakened journalism by destroying the geographic monopolies that guaranteed the financial freedom to comfort the afflicted and afflict the comfortable. Thiel as the personification of the tech industry is very much the superhero looking to remedy a problem he created.

In the same vein, Jeff Bezos, a similar Billionaire to Thiel is single-handedly keeping the Washington Post alive. So it seems the media is now in the hands of billionaires, and only they can keep alive what only they can kill.

Interesting.

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