The ‘Baby Reindeer’ defamation lawsuit against Netflix hinges on a single line: ‘This is a true story’ - Ep. 59 - Litigation Nation

Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Jack Sanker (00:05):
Welcome to Litigation Nation. I'm your
host, Jack Sanker, along with myco host, Danessa Watkins. This
is the show where we talk aboutthe most and interesting legal
developments of the past coupleof weeks. Danessa, what do you
have today?

Danessa Watkins (00:17):
Today, I'm going to cover the defamation
lawsuit that has resulted fromNetflix series, Baby Reindeer.

Oh, boy.

There was a recent motion to dismiss filed
in the Central District ofCalifornia. So I will fill you
all in on what claims survivedand which ones got kicked out.

And we're gonna be talking on my side of things
about the 14 or so differentlawsuits that were filed by a
number of different attorneysgeneral against TikTok, the
social media, punching bag, thatyou hear about so much in the
news these days. As a reminder,you can find the show everywhere
you get your podcast, ApplePodcasts, Spotify, YouTube,

(00:58):
wherever. We publish, usuallyaround twice a month, and, let's
get into it. Here's what youneed to know.

Alright. So Baby Reindeer. This was a
Netflix 7 part miniseries thatwere was released on April 11,
2024. Jack, I think you said youhaven't seen it. Correct?

No. I did not.

And I was trying to think of how to best
summarize what this series isbecause it really is a roller
coaster of emotions. And, theredefinitely should be trigger
warnings for anyone watching it,because it does get into issues
of harassment, rape, drug use.But just to, I guess, summarize

(01:50):
it as briefly as possible. It'sa show about a struggling
Scottish comedian, and he endsup taking a bartending job where
he meets this woman who turnsout to be his stalker for a
number of years. It it kind offollows their relationship back
and forth, the craziness thatensues with that.

(02:12):
But it also takes this turn, Iguess, you don't see coming
where, this comedian gets inwith this TV writer who ends up,
they get into this friendshipwhere all they do is take drugs
and he promises he's gonna makehim a star. But in reality,
turns out he is raping him whilehe is

I was gonna say

drug induced.

Yeah. Obviously.

Yes. So I won't give away the ending, but it it
rounds back around, I guess, tothe to the original two people,
which is the comedian and thenhis stalker. It, you know, it I
I can't even explain it. Youhave to watch it essentially to
to understand how crazy thisshow is. But the part that gets

(02:57):
you and really tugs you in isright in the beginning, it
flashes this tagline that says,this is a true story.
So once you see all thesecharacters and, follow, you
know, what what happens, you're, like, there is
no possible way this is true. Imean,
that's what I thought. Right. But, for, you
know

I thought

the thing I I'd, like,

seen ads for it, and I thought it was fictional.
And I and I, like, sat through,like, a, you know, 32nd teaser
and was, like, this looksridiculous and a little spooky.

Mhmm.

So I so I that's probably why I like it. I didn't
watch.

And and we definitely after watching it, we
we started doing our ownresearch because we wanted to,
you know, get, like, did thisreally happen? You know, how
come there haven't been lawsuitsbased on these characters and
what's going on? And you youlearn pretty quickly that the
show was created and actuallystars the comedian Richard Gadd.
And the series was adapted fromhis autobiographical one man

(03:54):
stage play. So again, leadingmore credence to, yes, this is a
true story.
It's received 6 of the 11 Emmynominations that it was put up
for just recently. And, I thinkwithin days of of the show
coming online on Netflix, therewas and I did see this on social

(04:17):
media. Richard Gadd put out astatement and said, hey,
everyone, please stop searchingonline, trying to figure out who
the real life people are that weportray in this show, because
they obviously changed theirnames.

Which I that that didn't work, I'm assuming.

It did not work. Yeah. Within 2 weeks,
there was a woman that came outand pretty much admitted that
she was the real what is hername? Martha Martha Scott is the
name of the character. She's theantagonist, the one who, does
all the

She's the soccer.

Soccer. Thank you. Like, what is that word?
Like, harasser? No.
Yes. So Martha Scott is theantagonist stalker in the
series. So the the real person,who is Fiona Harvey, she is a 58
year old Scottish woman. Shecame out pretty much admitted
that it was her. And thenshortly after, went on Piers

(05:17):
Morgan and addressed the factthat a lot of what is shown in
the Netflix series is notactually accurate.
So she, you know, even thoughpeople had somewhat figured out
that it could be her, I mean,it's all speculation. Right? But
but she made it known. Yep. Thisis this was written after me,
and here's all the reasons whyit's not true.

Didn't have to do that.

Did not have to do that. Okay. Agreed. But, you
know, I I mean, look, I've neverbeen on the other end of, you
know, the Internet sleuthscoming at you. You know,
according to her, she wasreceiving hate mail and
harassment for the way that, shewas portrayed.
And, you know, people believethat she actually did the things

(06:00):
that are portrayed in the show.Because again, Netflix put that
this is a true story. So she hasbrought a lawsuit. This was just
filed in June in the CentralDistrict of California against
Netflix Netflix Inc, and NetflixWorldwide Entertainment LLC. She

(06:24):
is alleging defamation,intentional infliction of
emotional distress, negligence,gross negligence, gross
negligence, violations of herright of publicity, and, also
brought a a claim for punitivedamages.
So just recently, Netflix fileda motion to dismiss the claims

(06:45):
in general, but also a specialmotion to strike based on the
anti SLAPP statute.

Sure.

Which we've covered in other shows. It's the
strategic lawsuit against publicparticipation. So it's
essentially a claim that someoneis bringing a baseless lawsuit
for the malicious purpose of,silencing otherwise protected
speech. Down speech. Yeah.
Yes. So I I mean standard, youknow, what you would bring in
this type of of a claim. So insupport of the their slap

(07:18):
motion, Netflix went into greatdetail about Harvey's history of
stalking behavior, trying toshow that this is true. You
know, the every everything wesaid about this person, even
though we, you know, didn't useher name This

is such good advertising for the show now.

It's it's
actually, yeah, pretty wild. So I I didn't read
their full motion, but I didfind the the central district's
opinion on the motion, whichdoes go into to some of the
details. What's what wasinteresting are the similarities
between the two characters.Well, the the character Martha

(07:57):
and then the real person Harvey.So in reality, Harvey is a
Scottish lawyer living inLondon.
She has been accused ofstalking, in the past, and these
were published in newspaperarticles. And if you have seen
the show, to me, one of thecraziest parts was how Martha's
character she just has thisunique way of speaking, a unique

(08:20):
cadence to her voice. Andapparently, according to the
court records, it isindistinguishable from the real
life Harvey, which is is iscrazy. So anyone that knows
Harvey and saw Martha'scharacter being depicted would
immediately know that it was thesame person. So as part of the

(08:44):
opinion, they go into Harvey'shistory of stalking.
So per the opinion, back in1997, she was hired by a law
firm and was terminated shortlyafter being employed. And then
within weeks, she startedharassing her employer and the
employer's family.

My gosh. She's making it so much worse.

I know. I know. All this history is coming
forward. So for 5 years, she wasthreatening her former employee,
following her and her family,making false reports about them,
and this continued until theyeffectively got a restraining
order. I'm kinda surprised ittook that long for them to do
that.

(09:25):
But either way, all of this ledto multiple news stories because
the employer was married to amember of British Parliament. So
it attracts a lot of attentionand stories covered this issue
from the years 2000 to 2004,because also during that time,

(09:46):
the, miss Harvey also wasstalking the First Minister of
Scotland.

Okay.

So she has high profile targets.

These are these are allegations or convictions?

