The ‘Baby Reindeer’ defamation lawsuit against Netflix hinges on a single line: ‘This is a true story’ - Ep. 59
Download MP3Welcome to Litigation Nation. I'm your host, Jack Sanker, along with my co host, Danessa Watkins. This is the show where we talk about the most and interesting legal developments of the past couple of weeks. Danessa, what do you have today?
Danessa Watkins:Today, I'm going to cover the defamation lawsuit that has resulted from Netflix series, Baby Reindeer.
Jack Sanker:Oh, boy.
Danessa Watkins:There was a recent motion to dismiss filed in the Central District of California. So I will fill you all in on what claims survived and which ones got kicked out.
Jack Sanker:And we're gonna be talking on my side of things about the 14 or so different lawsuits that were filed by a number of different attorneys general against TikTok, the social media, punching bag, that you hear about so much in the news these days. As a reminder, you can find the show everywhere you get your podcast, Apple Podcasts, Spotify, YouTube, wherever. We publish, usually around twice a month, and, let's get into it. Here's what you need to know.
Danessa Watkins:Alright. So Baby Reindeer. This was a Netflix 7 part miniseries that were was released on April 11, 2024. Jack, I think you said you haven't seen it. Correct?
Jack Sanker:No. I did not.
Danessa Watkins:And I was trying to think of how to best summarize what this series is because it really is a roller coaster of emotions. And, there definitely 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 it as briefly as possible. It's a show about a struggling Scottish comedian, and he ends up taking a bartending job where he meets this woman who turns out to be his stalker for a number of years. It it kind of follows their relationship back and forth, the craziness that ensues with that.
Danessa Watkins:But it also takes this turn, I guess, you don't see coming where, this comedian gets in with this TV writer who ends up, they get into this friendship where all they do is take drugs and he promises he's gonna make him a star. But in reality, turns out he is raping him while he is
Jack Sanker:I was gonna say
Danessa Watkins:drug induced.
Jack Sanker:Yeah. Obviously.
Danessa Watkins:Yes. So I won't give away the ending, but it it rounds back around, I guess, to the to the original two people, which is the comedian and then his stalker. It, you know, it I I can't even explain it. You have to watch it essentially to to understand how crazy this show is. But the part that gets you and really tugs you in is right in the beginning, it flashes this tagline that says, this is a true story.
Danessa Watkins:So once you see all these characters and, follow, you
Danessa Watkins:know, what what happens, you're, like, there is no possible way this is true. I mean,
Danessa Watkins:that's what I thought. Right. But, for, you know
Jack Sanker:I thought
Danessa Watkins:the thing I I'd, like,
Jack Sanker: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 looks ridiculous and a little spooky.
Danessa Watkins:Mhmm.
Jack Sanker:So I so I that's probably why I like it. I didn't watch.
Danessa Watkins:And and we definitely after watching it, we we started doing our own research because we wanted to, you know, get, like, did this really happen? You know, how come there haven't been lawsuits based on these characters and what's going on? And you you learn pretty quickly that the show was created and actually stars the comedian Richard Gadd. And the series was adapted from his autobiographical one man stage play. So again, leading more credence to, yes, this is a true story.
Danessa Watkins:It's received 6 of the 11 Emmy nominations that it was put up for just recently. And, I think within days of of the show coming online on Netflix, there was and I did see this on social media. Richard Gadd put out a statement and said, hey, everyone, please stop searching online, trying to figure out who the real life people are that we portray in this show, because they obviously changed their names.
Jack Sanker:Which I that that didn't work, I'm assuming.
Danessa Watkins:It did not work. Yeah. Within 2 weeks, there was a woman that came out and pretty much admitted that she was the real what is her name? Martha Martha Scott is the name of the character. She's the antagonist, the one who, does all the
Jack Sanker:She's the soccer.
Danessa Watkins:Soccer. Thank you. Like, what is that word? Like, harasser? No.
Danessa Watkins:Yes. So Martha Scott is the antagonist stalker in the series. So the the real person, who is Fiona Harvey, she is a 58 year old Scottish woman. She came out pretty much admitted that it was her. And then shortly after, went on Piers Morgan and addressed the fact that a lot of what is shown in the Netflix series is not actually accurate.
Danessa Watkins:So she, you know, even though people had somewhat figured out that it could be her, I mean, it's all speculation. Right? But but she made it known. Yep. This is this was written after me, and here's all the reasons why it's not true.
Jack Sanker:Didn't have to do that.
Danessa Watkins:Did not have to do that. Okay. Agreed. But, you know, I I mean, look, I've never been on the other end of, you know, the Internet sleuths coming at you. You know, according to her, she was receiving hate mail and harassment for the way that, she was portrayed.
Danessa Watkins:And, you know, people believe that she actually did the things that are portrayed in the show. Because again, Netflix put that this is a true story. So she has brought a lawsuit. This was just filed in June in the Central District of California against Netflix Netflix Inc, and Netflix Worldwide Entertainment LLC. She is alleging defamation, intentional infliction of emotional distress, negligence, gross negligence, gross negligence, violations of her right of publicity, and, also brought a a claim for punitive damages.
Danessa Watkins:So just recently, Netflix filed a motion to dismiss the claims in general, but also a special motion to strike based on the anti SLAPP statute.
Jack Sanker:Sure.
Danessa Watkins:Which we've covered in other shows. It's the strategic lawsuit against public participation. So it's essentially a claim that someone is bringing a baseless lawsuit for the malicious purpose of, silencing otherwise protected speech. Down speech. Yeah.
Danessa Watkins:Yes. So I I mean standard, you know, what you would bring in this type of of a claim. So in support of the their slap motion, Netflix went into great detail about Harvey's history of stalking behavior, trying to show that this is true. You know, the every everything we said about this person, even though we, you know, didn't use her name This
Jack Sanker:is such good advertising for the show now.
Danessa Watkins:It's it's
Danessa Watkins:actually, yeah, pretty wild. So I I didn't read their full motion, but I did find the the central district's opinion on the motion, which does go into to some of the details. What's what was interesting are the similarities between the two characters. Well, the the character Martha and then the real person Harvey. So in reality, Harvey is a Scottish lawyer living in London.
Danessa Watkins:She has been accused of stalking, in the past, and these were published in newspaper articles. And if you have seen the show, to me, one of the craziest parts was how Martha's character she just has this unique way of speaking, a unique cadence to her voice. And apparently, according to the court records, it is indistinguishable from the real life Harvey, which is is is crazy. So anyone that knows Harvey and saw Martha's character being depicted would immediately know that it was the same person. So as part of the opinion, they go into Harvey's history of stalking.
Danessa Watkins:So per the opinion, back in 1997, she was hired by a law firm and was terminated shortly after being employed. And then within weeks, she started harassing her employer and the employer's family.
Jack Sanker:My gosh. She's making it so much worse.
Danessa Watkins:I know. I know. All this history is coming forward. So for 5 years, she was threatening her former employee, following her and her family, making false reports about them, and this continued until they effectively got a restraining order. I'm kinda surprised it took that long for them to do that.
Danessa Watkins:But either way, all of this led to multiple news stories because the employer was married to a member of British Parliament. So it attracts a lot of attention and stories covered this issue from the years 2000 to 2004, because also during that time, the, miss Harvey also was stalking the First Minister of Scotland.
Jack Sanker:Okay.
Danessa Watkins:So she has high profile targets.
