Story About Ex-Sony Pictures Boss Magically Disappears From Gawker; His Lawyer Tells Reporters Not To Talk About It

from the right-to-be-forgotten? dept

Can people use a bankruptcy proceeding to create a "right to be forgotten"? We already know that Europe has implemented a form of a right to be forgotten that it's now looking to expand. However, in the US, the First Amendment has protected us against such things -- even if some politicians don't realize it.

However, it appears that something has happened, hidden behind the sealed doors of Gawker's bankruptcy that has resulted in a story about ex-Sony Pictures boss Michael Lynton disappearing from the Gawker archive:

A 2015 Gawker article that highlighted leaked emails written by Sony Pictures CEO Michael Lynton has been quietly removed from the internet, the latest in a line of stories from the former digital media company to be disappeared under apparent legal pressure from powerful figures.

The story pieced together some of Lynton’s emails disclosed in the Sony Hack, the monstrous dump of company materials in late 2014 that was catastrophic for the studio and widely covered by the media.

Lynton -- who once claimed that nothing good has come from the internet ever -- left Sony Pictures recently to focus on being chair of the board at Snap, the company that does Snapchat (a company that kinda relies on that no good, very bad internet Lynton hates). But apparently, on the side, he was somehow secretly convincing the Gawker "estate" to delete some articles he didn't like.

This is different than when Univsion pulled down a bunch of Gawker stories after purchasing many of the company's assets out of bankruptcy. In that case, Univision claimed -- questionably -- that since it had purchased just the assets, but not liabilities, it had to take down any story that was subject to a lawsuit. This ignored a whole bunch of things, including the "first publication" rule, but whatever. In this case, the story was still hosted by what's left of Gawker. That is, when Gawker sold a bunch of assets to Univision, it did not sell the flagship "Gawker" site itself, but has instead maintained the archives. And that included some stories on Lynton that revealed things via the Sony Pictures email hack.

And thus it appears that some sort of settlement was reached behind the scenes, with no public explanation or details... to flat out delete a story that apparently Lynton or someone close to Lynton didn't like. As reporter Matthew Zeitlin notes, we should all be concerned that a news story can disappear just "because of opaque bankruptcy proceedings." And, of course, because this is the internet, the Streisand Effect is already taking over, with people passing around links to the story that was disappeared. The story in question, like many stories, was probably embarrassing to some people, but there's been no evidence presented (publicly at least) that it was untrue. No one has shown any evidence that the Sony hack emails that it was based on were not accurate. Ironically, the suppressed story itself is, somewhat, about using money and connections to do things that normal people can't do, so perhaps it's only fitting that a behind the scenes, opaque process was then used to try to memory hole that story.

But the story gets even worse. The Hollywood Reporter has also reported on this and notes that Lynton's lawyer, Andrew Celli, has warned its reporter, Eriq Gardner, not to even report on the disappearing story:

Celli made contact to The Hollywood Reporter's general counsel to express concern after I made inquiries about the vanished article with Gawker. He later suggested that to even repeat the gist of the original Gawker story would be damaging. He threatened a lawsuit and, referring to the Sony hack, told me, “There is a sin at the bottom of this. It’s wrong. The source for information is the result of a crime.”

This is, in the famed words of Popehat, what is known as censorious thuggery. Threatening people with litigation for reporting the news creates serious chilling effects. As Gardner notes in his article -- and as we've been reporting ourselves -- there seems to be a big business lately in so-called "reputation management" efforts to get embarrassing news stories disappeared from the internet. That should concern everyone. There's a reason that the US has a 1st Amendment and rejects things like a "Right to be Forgotten." Such things have a history of being abused by the rich and powerful to silence the press, just because the rich and powerful don't like those stories.

Even if one could give Lynton the benefit of the doubt in getting Gawker's estate to take down the original story, the fact that his lawyer then threatened another publication with a lawsuit just for reporting on the situation makes this even more problematic. Lynton may not like the internet very much, but that doesn't mean he gets to censor it at will.


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  • icon
    Stephen T. Stone (profile), 12 May 2017 @ 6:32am

    So…any bets on whether Shiva Ayyadurai is calling this guy today?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 May 2017 @ 7:00am

      Re:

      I wonder what has to happen for his actions to cross the line into conspiracy at this point. Crazy knows no bounds.

      reply to this | link to this | view in chronology ]

      • icon
        btr1701 (profile), 12 May 2017 @ 7:59am

        Re: Re:

        > I wonder what has to happen for his actions to cross the
        > line into conspiracy at this point.

        Quite a bit, actually. In order for a conspiracy charge to apply, the underlying action about which people are conspiring has to be illegal, also. In this case, there's nothing illegal about negotiating the removal of a news article from a web archive. It's shitty and morally dubious behavior, but it's not illegal, so conspiring to do it isn't illegal, either.

