Podcast

Ethan

Welcome to the social media lawcast. I am your host social media attorney Ethan Wall with me is my friend and co-host Sean DePasquale.

Shawn

Hi how's it going Ethan. Okay, great talk to you later bye. Ah.

Ethan

Do you remember when you asked me a ton of questions about online defamation and I was embarrassed because I didn't have any of those answers.

Shawn

I Do remember I do remember although I do want to put on the record I was talking about my hypothetical friend who hypothetically had written some very inflammatory things that that wasn't me. But yes, why do we have answers now.

Ethan

Well unfortunately I still don't have the answers but I have brought in a friend and expert in this area I'm so excited to introduce you to my friend Michael Peligali Michael Works with mink law. He specializes in online defamation.

Shawn

Ah.

Ethan

Not only does he have all the answers for the questions that you have but Michael has helped my clients before when they've experienced online defamation issues online harassment or outside the box issues in the social media and online world that I didn't have the answers to I sent them to Michael. I'm so happy to have you on the show today.

Shawn

Um, Wow. And yeah I mean Wow We found a real expert.

Michael Pelagalli

Um, Ethan and Sean thanks for having me on the show I'm looking forward to it well that that's a great introduction that was experts you know something but that that was a nice introduction. Ethan.

Ethan

Absolute pleasure.

Shawn

Um, all right? So let's dive in with basics right? when we're talking about defamation. What what is the the legal definition of defamation to start.

Michael Pelagalli

Um, what's coming.

Michael Pelagalli

Yeah, across all the states they they have individual rules but basically the elements of defamation are a false assertion of fact about the plaintiff that is negative defamatory and causes harm that harm. Can vary obviously depending on what's said and how it is said but reputational harm is oftentimes the biggest component of those damages and makes the most sense with what defamation is as a cause of action.

Shawn

And like everything on the Internet Internet Internet Ah the word defamation gets thrown around all the time right? Ah, people are always saying it. Um, but but it's you defined what it is um what it's not is a lot of things right? So like.

Michael Pelagalli

A.

Michael Pelagalli

Wait.

Shawn

If I call someone ah a jerk or if I say this guy is a nazi and the worst person I've ever seen on Twitter to him. It's not that doesn't really apply right? because it doesn't hit any of the there's no damage. There's no reputational damage certainly from my.

Michael Pelagalli

Be done.

Michael Pelagalli

It was.

Shawn

1 tweet but is there minds that can be crossed in that sense where it does become a problem for ah your average you know angry internet cometer.

Michael Pelagalli

Yeah, absolutely and and what you had mentioned first was touching upon some defenses to defamation some big defenses 1 being opinion. You know if someone calls you a jerk online. That's their opinion. You may believe it's false. It is not though a false assertion of a fact that courts are looking for. The issue there is you need to be able to objectively verify or disprove what is being said about you and when it's you're a jerk. You can't really objectively prove or disprove that um the thing that you said Sean about hey if someone calls you a nazi online that actually may cross that line that you're talking about there. Obviously um, you know being described as a nazi is negative and defamatory. It is not something people want to be described as and what that would come down to that analysis would likely be what else has that person said do they just you know respond to a comment say oh they're a nazi or are they saying that they attend meetings and they're registered and. They have associates That's where those lines can definitely be crossed.

Ethan

See sean you can finally breathe easy from that time that we were sixteen years old at a high school party and you called me a jerk unfortunately I cannot sue you for it cases closed and you can you can rest well at night.

Michael Pelagalli

Are.

Shawn

Um, statute of limitations.

Michael Pelagalli

I don't want to break privileges. But that's how Ethan and I met he had told me about this incident and I had just told him hey statute limitations forget about that. But there's other issues you have and talk to Sean about it.

Ethan

Um, but.

Shawn

Don't worry. We can definitely find something else Sean has done that's horrible enough to go after him for was the was the um, okay so.

Michael Pelagalli

Um, you can call me then all right? This is so pretty.

Ethan

Um.

Shawn

This is helpful right? This is clarifying because I think there is a lot of question online about what you can and can't say and how far is too far and and we definitely live now in a world where um, you know a lot of.

Shawn

Opinions are litigated online and and and that is not always done ah in ah in a civilized manner right? and and things get said a lot now my understanding of like defamation was always ah that it had to come from like ah like ah like an official source. But.

Michael Pelagalli

6 like if you're spending on making anything.

Shawn

But you're saying no right? Anyone can be accused of that at any point um and and potentially held accountable for that right? um.

Michael Pelagalli

Absolutely anyone single social media Users groups online. They can all be held accountable ultimately for defamation. Yeah.

Ethan

Yeah, and I think 1 thing that Sean might be touching upon it might be helpful to shed light on this Michael is the difference between saying bad things online about let's say a celebrity or Donald Trump or Joe Biden somebody that's within the public news as opposed to someone like.

Michael Pelagalli

Place a pop.