Jack Sanker:These are these are allegations or convictions?
Danessa Watkins:These well, both resulted in restraining orders. So there were not convictions
Danessa Watkins:Right.
Danessa Watkins:But there is, you know, paperwork and and police reports covering it.
Jack Sanker:Not representing that she actually did these things.
Danessa Watkins:These are I sure. They're allegations that that resulted in restraining orders. Yes. We don't know the truth of them.
Jack Sanker:And insofar as we ever get in trouble for anything like that, I will be asserting podcasters privilege.
Danessa Watkins:I I'm just gonna say I'm relying on the central district's opinion. So but, yes. Then fast forward to 2014, that is when Harvey met Gad, who is the the producer and the and the star of of Baby Reindeer. And she almost She would follow him, attend events that he was She would follow him, attend events that he was he was performing at. As similarly to what's depicted in baby reindeer, she did get handsy with him at times without his consent.
Danessa Watkins:And on one occasion, allegedly got violent with him, quote, shoving him in the back of his neck, end quote.
Danessa Watkins:Okay.
Danessa Watkins:For years, she sent him countless emails, social media messages, voicemails, handwritten letters, and that harassment continued until 2017 when he got essentially the equivalent of a protective order. Now she was never prosecuted or convicted for any crimes related to her behavior, but they did find a and by they, I mean, Netflix did find a they did find a and by they, I mean Netflix, did find a criminal lawyer who practices in England and Wales to give a declaration supporting their motion to dismiss. And she essentially said that her behavior rose to the level of criminal stalking, which would be punishable by 5 years imprisonment. So the the series gets released. The the opinion notes that shortly after that, we did have Harvey appearing on Piers Morgan, reaffirming that the Martha character was based on her.
Jack Sanker:Right. The game doesn't have to do that. Exactly.
Danessa Watkins:Doesn't have
Jack Sanker:to go on TV and say that was me.
Danessa Watkins:Yes. I mean, as certainly, but at that point, it was speculation. But the the strongest pull was that within the series, there's this part where the Martha character says, I want you to come hang my curtains. And so these Internet sleuths, and
Danessa Watkins:I don't pretend to know how they do
Danessa Watkins:what they do. But Internet sleuths, and I don't pretend to know how they do what they do. But they went way back to 2014, and they did find some post by Harvey where she essentially said hang my curtains on, I think it was Twitter feed or something. Yeah. So that's how they drew the the ultimate connection.
Danessa Watkins:Now after Harvey filed her complaint, the Sunday Times ran an article about the lawsuit, and it essentially suggested that Netflix went out of its way to add that tag. This is a true story at the beginning of the series. Apparently, Gad, the, you know, the writer, he expressed concerns about representing it that way. He said that in his own show, he says based on a true story. And Netflix insisted, no.
Danessa Watkins:We need to say this is a true story.
Jack Sanker:That's fascinating.
Danessa Watkins:Which yeah. Very bad fact for Netflix.
Jack Sanker:You know, though, I I I wonder. I mean, maybe we're not giving them enough credit because this this whole thing of, like, you know what? Let's get ourselves sued so that we can continue to tell this story, like and get a ton of free media coverage. Because, like, now I wanna watch the show. I wonder if they're playing, you know, 5 dimensional chess over there.
Jack Sanker:And they're like, yeah. Let's let's go ahead and invite a lawsuit from, like, Scotland's most famous stalker
Danessa Watkins:Mhmm.
Jack Sanker:And, and see how that that can't hurt us. Right? I I knew it. Yeah. Anyways
Danessa Watkins:No. It's an interesting thought because, I mean, that's
Jack Sanker:because their legal should have flagged.
Danessa Watkins:That's so basic.
Jack Sanker:Don't ever do that.
Danessa Watkins:Right.
Jack Sanker:Right. Say this is the truth. Like you say, this is largely based on that.
Danessa Watkins:Yeah. I mean, I think they probably did it, you know, for I don't know. For dramatic purposes, you know. But, the idea is that, you know, what is what is in the mind of the reasonable viewer. And I think now we're used to dramaticized, especially when it comes to, you know, murder cases or illegal cases in general.
Danessa Watkins:Yeah. I mean, that's all over Netflix right now. So
Jack Sanker: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 Netflix perspective, nothing. And in and the trade off here is, like, a tremendous amount of very interesting press
Danessa Watkins:Yeah.
Jack Sanker:Including, I guess, this recording that we're doing right this time.
Danessa Watkins:I guess so. Yeah.
Jack Sanker:Yeah.
Danessa Watkins:That's true.
Jack Sanker:Okay.
Danessa Watkins:Well, so if you haven't seen Baby Rangers Yeah. I know I won't. You're gonna wanna see it. Alright. So getting into some of the issues that were raised in the motion to dismiss.
Danessa Watkins:So anti SLAPP, essentially, you have to show that that there is first protected speech, that is that is being impacted. That was an easy hurdle essentially for for Netflix to overcome and and the court agreed. Yes. Of course, this you know, you're putting out this this series. It's it's gonna be protected speech.
Danessa Watkins:The harder hurdle is the second prong, which is showing that the the plaintiff, has a probability of prevailing on the merits of her claims. And that burden is actually on the plaintiff, to come forward and show, you know, I'm not just bringing this meritless lawsuit to to affect free speech. So in order to do that, she had to show that she would defamation is the nature of the claim. Defamation is the nature of the claim. Everything else that she brings is is pretty much based on a finding of defamation.
Danessa Watkins:So, that was the main focus of this opinion. Now one key aspect of defamation, I'm sure in every jurisdiction, is that the statement has to reasonably be interpreted as referring to the plaintiff. So here, we have a series that uses this other name, you know, take some liberties with how they present the character. So the argument by Netflix is a reasonable reader or viewer would not know that Martha is actually Harvey.
Jack Sanker:Right. And and it would be unreasonable and, actually, the Internet sleuths who, like, went and did all this, like, insane investigation, those people are unreasonable.
Danessa Watkins:So that's exactly even if there are strong similarities, this is quoting from the opinion, a reasonable person would not have identified plaintiff because it required research and cyber sleuthing. These cyber sleuths are not representative of reasonable persons. That was, end quote, the defendant's argument. The court though, seemed to agree with the plaintiff. It says, alleges that it required little effort for these cyber sleuths to find her as they simply found her public posts on GAD's social media referencing the same, quote, hang my curtains, unquote, joke that is featured in the series.
Danessa Watkins:So
Jack Sanker:Okay.
Danessa Watkins: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 too much not even giving credit. I guess, taking credit away from the cyber sleuths. I mean, I don't think that's something that I would have found. But Yeah.
Danessa Watkins:This isn't my line of business either. So so ultimately, the court looked at everything, looked at the similarities between the character and the 100 people that could match a fictional character. It says, quote, rather Martha and plaintiff have specific similarities that few others could claim to share. Specifically, Martha and plaintiff are both Scottish lawyers living in London 20 years.
Jack Sanker:A lawyer? Yeah. Wait. Did I miss I know you said she worked at a law firm. I guess I'm sorry.
Jack Sanker:I assumed that she wasn't an attorney. But Oh,
Danessa Watkins:no. She's a lawyer.
Jack Sanker:Oh. Yep. Cool. Oh, the story's great.
