Jeff Bezos, CEO of Amazon, accused The National Enquirer Thursday of engaging in “extortion and blackmail” by threatening to publish intimate images of the billionaire unless he agreed to drop his investigation into how the tabloid obtained his private communications. In an extraordinary Medium post, Bezos reproduced emails that appeared to show representatives of the Enquirer demanding he publicly state that its coverage of him isn’t “influenced by political forces.” If he refused, Bezos alleged, the Enquirer would make public photos of him and Lauren Sanchez, a news anchor with whom he had a romantic relationship.
Bezos’ feud with the Enquirer began last month when it published a 12-page spread containing text messages between Bezos and Sanchez, revealing what the publication said was an affair. (The article appeared shortly after Bezos announced that he and his wife MacKenzie were getting divorced.) Gavin de Becker, Bezos’ personal security consultant, soon began looking at how the tabloid obtained the billionaire’s messages. De Becker recently told The Daily Beast that his investigation was ongoing, but that “strong leads point to political motives.”
There’s no doubt that what Bezos alleges the Enquirer did was sleazy—but would it be against the law? The question is particularly pressing for the tabloid’s parent company, American Media Inc., because it struck an immunity deal in December with federal officials to avoid prosecution for helping President Donald Trump facilitate payments to women who said they had affairs with the then-candidate. As part of the agreement, AMI agreed not to commit crimes. Federal prosecutors are now reviewing whether the Enquirer’s actions breached the terms of their deal, according to Bloomberg.
Extortion is making a threat in order to force someone to take an action or give up something of value. In Bezos’ case, that would be ending his investigation into how the Enquirer got ahold of his private communications. “This is property, even though it is not something tangible,” says Jeffrey Lichtman, a New York criminal defense attorney. The threat would be the Enquirer trying to scare Bezos into stopping the investigation by publishing potentially embarrassing photos. But even though these two things appear to be present, the case isn’t necessarily clear cut. “I think it’s a close call as to whether The National Enquirer’s actions make out an extortion,” Lichtman says.
The Enquirer has a number of strong defenses it could mount against a criminal extortion charge that could make the case hard to win, says Renato Mariotti, a former federal prosecutor. For one, the tabloid could argue it was merely trying in good faith to resolve a dispute with Bezos—not attempting to blackmail or extort him. This reasoning is why, for example, a lawyer can send someone a letter saying their client will agree to settle a lawsuit if certain terms are met. “The law regarding the distinction between extortion and settling a legal claim is very unsettled—it’s not well defined,” Mariotti says.
In a press release issued Friday, AMI said that it “believes fervently that it acted lawfully in the reporting of the story of Mr. Bezos,” adding that “at the time of the recent allegations made by Mr. Bezos, it was in good faith negotiations to resolve all matters with him. Nonetheless, in light of the nature of the allegations published by Mr. Bezos, the Board has convened and determined that it should promptly and thoroughly investigate the claims. Upon completion of that investigation, the Board will take whatever appropriate action is necessary.”
The Enquirer could argue it was following the advice of its lawyer, using an “advice of counsel defense,” since some of the emails Bezos published were allegedly written by Jon P. Fine, who is identified as deputy general counsel for AMI. The tabloid could also defend itself on First Amendment grounds. Taken together, the myriad defenses “suggest to me that federal prosecutors will not bring a criminal charge along these lines,” says Mariotti. “Maybe I’m wrong, but I would bet a lot of money on it.”
Even if the government declined to prosecute the publication, Bezos could still bring a civil blackmail or extortion charge against the Enquirer, in which the burden of proof would be lower. The billionaire, who is the richest man in the world, certainly has the resources to sue the paper.
Were the Enquirer to publish his photos, Bezos could bring a copyright case against the Enquirer, arguing that the publication constituted infringement. If Bezos (and Sanchez) took the intimate photos themselves, they would own the copyright to them. Without a clear license to publish the images, the Enquirer would likely be committing a copyright violation. The same argument has been used by lawyers representing victims of revenge porn. “It’s sort of a pedestrian path to get the results they want, but potentially a very effective path,” says Jonathan Askin, a professor at Brooklyn Law School and the director of the Brooklyn Law Incubator & Policy Clinic.
In his Medium post, Bezos acknowledged that his lawyers “argued that AMI has no right to publish photos since any person holds the copyright to their own photos, and since the photos in themselves don’t add anything newsworthy.”
The last two questions that remain are whether AMI violated its preexisting immunity agreement and whether federal prosecutors will want to prove it. Mariotti thinks it’s unlikely that the Southern District of New York, which brokered the deal, will enter into more litigation with AMI. Instead, they might ask the company to agree to never do something like what it did to Bezos again. If the government went to the trouble of proving the immunity deal was breached, all it would receive in return is the chance to criminally prosecute AMI—which it already decided wasn’t necessary for its investigation into President Trump’s election campaign.
UPDATED 2/8/19, 8:45 PM: This story was updated to correctly attribute American Media Inc.’s statement to a press release.