Ethan

Sean or I who is a private citizen look Sean's awesome but I'm not particularly that that interesting and not really a public figure. Um, how does how does approaching situations like these differ when you have someone that is famous versus someone that might not be so famous.

Michael Pelagalli

Um, body.

Michael Pelagalli

Um, yeah, and even you said it right there in terms of being a public figure or a private individual. So for the individuals you referenced Ethan Biden or Trump or a celebrity they are going to be deemed public figures and what that means for them actually is that they as. Public figures and celebrities have more difficult times advancing cases of defamation if they've been spoken about in the public and it would otherwise qualify as defamation to a private individual. It may not for public figures and what the courts are looking for in these cases is you know let's just take a private. Individual who's being defamed online by another private individual if it's Sean if you're being defamed online and you want to go after that person. All you would need to prove in terms of the person who posted the content's intent is that they were negligent. They just made a mistake. They were wrong and it's false.

Shawn

Heavy. Okay.

Michael Pelagalli

That's really the the minimum threshold for a private individual when we talk about defamation cases against public figures that public figure has to be able to prove with sufficient evidence that the individual who defamed them did so with malice they did so intentionally knowing that what they were doing was false and they did So anyway that is where.

Shawn

Um, wow.

Michael Pelagalli

The key distinction becomes and it can pose a lot of issues for celebrities though. They have been overcome recently.

Ethan

Gotcha So it's almost easier in a way to prove a de a defamation case against a private individual than it is a celebrity because it's a lower threshold that needs to be proven for the motivation or intention behind those false statements.

Michael Pelagalli

Exactly.

Shawn

Um, so you said and you mentioned celebrity at the end of there and you said until you know until recently, what's changed recently in that regard.

Michael Pelagalli

Yeah, there have been a lot of celebrity defamation cases over I say the past two years some really popular ones like the Johnny Depp versus Amber heard um, another popular one involved the rapper cardi b and in her case specifically. Arguments like you know her being a public figure were raised by the individual and in that case it was a believe it was a Youtube creator who had made a video commenting on Cardi B and basically said the classic we call them defamation per se um. Attacks. She was a prostitute she did cocaine she has a sexually transmitted disease all of which cardi b and her attorneys were able to objectively prove to be false and they then put on evidence of malice. 1 of the key things that they did in that case was.

Shawn

Um, and then.

Michael Pelagalli

When the initial video went up Cardi B and her lawyer sent a demand or a cease and desist letter to the creator. The creator took that and made another video 2 days later doubling down on everything she had said so in the court's eyes that was a big piece of proving actual malice against that individual who defamed cardi b and. The jury in that case awarded cardi b I believe in excess of $1000000 so fairly significant case.

Ethan

And access dollars. So Wow for everything.

Shawn

So basically criticism of ah of a public figure or a celebrity so long as it's not disprovable.

Michael Pelagalli

Please go speak frank.

Shawn

Is a pretty safe area. You know I mean if you can prove hey you're doing X Y and Z or you know for a fact, this person is doing X Y and Z great. You're safe to basically say whatever you want right ish or.

Michael Pelagalli

But you.

Ethan

Yeah I mean I would say Mike would like truth is an absolute defense to defamation and so I think if someone is out there doing something shady and you call them out for doing that thing no matter how harmful it might be because you have.

Michael Pelagalli

The.

Michael Pelagalli

Do me.

Ethan

A large or influential platform and how damaging it might be to the person. It's not defamation because it's the truth um or an opinion you know now I'm sure people try to to couch intentionally maliciously false statements as in my opinion.

Michael Pelagalli

And.

Ethan

Cardi B is a prostitute and she did cocaine or something like that and I think courts can kind of get around. You're just trying to play games by couching it as opinion. But really, you're not doing it and all of these other objective factors prove that. But yeah I think at the end of the day you know truth is an absolute defense and so.

Shawn

Raf.

Shawn

Interesting.

Michael Pelagalli

Um, it yeah and courts to your point et think Courts have been really consistent across the country that using magic words like throwing alleged in between every nasty horrible false thing you say that's not enough to save you know you from liability for defamation.

Ethan

Yeah, you're not, You're not going to be laughable but things like that.

Michael Pelagalli

Now if it's truly you say hey it's been alleged by others and there's substantial basis for what you're saying you have some defenses. It's not quite truth being absolute but substantial truth most of it being true can be a defense as well.

Ethan

Um.

Shawn

I have 2 follow ups I'm not really sure which direction to take us I guess let's start with um, well let's continue on this and then I'll I'll take us to a new place. So on that note, right? and you brought up depp and and and and Amber heard right.

Michael Pelagalli

Step. So.

Shawn

So now in in the u k right? Johnny Depp was found to be a wife beater right? full stop but here he wasn't so if I call Johnny Deaf of a depp. A wife beater is he am I in trouble I mean.

Michael Pelagalli

Yeah, this.

Ethan

Um, water up.