Danessa Watkins:Yeah. So the court found, while there may be numerous Scottish lawyers living in London of the same age or same approximate age as the plaintiff, it is likely that only plaintiff has been accused of stalking a lawyer in a newspaper article while also communicating with Gatt on social media, end quote. So, yeah, there's probably only and not to mention the other stalking that of the what was it? Like a prime minister or
Jack Sanker:Yeah. Yeah. She's like, listen. I'm the only Scottish stalker girl. So it has to be about me.
Danessa Watkins:Yes. Exactly. So the the court agreed with her that, yes, she was it it was clearly about her.
Jack Sanker:Okay.
Danessa Watkins:And a reasonable person would realize that. The next defense was That's so funny.
Jack Sanker:She's like she's like, listen. Everyone knows that I love to stalk. And I just there there's no possible way. I mean, there's one thing you know about me.
Danessa Watkins:I will
Jack Sanker:I will be stalking.
Danessa Watkins:Stalkers be stalking. Yeah. Oh my gosh. Okay. This is awful.
Danessa Watkins: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.
Danessa Watkins:Opinions are absolutely protected. Of course, in in my world, drawing that line between drawing that line between fact and opinion, it's it can be gray sometimes. Usually you're you're mixing words that are are factual and opinion based. But again, the judge went back to Netflix. You all said, right at the beginning, quote, this is a true story, end quote.
Danessa Watkins:So you are presenting this as as factual.
Jack Sanker:Yeah. So this is an emotion to dismiss, like a like a 12 b 6.
Danessa Watkins:It's well, it's in, in California, they have a special process for SLAPP, defenses.
Jack Sanker:Okay.
Danessa Watkins:So they did bring a motion to dismiss, but the the are the, opinion here is primarily focused on the SLAPP defense.
Jack Sanker:So the ruling would boil down to okay. We're at the actual factual question. Is this true or not?
Danessa Watkins:What do you sorry.
Jack Sanker:So I maybe I'm getting lost in the weeds here. But there the the court
Danessa Watkins:the well, what she what the plaintiff has to show, what Harvey has to show is that her case has merit, that she could actually prevail on these 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 we would bring.
Jack Sanker:Right.
Danessa Watkins:And she's saying, well, no. Those defenses aren't valid. So, yes. The issue of fact is one of them. And, yeah, the court found no.
Danessa Watkins:A reasonable viewer would think that these are factual statements. What's what's included in this miniseries? And again, this just goes back to well, if they had just at the beginning said based on true events, maybe this wouldn't be a lawsuit. But
Jack Sanker:Unless it I mean, well, the the lawsuit is what it is. But, like, the on the merits of the lawsuit, I mean, the defense here is that Netflix is going to assert or has is that it is true. Mhmm. Mhmm.
Danessa Watkins:You
Jack Sanker:know? Like, this this is what happened. Yep. Therefore, it's not defamatory.
Danessa Watkins:Right. Well so, actually, that leads right back into, the opinion. The next issue is substantial truth. So substantial truth is an absolute defense to defamation. Essentially, no matter how offensive something may be, if it's substantially true.
Danessa Watkins:So it doesn't have to be true in every single factor. But if, you know, the general gist is accurate, there's not gonna be a defamation claim. So here, what they tried to do what Netflix tried to do is show here are all of the comparisons between our character and the plaintiff, miss Harvey. You know, what maybe we took a few liberties here and there, but generally speaking, we what we described as accurate. The plaintiff, miss Harvey, obviously came back and said, no.
Danessa Watkins:You took way more than just liberties. So for example, the she was never actually convicted of of a crime. So even though there were allegations of her stalking, the the show portrayed that she had been convicted previously, which is false.
Jack Sanker:And isn't that also falsely attributing someone to being convicted of something?
Danessa Watkins:That is defamation per se.
Jack Sanker:Yeah. Yeah. Okay. Thanks.
Danessa Watkins:Yep. In the show, they said that she had stalked a police officer. In reality, she stalked an attorney, her husband, a member of British Parliament, and the 1st minister of Scotland. So Wow. I don't know what's worse, but either way, they didn't portray her truthfully.
Danessa Watkins:The the issue of the sexual assault. So it's pretty graphic in the series. They show her sexually assaulting Gaten and Ali, grabbing his genitals. There's also some some physical activity, in a bar scene where she, crashes a bottle over his head, gouges his eyes out with her thumbs. In reality, there was not that much violence between them.
Danessa Watkins:Yes, she did. She says she touched his bum without consent. Didn't grab his genitals. You know, she shoved him in the back of the neck. She didn't gouge his eyes out or smash a bottle over his head.
Danessa Watkins:So she says she didn't take all those, you know, all those actions that they portray her as taking.
Jack Sanker:Has has the comedian Gad is his name?
Danessa Watkins:Gad.
Jack Sanker:Has he, I guess or Netflix on his behalf, have they responded to that and said, you know I mean, this is what comes out in Discovery, obviously.
Danessa Watkins:Right. So, actually, he did oh, I should have pulled this. He did give a declaration in support of Netflix's motion. Awesome. So I'm sure he went into the the real details of of their interactions.
Danessa Watkins:But, yeah, she you know, miss Harvey obviously came back and said, well, here's my version of how it went down.
Danessa Watkins:Right.
Danessa Watkins:The other oh, the last part about substantial truth. So in reality, I guess she seems to admit that, yes, she did follow him around and attend his comedy performances. But there is this part of the miniseries where it portrays this woman, Martha, literally sitting outside of Gad's apartment for, like, 16 hours a day, like, sitting through the rain, sitting through the snow, every single day she was there. So, that was a little bit extreme or more extreme than the truth. Alright.
Danessa Watkins:Another defense that Netflix brought up was legally protected opinion. So as I mentioned before, opinions generally are are free speech, protection on the First Amendment. So Netflix tried to say that this series was written from GAD's perspective stating his opinions. And, again, the court went back to that that article that came out, right after this lawsuit where it it says, no. Gad told you he wasn't comfortable with this is a true story.
Danessa Watkins:And Netflix, you chose to run with that anyways. So Yeah. You know, that you can't fall back on on saying it's his opinion. You know, you chose to to portray this a certain way.
Jack Sanker:So our producer, Kevin, just, pulled up the, what I guess I'll call sworn affidavit. I think they call it something different.
Danessa Watkins:Declaration.
Jack Sanker:They call it declaration
Danessa Watkins:Yeah.
Jack Sanker:In support of, the Netflix motion that we've been talking about here. This is Richard Gadd's, essentially sworn testimony. It gets typed out, and he signs at the end, and he swears it's true, etcetera. And it's 20 something pages. We kind of are skimming it here.
Jack Sanker:However, just from skimming it, there are, like, details that are omitted. For example, he he mentions that, she was quote unquote handsy with him, and then mentioned specifically that she, grabbed his bum, and he uses the word bum, but does not mention that she grabbed his genitals, for example, which were it true I'm not saying it's not true, but you would include that in this if you were if you were gonna stand on that. You know? Like so that's a significant distinction from the show versus his testimony.
Danessa Watkins:Right.
Jack Sanker:You know? Yeah. He's this is his opportunity to say what happened, and he's saying she grabbed my bum. He's not saying she grabbed my genitals, and that's a specific point of contention, for the defamation case. And I I so that's from Netflix perspective, that's problematic.
Danessa Watkins:Mhmm. Wow. So I'm just reading this too. At the end, he said there's a section Harvey comes forward. He says throughout the process of writing the baby reindeer play and series, he intentionally did not refer to Harvey by name in any way.