These well, both resulted in restraining
orders. So there were notconvictions
Right.
But there is, you know, paperwork and and
police reports covering it.

Not representing that she actually did these
things.

These are I sure. They're allegations that
that resulted in restrainingorders. Yes. We don't know the
truth of them.

And insofar as we ever get in trouble for anything
like that, I will be assertingpodcasters privilege.

I I'm just gonna say I'm relying on the
central district's opinion. Sobut, yes. Then fast forward to
2014, that is when Harvey metGad, who is the the producer and
the and the star of of BabyReindeer. And she almost She

(10:56):
would follow him, attend eventsthat he was She would follow
him, attend events that he washe was performing at. As
similarly to what's depicted inbaby reindeer, she did get
handsy with him at times withouthis consent.
And on one occasion, allegedlygot violent with him, quote,
shoving him in the back of hisneck, end quote.

(11:18):
Okay.
For years, she sent him countless emails,
social media messages,voicemails, handwritten letters,
and that harassment continueduntil 2017 when he got
essentially the equivalent of aprotective order. Now she was
never prosecuted or convictedfor any crimes related to her
behavior, but they did find aand by they, I mean, Netflix did

(11:38):
find a they did find a and bythey, I mean Netflix, did find a
criminal lawyer who practices inEngland and Wales to give a
declaration supporting theirmotion to dismiss. And she
essentially said that herbehavior rose to the level of
criminal stalking, which wouldbe punishable by 5 years
imprisonment. So the the seriesgets released. The the opinion

(12:05):
notes that shortly after that,we did have Harvey appearing on
Piers Morgan, reaffirming thatthe Martha character was based
on her.

Right. The game doesn't have to do that.
Exactly.

Doesn't have

to go on TV and say that was me.

Yes. I mean, as certainly, but at that point, it
was speculation. But the thestrongest pull was that within
the series, there's this partwhere the Martha character says,
I want you to come hang mycurtains. And so these Internet
sleuths, and
I don't pretend to know how they do
what they do. But Internet sleuths, and I
don't pretend to know how theydo what they do. But they went

(12:41):
way back to 2014, and they didfind some post by Harvey where
she essentially said hang mycurtains on, I think it was
Twitter feed or something. Yeah.So that's how they drew the the
ultimate connection.
Now after Harvey filed hercomplaint, the Sunday Times ran
an article about the lawsuit,and it essentially suggested

(13:05):
that Netflix went out of its wayto add that tag. This is a true
story at the beginning of theseries. Apparently, Gad, the,
you know, the writer, heexpressed concerns about
representing it that way. Hesaid that in his own show, he
says based on a true story. AndNetflix insisted, no.

(13:26):
We need to say this is a truestory.

That's fascinating.

Which yeah. Very bad fact for Netflix.

You know, though, I I I wonder. I mean, maybe we're
not giving them enough creditbecause this this whole thing
of, like, you know what? Let'sget ourselves sued so that we
can continue to tell this story,like and get a ton of free media
coverage. Because, like, now Iwanna watch the show. I wonder
if they're playing, you know, 5dimensional chess over there.

(13:55):
And they're like, yeah. Let'slet's go ahead and invite a
lawsuit from, like, Scotland'smost famous stalker

Mhmm.

And, and see how that that can't hurt us. Right?
I I knew it. Yeah. Anyways

No. It's an interesting thought because, I
mean, that's

because their legal should have flagged.

That's so basic.

Don't ever do that.

Right.

Right. Say this is the truth. Like you say, this is
largely based on that.

Yeah. I mean, I think they probably did it, you
know, for I don't know. Fordramatic purposes, you know.
But, the idea is that, you know,what is what is in the mind of
the reasonable viewer. And Ithink now we're used to
dramaticized, especially when itcomes to, you know, murder cases
or illegal cases in general.

(14:38):
Yeah. I mean, that's all overNetflix right now. So

That's what I mean, though. It's like and what,
like, what are her damages?Like, it it's still gonna be,
like, from net Netflixperspective, nothing. And in and
the trade off here is, like, atremendous amount of very
interesting press

Yeah.

Including, I guess, this recording that we're doing
right this time.

I guess so. Yeah.

Yeah.

That's true.

Okay.

Well, so if you haven't seen Baby Rangers Yeah.
I know I won't. You're gonnawanna see it. Alright. So
getting into some of the issuesthat were raised in the motion
to dismiss.
So anti SLAPP, essentially, youhave to show that that there is

(15:19):
first protected speech, that isthat is being impacted. That was
an easy hurdle essentially forfor Netflix to overcome and and
the court agreed. Yes. Ofcourse, this you know, you're
putting out this this series.It's it's gonna be protected
speech.
The harder hurdle is the secondprong, which is showing that the

(15:40):
the plaintiff, has a probabilityof prevailing on the merits of
her claims. And that burden isactually on the plaintiff, to
come forward and show, you know,I'm not just bringing this
meritless lawsuit to to affectfree speech. So in order to do
that, she had to show that shewould defamation is the nature
of the claim. Defamation is thenature of the claim. Everything

(16:04):
else that she brings is ispretty much based on a finding
of defamation.
So, that was the main focus ofthis opinion. Now one key aspect
of defamation, I'm sure in everyjurisdiction, is that the
statement has to reasonably beinterpreted as referring to the
plaintiff. So here, we have aseries that uses this other

(16:28):
name, you know, take someliberties with how they present
the character. So the argumentby Netflix is a reasonable
reader or viewer would not knowthat Martha is actually Harvey.

Right. And and it would be unreasonable and,
actually, the Internet sleuthswho, like, went and did all
this, like, insaneinvestigation, those people are
unreasonable.

So that's exactly even if there are strong
similarities, this is quotingfrom the opinion, a reasonable
person would not have identifiedplaintiff because it required
research and cyber sleuthing.These cyber sleuths are not
representative of reasonablepersons. That was, end quote,
the defendant's argument. Thecourt though, seemed to agree

(17:17):
with the plaintiff. It says,alleges that it required little
effort for these cyber sleuthsto find her as they simply found
her public posts on GAD's socialmedia referencing the same,
quote, hang my curtains,unquote, joke that is featured
in the series.
So

Okay.

I I again, though, I think you really had
to do some digging to find that.So I think the court is maybe, I
don't know, giving a little toomuch not even giving credit. I
guess, taking credit away fromthe cyber sleuths. I mean, I
don't think that's somethingthat I would have found. But
Yeah.
This isn't my line of businesseither. So so ultimately, the

(17:58):
court looked at everything,looked at the similarities
between the character and the100 people that could match a
fictional character. It says,quote, rather Martha and
plaintiff have specificsimilarities that few others

(18:21):
could claim to share.Specifically, Martha and
plaintiff are both Scottishlawyers living in London 20
years.

A lawyer? Yeah. Wait. Did I miss I know you said
she worked at a law firm. Iguess I'm sorry.
I assumed that she wasn't anattorney. But Oh,

no. She's a lawyer.

Oh. Yep. Cool. Oh, the story's great.

Yeah. So the court found, while there may be
numerous Scottish lawyers livingin London of the same age or
same approximate age as theplaintiff, it is likely that
only plaintiff has been accusedof stalking a lawyer in a
newspaper article while alsocommunicating with Gatt on
social media, end quote. So,yeah, there's probably only and
not to mention the otherstalking that of the what was

(19:03):
it? Like a prime minister or

Yeah. Yeah. She's like, listen. I'm the only
Scottish stalker girl. So it hasto be about me.

Yes. Exactly. So the the court agreed with her
that, yes, she was it it wasclearly about her.

Okay.

And a reasonable person would realize
that. The next defense wasThat's so funny.