Shawn

You know where how does that now work for commentators on that situation I mean obviously between him and Amber heard that's been settled but you know, um if you're commenting on it or you're ah ah, an influencer online who you know comments on these kinds of things where is the safe space to fall there.

Michael Pelagalli

Yeah, as Ethan knows there's no absolutes in the law. Everything's case by case. But what you just described in terms of you making a comment about Johnny Depp being a wife beater and you're going to say if he sues you well that was based on my reading of the british court cases and the findings and conclusions there and. While you may say it's not true here. It has been proven true there and at minimum I'm not being malicious against a public figure you Sean being you know, not being malicious. You were taking information publicly commenting on it now if that was a private individual. You were talking about and the facts were different. Maybe you are a little bit more exposed to liability. But.

Shawn

Um.

Michael Pelagalli

Being Johnny Depp being all the court cases out there I think you're pretty safe.

Shawn

Interesting. Okay, so then to shift like because we talk a lot on this show about you know, social media right? So where in the ecosystem of all of this Stuff. What responsibility does the social media platforms hold. Um, or have been held accountable to is there is there any basis for for discussion. There.

Michael Pelagalli

Yeah I'll start with you know, the biggest thing on this topic is section. 2 30 of the I believe 1996 communications decency act it affords platforms tech companies like Facebook Meta or Tiktok. Ah, immunity from liability. They are not under the you know, um communications decency act. They are not considered publishers or speakers of content that is published on their platforms that they have some control over but it's put by another individual. So.

Shawn

Um, sure.

Michael Pelagalli

You know if you're defamed online a lot of questions we'll get is hey I want to sue the person defaming me and I want to sue Facebook I want to sue them for allowing this It's absurd. We have to talk to them about section, 2 30 and section two thirty was actually just this past month or 2 um, it was brought up to the United States supreme court in a case called gonzales v Google and that case had to do with um Google who owns Youtube they were alleged to have acted in violation of section two thirty by allowing ads that were. Targeting isis individuals or or advertisements that were promoting those types of beliefs and it was brought by the family of an individual who was killed in a terrorist attack and it got all the way up to the supreme court deciding hey is Google the the parent company of Youtube responsible for their algorithm producing that type. Content ultimately the supreme court held that they were not. It was always going to be a difficult case for them to overcome but it started to raise a lot of really good questions and good discussions nationally about should section. 2 30 be changed. Is it good as it is and that's I think where we're at.

Ethan

That's interesting. So it it seems like an analogous situation that we discuss in the podcast a bunch of times is the digital millennium copyright act meaning same concept would Youtube be liable if a user posts copyright infringement material on their platform.

Michael Pelagalli

Um.

Ethan

And the answer is generally no, they're not liable so long as they follow these safe Harbor provisions to allow people to report copyright infringement and take it down does the community decency act have similar exceptions. Where a platform might be liable if they don't act reasonably in response to certain types of online defamation.

Michael Pelagalli

Um.

Michael Pelagalli

Yes, and I don't know all off the top of my head but I know for some sort of circumstances excuse me. For example, if some sort of revenge porn is posted on a social media site and they're notified of it and they fail to take action and further damages result as. You know, ah flowing from that people may have an argument to not only you know, go after the person who put that up there but potentially also the platforms. Um, if the platforms themselves publish or make any sort of statements or proclamations that that treats them as a publisher but there are some exceptions it. Not many or maybe not as much as some people would like but but.

Ethan

Sure, Okay, that makes nice.

Shawn

Um, yeah, that's really interesting. What So what? What is your I mean your personal and professional opinion on.

Michael Pelagalli

Um.

Shawn

Whether or not this needs to be something. That's maybe walked back a little bit to to hold them more accountable or not what what? what? Where do you land on that.

Michael Pelagalli

Yeah that's a great question I think it's just I've seen it described and I agree as as a necessary but flawed tool. That's how I've kind of seen it described and necessary in that I think the court systems would be overrun with lawsuits against Facebook and Twitter and Instagram and it would. Render a lot of these cases meaningless I think in the grand schememing things. It would dilute a lot of the legitimate claims and I think it would create ah a logjam in the court system. But I I do as as a practitioner in this field feel as though there can be some changes made and and maybe one of the changes that I personally would like to see made is that. Um, when a statement has been deemed defamatory by a court. So if someone's defamed and they take that next step of trying to hold the person accountable and they are successful right now the way the the landscape works is that if we obtain a final judgment saying that these statements in our case have been deemed defamatory. We can take those to the platforms or to Google or toever and say we've won. We'd like this stuff taken down consistent with the court order most of the time the vast majority of the time platforms will not give any issue. Um, it may take some time more time than we'd like. But they typically will we have started to run into some issues there and what I would like to see is some provisions in section. 2 30 that say if there is an order that deems content defamatory even though you are not liable you you must adhere to the court order within a certain period of time and remove that content. That's where I think.