Danessa Watkins:And then when viewers began speculating about the fact that it was her, he he adds a a screenshot of his Instagram story where he urged the viewers to stop speculating. And he says, I never intended the series to identify any real person as Martha Scott, including Harvey. Martha Scott is not Fiona Harvey. Like all characters in the series, Martha is a fictional character with fictional personality traits that are very different than Harvey's. So he is literally saying he made up this character.
Jack Sanker:Right.
Danessa Watkins:And yet, I mean
Jack Sanker:So Netflix
Danessa Watkins:Although Netflix, like, gave this declaration and support Can't do that. I think that the judge is rightly saying your writer is saying that this is fictional. Right. Why did you present this as a true story?
Jack Sanker:Dad is saying I I embellished and created fictional characters based on my real life experiences. Netflix is saying, no. You didn't. This is all true.
Danessa Watkins: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 to say this isn't defamation. Like, we weren't we weren't talking about you, Harvey.
Danessa Watkins:You know? This was never about you.
Jack Sanker:Right.
Danessa Watkins:But on the other side, it's
Jack Sanker: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 this statement as well. So, like, let's not
Danessa Watkins:you know,
Jack Sanker:let's even the things that, like, she has tacitly admitted to are pretty bad stuff.
Danessa Watkins:Right. Yeah. And, ultimately, she's just bringing more publicity to it.
Danessa Watkins:Yeah. She
Danessa Watkins:keeps Or it's it's starting to reveal things that probably wouldn't have ever seen the light of day.
Jack Sanker:Yeah. Yeah. It's, this is yeah. The Streisand effect where you, call attention to something by trying to cover it up and and all of a sudden people are talking about it because you want them to stop. Oh.
Jack Sanker:So here we go.
Danessa Watkins:Yep. Well and we see that a lot with defamation. I think, oftentimes, plaintiffs don't realize the what a defamation lawsuit really means. You're you're saying that your reputation was ruined. And in doing that, you're opening up discovery to, well, what was your reputation before this came out?
Jack Sanker:Right.
Danessa Watkins:Which means digging into, yeah, your your closets and and figuring out what type of person the community thought you were before this came out. And, clearly, there was a lot of press surrounding her even before she even met Gad
Danessa Watkins:Mhmm.
Danessa Watkins:About the fact that she was a stalker. So, yeah, maybe maybe it was more local to London and and Scotland. And now Netflix brought it to the world. I mean, I guess that's an argument she can make, but I don't know. This was this is an interesting interesting decision
Jack Sanker:by her presence. Discovery and getting into all the nitty gritty of, what does the show say versus what actually happened. And that process is going to be quite revealing about this woman who claims to wanted to have wanted to remain private and, you know
Danessa Watkins:Mhmm.
Jack Sanker:Not be thrust in the international spotlight, and yet here we are.
Danessa Watkins:Right. Well, so in this I mean, maybe it came up in the briefs and the the court just didn't discuss it in its opinion, but there's this issue of public figure or limited public figure.
Jack Sanker:Right.
Danessa Watkins:And in the defamation world, if you're found to be fall into one of those 2 categories, you can only prevail if you show actual malice, which means that the person defaming you knew that what they were saying was false, or they acted recklessly and essentially buried their hand in head in the sand to the truth. Here, it seems like Netflix was trying to argue. And what does the court say about it? The court actually agrees that plaintiff may qualify as a public figure, but it was based on the fact that she, at one point, ran for public office, which to me wouldn't be the issue. I would think the issue is that she willingly went on Piers Morgan
Danessa Watkins:Yeah.
Jack Sanker:That changes
Danessa Watkins:and identified herself and thrust herself into the controversy. Yeah. So may I don't know if that was addressed in the briefings, but to me, that that would be the bigger sticking point.
Jack Sanker:And that changes what?
Danessa Watkins:Well, I don't know. Now that I say that, I mean, just be I'm thinking also in the criminal context. If somebody gets accused of a crime, and they respond to that, that doesn't necessarily qualify them as a public figure. You have the right to to, you know, protect your
Danessa Watkins:Oh, they do.
Danessa Watkins:Your reputation. But yeah. So maybe that wouldn't that wouldn't fall. I don't know. I I kind of is on the line.
Jack Sanker:Yeah. Well, she's she also she admits that she it I don't I I'm not being flippant, but they they say the word bum, so I have to use that word. But she it admits that she grabbed this guy's bum and, but is otherwise, like but I didn't know all these other things. I understand. I will say, if you if you flip the the script here and it's, you know, a a woman actor who is, like, groped and, like, a guy's like, no.
Jack Sanker:I just grabbed her ass. Like, done. You know? Like, there's no defense to that. Rightfully so.
Danessa Watkins:Mhmm.
Jack Sanker:So it's an interesting, like, dynamic in that regard too.
Danessa Watkins:Right. Right. She's trying to, like, she admits to doing something, but I but it wasn't that bad.
Jack Sanker:Right. You know? Like I'm just a like, a harmless, like, you know, old woman. You know? I I didn't do anything that bad or whatever
Danessa Watkins:Mhmm.
Jack Sanker:Which would, like, never fly, you know, in in another situation.
Danessa Watkins:Mhmm.
Jack Sanker:I I find that interesting.
Danessa Watkins:So yeah. So, ultimately, the the SLAPP defense was was denied. This motion was struck down, even though the court, you know, noted some things like the fact that she may be treated as a as a public figure, a limited purpose public figure, that, you know, that'll get sorted out, I think, more during discovery. But at least for now, she has has shown that her claim has some merit, and it will survive dismissal, at least as to the claims of defamation, IIED, which is intentional infliction of emotional distress. Yep.
Danessa Watkins:Those are the only 2 that survived. So, yeah, those will move forward for now. So why don't we transition here to what I think we should now call, thanks to our producer's idea, Speculation Nation and talk about what we think is gonna happen with this lawsuit.
Jack Sanker:Yeah. I love that. Usually, you know, big corporate defendant with a lot of money just wants to get the stuff over with. You know, they'll get to a point where, hey. Maybe we'll just settle the case or whatever.
Jack Sanker:But I I am interested to see because it seems like they've taken a pretty aggressive defensive posture here. Like, pretty, aggressive in the sense that they're like, this is substantial truth, 1. We're not gonna back down from that. We were absolutely entitled to claim that this is a true story because it is substantially true.
Danessa Watkins:Mhmm.
Jack Sanker:And so we're not gonna back down from that position. Netflix, they have a lot of money. You know, they're not super worried about her. And, also, I I question what damages she's going to be able to, establish under defamation case. I don't know anything about the, she is she's making claims about her public image and how that works.
Jack Sanker:And I as I understand there, that she might be making, like, a play at, like, royalties for the for the the the show, which could be a lot of money, and changes things for Netflix. But, like, in terms of, like, her damages, like, what what could they amount to in the, you know, single digit 1,000,000 of dollars maybe, which is not enough for for Netflix to, like,
Danessa Watkins:change. Yeah.
Jack Sanker:They're they're right. So Yeah. So they're taking an aggressive posture here. And, again, I I tend to think, like I mean, this just adds to the intrigue of the of the show Yeah. Of the story.
Jack Sanker:And, like, unfortunately for her, you know, let's give her the benefit of the doubt for a moment. Not that I necessarily think she particularly deserves it, but, like, let's assume for a minute that she has been, like, totally defamed and and everything else. You know, this is just gonna make it worse. Right?
