The Gawker-Hulk Hogan trial and the horror of work chats that stick around forever


This week, Hulk Hogan’s multi-million dollar lawsuit against Gawker for posting his sex tape finally went to trial. The Florida jury trial, with its testimony on penis size and extramarital sex, is almost as NSFW as the video itself, an excerpt of which Gawker posted in 2012—and then took down after being sued. But what was really on our minds watching the proceedings via livestream is the reminder that every time you send an email to a coworker or type a message in an intra-office chat room you should imagine that someday your words will be read out loud in open court.

A quick refresher for those not in on the legal Hulkamania: In 2012, Gawker posted an excerpt of a surreptitiously-recorded video of Hogan having sex in 2006 with Heather Clem, the now ex-wife of his friend, a radio jockey who goes by the name, Bubba the Love Sponge. Hogan (real name Terry Bollea) sued Gawker Media (as well as owner Nick Denton and former editor A.J. Daulerio, who wrote the post accompanying the video) for $100 million.

Tuesday’s session ended with the court watching a videotaped deposition of John Cook, who was a reporter at Gawker when the tape was posted and is now Gawker Media’s Executive Editor.

In 2012 Gawker used Campfire, a group chat program, for intra-office communication. That’s not unusual; a lot of companies used Campfire, and many more now use it or something like it, such as Hipchat or Slack. As part of their preparation for the trial, Hogan’s lawyers were allowed to search Gawker’s computers, as well as their emails and chat transcripts, for relevant information.

That led to the part of the deposition played yesterday, in which Cook was asked to explain a number of jokes and photos surrounding discussion of the sex tape in Gawker’s Campfire chat. Among those was a joke about a “really tender leg drop,” which Cook had to explain was a double entrendre for a wrestling move and sex, and another joke by A.J. Daulerio about Hogan’s penis “wearing a little do-rag.”

Cook described the jokes as “workplace humor,” according to Anna Phillips, a Tampa Bay Times reporter who is live-tweeting the trial.

And then, Cook was asked to explain why he posted a screenshot from Andrew Sullivan’s blog that included a photo of an uncircumcised penis into the chat:

Cook had to explain that he and his colleagues had a running joking about the oddness of Andrew Sullivan posting the photo on his blog. Removed from context in a deposition played in a court four years later, the joke fell very flat. Here’s the back-and-forth:

Lawyer: Was it common at Gawker to share pictures of penises with colleagues? Is that something that happened on a regular basis?
Cook: No.
Lawyer: Well, I’m sure that’s true. At Gawker was it considered appropriate in your mind, to send a picture of a penis?
Cook: So this was published on the internet? On one of the –
Lawyer: No. I’m asking yes or no, I’m not asking-
Cook: Was it appropriate for me to put this image into Campfire as a joke? Yes I believe it was.

What feels natural in the privacy of your chats doesn’t always translate well in the public eye, and that’s a problem, because more of us than ever are creating these transcripts of our casual, off-hand remarks at work. According to VentureBeat, internal messaging platform Slack now has 2 million daily active users (disclosure: Fusion’s employees, myself included, are among them). Gawker’s old platform, Campfire, has 100,000 users. Slack competitor Hipchat doesn’t disclose user numbers but billions of messages were sent through it in 2015.

While people are mostly aware that emails can come back to haunt them, caution seems to be thrown to the wind when it comes to real-time chatting. At a geographically-spread out company (like Fusion), internal work chat platforms are critical for maintaining interpersonal ties in the workplace, but then they wind up capturing the informal, intimate conversations you’d usually have in person. While the jocular, casual nature of instant messaging makes it easy to make irreverent jokes or engage in shit-talk, it’s crucial to remember that those messages get saved—and could come back to haunt you in the event of a hack or, worse, litigation.

Campfire’s privacy policy discloses that they may share information to prevent or investigate a number of illegal activities or “as otherwise permitted or required by law.” Likewise, Slack’s policy dictates that, by default, messages are retained by Slack, although it is possible for paying teams to change the settings such that the messages are deleted relatively quickly, so that they’re deleted after a “day, week, or month.”

The internal culture of plenty of companies means that coworkers are friends and make jokes. That’s great, and probably makes for better work environments, but there are problems with the water cooler getting digitized. Former Gawker reporter Max Read, whose “tender leg” joke made it into trial, explains in New York Magazine:

The rise of workplace chat software — Slack, HipChat, Campfire, and even Google Hangouts — has been a boon to many tech and media companies. Lowering the threshold of communication eliminates productivity-costing energy expenditures like “standing up and walking over to someone.” Problems can be dealt with more efficiently, questions can be answered more quickly, and gossip can flow much more freely than ever before.
Which might be fine, if all that gossip wasn’t being archived in a searchable database. We’ve gotten so used to talking with our co-workers over Slack that we tend to forget it has an essential difference compared with in-person conversations: permanence.
The ephemerality of face-to-face communication is a feature and a bug. The usefulness of being able to search your conversations with your boss to figure out exactly what he’s asking for turns into a major liability when it also includes you bitching with co-workers about him in a private chat.

Remember that at some point those logs might get found by a boss, or in discovery, or subpoenaed, or otherwise made available to the court and the public. Then you too may find yourself explaining why you posted an uncircumcised penis, a stupid Hamilton GIF, or a racist joke. You don’t want that.

Ethan Chiel is a reporter for Fusion, writing mostly about the internet and technology. You can (and should) email him at [email protected]

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