Ethan

Yeah, that that seems to be really helpful because there was a practical solution with a close friend of mine in that exact same situation. It was a dear friend in Miami was defamed online and people said some pretty terrible stuff and they posted it on a third party website.

Michael Pelagalli

It could be tweaked a bit. Yeah.

Shawn

So.

Ethan

The friend sued the the person who made the defamatory statements got a judgment saying that it was defamatory and then went to the website and said please take it down and website says I don't got to do it and they had to sue the website owner to seek a mandatory injunction requiring that website to take it down. But.

Michael Pelagalli

Are.

Shawn

Ah.

Ethan

Person had to go through all of these extra steps and go through the litigation and hire a lawyer and if he didn't happen to have money or a good lawyer who was willing to kind of push through on a difficult issue. He would have been s o l so I do think a change like that seems to be 1 step in a positive direction.

Michael Pelagalli

What happened.

Michael Pelagalli

Are.

Ethan

That makes the social media sites or the internet service providers take reasonable action. Not I believe this person is defaming me but here's a court order Now you've got some reasonable period of time to take that down.

Shawn

Um, yeah.

Shawn

Well I think I think in general you know my my personal opinion on this is that the more onus you put on the publishing platform the the more careful they're going to be.

Michael Pelagalli

I.

Shawn

So there I think there is a balance you know I I completely agree with Michael's point about not wanting to overwhelm the court system not wanting to bring up all these frivolous lawsuits. But I also think the the carte blanche they have right now is.

Michael Pelagalli

Will make.

Shawn

Is not healthy for the for the internet honestly for the ecosystem. Um I mean you know I think Twitter is a great example right? now of that of you know? well this is what happens when you get someone who doesn't care at all and has been given no legal reason to really care. Um.

Michael Pelagalli

All these needle.

Shawn

About anything being said on his platform you know.

Ethan

Yeah, it's it's true and it makes it makes it difficult for a person who is a victim. So let's let's pivot there in that situation and Michael I'm going to toss you a hypothetical and I'm going to let you decide how you want to take it but but I'm sure that a lot of people who are listening to this program are people who sit who.

Michael Pelagalli

Um, but he.

Michael Pelagalli

Both you and so.

Ethan

Victims someone said something bad about them online. They're being harassed online. Maybe it's a revenge porn issue. Whatever it is they are harmed and somebody posted something illegal about them on the internet and they don't know what to do.

Michael Pelagalli

They married a and become.

Ethan

And so what would someone in that situation. Do you know? how would they go through that process when they pick up the phone and call you you know you could take it in any direction that you want. But how do you help somebody who's a victim of online defamation.

Michael Pelagalli

Preaching.

Michael Pelagalli

Yeah, one of the first things I tell anyone who calls in is to start taking screenshots preserve the evidence of these posts and our firm can do that as well. A little bit more formally with more robust features in terms of where it was captured. But. I tell everyone involved if you've been the subject of an online attack defamation reviews anything start screenshoting make a file because these things can come up and come down fast and while that doesn't totally extinguish a claim. It is always much much easier to pursue these when we have the exact. Written words. So number 1 is start preserving evidence and the other big rule I say at the outset is do not respond publicly until you've spoken to a lawyer. It's almost a rule that I think applies in every circumstance whether you are a business and it's business related defamation claims you know fraud or.

Shawn

And.

Michael Pelagalli

Poor service things like that or if it's a private individual being accused of you know, being a creep on a date by someone else. You know don't publicly respond before you speak with some you know an attorney that.

Ethan

Now and and why you know a sure victim sees this online and the the time it might take to get a lawyer on the phone is not immediate. You know I'm sure the same day somebody calls your office somebody follows up immediately. But that's there It's doing in their brain. So why not respond to that.

Michael Pelagalli

Let.

Ethan

Harmful Negative Defamatory content.

Michael Pelagalli

Yeah, it's a great point because time is really of the essence in these as the days go on with this defamatory content out there. You don't know how damaged you are because not everyone who sees this is going to call you and say hey I'm not going to be your friend anymore because of this they just may not talk to you again.

Shawn

Yeah.

Michael Pelagalli

Right? So um, it is a very natural thing to think I got to fight back I've got to say something soon and that will come and at some point in time but it it can make the situation worse people have said things that I've seen in cases where. They're operating they believe in self-defense self-preservation and they make a few missteps in what they say and it doesn't mean that they don't have a case anymore. But if you've been defamed and then in your defense you say something that could give the person who defamed you potential wiggle room to to. Bring claims against you from what you said then it becomes this back and Forth. He said she said or he said he said and it doesn't serve to be as productive as people may think it would right away.

Shawn

Yeah.

Ethan

That makes sense and it makes sense really in the broader litigation environment as well. We had a client recently who had believed. They had their trademarks infringed and it was by a larger company and they're like we want to go to the news and make a big stink out of this and kind of our guidance was.

Shawn

Ah.

Michael Pelagalli

Who.