Danessa Watkins:Like,
Jack Sanker:this is gonna
Danessa Watkins:Right.
Jack Sanker:This is not going to no one's gonna come out of this and be like, you know what? Actually, she's great.
Danessa Watkins:Yeah. No. For sure.
Jack Sanker:Yeah. So I don't know.
Danessa Watkins:I I mean, look. There's that's that's always, though, at play with with defamation lawsuits. Right. So, you know, that's kind of the balance that I think plaintiffs have to have to weigh out of, am I gonna come out of this in a better position than when I went in?
Jack Sanker:Right.
Danessa Watkins:I could see the IIED claims maybe having some teeth if if she in fact received all the harassment she claims to have.
Jack Sanker:I'm sure she did, by the
Danessa Watkins:way.
Danessa Watkins:Yeah. Oh, I'm sure. There are people out there who have nothing but time on their 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 in the eyes of the community as a result of this, you know, that's that's hard because I don't know if at trial, if this went that far, that a jury would agree with this judge that anyone or a reasonable viewer of this Netflix series would know that it was her.
Danessa Watkins:And the fact that she came forward within 2 weeks and made the public statement that it was her. The fact that Gad is saying this wasn't about her. You know, Martha was never supposed to be Harvey. Sure. There are similarities, but, I mean, that's the liberties you take, you know, as as a writer.
Jack Sanker:Yeah. She's going on, like, national, like, primetime TV to be like, why won't everyone stop talking about me?
Danessa Watkins:Exactly. Yeah. You can't you can't self publish and and, you know, claim defamation. So I don't know. Yeah.
Danessa Watkins:And I think, especially with Netflix, putting out these type of shows and series more and more often, you know, maybe they need to set some precedent and and fight this one. I don't know.
Jack Sanker: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 these cases because if we, you know, if we pay up at 1, maybe everyone starts seeing off.
Danessa Watkins:Mhmm. Yeah. But, again, just going back to that bad fact, which is the worst fact for them, is that the writer did not want to say this is a true story and Netflix went above him and did it anyway.
Jack Sanker:Yeah.
Danessa Watkins:So, you know, there there is some potential liability there for that, but whether they want to take that to the to a jury, you know, I I guess that's for their lawyers to decide.
Jack Sanker:Yeah. Up next, we're gonna be talking about the wave of lawsuits that were filed, this week, against social media company TikTok, by a number of different states. I believe it was 14 total, and alleging different versions of the same things. And we're gonna be working mostly from the complaint that was filed in our home state of Illinois here, and the allegations that effectively boil down to this. TikTok, knows that the way that its app is structured and built, is addictive.
Jack Sanker:It's bad for mental health. It encourages, addictive behavior. It's, it it both psychologically and physically causes harms, to to individuals, to its users. And nonetheless, despite knowing those things, continues to market and its product specifically to young people who are most susceptible to those things and, and most vulnerable to them, as well. So
Danessa Watkins:Is this the first platform, do you know, that's been sued for?
Jack Sanker:No. We'll get into that. There's there's a version of this of this lawsuit that was filed against Meta for similar things.
Danessa Watkins:I thought.
Jack Sanker:TikTok has different facts. And, if anyone, like, has ever used TikTok, what's it's on the algorithm, for, like, recommendations of other videos and things like that is uncanny. It's, in my, like, anecdotal experience, way, way, way, way better at guessing what you are gonna sit and watch than, like, say, Instagram or, anything else. So that's that's where this goes. So the claims the the lawsuits, are brought, under the Illinois Consumer Fraud Act and the Illinois Uniform Dissective Businesses Practice Act, which, like I said, versions of this same type of complaint were filed in, 13 other states including well, I guess 12 states and then Washington DC.
Jack Sanker:And I'll talk about that a little later, but let's let's stick to this one for now. So, lawsuits are claiming that, TikTok, targeted children with harmful business practices, and, it's also claiming that TikTok is deceiving the public about social media about the social media platforms. Dangers. Here's what the Illinois attorney general, Kwame Raul had to say on a statement that he issued, from October 8th. This is from the Illinois attorney general website.
Jack Sanker:In addition to Illinois' lawsuit, 13 other states filed separate enforcement actions today against TikTok for violations of state consumer protection laws. In their lawsuits, Raul and the attorneys general alleged that TikTok's business model, which seeks to capture as much user time and attention as possible to sell advertising, has targeted youth, including teenagers and even younger children, in ways to take advantage of them. Quoting, from Raul here, American children and teenagers are in the grip of a devastating mental health crisis. The addictive features on TikTok social media platform interfere with sleep and education and contribute to depression, anxiety, body dysmorphia, and thoughts of self harm. In Illinois, we will always put our children and young people first.
Jack Sanker:I'm committed to holding TikTok and any other social media companies accountable for putting profits ahead of our children's safety and well-being, unquote. So, I looked at the complaint. Sorry. Thanks. It's it's it's 80 pages.
Jack Sanker:There is a lot of background facts in there. And the allegations kind of boiled down to a couple things here. There's allegations that TikTok leverages the personal data collected on the app and other features to manipulate young people in staying on the platform longer than they otherwise would choose. The features are promoting excessive and compulsive and addictive use of TikTok. And there's a lot of, like, psychological research that's sprinkled into the complaint, which I I found interesting, about dopamine signals.
Jack Sanker:And, like, for example, here's a discussion that I left from the complaint here about, concept known as variable rewards, and how the app encourages that. I'll quote from the complaint, variable rewards hold a special thrill as the user anticipates a reward they know could come but is tantalizingly just out of reach. A gambler waiting to see where the roulette wheel will stop or if you were watching a presenter's dramatic pause before they announce a winner. In both cases, the individuals experience a dopamine rush as they anticipate the unknown outcome, unquote.
Danessa Watkins:And how does that work with the platform? I'm not that familiar with TikTok. But
Jack Sanker:so there's a lot of different allegations here. It's it's the there's the posting aspect of it. There's watching, consuming TikToks, like, you know, scrolling, as well as the, the feedback of, like, getting, like, likes and views on videos that are posted. There's they're kinda going at it from all different angles Mhmm. Which is, which is interesting.
Jack Sanker:The TikTok algorithm recommendations. There's some also some discussions about, like, the use of filters that would promote, like, unrealistic beauty standards, things like that, the automatic playing feature that TikTok has, which you cannot disable. So if you, like, you watch a TikTok and then, like, you set your phone down, it'll just keep playing it over and over again.
Danessa Watkins:Oh, okay.
Jack Sanker:It won't play it once and then stop.
Danessa Watkins:Got it.
Jack Sanker:It'll keep going. Infinite scrolling, which means you can you'll never run out of TikToks. You just continuously scroll up, and you'll always continue to see more push notifications, things like that. Some of these things are unique to TikTok. Some of them, in my experience, is like a millennial who, you know, has been around social media.
Jack Sanker:Some of them are, I think, also equally applicable to platforms like Instagram, or, I suppose, Facebook back in the day. Mhmm. TikTok is, unique in how frankly good it is at getting people to stay on the platform, and there's a lot of research to that. So I don't necessarily know that it's any different in kind from what, say, like, Instagram is trying to do. I think it's it's own its difference is in, like, scope and, like, basically, that TikTok is just better at doing the thing that all of these social media companies are trying to do anyways Yeah.