She's like she's like, listen. Everyone knows
that I love to stalk. And I justthere there's no possible way. I
mean, there's one thing you knowabout me.

I will

I will be stalking.

Stalkers be stalking. Yeah. Oh my gosh.
Okay. This is awful.
Going off script here. Alright.Let's see. So another thing that
came up was this issue of fact.So a defamation, a defamatory
statement needs to be factual.
Opinions are absolutelyprotected. Of course, in in my
world, drawing that line betweendrawing that line between fact

(19:57):
and opinion, it's it can be graysometimes. Usually you're you're
mixing words that are arefactual and opinion based. But
again, the judge went back toNetflix. You all said, right at
the beginning, quote, this is atrue story, end quote.
So you are presenting this as asfactual.

Yeah. So this is an emotion to dismiss, like a like
a 12 b 6.

It's well, it's in, in California, they have a
special process for SLAPP,defenses.

Okay.

So they did bring a motion to dismiss, but
the the are the, opinion here isprimarily focused on the SLAPP
defense.

So the ruling would boil down to okay. We're at the
actual factual question. Is thistrue or not?

What do you sorry.

So I maybe I'm getting lost in the weeds here.
But there the the court

the well, what she what the plaintiff has to
show, what Harvey has to show isthat her case has merit, that
she could actually prevail onthese claims. And how she does
that is essentially, yes,defending what would be a 12 b
6. So defend defending against,what Netflix says, you know,
here are all the defenses wewould bring.

Right.

And she's saying, well, no. Those defenses
aren't valid. So, yes. The issueof fact is one of them. And,
yeah, the court found no.
A reasonable viewer would thinkthat these are factual
statements. What's what'sincluded in this miniseries? And
again, this just goes back towell, if they had just at the

(21:43):
beginning said based on trueevents, maybe this wouldn't be a
lawsuit. But

Unless it I mean, well, the the lawsuit is what it
is. But, like, the on the meritsof the lawsuit, I mean, the
defense here is that Netflix isgoing to assert or has is that
it is true. Mhmm. Mhmm.

You

know? Like, this this is what happened. Yep.
Therefore, it's not defamatory.

Right. Well so, actually, that leads right back
into, the opinion. The nextissue is substantial truth. So
substantial truth is an absolutedefense to defamation.
Essentially, no matter howoffensive something may be, if
it's substantially true.
So it doesn't have to be true inevery single factor. But if, you
know, the general gist isaccurate, there's not gonna be a

(22:30):
defamation claim. So here, whatthey tried to do what Netflix
tried to do is show here are allof the comparisons between our
character and the plaintiff,miss Harvey. You know, what
maybe we took a few libertieshere and there, but generally
speaking, we what we describedas accurate. The plaintiff, miss

(22:53):
Harvey, obviously came back andsaid, no.
You took way more than justliberties. So for example, the
she was never actually convictedof of a crime. So even though
there were allegations of herstalking, the the show portrayed
that she had been convictedpreviously, which is false.

And isn't that also falsely attributing someone to
being convicted of something?

That is defamation per se.

Yeah. Yeah. Okay. Thanks.

Yep. In the show, they said that she had
stalked a police officer. Inreality, she stalked an
attorney, her husband, a memberof British Parliament, and the
1st minister of Scotland. SoWow. I don't know what's worse,
but either way, they didn'tportray her truthfully.
The the issue of the sexualassault. So it's pretty graphic

(23:47):
in the series. They show hersexually assaulting Gaten and
Ali, grabbing his genitals.There's also some some physical
activity, in a bar scene whereshe, crashes a bottle over his
head, gouges his eyes out withher thumbs. In reality, there

(24:09):
was not that much violencebetween them.
Yes, she did. She says shetouched his bum without consent.
Didn't grab his genitals. Youknow, she shoved him in the back
of the neck. She didn't gougehis eyes out or smash a bottle
over his head.
So she says she didn't take allthose, you know, all those
actions that they portray her astaking.

Has has the comedian Gad is his name?

Gad.

Has he, I guess or Netflix on his behalf, have they
responded to that and said, youknow I mean, this is what comes
out in Discovery, obviously.

Right. So, actually, he did oh, I should
have pulled this. He did give adeclaration in support of
Netflix's motion. Awesome. SoI'm sure he went into the the
real details of of theirinteractions.
But, yeah, she you know, missHarvey obviously came back and

(25:02):
said, well, here's my version ofhow it went down.
Right.
The other oh, the last part about substantial
truth. So in reality, I guessshe seems to admit that, yes,
she did follow him around andattend his comedy performances.
But there is this part of theminiseries where it portrays

(25:24):
this woman, Martha, literallysitting outside of Gad's
apartment for, like, 16 hours aday, like, sitting through the
rain, sitting through the snow,every single day she was there.
So, that was a little bitextreme or more extreme than the
truth. Alright.
Another defense that Netflixbrought up was legally protected
opinion. So as I mentionedbefore, opinions generally are

(25:46):
are free speech, protection onthe First Amendment. So Netflix
tried to say that this serieswas written from GAD's
perspective stating hisopinions. And, again, the court
went back to that that articlethat came out, right after this
lawsuit where it it says, no.Gad told you he wasn't

(26:10):
comfortable with this is a truestory.
And Netflix, you chose to runwith that anyways. So Yeah. You
know, that you can't fall backon on saying it's his opinion.
You know, you chose to toportray this a certain way.

So our producer, Kevin, just, pulled up the, what
I guess I'll call swornaffidavit. I think they call it
something different.

Declaration.

They call it declaration

Yeah.

In support of, the Netflix motion that we've been
talking about here. This isRichard Gadd's, essentially
sworn testimony. It gets typedout, and he signs at the end,
and he swears it's true,etcetera. And it's 20 something
pages. We kind of are skimmingit here.
However, just from skimming it,there are, like, details that

(27:00):
are omitted. For example, he hementions that, she was quote
unquote handsy with him, andthen mentioned specifically that
she, grabbed his bum, and heuses the word bum, but does not
mention that she grabbed hisgenitals, for example, which
were it true I'm not saying it'snot true, but you would include

(27:21):
that in this if you were if youwere gonna stand on that. You
know? Like so that's asignificant distinction from the
show versus his testimony.

Right.

You know? Yeah. He's this is his opportunity to
say what happened, and he'ssaying she grabbed my bum. He's
not saying she grabbed mygenitals, and that's a specific
point of contention, for thedefamation case. And I I so
that's from Netflix perspective,that's problematic.

Mhmm. Wow. So I'm just reading this too. At
the end, he said there's asection Harvey comes forward. He
says throughout the process ofwriting the baby reindeer play
and series, he intentionally didnot refer to Harvey by name in
any way.

(28:06):
And then when viewers beganspeculating about the fact that
it was her, he he adds a ascreenshot of his Instagram
story where he urged the viewersto stop speculating. And he
says, I never intended theseries to identify any real
person as Martha Scott,including Harvey. Martha Scott

(28:27):
is not Fiona Harvey. Like allcharacters in the series, Martha
is a fictional character withfictional personality traits
that are very different thanHarvey's. So he is literally
saying he made up thischaracter.

Right.

And yet, I mean

So Netflix

Although Netflix, like, gave this
declaration and support Can't dothat. I think that the judge is
rightly saying your writer issaying that this is fictional.
Right. Why did you present thisas a true story?

Dad is saying I I embellished and created
fictional characters based on myreal life experiences. Netflix
is saying, no. You didn't. Thisis all true.

This is weird. Yeah. This is an interesting
one. I mean, to to some extent,it obviously helps Netflix in
that they're they're trying tosay this isn't defamation. Like,
we weren't we weren't talkingabout you, Harvey.
You know? This was never aboutyou.