Ethan

Look You could do whatever you want, but that might give them ammunition to now have claims against you if you say things that are false or you might be battling this out in the court of public opinion and there might be things that are going to hurt you in your case so that makes a ton of sense is it's I'm sure really hard to show restraint. But.

Michael Pelagalli

Not belinia.

Michael Pelagalli

A.

Ethan

It's going to be really important to allow you to be able to do your job in the best way possible to advocate for them by not having those things you know being held against them.

Michael Pelagalli

Exactly and one of the things that I always tell potential clients or actual clients when we're thinking about hey do we want to make a public statement. Do We want to put something out there even while we're behind the scenes maybe working to resolve this.. What do we want to put out there and what I tell clients is hey let you and I will draft this together and we will. Craft it and design it such that we are going to assume it is going to be taken by this person and twisted and mangled into the worst way possible, but any reasonable person reading. This will be able to hear the story and we get to frame it in a truthful honest, but in a way that. Doesn't make the person who's the defamer look good doesn't give them any you know outs in the eye of the public and we tell them that hey whether we send for example, just like a private demand letter or whether we're going to put up a statement. We are going to assume everything we put in writing will be used against us. So I say talk to a lawyer first because a lawyer will be able to kind of. Help put together something that down the road won't cause harm but will also help to mitigate the damages that are happening at the moment. So.

Ethan

Um, for example.

Shawn

Um, so what? Ah, what's the Um, what is the most common type of defamation that comes across your desk ah from from you know online based defamation.

Michael Pelagalli

1 of the most common is Google reviews with businesses we have seen you know over the past several years an influx of cases where ah successful I mean usually it's successful businesses because that's when you start to get haters or attackers is when your business is doing well.

Shawn

Boom.

Shawn

And.

Michael Pelagalli

Um, it can obviously be in result to a bad situation or a bad event but typically it's successful businesses. Will you know an owner will wake up one day and they'll be met with 45 1 ne-star google reviews from names on these Google profiles that they've never interacted with. They search their client or customer records. No interactions whatsoever but their star rating goes from a 4.8 to three point one overnight and it's it's been really detrimental to businesses I think a long time ago people would say hey sticks and stones. It's not going to do much damage but as the internet has grown and as. Google reviews and and review sites like that have been so prevalent and at the top of people's minds. We've seen cases and we've been involved in cases where we have financial documents showing that once this defamation occurred via multiple fake Google reviews. Profits dropped or we lost customers or people called canceling citing the reviews. So Google reviews or yelp reviews review sites are one of the more common for sure.

Shawn

Wow.

Ethan

Yeah, that's got to be huge I mean just think of any type of service if you're looking for an online defamation lawyer. You search for 2 people. 1 ne's got a 4.8 greeting and 1 ne's got a 3 who do you think you're you're going to call like of course it's going to influence you and so. Fake reviews could be incredibly damaging what what can those could say what can you do in that situation. Once you have somebody picking up the phone and calling and saying I've got these 45 1 star clearly fake reviews overnight.

Shawn

Um, what.

Michael Pelagalli

I.

Michael Pelagalli

Right? So in that case, the 45 overnight not something that you'd want to spend your money trying to approach each of these individuals 1 by one one because you don't know who they are the Google accounts they're using are likely burners or fake or not identifiable. So when a. Business owner comes to us and says hey I've got this problem. Unfortunately Google isn't being very responsive to their reports or Google can be inconsistent in how long they respond and they say what? what can we do and really the only way that you can attack a Google review like that. 40 plus or 30 plus twenty plus is to file. What's called the John Doe Lawsuit and to initially immediately subpoena google for all the information they have associated with those particular accounts and we've done this numerous occasions across the country. Um, to.

Shawn

Um.

Michael Pelagalli

A lot of success. You know we've been able to work with Google and obtain data and identify individuals associated with these accounts and a lot of times what we see is. For example, you know hypothetical situation will be ah a physician calls my office and says you know I just got all these reviews on vitals.com or webmd the physician will say I suspect. It might be a family member from a patient I had that the result didn't go well, you know I don't know who though and it's causing harm and we'll go through the process of unmasking them through the subpoena process and you know we found that.

Shawn

Um, ah.

Michael Pelagalli

Sometimes it's really not a family member and it's another physician from the county over trying to poach business. And yeah.

Shawn

Um, well that was that was gonna be my question is is what is the common source because you were mentioning the restaurant review thing and I was thinking. Yeah, but who would even do it like why who does like is it random I mean I know there are like random online trolls and groups of trolls who just.

Michael Pelagalli

Um.

Shawn

Target people and do horrible things is that typically what it is or or is it much more personalized harassment.

Michael Pelagalli

Great point, Good distinction there I think when the reviews come in response to some bad event that happens something public with a company or a business you are going to start getting like a beehive attack where people who have never dealt with you or never dealt with your business will start leaving reviews because they see.

Shawn

Yes.