Jack Sanker:Which is, you know, steal your attention, keep you hooked. So the the complaint does rely a lot on and this is where the consumer fraud, aspect comes into play in the deceptive business practices act. The complaint relies a lot on the public record of statements, testimony because these folks have the TikTok folks have testified 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 things. Right? It's it's a family friendly platform, etcetera.
Jack Sanker:So so that's kind of the hook for, you know, how did TikTok break the law is it's defrauding the public by maintaining that, you know, we don't do these things, and and our platform doesn't operate that way when in fact it does. Mhmm. So this is the relevant portion of the Illinois consumer fraud deceptive deceptive business practices act. So I'll read to you all, quote, unfair methods of competition and unfair or deceptive deceptive acts or practices including, but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation, or the concealment suppression or omission of any material fact with the intent that others rely on that concealment suppression or omission of such material fact in the conduct of of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived, or damaged thereby. So, the a a claim under the Illinois Consumer Fraud Act is going to allege that, one, there's a deceptive act that's happening, that the business is is actually doing, and that the there's an intent that others will rely on the, the act of deception.
Jack Sanker:So we're going to lie about something, and we're gonna hope that you believe us. You're gonna hope that you believe the lie so that you engage with our business.
Danessa Watkins:Yeah. So I know there's been a lot of congressional hearings over the past, what, 5 years at least from I know Zuckerberg's been called in a bunch to testify about this sort of stuff. I think, yeah, finally, we're we're realizing the effects of social media on the youth.
Jack Sanker:Probably, like, 10 years too late. But yeah.
Danessa Watkins:Yeah. Exactly. But I didn't realize that that they were actually saying we don't do these things, and we don't create these algorithms, and we don't, you know, push content in this manner.
Jack Sanker:Yeah. I mean, the complaint gets into that where it's, like, TikTok advert advertises that it has, like, a 1 hour scroll limit, for example, and and it says, like, this is, like, a unique, safety and, feature that we have where, like, after an hour, you know, the app will no longer let you to scroll. And the, complaint points out, no. It doesn't. Yeah.
Jack Sanker:After an hour I've I've gotten this warning before. After an hour I don't have TikTok on my phone anymore. But, yeah. After an hour, it's like, hey. You should take a break, and then you could just scroll right past it.
Jack Sanker:You're
Danessa Watkins:like, nah.
Danessa Watkins:Oh, it actually does say. Yeah. It says something that
Jack Sanker:says, like, it says, like, you've been scrolling it's like you've been scrolling for an hour. You need to stop.
Danessa Watkins:Oh my
Danessa Watkins:gosh, Jack. Are you making your billable hours?
Jack Sanker:Hey. This you know, we have hobbies. And then, and my TikTok algorithm is trained to present mostly just sovereign citizen arguments that happen in courtrooms.
Danessa Watkins:Right.
Jack Sanker: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 then you could just blow right past it. Right? So that's, like, one of the things that they don't mention, and they're saying is deceptive.
Danessa Watkins:Okay. Well and I I assume the argument is that, especially parents are gonna rely on these statements. I mean, our children are luckily still too young to have social media, but I Right. I've definitely had a lot of conversations with our partners or friends that have older children, and they've had to have these discussions of, alright. We're allowing you to have one social media account.
Danessa Watkins:Like, let's figure out what platform. And then the parent figures out what platform that's gonna be based on safety features. So I get it if they're misrepresenting.
Jack Sanker:Yeah. And and there's other things too, like, there that will have represented in certain circumstances that there's safety features available or that they're not available or they can't do something, they don't have the ability to do something or another. And then TikTok, for those who don't know, is is the American version of the so there is a a domestic American version of TikTok, and then there is a a a Chinese version of TikTok, both of which are were created and or owned, I'm not exactly sure of their current legal status, by, a company called ByteDance. And there seems to be, at least according to the complaint and the little bit of research I did, more safety content moderation, parental controls, things like that on the Chinese version, the name American version. So that's another part of it too where it's, like, you could actually improve on these those things and and you don't.
Jack Sanker:Mhmm. D o u y I n is the Chinese
Danessa Watkins:Douyin.
Jack Sanker:The Chinese version of TikTok. Okay.
Danessa Watkins:Oh, so if you're, yeah, if you're owned by the same company and one arm is doing things safer
Danessa Watkins:than
Danessa Watkins:the other arm, that's not a good look.
Jack Sanker:Yeah. So, the state of Illinois claims that TikTok has misrepresented a lot of these facts, has misrepresented specifically that TikTok is not psychologically or physically harmful to young users, that is less addictive than it is, and that it is not designed to induce young users, to compulsively use it and so on. And then the state alleges, TikTok engaged in unfair acts and practices such as, quoted from the complaint, targeting the TikTok platform to young users while knowingly designing the platform to include features that defendants knew to be psychologically and physically harmful to young users, including features known to promote compulsive, prolonged, and unhealthy use by young users, utilizing platform features that unfairly harm young users independently of any actions taken by third party users on the platform. These features platform. These features include infinite scroll, ephemeral content features, autoplay, quantification and display of likes, user appearance altering features, disruptive alerts, all of which are unfairly utilized by defendant to extract additional time and attention from young users whose developing brains were not equipped to resist those manipulative tactics.
Jack Sanker:Designing, developing, and deploying disruptive audio, visual, and vibration notifications and alerts and ephemeral content features in a way that unfairly a femoral content features in a way that unfairly exploited young users' psychological vulnerabilities and cultivated a sense of fear of missing out in order to induce young users to spend more time than they would otherwise choose on the TikTok platform, unquote. There's also a counter, as I mentioned, for the Illinois Uniform Deceptive Deceptive Trade Practices Act, which, the factual accounts are, you know, more or less similar enough. We don't really need to rehash them. This is what they're suing for. Here's the remedies that the state is looking for.
Jack Sanker:Finding that TikTok violated the Consumer Fraud Act, a finding that they violated the, Deceptive Trade Practices Act, an injunction to prevent future violations of the Consumer Fraud Act, which enjoining them from violating this act would mean, by the way, that TikTok would have to dramatically change, the way that it operated. Ordering TikTok to pay penalties of up to $50,000 per unfair or deceptive act or practice, which would amount to, like, infinity dollars.
Danessa Watkins:I was
Danessa Watkins:just gonna say, how do you even calculate that?
Jack Sanker:Exactly. It's it's an amount of money that would be in the in an amount that's incalculable given the amount of engagement that TikTok gets. Additional monetary relief, disgorgement of revenues, cost to the state of Illinois for bringing the action, so the $360 filing fee. And, so it's the were the state to succeed on this, the outcome is, like, a tremendous financial penalty to TikTok. And, you know, solicitors may think, like, okay.
Jack Sanker:Well, you know, they'll settle for some nominal amount. Now you gotta understand. State of Illinois and in particular there's a lot of states that have done this, but Illinois in particular has achieved massive, massive, massive, settlements ultimately. But based on this type of litigation, a lot of it comes under the Biometrics Protection Act, things like that. But, like, in the many many many 1,000,000,000 of dollars from, tech companies like, like Facebook in the past, like verdicts, or judgments or settlements that were so bad that Facebook, for example, had to shut down its facial recognition software, which was if you remember, when you would upload a photo to Facebook, it would try to automatically tag who had thought it was there.
Jack Sanker:Yeah. It stopped doing that because of the state of Illinois, because of how bad the damages 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 becoming financially unfeasible for TikTok to continue to exist the way that it does.