Right.

But on the other side, it's

yeah. There's also really a lot of we don't have to
get into it, but there are,like, a lot of pretty nasty and
horrible details in thisstatement as well. So, like,
let's not

you know,

let's even the things that, like, she has
tacitly admitted to are prettybad stuff.

Right. Yeah. And, ultimately, she's just
bringing more publicity to it.
Yeah. She
keeps Or it's it's starting to reveal things
that probably wouldn't have everseen the light of day.

Yeah. Yeah. It's, this is yeah. The Streisand
effect where you, call attentionto something by trying to cover
it up and and all of a suddenpeople are talking about it
because you want them to stop.Oh.
So here we go.

Yep. Well and we see that a lot with
defamation. I think, oftentimes,plaintiffs don't realize the
what a defamation lawsuit reallymeans. You're you're saying that
your reputation was ruined. Andin doing that, you're opening up
discovery to, well, what wasyour reputation before this came
out?

Right.

Which means digging into, yeah, your your
closets and and figuring outwhat type of person the
community thought you werebefore this came out. And,
clearly, there was a lot ofpress surrounding her even
before she even met Gad
Mhmm.
About the fact that she was a stalker. So,
yeah, maybe maybe it was morelocal to London and and

(30:43):
Scotland. And now Netflixbrought it to the world. I mean,
I guess that's an argument shecan make, but I don't know. This
was this is an interestinginteresting decision

by her presence. Discovery and getting into all
the nitty gritty of, what doesthe show say versus what
actually happened. And thatprocess is going to be quite
revealing about this woman whoclaims to wanted to have wanted
to remain private and, you know

Mhmm.

Not be thrust in the international spotlight, and
yet here we are.

Right. Well, so in this I mean, maybe it came up
in the briefs and the the courtjust didn't discuss it in its
opinion, but there's this issueof public figure or limited
public figure.

Right.

And in the defamation world, if you're
found to be fall into one ofthose 2 categories, you can only
prevail if you show actualmalice, which means that the
person defaming you knew thatwhat they were saying was false,
or they acted recklessly andessentially buried their hand in
head in the sand to the truth.Here, it seems like Netflix was

(31:54):
trying to argue. And what doesthe court say about it? The
court actually agrees thatplaintiff may qualify as a
public figure, but it was basedon the fact that she, at one
point, ran for public office,which to me wouldn't be the

(32:15):
issue. I would think the issueis that she willingly went on
Piers Morgan
Yeah.

That changes

and identified herself and thrust herself into
the controversy. Yeah. So may Idon't know if that was addressed
in the briefings, but to me,that that would be the bigger
sticking point.

And that changes what?

Well, I don't know. Now that I say that, I
mean, just be I'm thinking alsoin the criminal context. If
somebody gets accused of acrime, and they respond to that,
that doesn't necessarily qualifythem as a public figure. You
have the right to to, you know,protect your
Oh, they do.
Your reputation. But yeah. So maybe

(32:55):
that wouldn't that wouldn'tfall. I don't know. I I kind of
is on the line.

Yeah. Well, she's she also she admits that she it
I don't I I'm not beingflippant, but they they say the
word bum, so I have to use thatword. But she it admits that she
grabbed this guy's bum and, butis otherwise, like but I didn't
know all these other things. Iunderstand. I will say, if you

(33:20):
if you flip the the script hereand it's, you know, a a woman
actor who is, like, groped and,like, a guy's like, no.
I just grabbed her ass. Like,done. You know? Like, there's no
defense to that. Rightfully so.

Mhmm.

So it's an interesting, like, dynamic in
that regard too.

Right. Right. She's trying to, like, she
admits to doing something, but Ibut it wasn't that bad.

Right. You know? Like I'm just a like, a
harmless, like, you know, oldwoman. You know? I I didn't do
anything that bad or whatever

Mhmm.

Which would, like, never fly, you know, in in
another situation.

Mhmm.

I I find that interesting.

So yeah. So, ultimately, the the SLAPP
defense was was denied. Thismotion was struck down, even
though the court, you know,noted some things like the fact
that she may be treated as a asa public figure, a limited
purpose public figure, that, youknow, that'll get sorted out, I
think, more during discovery.But at least for now, she has

(34:23):
has shown that her claim hassome merit, and it will survive
dismissal, at least as to theclaims of defamation, IIED,
which is intentional inflictionof emotional distress. Yep.
Those are the only 2 thatsurvived. So, yeah, those will
move forward for now. So whydon't we transition here to what

(34:47):
I think we should now call,thanks to our producer's idea,
Speculation Nation and talkabout what we think is gonna
happen with this lawsuit.

Yeah. I love that. Usually, you know, big corporate
defendant with a lot of moneyjust wants to get the stuff over
with. You know, they'll get to apoint where, hey. Maybe we'll
just settle the case orwhatever.
But I I am interested to seebecause it seems like they've
taken a pretty aggressivedefensive posture here. Like,
pretty, aggressive in the sensethat they're like, this is

(35:17):
substantial truth, 1. We're notgonna back down from that. We
were absolutely entitled toclaim that this is a true story
because it is substantiallytrue.

Mhmm.

And so we're not gonna back down from that
position. Netflix, they have alot of money. You know, they're
not super worried about her.And, also, I I question what
damages she's going to be ableto, establish under defamation
case. I don't know anythingabout the, she is she's making
claims about her public imageand how that works.

(35:48):
And I as I understand there,that she might be making, like,
a play at, like, royalties forthe for the the the show, which
could be a lot of money, andchanges things for Netflix. But,
like, in terms of, like, herdamages, like, what what could
they amount to in the, you know,single digit 1,000,000 of
dollars maybe, which is notenough for for Netflix to, like,

change. Yeah.

They're they're right. So Yeah. So they're
taking an aggressive posturehere. And, again, I I tend to
think, like I mean, this justadds to the intrigue of the of
the show Yeah. Of the story.
And, like, unfortunately forher, you know, let's give her
the benefit of the doubt for amoment. Not that I necessarily

(36:31):
think she particularly deservesit, but, like, let's assume for
a minute that she has been,like, totally defamed and and
everything else. You know, thisis just gonna make it worse.
Right?

Like,

this is gonna

Right.

This is not going to no one's gonna come out of
this and be like, you know what?Actually, she's great.

Yeah. No. For sure.

Yeah. So I don't know.

I I mean, look. There's that's that's always,
though, at play with withdefamation lawsuits. Right. So,
you know, that's kind of thebalance that I think plaintiffs
have to have to weigh out of, amI gonna come out of this in a
better position than when I wentin?

Right.

I could see the IIED claims maybe having some
teeth if if she in fact receivedall the harassment she claims to
have.

I'm sure she did, by the

way.
Yeah. Oh, I'm sure. There are people out there
who have nothing but time ontheir hands, but to make other
lives others lives miserable.So, I'm, you know, that
certainly could have happened.But as far as defamation and and
her reputation being lowered inthe eyes of the community as a
result of this, you know, that'sthat's hard because I don't know

(37:39):
if at trial, if this went thatfar, that a jury would agree
with this judge that anyone or areasonable viewer of this
Netflix series would know thatit was her.
And the fact that she cameforward within 2 weeks and made
the public statement that it washer. The fact that Gad is saying
this wasn't about her. You know,Martha was never supposed to be

(38:02):
Harvey. Sure. There aresimilarities, but, I mean,
that's the liberties you take,you know, as as a writer.

Yeah. She's going on, like, national, like,
primetime TV to be like, whywon't everyone stop talking
about me?