Michael Pelagalli

The issue on Facebook someone on Facebook is saying go tank this business. They're not ethical and then they'll go to that point. Um, if it's not in response to some specific instance that the client can point to it is typically the act or the efforts of 1 person or a group masquerading as many.

Shawn

Right.

Shawn

Um, ah.

Michael Pelagalli

You know masquerading as legitimate clients and the way that we've been able to navigate this in the court system is you know because one of the things here is that speaking anonymously is not violative of the first amendment you can speak anonymously leaving Google reviews anonymously and um, even leaving you know Google reviews that just have a 1 ne-star of nothing. Yeah, 1 star out of 5 with no substance. You know what do you do with that. What how do you do that? There's no defamation right? because there's been nothing actually said we approach it with courts and we'll say hey this 1 person is pretending to be 7 8 people 40 people.

Shawn

Mer.

Michael Pelagalli

Just because they aren't leaving any substantive reviews or if they are but if they aren't just the mere fact of putting a one out of 5 communicates that there's been some negative interaction with the business and if that's not true that in and of itself can qualify as defamation. So you know we'll attack these reviews in a couple different ways with the courts.

Ethan

That's correct. So probably that's I mean.

Michael Pelagalli

Um, but ultimately you know we've been very successful on Google review cases and getting identifications. Yeah, but.

Shawn

That's interesting. Have you been less successful or about the same with the first scenario where the restaurant or the business has done something objective viably.

Michael Pelagalli

Terrible.

Shawn

Negative right? And so people are reacting by saying I give this not that I've ever been to this business but they're garbage I've seen them be garbage 1 star. Do you have less success. There is there more of a defense on the on the commenter's part there to say hey you know I was just.

Michael Pelagalli

1 stop be as success goes.

Shawn

Telling it honestly.

Michael Pelagalli

Yeah, much less success in those types of instances. Those are the types of cases where I'll talk to a client about hey let's not throw good money after bad, let's not try to file a lawsuit and unmask a lot of these people who we know. When we know or when we suspect that this is not 1 person pretending to be multiple people and this is actual that is where I talk to my clients about you know going after the head of the snake first we identify if there's 25 people that are saying things we will do our best with our client to identify the 2.

Shawn

Are the.

Michael Pelagalli

5 depending on the case, the smaller subset of the people who are really driving these interactions we will approach them First. We will see what sort of relief we can achieve what results we can get by going to those people first and then from there seeing what happens what trickles down because a lot of times the people who are driving. Negative interactions. We've been in cases where we've convinced them that they've done something wrong and that they'll then post to stop and they'll post to delete and we've found some success there but it's difficult. It's not quite the same as one person.

Shawn

So this this is actually interesting because it reminds me and it and this might be what you're talking about, but it reminds me of there's a lot of of Tiktok accounts right now of people whose whole their whole deal.

Michael Pelagalli

So right? yeah.

Shawn

Is like exposing the racist or you know, ah exposing whatever you know, whatever bad behavior. Um, and they've never really kind of you know I Never really thought about are those people putting themselves in like a considerable amount of Legal Peril even venturing into.

Michael Pelagalli

No I.

Shawn

Doing that because what happens if they're wrong and and and I guess another question of a similar question like are are are the people doing that your clients to say hey defend me um, or or is the people who are being attacked or is it a little a little of both.

Ethan

Are.

Michael Pelagalli

Yeah, it's an interesting and I can think of some content creators off the top of my head that we all probably know who do this type of thing and I think when they are putting videos up where it's stitched right on Tiktok. It's a stitched video where they're reacting to some actual video that's out there.

Shawn

There.

Shawn

Right.

Michael Pelagalli

Those content creators know that they can say quite a bit while commenting on a public news story and as long as they aren't being again the minimum threshold if they're talking about a private person being negligent as long as they are either providing only their opinion or saying things that are substantially true. They they aren't going to be. Um, found Libel or really approached all that often now. If For example, you know like the one there's creators who will take a video of someone being racist in public right? and they'll comment on the video This person's a horrible racist going back to our kind of first discussion Sean if the commenter then says hey this person.

Shawn

Right.

Michael Pelagalli

You know is racist and they're affiliated with the Nazi party or they're affiliated with the Kkk and they start taking those leaps away from what they're commenting on into just straight defamation. We have seen cases like that. Um I haven't.

Shawn

Um.

Shawn

Sure.

Michael Pelagalli

Been involved in any of those personally with those types of content creators. But that's kind of my breakdown of of those.

Ethan

Yeah, and what do you say and and we'll we'll discuss a bit about the the situation that we had dealt with specifically you know you're a popular creator. You're a popular influencer. You've got hundreds of thousands of followers on social media and as a result people are now making videos about you.

Michael Pelagalli

The fifth deep number.

Ethan

And saying things that are bad. Maybe they're not harmful, but it's it's ruffling your feathers because when people search for you on Youtube or Tiktok they're going to find these other video saying bad things about you but it might not rise to a level of clear defamation. What do you have to say to those.