Danessa Watkins:Mhmm.
Jack Sanker:You have to change how it it operates. If if you guys are interested in that, go back way back to episode 7 of the show where we talked about the, state of Illinois lawsuit, against Facebook on this facial recognition facial recognition thing. So, anyways, here's what a TikTok spokesperson said. In an emailed statement, TikTok spokesperson Alex, Haurek, h aurek, said the company strongly disagrees with these claims and believes they are inaccurate and misleading, quote, we're proud of and remain deeply committed to the work we've done to protect teens, and we will continue to update and improve our product. We provide robust safeguards, proactively remove suspected, underage users, and have voluntarily launched safety features such as default screen time limits, family pairing, and privacy by default, to minors under 16.
Jack Sanker:Harrick added that the company had, quote, endured to work with attorneys general over the last 2 years on privacy and safety issues and was incredibly disappointed with the legal action, unquote. So, a note about this lawsuit in the context of all the other ones. So the law suits were all filed about the same time. They're also containing similar allegations. The attorneys general that put these things together coordinated, I think, very closely, to share evidence and to probably hash out legal theories and things like that.
Jack Sanker:So it's it is a multistate, bipartisan, effort. There's a lot of red states and blue states that are that are involved in this. Very detailed. Everyone has done their homework. So it's, you know, it's not just, it's not just, you know, the Illinois attorney general that's looking to score, like, easy political points by being being tough on, you know, big tech or whatever.
Danessa Watkins:Like Right.
Jack Sanker:This is a serious, lawsuit.
Danessa Watkins:Wait. So is this are these separate lawsuits or
Danessa Watkins:are they
Danessa Watkins:oh, okay. Not doing, like, multi
Jack Sanker:No. No. No. That's what's very interesting is that each of these lawsuits, they're all being brought under state law.
Danessa Watkins:So because each state is gonna have its own
Jack Sanker:Yeah. But provisions on this. But, I mean, think about it. It's because if it were brought under, like, the federal versions of some of these statutes, right, then TikTok consolidated all in one place and then and then essentially be dealing with one big lawsuit. Right?
Jack Sanker:Yeah. As it is split across the 18 different jurisdictions, none of them that I saw, by the way, alleged anything under federal statute, which I found very interesting.
Danessa Watkins:Strategic, I'm sure.
Jack Sanker:Yes. Because, that would allow for, like, consolidation and and allow for TikTok to get multiple things under one roof. Mhmm. As it is, they have to retain, you know, lawyers who are licensed in 14 states to defend against 14 different complaints, each of which is citing 2 different, statutes that are all gonna have substantive differences. I mean Right.
Jack Sanker:They're gonna be similar enough, that you can, you know, in broad strokes, say, listen. TikTok got sued for fraud and deceptive business practices in 14 different states, but, like, how that actually operates, the law that, is gonna trigger liability under those statutes, different thresholds, all that stuff, is gonna be different state by state. So, like, I I find that interesting because that's absolutely intentional. Right?
Danessa Watkins:Oh, for sure.
Jack Sanker:And because it it causes I mean, frankly, it costs TikTok more money, not they don't have it. It also requires TikTok to be speaking and taking positions in 14 different cases that all have to be aligned.
Danessa Watkins:Mhmm.
Jack Sanker: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, very thin, you know, narrow path that TikTok has to trend here that if they're gonna defend these things on the merits. I find that very interesting. And I I was thinking about this, you know, like, try not to get into, like, politics and watching the news.
Jack Sanker:But you you've heard a lot of people complaining about, like, the term, the term lawfare has been getting thrown around. You've seen that? Mhmm. So, like, saying, you know, different enforcement actions are, like, targeted for political reasons.
Danessa Watkins:Oh, yeah.
Jack Sanker:And, like like, Eric Adams, who is the mayor of New York City, for example, is, being, I guess, indicted for, something about taking money illegally from Turkey. I don't really know.
Danessa Watkins:Yeah.
Jack Sanker:But he's saying I'm being unfairly I I this is law fair, like a play on play on warfare. Like, I'm being targeted by, I don't know, the the Democratic machine for some reason or another. They're using these investigations to, you know, to to cost me money and and, you know, create headaches and and basically bother me, etcetera. TikTok for whatever it's worth. This actually is an example of that.
Jack Sanker: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 believe is important, but also gonna do it in the most painful way they can 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.
Jack Sanker:You know, 14 different states each taking slightly different positions. It's gonna be on different timelines, you know? Gonna be asking for different things in discovery. All the states will be coordinating and sharing information as it comes out. That's like you know?
Jack Sanker:And, whether whether it's good or bad. I mean, I I this is, like, what a, you know, like, quote, unquote, politically coordinated, like, enforcement action looks like.
Danessa Watkins:Mhmm. I'm wondering if because I was just I was just doing some quick googling to see, obviously, multi district litigation. That's a thing in federal court. But thinking about lawsuits we've seen in the past where they'll try to get a stay in one jurisdiction Sure. If it's raising the same issues, but I wonder if that would work in this case.
Jack Sanker:No. I mean, I can tell you, the one that's pending in Illinois is pending in Cook County in the chancery division where I'm at all the time. And the odds of them getting Oh,
Danessa Watkins:they won't stay.
Jack Sanker:Not a chance.
Danessa Watkins:Not a chance in the world
Jack Sanker:that they're gonna stay in this case.
Danessa Watkins: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.
Jack Sanker:I'm sure they will. But I
Danessa Watkins:mean try to stay the other.
Jack Sanker:But every other judge, there's 14 other judge I mean, there's 13 other judges now. They're all gonna be one of the the one who rules on the TikTok thing. Thing.
Danessa Watkins:Well, and
Danessa Watkins:it's but, I mean, like you said, it's strategic. They're bringing it under the state's laws. Yes. And a state has a unique interest in regulating its own laws. Absolutely.
Danessa Watkins:So yeah.
Jack Sanker:It's it's it's interesting to me that they everyone seems to have completely like, even DC. DC has its own version of, like, privacy laws. I was looking at their complaint. It's it's different from Illinois, but it's around the same facts, basically. And it's it's unique.
Jack Sanker:It's com it's like you can't say this is the same as what state of Illinois is alleging. They are different.
Danessa Watkins:And this is civil.
Jack Sanker:Yeah. Yeah. Yeah. Yeah.
Danessa Watkins: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. You can get attorney's fees. You can get punitive damages
Jack Sanker:Big time.
Danessa Watkins:Because it's based on fraud. So I would assume that probably other jurisdictions are similar.
Jack Sanker: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 tech companies. Like, they it's you know, say what you want about, like you know, people will say pub have stereotypes about public employees or whatever. These types of prosecutors, like, are the best at this stuff.
Danessa Watkins:Yeah.
Jack Sanker:And, you will have to pay through the nose to find, competent, defense for these types of things. And so, like, the the the division in specifically in in Illinois, it's the consumer protection division of the attorney general office. Like, those guys know what the heck they're doing. So, so, yeah, I mean, this is this is a a like a like a bombshell of a development, these these lawsuits filed against TikTok.
Danessa Watkins:And it may not be over. There may be other states that jump on board.
Jack Sanker:100%. You're they're gonna see that we can that, you know, they can get in on this, and they're gonna you know, they're going to go for it. I am I mean, I this is, yeah, this is, welcome to Speculation Nation. I'm your host, Jack Singer. I'm gonna I'm gonna guess what I think is gonna happen here.