        Just like it's not illegal for you and your spouse to conspire about which movie to see this weekend.

        reply to this | link to this | view in chronology ]

  • icon
    Roger Strong (profile), 12 May 2017 @ 7:20am

    The Hollywood Reporter has also reported on this and notes that Lynton's lawyer, Andrew Celli, has warned its reporter, Eriq Gardner, not to even report on the disappearing story:

    Apparently that worked about as well as the Sony rootkit.

    He threatened a lawsuit and, referring to the Sony hack, told me, “There is a sin at the bottom of this. It’s wrong. The source for information is the result of a crime.”

    See above.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 May 2017 @ 7:30am

    There's a reason that the US has a 1st Amendment and rejects things like a "Right to be Forgotten." Such things have a history of being abused by the rich and powerful to silence the press, just because the rich and powerful don't like those stories.

    If this is a problem of the "Right to be Forgotten" then why is this a US story? And no, I don't think that the right to be forgotten would work in this case. Because the right to be forgotten does not mean "delete on request". But even if the guy would win the case then only the Google links would go away (a fact lots of Techdirt readers usually laugh about) but not the original source.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 May 2017 @ 8:17am

      Re:

      "why is this a US story?"

      Yeah, I hate it when people publish stuff that I don't think they should. Who do they think they are anyway ... sheesh!

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 12 May 2017 @ 8:18am

      Re:

      "If this is a problem of the "Right to be Forgotten" then why is this a US story?"

      Because the subject of the story is literally happening in the US?

      "But even if the guy would win the case then only the Google links would go away (a fact lots of Techdirt readers usually laugh about) but not the original source."

      Erm, you seem confused. Usually that stuff is laughed at because Google is the subject of a lawsuit ordering them to delist an article and the original source is not affected even if they are ordered to do so by the court.

      However, the story in this case is that the original story HAS been taken down. Then that people who were inquiring about the takedown have been threatened. There is also no lawsuit here where the outcome could possibly affect the availability of the article.

      You may wish to re-read the article, you seem to have misunderstood several vital points.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 12 May 2017 @ 12:32pm

        Re: Re:

        "You may wish to re-read the article"

        I doubt it was read to begin with.

        reply to this | link to this | view in chronology ]

      • icon
        The Wanderer (profile), 14 May 2017 @ 8:23am

        Re: Re:

        I think what he meant is something like "the Right to be Forgotten is a legal principle which only exists in Europe, so nothing that happens in the US can be an example of the Right to be Forgotten, so why is a story about something that happened entirely within the US talking about the Right to be Forgotten?".

        The answer, of course, is that the article is using the term "Right to be Forgotten" to refer to the entire concept of there being such a right, and possibly even more generally to the attempt to make past reporting on a subject disappear, rather than to the legal recognition of that in European law.

        He might dispute that that's an appropriate usage, and indeed his post might be a ham-handed attempt to do so, but the basic idea seems sound enough.

        reply to this | link to this | view in chronology ]

  • icon
    btr1701 (profile), 12 May 2017 @ 7:56am

    Notice

    I agree with the article about how crappy this behavior is, but I've always wondered, how do people even notice when something like this happens?

    If a site alters or disappears a recently-published article about something that's currently in the news and is being paid attention to by a lot of people, I get it.

    But a 2-year-old article in a website archive about something that everyone has mostly forgotten about quietly disappears and someone other than the parties involved notices that? Do news organizations have automated systems that scan media sites alert when something like that happens? 'Cause it seems unlikely that anyone would notice by random chance.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 May 2017 @ 8:21am

      Re: Notice

      My guess is someone is running a program to monitor changes. Program sends out an email or text when something out of the ordinary happens.

      reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 12 May 2017 @ 9:19am

      Re: Notice

      "Do news organizations have automated systems that scan media sites alert when something like that happens?"

      Probably leaked by someone involved in the process. And this is awesome.

      However you had a pretty good idea. We could have a service that monitored for changes in articles on news, including linked sources because in an era of post-truth this is a need, not a nice bonus.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 May 2017 @ 10:00am

      Re: Notice

      Probably someone running a broken link check on their own site. A site cannot control or remove incoming links, so on stories like this one, deletion will be noticed sooner orr latter.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 May 2017 @ 8:13am

    "purchased just the assets, but not liabilities"

    This seems to fly in the face of those who like to claim third party liability. Does this make all claims against the prior entity null and void? If so, that is a huge loophole.

    These people are not being very ethical and this seems to be borderline illegal. If you buy just the assets then you did not actually buy the company and therefore do not have any rights in regard to the disposition of legal obligations, right?

