There was also that guy in another case sitting in his kitchen naked while drinking coffee and reading the morning paper. Some woman decides to walk into his back yard with her kid, sees him, and called the police on him for indecency...it took years for him to get let off and cost him a ton of money to not get any penalties. He was nearly held liable for what someone saw inside his house when they had to be trespassing to see it!
It also happens to be irrelevant to the case above, as it seems to have been specifically decided on the merits of the photographs as Art. It would be hard to claim that leaking the emails to Gawker was a form of art, so it may well have ended up differently.
And no, not selling that data doesn't make the act non-hostile. If company X possessing that data is hostile, why is Facebook/Google/AT&T/Microsoft having it any better? Because of their saint-like reputation?
[1] https://www.howtogeek.com/724472/do-isps-track-and-sell-your...
[2] https://www.cbsnews.com/news/facebook-gathers-texts-phone-da...