Jack Sanker:It's serious. Like, this has the potential to nuke the platform as we know it.
Danessa Watkins:Well and even I was just thinking through now too, like, discovery issues. So you we have what's called a common interest privilege where you can essentially assert privilege over your communications and documents shared with a similarly situated litigant who has the same interest as you. Right. So I would assume all of these states have something like that in place. It's gonna make discovery cheaper for them because they can share theories.
Danessa Watkins:They can share information, documents.
Danessa Watkins:Or, hey.
Jack Sanker:Something I forgot to ask for something in my case. My deadline's passed, but you have some time. Why don't you ask in your case? Exactly. It's it's yeah.
Jack Sanker:It's it's
Danessa Watkins:It's like lit it's it's like TikTok's gonna be litigating against 14 plus
Danessa Watkins:Yeah.
Danessa Watkins:Amazing attorneys in every single case.
Jack Sanker:Yeah. Yeah. There's, kinda going back to the substance of the allegations, I I I think, it it kind of boils down to, hey. These, like, apps, social media platforms, and TikTok in in this case, are psychologically addictive, basically in the exact same way that gambling is and and and other addictive behaviors. And you, TikTok, know that.
Jack Sanker:And despite knowing that, here's all the things that you're doing, to basically go after and target teenagers and children. And, like, the whole, you know, is this addictive or not or is this, does this create compulsive habits or not? Interestingly in the complaint, there is a lot of, like, citations to, different psychological studies or whatever, but they go back decades. I mean, we have studied, like, gambling, for example Mhmm. For a long time in this country.
Jack Sanker:And so we do know the way in which, gambling can affect, the way that your brains function. You're wired, basically. And there's reasons why gambling is illegal for in in all 50 states for folks under a certain age, because we know this is not good for them. Like, it it it harms them psychologically, which can manifest in, like, physical, harm.
Danessa Watkins:And even it it's it's it's like their real life version of social media and that, you know, even the way that casinos are set up, the lights, the way the games make noises, the way you know, there there are all these cues that
Jack Sanker:There's a lot.
Danessa Watkins:Draw you in.
Jack Sanker:There's a lot of research where a lot of these platforms, TikTok is the big one, Instagram as well. Like, the scrolling thing is, like, meant to tickle the same part of your brain that the, that the slots wheel does.
Danessa Watkins:Yep.
Jack Sanker:It's because you're essentially looking at a slots wheel.
Danessa Watkins:Right.
Jack Sanker:And so you keep scrolling and and, you know, to you get that same, dopamine hit that you would from, like, playing slot machine. Mhmm.
Danessa Watkins:So, Well, and if we as adults can't resist it, obviously. Right. You know, how the heck would you expect a Yeah.
Danessa Watkins:I
Danessa Watkins:mean growing brain too?
Jack Sanker:Yeah. It it's it's you know that your product is actually, in terms of the effects on the human brain, pretty close to how gambling or other behavioral addictions work, and yet you still deliberately target people whose minds and psychology are not only the most susceptible to those tactics, but also the most likely to be harmed psychologically and physically. Mhmm. And and this is I at least in Illinois, this is the hook that gets you into the consumer fraud actions, and you keep lying about it.
Danessa Watkins:I was gonna say that's the yeah. Because it's consumer fraud and then the deceptive trade practices. So there has to be the deception and the fraud.
Jack Sanker: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 quack science. Like, it's this like I said, we've studied gambling for decades. We we know this stuff pretty well.
Jack Sanker:And
Danessa Watkins:Well,
Danessa Watkins:and you have to imagine that TikTok and other social media platforms that they're doing their research. You know? They're making updates
Jack Sanker:based on why the app is so good at doing what it does Yeah. Which is drawing people in and they waste time and and they get just fed ads and and everything else. There's other interesting things in the complaint about, like, the TikTok marketplace, which I don't know anything about. It, to me, like, screams, like, I'm gonna get my identity stolen if I touch this. But maybe 15 year olds don't see that.
Danessa Watkins:Right.
Jack Sanker:And that's another element of the complaint as well is that you were, like it's like it'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 knows where and, like, whether they're safe or whatever or you even get them. Like, I
Danessa Watkins:mean,
Jack Sanker:who knows? So Timo. Yeah. It's it's yeah.
Danessa Watkins:My mom with Timo. Right.
Jack Sanker:Yeah. Yeah. Yeah. So, and then it's just, like, you don't even know you're be you're watching an ad sometimes. You just, like, that's the whole thing.
Jack Sanker:It's it's so, anyways, I will say I do think it's rich that all of a sudden TikTok is the boogeyman for this stuff when, like I mean, Instagram and Facebook and, I mean, they've been doing it for forever.
Danessa Watkins:They do
Jack Sanker:the same thing.
Danessa Watkins:Yeah. But they've gotten their licks too.
Jack Sanker:Yeah. I know. I I I I I said at the beginning, I think that TikTok is being penalized here for just being best at it. Mhmm. And that so that's not we shouldn't assume, like TikTok is not any.
Jack Sanker:They're all trying to do the same thing. TikTok is succeeding the the the most. Mhmm. I also think it's a little rich, you know, that we're, like, oh, man. We're, with this this app is, you know, it's, creating a sensation akin to gambling.
Jack Sanker:And then it's, like, Disney, which owns ESPN, is, like, doing wall to wall ads every broadcast on ESPN for, like, actual gambling. You know? Yeah. Like, literal actual gambling. Like, you But
Danessa Watkins:are they lying about it?
Jack Sanker:Right. Right. I know. But, like, let let's stop clutching our pearls here
Danessa Watkins:and be
Jack Sanker:like, well, our children are being exposed to these. I'm like, no. We I if you, 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
Danessa Watkins:That's so true.
Jack Sanker:So, like, you know, I mean, I I'm personally good good luck to the attorneys general here. You know, it seems like, you know, this is a this is the right motivation here. But I am a little, like all of a sudden, TikTok is, like, the punching bag for all this frustration about, you know, social media effects on our on our 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 other discussion.
Jack Sanker:But, like
Danessa Watkins:Well, yeah, I mean, now we have states. We've covered it in past shows too where states are are starting to make their own rules about the age limits for social media. You know, whether those laws stand up, I guess, is still to be seen. But I I it seems like there's pressure on the legislature to to hit this from all angles.
Jack Sanker:Yeah. Yeah. And, you know, I think if the goal here is to, like, rein in addiction to your phone, basically, I'll say, for for young 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 like that. That said, it's, it's interesting lawsuit.
Jack Sanker:I will keep my eye on this because I I'm very interested to see where it goes.
Danessa Watkins:Yeah. I might pop in to a proceeding or 2.
Jack Sanker:Yeah.
Danessa Watkins:Yeah. Right up the street from us.
Jack Sanker:So It's our home turf.
Danessa Watkins:Yep. And if you're interested in learning more about online safety and, laws that are being put into place to protect children in on social media platforms, we did cover some of that in episode 46, talking about a lawsuit filed in December 2023 against Meta, bringing up issues of the lack of age verification on that platform. Alright. That's our show for this week. Reminder that we have shows coming out every 2 weeks.
Danessa Watkins:Please like, follow, subscribe to Litigation Nation wherever you get your podcasts, and leave us notes if you wanna hear content, different areas of law. We'd be happy to tune into whatever our viewers are interested in. So that's it for now. Thanks for listening.