Michael Pelagalli

Um, people.

Michael Pelagalli

When.

Michael Pelagalli

Hope.

Ethan

Rising popular creators who now have to deal with this uncomfortable situation that other people are going to capitalize off their success.

Michael Pelagalli

Yeah, it's definitely on the rise as creators across Youtube just get bigger and bigger and bigger There are going to be the channels like we talked about Ethan that are dedicated to just trashing or commenting or criticizing the bigger creators those little fish feeding off the big fish and in those discussions as you know we've had. Eaten with clients is you know is the juice. Worth the squeeze here is is going after this smaller creator and it it'll be a case by case, it'll depend on how horrific the statements are or how much they are actually profiting off of either your content or what you've said and making those types of um. Assessments of it. But that's where I do think that you know you want to take sort of ah take the top of the head of the snake first try to go after those creators but in that case I think it would probably be better for the creator to consider either addressing it. Publicly saying something about it having that be their statement that lives on their page and then they move on. You know they they ignore it. They acknowledge to their followers that this is out there and that you know they take issue with it and they move on or if you are a big enough creator and that person small enough think is it really worth it. You know. Is it worth it because one of the things that we always remind clients about is something called the stry end effect I don't know if you guys have that at all. Yeah, okay, so so um, yeah.

Ethan

No, what is it.

Shawn

Um, yes, yes, there's a whole South Park episode about it. Yeah, go ahead, get.

Michael Pelagalli

Exactly I'm not a south bar guy I did learn about that episode through this work. But you know the long and short of it was bar schraisan had a mansion off the coast of California somewhere. It was very secluded very private I don't know if this was maybe late 90 s early two thousand s but the California. Government was doing some sort of conservation project. They were taking satellite aerial photos of the coastline thousands and thousands and thousands of images across the coastline and it was put on a public website and I think a handful of those images just a couple showed. An aerial view of barber streiszan secluded residents and at the time before anything happened I think the website had hundreds if not maybe a few thousand views in general now Barber Shreisand is not like this her lawyers do not like this. They start going scorched earth sending.

Shawn

Yeah.

Michael Pelagalli

Letters lawsuits everything and it becomes national worldwide news and overnight that website goes from either hundreds or thousands of views to hundreds of thousands millions of views and so it's called now the strysand effect where you have this small problem. It is causing harm or causing you damage. You do something to.

Shawn

Yeah.

Michael Pelagalli

React or to counter it or to address it and it creates a bigger problem. That's that's what I would say do one of your big creators or someone who is dealing with a little fish think about that.

Shawn

Um, yeah, yeah, yeah, with.

Ethan

Create got.

Ethan

That makes complete sense. You know you hear don't feed the trolls in a way and this is probably a worst case scenario of what happens if you do like.

Shawn

Well and I mean to your first point you know they're public figures now. So there is an element of you know when you decide to cross into that threshold of of public figure that um you know you're gonna be open to it but but on that same note.

Michael Pelagalli

Great point showing.

Shawn

I pose you this. We're all public figures now to a certain degree right? Especially like the younger generation like they are. We're still old enough that it feels like a choice right? like I don't have to be forever online I can just not um.

Michael Pelagalli

The.

Shawn

But you know I understand a younger generation of of kids growing up and being like well no, this is what life is if I'm not there then I don't exist in my friend group or my school so I need to have this persona and and everyone now seems to be vying for that bump of oh I got.

Michael Pelagalli

Canna speak.

Michael Pelagalli

So. Flip more quickly.

Shawn

Ah, now um now I'm famous right? So what is that thin line though of when do you become a public figure versus you're just a person who had 1 viral video. You know.

Michael Pelagalli

Yeah, a person with one viral video I think it's going to be pretty extreme circumstances where a court deems them to be a public figure courts often look at exactly what was said in the context of that. So if Ethan is making a public. Presentation or statement. You know outside of the law about anything else and and that statement comes into question. Um, like sorry I got something tickle my throat. Sorry.

Ethan

Oop. Okay.

Shawn

Now take your time. This is what the edit buttons for baby. Ah God won't you take it back a little. Yeah.

Michael Pelagalli

I was gonna say yeah I just as I was talking. Yeah so okay, yeah, so we were talking about the the line between you were saying in terms of getting to be say that again. Sean.

Ethan

Ah.

Shawn

I I was basically so what is that thin line between public figure and person terminally online who is getting you know the the.

Michael Pelagalli

That's right.

Shawn

And know a little bump but isn't a public figure where where is where do the courts draw the distinction.

Michael Pelagalli

Okay, yeah, and what I was getting to was you know if the courts will look at what is being said and if Ethan has made himself and and taken steps to let's just say the topic was american football if you're giving a presentation and that comes under issue if it. The question will be is Ethan a public figure in the space of American Football you may be a public figure Ethan with respect to social media law and all those ventures that you have but football you may not be and the court will look at what have you done in your past. What have you done to put yourself out there as a public figure courts.