Exactly. Yeah. You can't you can't self publish
and and, you know, claimdefamation. So I don't know.
Yeah.
And I think, especially withNetflix, putting out these type
of shows and series more andmore often, you know, maybe they
need to set some precedent andand fight this one. I don't

(38:37):
know.

A lot of true crime, a lot of, like,
mockumentary not mockumentaries,but a lot of, like, I would say,
thinly researched documentaries.And, yeah, from their
perspective, it might be, like,let's let's start building out a
a protocol for defending thesecases because if we, you know,
if we pay up at 1, maybeeveryone starts seeing off.

Mhmm. Yeah. But, again, just going back to
that bad fact, which is theworst fact for them, is that the
writer did not want to say thisis a true story and Netflix went
above him and did it anyway.

Yeah.

So, you know, there there is some potential
liability there for that, butwhether they want to take that
to the to a jury, you know, I Iguess that's for their lawyers
to decide.

Yeah. Up next, we're gonna be talking about the
wave of lawsuits that werefiled, this week, against social
media company TikTok, by anumber of different states. I
believe it was 14 total, andalleging different versions of

(39:45):
the same things. And we're gonnabe working mostly from the
complaint that was filed in ourhome state of Illinois here, and
the allegations that effectivelyboil down to this. TikTok, knows
that the way that its app isstructured and built, is
addictive.
It's bad for mental health. Itencourages, addictive behavior.

(40:09):
It's, it it both psychologicallyand physically causes harms, to
to individuals, to its users.And nonetheless, despite knowing
those things, continues tomarket and its product
specifically to young people whoare most susceptible to those
things and, and most vulnerableto them, as well. So

Is this the first platform, do you know,
that's been sued for?

No. We'll get into that. There's there's a version
of this of this lawsuit that wasfiled against Meta for similar
things.

I thought.

TikTok has different facts. And, if anyone,
like, has ever used TikTok,what's it's on the algorithm,
for, like, recommendations ofother videos and things like
that is uncanny. It's, in my,like, anecdotal experience, way,
way, way, way better at guessingwhat you are gonna sit and watch

(41:01):
than, like, say, Instagram or,anything else. So that's that's
where this goes. So the claimsthe the lawsuits, are brought,
under the Illinois ConsumerFraud Act and the Illinois
Uniform Dissective BusinessesPractice Act, which, like I
said, versions of this same typeof complaint were filed in, 13

(41:22):
other states including well, Iguess 12 states and then
Washington DC.
And I'll talk about that alittle later, but let's let's
stick to this one for now. So,lawsuits are claiming that,
TikTok, targeted children withharmful business practices, and,
it's also claiming that TikTokis deceiving the public about
social media about the socialmedia platforms. Dangers. Here's

(41:49):
what the Illinois attorneygeneral, Kwame Raul had to say
on a statement that he issued,from October 8th. This is from
the Illinois attorney generalwebsite.
In addition to Illinois'lawsuit, 13 other states filed
separate enforcement actionstoday against TikTok for
violations of state consumerprotection laws. In their
lawsuits, Raul and the attorneysgeneral alleged that TikTok's

(42:10):
business model, which seeks tocapture as much user time and
attention as possible to selladvertising, has targeted youth,
including teenagers and evenyounger children, in ways to
take advantage of them. Quoting,from Raul here, American
children and teenagers are inthe grip of a devastating mental
health crisis. The addictivefeatures on TikTok social media
platform interfere with sleepand education and contribute to

(42:32):
depression, anxiety, bodydysmorphia, and thoughts of self
harm. In Illinois, we willalways put our children and
young people first.
I'm committed to holding TikTokand any other social media
companies accountable forputting profits ahead of our
children's safety andwell-being, unquote. So, I
looked at the complaint. Sorry.Thanks. It's it's it's 80 pages.

(42:55):
There is a lot of backgroundfacts in there. And the
allegations kind of boiled downto a couple things here. There's
allegations that TikTokleverages the personal data
collected on the app and otherfeatures to manipulate young
people in staying on theplatform longer than they
otherwise would choose. Thefeatures are promoting excessive
and compulsive and addictive useof TikTok. And there's a lot of,

(43:18):
like, psychological researchthat's sprinkled into the
complaint, which I I foundinteresting, about dopamine
signals.
And, like, for example, here's adiscussion that I left from the
complaint here about, conceptknown as variable rewards, and
how the app encourages that.I'll quote from the complaint,
variable rewards hold a specialthrill as the user anticipates a

(43:41):
reward they know could come butis tantalizingly just out of
reach. A gambler waiting to seewhere the roulette wheel will
stop or if you were watching apresenter's dramatic pause
before they announce a winner.In both cases, the individuals
experience a dopamine rush asthey anticipate the unknown
outcome, unquote.

And how does that work with the platform? I'm
not that familiar with TikTok.But

so there's a lot of different allegations here. It's
it's the there's the postingaspect of it. There's watching,
consuming TikToks, like, youknow, scrolling, as well as the,
the feedback of, like, getting,like, likes and views on videos
that are posted. There's they'rekinda going at it from all

(44:21):
different angles Mhmm. Which is,which is interesting.
The TikTok algorithmrecommendations. There's some
also some discussions about,like, the use of filters that
would promote, like, unrealisticbeauty standards, things like

(44:43):
that, the automatic playingfeature that TikTok has, which
you cannot disable. So if you,like, you watch a TikTok and
then, like, you set your phonedown, it'll just keep playing it
over and over again.

Oh, okay.

It won't play it once and then stop.

Got it.

It'll keep going. Infinite scrolling, which means
you can you'll never run out ofTikToks. You just continuously
scroll up, and you'll alwayscontinue to see more push
notifications, things like that.Some of these things are unique
to TikTok. Some of them, in myexperience, is like a millennial
who, you know, has been aroundsocial media.
Some of them are, I think, alsoequally applicable to platforms

(45:19):
like Instagram, or, I suppose,Facebook back in the day. Mhmm.
TikTok is, unique in how franklygood it is at getting people to
stay on the platform, andthere's a lot of research to
that. So I don't necessarilyknow that it's any different in

(45:39):
kind from what, say, like,Instagram is trying to do. I
think it's it's own itsdifference is in, like, scope
and, like, basically, thatTikTok is just better at doing
the thing that all of thesesocial media companies are
trying to do anyways Yeah.
Which is, you know, steal yourattention, keep you hooked. So

(45:59):
the the complaint does rely alot on and this is where the
consumer fraud, aspect comesinto play in the deceptive
business practices act. Thecomplaint relies a lot on the
public record of statements,testimony because these folks
have the TikTok folks havetestified in front of congress,
for example, and advertising,that TikTok itself puts out,
which it says that the company,you know, doesn't do those

(46:20):
things. Right? It's it's afamily friendly platform,
etcetera.
So so that's kind of the hookfor, you know, how did TikTok
break the law is it's defraudingthe public by maintaining that,
you know, we don't do thesethings, and and our platform
doesn't operate that way when infact it does. Mhmm. So this is

(46:42):
the relevant portion of theIllinois consumer fraud
deceptive deceptive businesspractices act. So I'll read to
you all, quote, unfair methodsof competition and unfair or
deceptive deceptive acts orpractices including, but not
limited to the use or employmentof any deception, fraud, false
pretense, false promise,misrepresentation, or the
concealment suppression oromission of any material fact

(47:04):
with the intent that others relyon that concealment suppression
or omission of such materialfact in the conduct of of any
trade or commerce are herebydeclared unlawful whether any
person has in fact been misled,deceived, or damaged thereby.
So, the a a claim under theIllinois Consumer Fraud Act is

(47:25):
going to allege that, one,there's a deceptive act that's
happening, that the business isis actually doing, and that the
there's an intent that otherswill rely on the, the act of
deception.
So we're going to lie aboutsomething, and we're gonna hope

(47:45):
that you believe us. You'regonna hope that you believe the
lie so that you engage with ourbusiness.