    IANAL, but how do these weasels get away with this shit?

    reply to this | link to this | view in chronology ]

    • icon
      Kal Zekdor (profile), 12 May 2017 @ 9:01am

      Re:

      Yeah, Bankruptcy can be weird. In short, the company declaring bankruptcy sells off assets to cover their liabilities. So they can sell off the assets of a business unit (in this case including domains, server infrastructure, IP, advertising accounts, etc.) to another company, while they retain any liabilities. Now, in this case "liabilities" refers to the accounting term, meaning "money that is owed", not civil liability, so I think someone down the chain got confused.

      Now, any action taken by the business unit prior to the sale could not be held against the purchasing company, any suits would need to be directed at the bankrupt company. The new company is then potentially liable for any action taken once they're in charge. In this case, though, there seems to be a provision in libel laws (this "first publication" rule) that's a little outside my knowledge, but seems to limit liability to the original publication of content (i.e., when Gawker was in charge), even if it's still being "published" (available on the Internet). It doesn't seem to apply in all states, and any significant subsequent alterations to the content can result in the rule ceasing to apply.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 May 2017 @ 10:35am

      Re:

      "Does this make all claims against the prior entity null and void?"

      That's the whole purpose of a bankruptcy. A company has no way to pay what they owe, so they sell everything and pay as much as they can, and then cease to exist. If you're a creditor, you aren't likely to get the full amount you are owed, but you do get something. If you have some lawsuit that you could have filed but didn't, it's too late once the company ceases to exist - if you haven't already filed a claim, you get nothing.

      It's important to note that you can't just sell your assets for $1 to some other company you control, to avoid paying the creditors. That would be bankruptcy fraud.

      And nobody would buy the assets if they came encumbered with previous liability. "Hey, you want a car? Blue book value is $5000. You just have to pay the $12000 I owe on it, plus pay out any lawsuits that anyone might file against me in the future." Yeah, that car would never be sold.

      reply to this | link to this | view in chronology ]

    • icon
      Eldakka (profile), 13 May 2017 @ 4:01am

      Re:

      This seems to fly in the face of those who like to claim third party liability. Does this make all claims against the prior entity null and void? If so, that is a huge loophole.

      Not at all, it means the purchaser of the assets isn't liable for activities carried out by the original owner. You have issues, you want to sue, go sue the original owner. If they still exist as an entity that is.

      An example used to teach this in a small business class I did decades ago:

      If you want to buy a restaurant, never buy the business. Buy the assets. Take over the lease, purchase the fittings, purchase the goods (crockery, cooking utensils etc), take over the phone number, buy the name, but do not buy the business.

      Doing this gets you all the assets of the restaurant, but not the liabilities. For example, if a week before you purchase the assets there is a food poisoning outbreak, you cannot be sued for it. The owners of the business that used to own the premises/assets you now have, are liable, and are the ones any lawsuit needs to be directed to, if they/that owning entity still exists and can be found.

      However, if you buy the business, you are liable, because it is the business that is liable, and you now own the business.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 13 May 2017 @ 6:32am

        Re: Re:

        Yeah, well established business practice also is to take over a publicly traded corp, run up huge debt, drive the org into ground, declare bankruptcy, sell the assets to cover debt (that your shell co owns) including the employee pension plan.

        aka: robber baron

        And this is accepted business practice, an actual business model. Where is the outrage? It is limited to those adversely affected of course, those without a voice and no recourse.

        reply to this | link to this | view in chronology ]

        • icon
          Eldakka (profile), 14 May 2017 @ 6:06pm

          Re: Re: Re:

          That's the sort of thing that happens when you don't have regulations preventing some of those activities.

          People (in general, not saying you) running around saying "Get rid of regulation, let's have an open market" are the ones who enable that to happen and to keep happening.

          reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 12 May 2017 @ 11:06am

    “There is a sin at the bottom of this."

    Then perhaps he should stop committing sins, then there would be nothing to talk about. In the meantime, here is a list of 40 sites talking about this sin & the subsequent attempts to hide facts from the public.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 12 May 2017 @ 1:53pm

    "What do you mean they talked?! I threatened them and everything!"

    You'd think by now 'Streisand Effect 101' would be a required course to get any sort of legal degree.

    reply to this | link to this | view in chronology ]

  • icon
    Matthew Cline (profile), 13 May 2017 @ 6:59am

    Devil's advocate

    To play devil's advocate, couldn't the publishing of hacked emails be considered a violation of privacy, which could be sued over?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 May 2017 @ 2:08pm

    Is this the same email from "someone" at the top of the foodchain at sony that said changing Johnny Storm's ethnicity would "keep the [N-Word]s happy?".......

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 May 2017 @ 2:09pm

    Or is the emails where Sony's ENTIRE strategy for hiring for the past 15 years has been breast-size and willingness to have sex with the interviewer and/or executives?

    reply to this | link to this | view in chronology ]


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