In reaction to the lawsuit, Hurley has submitted an anti-SLAPP motion to stop the lawsuit. California’s SLAPP statute is meant to deter litigation that’s an impingement of one’s First Amendment rights. The first question is whether Hurley’s actions arise from activity furthering his free speech rights in a matter of public interest. He should be able to clear that bar since judges have in the past noted the widespread public appetite for all things Kardashian. So in order for Kardashian’s lawsuit against Hurley to proceed further, a judge will next have to address whether she has demonstrated a probability of ultimately prevailing on the merits.
In papers to the court in advance of a hearing on March 18, Hurley says “this lawsuit continues to be about garnering publicity for Plaintiffs Kardashian and West.”
The digital mogul adds that “Plaintiffs jumped through hoops to be the named plaintiffs in this suit, acquiring purported rights under the Release from E! Entertainment Television LLC, inexplicably leaked the complaint to news outlets before Defendants were even served, and failed to go after other parties, including TMZ, that continue to display postings of the purportedly offending video even to this day.”
Kris Jenner — Kim’s mom — has submitted her own declaration that says she played a “major role in organizing and running” West’s Oct. 21, 2013 marriage proposal. She says that Hurley wasn’t on the guest list and not invited.
Hurley showed up anyway with a friend and signed a document entitled “Celebrity Appearance Release.” Had Hurley not signed the agreement, Jenner implies that he would have been asked to leave. “By signing the contract, he received the publicity of being an attendee at the event,” she says.
Hurley argues that there was no valid contract because there wasn’t sufficient consideration. According to his side’s court documents, “Plaintiffs’ contention that ‘signing gave Mr. Hurley the opportunity to obtain publicity for himself’ assumes that Hurley, like Kardashian or West, would leap at the opportunity to appear on television or that appearing on the show gave him some sort of benefit. Yet, even if Mr. Hurley considered this a benefit (he does not), there is no clear visual of Mr. Hurley in the episode that aired.”
The plaintiffs in turn have submitted a declaration from David Stewart, a marketing professor at Loyola Marymount University. Stewart offers his expert opinion that Hurley’s Mixbit website derived the benefit of posting a video receiving more than 1.5 million hits.
“It is also my opinion that Ms. Kardashian and Mr. West were financially harmed from the posting of the proposal video,” Stewart says. “The harm is that the video has lost its novelty. One of the things that attracts people to programming is its newness — something you have not seen before. Ms. Kardashian’s reality show is no longer the first to air the video.”
But Hurley rejects the notion that the video met the definition of “confidential information” under the release he signed. “Plaintiff West admitted that at the time of the event — the time when Hurley signed the Release — there was no decision as to whether or not the proposal would be aired on the Program,” Hurley’s legal papers say.
The YouTube founder is also questioning the assertion that the proposal video leak really harmed Kardashian and West. “Plaintiffs did not request that Hurley remove the Posting until 11 days after this suit was filed, and even then only in response to a letter from Defendants’ counsel to Plaintiffs’ counsel pointing out this fact,” Hurley’s legal docs continue. “Plaintiffs have still not sued TMZ or requested that TMZ remove the copy of the proposal that remains on its website.”
The fact that most people probably came to the video on TMZ rather than Mixbit could be of significance. Even the lawyers for Kardashian are said to have come across the video through TMZ, initially believing that it was sourced back to Hurley.
“But the video appearing on TMZ’s website is not a link to MixBit’s post,” Hurley’s attorneys say. “Rather than using an embed of MixBit’s post, which would give MixBit control to remove the link, TMZ removed MixBit branding from the video, added its own branding and exported the video to its own player. Thus, not only did TMZ make it beyond Defendants’ control to remove, but they eliminated any alleged benefit MixBit would have received, even under Plaintiffs’ theory.”
The plaintiffs are represented by Eric George at Browne George Ross while Hurley is being represented by Rodger Cole at Fenwick & West.