Yeah. So I know there's been a lot of
congressional hearings over thepast, what, 5 years at least
from I know Zuckerberg's beencalled in a bunch to testify
about this sort of stuff. Ithink, yeah, finally, we're
we're realizing the effects ofsocial media on the youth.

Probably, like, 10 years too late. But yeah.

Yeah. Exactly. But I didn't realize that that
they were actually saying wedon't do these things, and we
don't create these algorithms,and we don't, you know, push
content in this manner.

Yeah. I mean, the complaint gets into that where
it's, like, TikTok advertadvertises that it has, like, a
1 hour scroll limit, forexample, and and it says, like,
this is, like, a unique, safetyand, feature that we have where,
like, after an hour, you know,the app will no longer let you
to scroll. And the, complaintpoints out, no. It doesn't.

(48:39):
Yeah.
After an hour I've I've gottenthis warning before. After an
hour I don't have TikTok on myphone anymore. But, yeah. After
an hour, it's like, hey. Youshould take a break, and then
you could just scroll right pastit.
You're

like, nah.
Oh, it actually does say. Yeah. It says
something that

says, like, it says, like, you've been
scrolling it's like you've beenscrolling for an hour. You need
to stop.

Oh my
gosh, Jack. Are you making your billable hours?

Hey. This you know, we have hobbies. And then, and
my TikTok algorithm is trainedto present mostly just sovereign
citizen arguments that happen incourtrooms.

Right.

I adore that. One of these days, we'll do an
episode on sovereign citizens.Anyways, so after an hour, you
you get that warning, and thenyou could just blow right past
it. Right? So that's, like, oneof the things that they don't
mention, and they're saying isdeceptive.

Okay. Well and I I assume the argument is that,
especially parents are gonnarely on these statements. I
mean, our children are luckilystill too young to have social
media, but I Right. I'vedefinitely had a lot of
conversations with our partnersor friends that have older
children, and they've had tohave these discussions of,

(49:46):
alright. We're allowing you tohave one social media account.
Like, let's figure out whatplatform. And then the parent
figures out what platform that'sgonna be based on safety
features. So I get it if they'remisrepresenting.

Yeah. And and there's other things too, like,
there that will have representedin certain circumstances that
there's safety featuresavailable or that they're not
available or they can't dosomething, they don't have the
ability to do something oranother. And then TikTok, for
those who don't know, is is theAmerican version of the so there

(50:20):
is a a domestic American versionof TikTok, and then there is a a
a Chinese version of TikTok,both of which are were created
and or owned, I'm not exactlysure of their current legal
status, by, a company calledByteDance. And there seems to
be, at least according to thecomplaint and the little bit of
research I did, more safetycontent moderation, parental

(50:43):
controls, things like that onthe Chinese version, the name
American version. So that'sanother part of it too where
it's, like, you could actuallyimprove on these those things
and and you don't.
Mhmm. D o u y I n is the Chinese

Douyin.

The Chinese version of TikTok. Okay.

Oh, so if you're, yeah, if you're owned by
the same company and one arm isdoing things safer
than
the other arm, that's not a good look.

Yeah. So, the state of Illinois claims that TikTok
has misrepresented a lot ofthese facts, has misrepresented
specifically that TikTok is notpsychologically or physically
harmful to young users, that isless addictive than it is, and
that it is not designed toinduce young users, to
compulsively use it and so on.And then the state alleges,

(51:29):
TikTok engaged in unfair actsand practices such as, quoted
from the complaint, targetingthe TikTok platform to young
users while knowingly designingthe platform to include features
that defendants knew to bepsychologically and physically
harmful to young users,including features known to
promote compulsive, prolonged,and unhealthy use by young
users, utilizing platformfeatures that unfairly harm

(51:51):
young users independently of anyactions taken by third party
users on the platform. Thesefeatures platform. These
features include infinitescroll, ephemeral content
features, autoplay,quantification and display of
likes, user appearance alteringfeatures, disruptive alerts, all
of which are unfairly utilizedby defendant to extract
additional time and attentionfrom young users whose

(52:12):
developing brains were notequipped to resist those
manipulative tactics.
Designing, developing, anddeploying disruptive audio,
visual, and vibrationnotifications and alerts and
ephemeral content features in away that unfairly a femoral
content features in a way thatunfairly exploited young users'
psychological vulnerabilitiesand cultivated a sense of fear
of missing out in order toinduce young users to spend more
time than they would otherwisechoose on the TikTok platform,

(52:35):
unquote. There's also a counter,as I mentioned, for the Illinois
Uniform Deceptive DeceptiveTrade Practices Act, which, the
factual accounts are, you know,more or less similar enough. We
don't really need to rehashthem. This is what they're suing
for. Here's the remedies thatthe state is looking for.
Finding that TikTok violated theConsumer Fraud Act, a finding

(52:57):
that they violated the,Deceptive Trade Practices Act,
an injunction to prevent futureviolations of the Consumer Fraud
Act, which enjoining them fromviolating this act would mean,
by the way, that TikTok wouldhave to dramatically change, the
way that it operated. OrderingTikTok to pay penalties of up to

(53:20):
$50,000 per unfair or deceptiveact or practice, which would
amount to, like, infinitydollars.

I was
just gonna say, how do you even calculate that?

Exactly. It's it's an amount of money that would be
in the in an amount that'sincalculable given the amount of
engagement that TikTok gets.Additional monetary relief,
disgorgement of revenues, costto the state of Illinois for
bringing the action, so the $360filing fee. And, so it's the

(53:58):
were the state to succeed onthis, the outcome is, like, a
tremendous financial penalty toTikTok. And, you know,
solicitors may think, like,okay.
Well, you know, they'll settlefor some nominal amount. Now you
gotta understand. State ofIllinois and in particular
there's a lot of states thathave done this, but Illinois in
particular has achieved massive,massive, massive, settlements

(54:23):
ultimately. But based on thistype of litigation, a lot of it
comes under the BiometricsProtection Act, things like
that. But, like, in the manymany many 1,000,000,000 of
dollars from, tech companieslike, like Facebook in the past,
like verdicts, or judgments orsettlements that were so bad
that Facebook, for example, hadto shut down its facial

(54:44):
recognition software, which wasif you remember, when you would
upload a photo to Facebook, itwould try to automatically tag
who had thought it was there.
Yeah. It stopped doing thatbecause of the state of
Illinois, because of how bad thedamages could be. So, like, this
action is has a lot of teeth,and could result in I mean, it
could result in a lot of things,but it could result in it

(55:08):
becoming financially unfeasiblefor TikTok to continue to exist
the way that it does.

Mhmm.

You have to change how it it operates. If if you
guys are interested in that, goback way back to episode 7 of
the show where we talked aboutthe, state of Illinois lawsuit,
against Facebook on this facialrecognition facial recognition
thing. So, anyways, here's whata TikTok spokesperson said. In

(55:35):
an emailed statement, TikTokspokesperson Alex, Haurek, h
aurek, said the company stronglydisagrees with these claims and
believes they are inaccurate andmisleading, quote, we're proud
of and remain deeply committedto the work we've done to
protect teens, and we willcontinue to update and improve
our product. We provide robustsafeguards, proactively remove

(55:55):
suspected, underage users, andhave voluntarily launched safety
features such as default screentime limits, family pairing, and
privacy by default, to minorsunder 16.
Harrick added that the companyhad, quote, endured to work with
attorneys general over the last2 years on privacy and safety

(56:17):
issues and was incrediblydisappointed with the legal
action, unquote. So, a noteabout this lawsuit in the
context of all the other ones.So the law suits were all filed
about the same time. They'realso containing similar
allegations. The attorneysgeneral that put these things

(56:39):
together coordinated, I think,very closely, to share evidence
and to probably hash out legaltheories and things like that.
So it's it is a multistate,bipartisan, effort. There's a
lot of red states and bluestates that are that are
involved in this. Very detailed.Everyone has done their

(57:01):
homework. So it's, you know,it's not just, it's not just,
you know, the Illinois attorneygeneral that's looking to score,
like, easy political points bybeing being tough on, you know,
big tech or whatever.

