Hulk Hogan vs. Gawker Trial (Day 5): Sexed up figures?

The day started with Hulk Hogan's lawyer Shane Vogt introducing as evidence the following stories from Gawker Media websites:

These articles were used to illustrate Gawker's hypocrisy by Vogt, as he then juxtaposed to discussing how A.J. Daulerio had handled a request to remove a video of a drunk college girl having sex in a bathroom stall from Deadspin. Daulerio initially refused to do so and his email responses to the victim were condescending:

"Blah, blah, blah."

"Saw your messages. Thing is, we're not going to take it down. Best advice I can give you right now: do not make a big deal out of this because, as you can tell, the footage is blurry and you are not identified by name. I'd keep it that way. Plus, this is public. Not much wiggle room for any real threats. I'm sure it's embarrassing, but these things do pass. Keep your head up."

"It's not getting taken down. I've said that. And it's not a very serious matter. It is a dumb mistake you made. Happens to the best of us."

It should be noted that Daulerio told GQ in 2011 that he regretted posting the video in question because "it wasn't funny" and "was possibly rape", and that according to Tom Kludt of CNN Money, a spokesman for Gawker disputed that Daulerio had sent an email with the phrase "blah, blah, blah" to her, saying it was "false and did not happen."

Vogt then introduced his first expert witness of the day, Shanti Shunn, who specialises in digital marketing and information architecture. Shunn was paid to estimate the number of times the Hogan sex tape footage was viewed on the various websites it had been uploaded to. Based on screenshots before the videos were taken down, Shunn claimed that the clips were watched at least 99,149 times on YouTube and 4,452,266 times on other sites. That wasn't counting the estimated 2.5 million views on Gawker.com itself. Gawker attorney Michael Berry tried to imply that these figures could have been inflated for various technical reasons, but even so, I'm sure it was clear to the jury that a lot of people had watched Hogan having sex with Heather Cole.

I went to cover a celebrity sex tape trial and a web analytics conference broke out #hulkvsgawk

— Tom Kludt (@TomKludt) March 11, 2016

Vogt made sure to point out in response that "there could be 10 people standing around a computer in an office watching this video of Mr. Bollea naked and having sex" which Shunn agreed with. I'm not sure there are many workplaces where that type of behaviour would be commonplace in, although I get the point of that question.

Vogt then called his final witness, Jeff Anderson, an expert in the valuation of intellectual property including websites. Although he was clearly intelligent and well prepared, his research seemed of dubious quality. Based on a comparison with similar websites and Gawker.com's traffic statistics, Anderson estimated that the website was worth about $232 million immediately prior to the Hogan article being written by Daulerio and at the time it was removed in April 2013 it was worth $54 million more due to an increase in unique visitors to the site over that time period. Anderson then argued that the Hogan story had increased the value of Gawker.com by a minimum of $5 million, but the true likely value was $15.4 million, due to the traffic it had brought to the site.

Berry did a good job of picking holes in Anderson's analysis. He pointed out that using monthly unique visitors to value a website leads to an inflated valuation and is rarely used in commercial deals. Anderson was even forced to admit that he wasn't aware of any other instance where his methodology had been used to measure a website's increased value based on a single post. Berry also criticised the choice of some of the sites Anderson had deemed comparable to Gawker, like Grandparents.com (that does seem like a bizarre choice on paper) and Buzzfeed.

A key excerpt from Gawker’s motion to exclude the "expert testimony" we just heard from Jeff Anderson. #hulkvsgawk pic.twitter.com/ZjllSMejsE

— David Bixenspan (@davidbix) March 11, 2016

That wrapped up the prosecution's case. Gawker's defence will start on Monday.

The day ended with Judge Pamela Campbell declining several Gawker motions, the most important of which was denying that Nick Denton be removed as a defendant from the case. Gawker's argument was that Denton didn't have a role in posting the video and thus can't be held personally liable.

According to Kludt's CNN Money piece, Hogan's lawyer David Houston is licking his lips at the opportunity to put Daulerio on the spot and has found Gawker's freedom of the press defence "disgusting":

"Frankly, we felt it was prostituting the First Amendment to even utilize it as a defense," Houston told CNNMoney. "I think others have said it was disgusting. I would agree with that."

Houston said the "slam dunk" came on Wednesday when jurors were shown a deposition in which Daulerio flippantly said he'd only draw the line with a 4-year-old celebrity's sex tape. Gawker clarified that Daulerio was being sarcastic, but Houston called that explanation "absurd."

Houston said he is looking forward to cross examining Daulerio.

"We will enjoy exploring a number of things with Mr. Daulerio on the stand, and we believe they will certainly regret that move," Houston said.