Shawn

Are.

Michael Pelagalli

You know are still trying to figure this out too though because you raise a good point Sean like is a content creator with 100000 followers a public figure or do you need to pass the million threshold or what does that mean and frankly courts are still figuring it out. You know like a lot of other areas of the law.

Shawn

Right.

Michael Pelagalli

Um, you know defamation is going to be continually changing laws stay behind the curve a bit you know Ethan can attest to that too in any aspect the real practical world is going to be advancing faster than the laws can so we're we're in you know, talking with courts presently about whether someone is a public figure or not you know is the fact that they're a.

Shawn

Yeah.

Michael Pelagalli

A well-known Physician who gives presentations and who lectures and who is reputable. Are they a public figure because they're successful and because their business thrusts them into that or do they have to do more and courts. Are you know I wouldn't say. Split but they each conduct their own analysis and look at really specific case facts. Yeah.

Ethan

Yeah, it seems like there's a spectrum between like private citizen public figure and then limited purpose public figure is someone that kind of is there. But I think what the challenge is going to be and kind of what Michael highlighted is there's no black and white line.

Shawn

That's.

Michael Pelagalli

Press move.

Ethan

It's a very large gray area and I think as a creator or as a private citizen. It might be popular about something. It's kind of like copyright fair use. There's factors that you look at. But if you ask 10 different courts is somebody a public figure or not for limited purpose. You might get 10 different opinions.

Michael Pelagalli

They never will say.

Ethan

Relying up upon 10 different facts and I think that the the and the only answer is having Michael back on our show next year and see how the law has evolved and be able to give us an update on that.

Michael Pelagalli

I Love that? yeah.

Shawn

Yes, the law the law remains an amorphous cruel mistress ever changing and never happy. Um.

Ethan

Um, and with that.

Michael Pelagalli

Um, good way to put it.

Shawn

So yeah, that that that's actually a a great a great note ah you know overall to to sort of tie this conversation up and I and I would love Michael for you to come back. You know in the future and and sort of discuss as things start to move. Um, but but in the meantime you know, ah like well. Um, a guy who gets online and I angrily type out a lot of horrible things about someone um and and and now I'm that someone who's been insulted and I come to you? How do I find you for help in these situations Michael or your firm or wherever you want people to be able to reach you.

Michael Pelagalli

Yeah.

Michael Pelagalli

Yeah minklaw.com, we're all over Google so if you google defamation lawyers you know internet defamation. You'll find us but mink law. Ah you'll find a lot of materials on our website we we make it a point from our firm to not hide the ball when it comes to. How you are supposed to resolve these things. We don't want people to come to us saying I have no idea what to do or I have no background in this. We direct them to our website. We tell them hey look up what you're going through. We've probably written an article about it. We've probably done a video about it and that way when when it comes time to talk to me or another attorney here. That client potential client has so much more information they can go into that meeting with really pointed questions for me as opposed to just listening to me explain their case. They can come in and and and really have some good pointed questions that will help them get the result they desire which is going to be different. Across but um, yeah, minclaw.com we are actually starting to grow. Um, our social media channels I've been showing my firm Ethan's pages and his efforts trying to say you got to do a little bit more of this so you'll be able to find us all over the place online.

Shawn

Um, awesome.

Shawn

Yeah, that's awesome. Well and you can add. You can add this episode to your repertoire of hey go go listen or read this and and learn a little bit more first before you start asking us a million questions. That's awesome. You know me I'm online as ah as everyone knows I lurk around.

Michael Pelagalli

Yes. Now I.

Shawn

Um, but I'm you know unfindable Ethan what about? ah you and the and the social media law firm get those we plugs in baby.

Ethan

Yeah, totally yeah if you want to say Ethan you're great, but Michael was better have him on the show more you can find us online by searching for the social media law firm or search for me on Linkedin as Ethan Wall are you doing that right now.

Michael Pelagalli

And.

Shawn

Ah, no, what.

Michael Pelagalli

15 with people.

Ethan

Ah, Michael it's been a blast this really was from the time that Sean and I started doing season 2 of the podcast had asked I want to talk about defamation law and I said we need to hold this until we have the right expert and immediately you were the one that came to mind and I'm so glad that you were on the show today.

Michael Pelagalli

I.

Shawn

Um I did Um, yeah.

Shawn

Agreed.

Ethan

Um, were able to answer those questions for us.

Michael Pelagalli

Hey I Sincerely thank you guys for having me on anytime you guys want me back on I'm here. Um, and as I see new developments in defamation law I'll definitely send you guys some articles and updates and we'll have a. More you know, even more robust conversation next time. So. Thank you guys Both and I'm I'm a subscriber I'm a listener I'm looking forward to the next episode.

Shawn

Ah, fantastic. Awesome! Thank you guys Ethan I'll see you next time when we do another episode of this fantastic podcast together all right buddy bye.

Michael Pelagalli

Thank you.

Ethan

I'll see you then.