Like Right.

This is a serious, lawsuit.

Wait. So is this are these separate lawsuits
or
are they
oh, okay. Not doing, like, multi

No. No. No. That's what's very interesting is that
each of these lawsuits, they'reall being brought under state
law.

So because each state is gonna have its own

Yeah. But provisions on this. But, I mean,
think about it. It's because ifit were brought under, like, the
federal versions of some ofthese statutes, right, then
TikTok consolidated all in oneplace and then and then
essentially be dealing with onebig lawsuit. Right?
Yeah. As it is split across the18 different jurisdictions, none

(57:51):
of them that I saw, by the way,alleged anything under federal
statute, which I found veryinteresting.

Strategic, I'm sure.

Yes. Because, that would allow for, like,
consolidation and and allow forTikTok to get multiple things
under one roof. Mhmm. As it is,they have to retain, you know,
lawyers who are licensed in 14states to defend against 14
different complaints, each ofwhich is citing 2 different,

(58:18):
statutes that are all gonna havesubstantive differences. I mean
Right.
They're gonna be similar enough,that you can, you know, in broad
strokes, say, listen. TikTok gotsued for fraud and deceptive
business practices in 14different states, but, like, how
that actually operates, the lawthat, is gonna trigger liability
under those statutes, differentthresholds, all that stuff, is

(58:38):
gonna be different state bystate. So, like, I I find that
interesting because that'sabsolutely intentional. Right?

Oh, for sure.

And because it it causes I mean, frankly, it costs
TikTok more money, not theydon't have it. It also requires
TikTok to be speaking and takingpositions in 14 different cases
that all have to be aligned.

Mhmm.

So you can't, you know, deny something in one case
and then admit to it in another.That, that'll be used against
you. So it's a very, very, verythin, you know, narrow path that
TikTok has to trend here that ifthey're gonna defend these
things on the merits. I findthat very interesting. And I I

(59:23):
was thinking about this, youknow, like, try not to get into,
like, politics and watching thenews.
But you you've heard a lot ofpeople complaining about, like,
the term, the term lawfare hasbeen getting thrown around.
You've seen that? Mhmm. So,like, saying, you know,
different enforcement actionsare, like, targeted for
political reasons.

Oh, yeah.

And, like like, Eric Adams, who is the mayor of
New York City, for example, is,being, I guess, indicted for,
something about taking moneyillegally from Turkey. I don't
really know.

Yeah.

But he's saying I'm being unfairly I I this is law
fair, like a play on play onwarfare. Like, I'm being
targeted by, I don't know, thethe Democratic machine for some
reason or another. They're usingthese investigations to, you
know, to to cost me money andand, you know, create headaches

(01:00:15):
and and basically bother me,etcetera. TikTok for whatever
it's worth. This actually is anexample of that.
This is what I would call, like,targeted, weaponized litigation
that is, of course, trying to,you know, go after TikTok for
things that these states believeis important, but also gonna do

(01:00:37):
it in the most painful way theycan Mhmm. And make it expensive
and make it hard and make it,like, and and make it difficult
to defend. And that I mean,that's part of litigation. That
that is that's just frankly,that's good lawyering. But
that's what this can look like.
You know, 14 different stateseach taking slightly different

(01:00:57):
positions. It's gonna be ondifferent timelines, you know?
Gonna be asking for differentthings in discovery. All the
states will be coordinating andsharing information as it comes
out. That's like you know?
And, whether whether it's goodor bad. I mean, I I this is,
like, what a, you know, like,quote, unquote, politically
coordinated, like, enforcementaction looks like.

Danessa Watkins (01:01:21):
Mhmm. I'm wondering if because I was just
I was just doing some quickgoogling to see, obviously,
multi district litigation.That's a thing in federal court.
But thinking about lawsuitswe've seen in the past where
they'll try to get a stay in onejurisdiction Sure. If it's
raising the same issues, but Iwonder if that would work in
this case.

Jack Sanker (01:01:41):
No. I mean, I can tell you, the one that's pending
in Illinois is pending in CookCounty in the chancery division
where I'm at all the time. Andthe odds of them getting Oh,

they won't stay.

Not a chance.

Not a chance in the world

that they're gonna stay in this case.

And it's But I wonder if they'll if net sorry.
Not if TikTok will try to argue,you know, Illinois should be the
leader on this.

I'm sure they will. But I

mean try to stay the other.

But every other judge, there's 14 other judge I
mean, there's 13 other judgesnow. They're all gonna be one of
the the one who rules on theTikTok thing. Thing.

Well, and
it's but, I mean, like you said, it's
strategic. They're bringing itunder the state's laws. Yes. And
a state has a unique interest inregulating its own laws.
Absolutely.
So yeah.

It's it's it's interesting to me that they
everyone seems to havecompletely like, even DC. DC has
its own version of, like,privacy laws. I was looking at
their complaint. It's it'sdifferent from Illinois, but
it's around the same facts,basically. And it's it's unique.
It's com it's like you can't saythis is the same as what state

(01:02:44):
of Illinois is alleging. Theyare different.

And this is civil.

Yeah. Yeah. Yeah. Yeah.

Yeah. Because, I know our Illinois statute does
have a criminal component too.But, but even the civil statute
has a lot of teeth in that. Youcan get attorney's fees. You can
get punitive damages

Big time.

Because it's based on fraud. So I would
assume that probably otherjurisdictions are similar.

And and a lot of these, attorneys general, like
like like Illinois, for example,like Texas, for example, have
experience in their, you know,in their attorneys general
office of these complex,lawsuits, where the state is the
plaintiff against large techcompanies. Like, they it's you
know, say what you want about,like you know, people will say

(01:03:25):
pub have stereotypes aboutpublic employees or whatever.
These types of prosecutors,like, are the best at this
stuff.

Yeah.

And, you will have to pay through the nose to find,
competent, defense for thesetypes of things. And so, like,
the the the division inspecifically in in Illinois,
it's the consumer protectiondivision of the attorney general
office. Like, those guys knowwhat the heck they're doing. So,
so, yeah, I mean, this is thisis a a like a like a bombshell

(01:03:55):
of a development, these theselawsuits filed against TikTok.

And it may not be over. There may be other
states that jump on board.

100%. You're they're gonna see that we can
that, you know, they can get inon this, and they're gonna you
know, they're going to go forit. I am I mean, I this is,
yeah, this is, welcome toSpeculation Nation. I'm your
host, Jack Singer. I'm gonna I'mgonna guess what I think is
gonna happen here.

(01:04:21):
It's serious. Like, this has thepotential to nuke the platform
as we know it.

Well and even I was just thinking through now
too, like, discovery issues. Soyou we have what's called a
common interest privilege whereyou can essentially assert
privilege over yourcommunications and documents
shared with a similarly situatedlitigant who has the same
interest as you. Right. So Iwould assume all of these states

(01:04:50):
have something like that inplace. It's gonna make discovery
cheaper for them because theycan share theories.
They can share information,documents.
Or, hey.

Something I forgot to ask for something in my case.
My deadline's passed, but youhave some time. Why don't you
ask in your case? Exactly. It'sit's yeah.
It's it's

It's like lit it's it's like TikTok's gonna be
litigating against 14 plus
Yeah.
Amazing attorneys in every single case.

Yeah. Yeah. There's, kinda going back to the
substance of the allegations, II I think, it it kind of boils
down to, hey. These, like, apps,social media platforms, and
TikTok in in this case, arepsychologically addictive,

(01:05:35):
basically in the exact same waythat gambling is and and and
other addictive behaviors. Andyou, TikTok, know that.
And despite knowing that, here'sall the things that you're
doing, to basically go after andtarget teenagers and children.

(01:05:55):
And, like, the whole, you know,is this addictive or not or is
this, does this createcompulsive habits or not?
Interestingly in the complaint,there is a lot of, like,
citations to, differentpsychological studies or
whatever, but they go backdecades. I mean, we have

(01:06:16):
studied, like, gambling, forexample Mhmm. For a long time in
this country.
And so we do know the way inwhich, gambling can affect, the
way that your brains function.You're wired, basically. And
there's reasons why gambling isillegal for in in all 50 states
for folks under a certain age,because we know this is not good

(01:06:39):
for them. Like, it it it harmsthem psychologically, which can
manifest in, like, physical,harm.

And even it it's it's it's like their real
life version of social media andthat, you know, even the way
that casinos are set up, thelights, the way the games make
noises, the way you know, therethere are all these cues that

There's a lot.

Draw you in.

There's a lot of research where a lot of these
platforms, TikTok is the bigone, Instagram as well. Like,
the scrolling thing is, like,meant to tickle the same part of
your brain that the, that theslots wheel does.

Yep.

It's because you're essentially looking at a slots
wheel.

Right.

And so you keep scrolling and and, you know, to
you get that same, dopamine hitthat you would from, like,
playing slot machine. Mhmm.

So, Well, and if we as adults can't resist it,
obviously. Right. You know, howthe heck would you expect a
Yeah.
I
mean growing brain too?

Yeah. It it's it's you know that your product is
actually, in terms of theeffects on the human brain,
pretty close to how gambling orother behavioral addictions
work, and yet you stilldeliberately target people whose
minds and psychology are notonly the most susceptible to
those tactics, but also the mostlikely to be harmed

(01:07:51):
psychologically and physically.Mhmm. And and this is I at least
in Illinois, this is the hookthat gets you into the consumer
fraud actions, and you keeplying about it.

I was gonna say that's the yeah. Because it's
consumer fraud and then thedeceptive trade practices. So
there has to be the deceptionand the fraud.

You you keep lying about it. You keep telling us
that your thing doesn't do this,and you know that it does. And
this stuff is, like, not quackscience. Like, it's this like I
said, we've studied gambling fordecades. We we know this stuff
pretty well.
And

Well,
and you have to imagine that TikTok and other
social media platforms thatthey're doing their research.
You know? They're making updates

based on why the app is so good at doing what it
does Yeah. Which is drawingpeople in and they waste time
and and they get just fed adsand and everything else. There's
other interesting things in thecomplaint about, like, the
TikTok marketplace, which Idon't know anything about. It,
to me, like, screams, like, I'mgonna get my identity stolen if
I touch this. But maybe 15 yearolds don't see that.

Right.

And that's another element of the complaint as well
is that you were, like it's likeit's like remember, like, QVC,
like, the home shopping network,whatever? It's, like, kinda like
that from what I gather. But,like, you're getting sold on,
like, products made god knowswhere and, like, whether they're
safe or whatever or you even getthem. Like, I

mean,

who knows? So Timo. Yeah. It's it's yeah.

My mom with Timo. Right.

Yeah. Yeah. Yeah. So, and then it's just, like,
you don't even know you're beyou're watching an ad sometimes.
You just, like, that's the wholething.
It's it's so, anyways, I willsay I do think it's rich that
all of a sudden TikTok is theboogeyman for this stuff when,
like I mean, Instagram andFacebook and, I mean, they've

(01:09:36):
been doing it for forever.

They do

the same thing.

Yeah. But they've gotten their licks too.

Yeah. I know. I I I I I said at the beginning, I
think that TikTok is beingpenalized here for just being
best at it. Mhmm. And that sothat's not we shouldn't assume,
like TikTok is not any.
They're all trying to do thesame thing. TikTok is succeeding
the the the most. Mhmm. I alsothink it's a little rich, you
know, that we're, like, oh, man.We're, with this this app is,

(01:10:03):
you know, it's, creating asensation akin to gambling.
And then it's, like, Disney,which owns ESPN, is, like, doing
wall to wall ads every broadcaston ESPN for, like, actual
gambling. You know? Yeah. Like,literal actual gambling. Like,
you But

are they lying about it?

Right. Right. I know. But, like, let let's stop
clutching our pearls here

and be

like, well, our children are being exposed to
these. I'm like, no. We I ifyou, like, sit down and try to
watch an NFL game Mhmm. If you,like, if you took a shot every
time they aired a gambling ad,you would black out by the end
of the Q1. So

That's so true.

So, like, you know, I mean, I I'm personally good
good luck to the attorneysgeneral here. You know, it seems
like, you know, this is a thisis the right motivation here.
But I am a little, like all of asudden, TikTok is, like, the
punching bag for all thisfrustration about, you know,

(01:11:05):
social media effects on our onour kids and, like, that is that
cat is so far out of the bag.You know, like, we we've, I
don't know. That's a whole otherdiscussion.
But, like

Well, yeah, I mean, now we have states. We've
covered it in past shows toowhere states are are starting to
make their own rules about theage limits for social media. You
know, whether those laws standup, I guess, is still to be
seen. But I I it seems likethere's pressure on the
legislature to to hit this fromall angles.

Yeah. Yeah. And, you know, I think if the goal
here is to, like, rein inaddiction to your phone,
basically, I'll say, for foryoung kids, like, this is 1% of
what would be needed to do that.You would have to dramatically
rethink, the way in which, like,we advertise and and do things

(01:11:57):
like that. That said, it's, it'sinteresting lawsuit.
I will keep my eye on thisbecause I I'm very interested to
see where it goes.

Yeah. I might pop in to a proceeding or 2.

Yeah.

Yeah. Right up the street from us.

So It's our home turf.

Yep. And if you're interested in learning
more about online safety and,laws that are being put into
place to protect children in onsocial media platforms, we did
cover some of that in episode46, talking about a lawsuit
filed in December 2023 againstMeta, bringing up issues of the

(01:12:33):
lack of age verification on thatplatform. Alright. That's our
show for this week. Reminderthat we have shows coming out
every 2 weeks.
Please like, follow, subscribeto Litigation Nation wherever
you get your podcasts, and leaveus notes if you wanna hear
content, different areas of law.We'd be happy to tune into

(01:12:57):
whatever our viewers areinterested in. So that's it for
now. Thanks for listening.

All Episodes

The ‘Baby Reindeer’ defamation lawsuit against Netflix hinges on a single line: ‘This is a true story’ - Ep. 59

Episode Transcript

Popular Podcasts

Stuff You Should Know

24/7 News: The Latest

Crime Junkie

.css-15opob5{left:0;position:absolute;top:0.8rem;} All Episodes

.css-14f5ked{margin:0;word-break:break-word;display:-webkit-box;-webkit-box-orient:vertical;box-orient:vertical;-webkit-line-clamp:2;overflow:hidden;}The ‘Baby Reindeer’ defamation lawsuit against Netflix hinges on a single line: ‘This is a true story’ - Ep. 59