The latest episode of the AZ Big Podcast with Michael & Amy has officially dropped. Episode 86 features Paul Kular, shareholder at Burch & Cracchiolo, who discusses the legal impact of social media defamation.
LISTEN TO THE PODCAST: https://open.spotify.com/episode/5B8d6HzKRYOKcFKKXMrCGt?si=55b4b8c193514d7d
Listen to more of the AZ Big Podcast here.
Podcast Transcript:
Michael Gossie
Welcome to the AZ Big Podcast, sponsored by Burch & Cracchiolo. I'm Michael Gossie, editor-in-chief at AZ Big Media, and I'm joined by my co-host, our publisher, Amy Lindsey. Today, I'm super excited to have in the studio with us Paul Kular, shareholder at Burch & Cracchiolo and this topic is fascinating. Paul, I can't wait to talk to you about it.
Paul Kular
Great! I'm excited to talk about it with you guys.
Amy Lindsey
Thank you for joining us. So, Paul, start off tell us a little about your background and your practice at Burch & Cracchiolo.
Paul Kular
So, I graduated from law school. I'm going maybe going too far back here, but I graduated from law school in 2003, started my career at a small boutique firm in Scottsdale, AZ, doing primarily insurance, defense. From there and went to in-house counsel with Travelers Insurance. I was there for 13 years and frankly, when I turned 40, I was like... and Travelers was great to me. It was a great place to work, but I was like, is this it for me and what else am I gonna do with my life? So, I explored some opportunities to go into private practice and I joined Burch & Cracchiolo... I think in 2020, if I'm not mistaken, and I've been there ever since, and I love it.
Michael Gossie
Great law firm. We love working with Burch & Cracchiolo about everything. But so, hey, I know that you've seen a recent influx in defamation cases. Many of them stemming from social media posts. So, can you tell our listeners first, what is defamation?
Paul Kular
So of course, there's a legal definition of defamation. So, let me just start with that. As boring as that might come across, but the legal definition is essentially it's the statement that is made about an individual that tends to cause them to be in disrepute, contempt or ridicule, or it impeaches the honesty, integrity, virtue or reputation of the individual. So, the question then is, what does all that mean? And if I was just talking by the cooler with some friends, I would just say, you know, here's what it is. Defamation is a statement made about a person. It can be oral, or it can be written, and essentially, it's a statement that is simply, factually not true.
Amy Lindsey
Ok, can you give us an example of maybe a social media post that may be open to a defamation lawsuit?
Paul Kular
Yeah, absolutely. So, you know, I think the easiest one to give an example of is where an individual might make a claim about another person that maybe they were arrested or charged or convicted of a crime. I think that's the easiest one to share with you guys and when you say something like that, I mean that's something that can be proven to be untrue.
Michael Gossie
Sure.
Paul Kular
It's not like an opinion. You know, that person's.. he's such a jerk, or he's such a dummy. I mean, that's more of an opinion, subjective and probably not subject to a defamation lawsuit.
Michael Gossie
Okay, so somebody's opinion is not going to be subjected to a lawsuit.
Paul Kular
Yeah, generally speaking, I mean that that's true. I mean, there's some ambiguities in the law as you guys know, law is very ambiguous and very fluid, but generally speaking, that's a correct statement.
Michael Gossie
So, can you talk about the statute of limitations when it comes to defamation cases?
Paul Kular
Sure. So, defamation cases, it's a tort claim if you guys are familiar with that. I mean, a negligence claim is a tort claim. So, when you're talking about a motor vehicle accident or slip and fall. You're talking about negligence claim and it's again, it's a tort claim. Defamation is also tort claim, but with defamation cases you have one year to bring your claim. And what's unique about defamation is that the statute of limitations begins to run at the time of publication and what that means is that the time that the statement was made. So, typically, you know statute of limitations and tort claims don't begin to run until you knew or reasonably should have known that you've been injured and the cause of your injury. Again, defamation is much different. It's one year and it's at the time of publication. The time that that post was made and put out there to the public, even if the person who's allegedly been defamed knows nothing about it -- unless and there's a caveat with everything in the law -- and the caveat is that unless the statement was made in a secretive or concealed manner, and if you'd like.. if you want, I can give you an example of, you know, what that might be? So, you know, imagine if you post something onto your public Facebook page and alleged defamatory statement, well, that's open to the public, right? Anyone could see it? That's not concealed or secretive, but if you post something on a private chat room that maybe requires a monthly membership fee and it's a captive audience and the person that you've made the alleged defamatory statement about has no access to that statement, then that might be considered secretive or concealed, and in that situation the statute of limitations might not begin to run until that individual has allegedly been defamed, knew or reasonably should have known that that statement.. that that statement was made.
Amy Lindsey
That's a big difference, OK?
Paul Kular
Yeah, that.. Absolutely and this topic's kind of personal to me because I had a case really exactly on this issue. It was... when did the statute of limitations begin to run? And I was on the defense side and the case made its way all the way to the Court of Appeals and the decision.. and there was a decision that came down First, Division One at the Court of Appeals and the Court of Appeals upheld the law as it existed prior to my case, which is that it occurs at the time of publication unless the statement was secretive or concealed.
Amy Lindsey
Okay.
Michael Gossie
So, how has social media changed the game when it comes to defamation cases?
Paul Kular
Oh my gosh. I mean, it's...
Michael Gossie
That’s a whole book, right?
Paul Kular
Yeah, it really is. And so, you know, just.. I'm just seeing them. I can't cite to any publication or peer reviewed articles or anything like that to tell you this is exactly the amount of defamation cases or percentage of defamation cases that we have more than we did before the Internet but certainly, at least from my perspective, we see it more and more. I mean, there's so many social media sites and people seem to think that they have carte blanche authority or the right to say whatever they want to online, but that's frankly just not true and it's a dangerous thing to think that you can just post anything online and there's not going to be any repercussions. I mean, we see it. We see it, you know, on the news, you know, we had the Johnny Depp trial.
Amy Lindsey
Oh yeah. Paul Kular Maybe you guys are. ,You guys might be familiar with and the Alex Jones trial. And then right here at home not too long ago during Super Bowl weekend, former All Star Hall of Fame wide receiver for the Dallas Cowboys.
Michael Gossie
Yeah, the Michael Irvin case.
Paul Kular
Exactly! The Michael Irvin case. He's got a... has a multi... I don’t even know how many million dollar claim against Marriott because of a situation that occurred between him, and I guess an employee of Marriott.
Michael Gossie
Right. Right. So, Paul, we have a million questions for you, but before we get to them, I have to say, 2023 is the year to make a difference in your business and life by contacting an attorney at Burch and Cracchiolo to handle all your legal needs. Burch and Cracchiolo is a time-honored full-service law firm of 40 attorneys who can partner with you no matter what the challenges are, or new horizons on your radar. Contact them at bcattorneys.com. That's bcattorneys.com.
Amy Lindsey
So, Paul can you tell us, what are some of the current trends regarding defamation lawsuits?
Paul Kular
So, so I mean, again, I can't cite any peer reviewed articles or publications, but just from my perspective, from what we're seeing the growth of the Internet, the growth of social media sites. The number of, I guess, influencers as they're called online, there's a lot of people that have things to say about on social media about whether it be about influencers or certain topics that come about and the trend seems to be that it's just it's increasing, it's increasing. I don't know if exponentially is the correct word, but from my perspective it's just continuing to grow and it's going to continue to grow.
Michael Gossie
So, is there any difference between how a defamation case is handled, say against a Michael Irvin... You know, a public figure -- as opposed to somebody like me, who's just like an average Joe?
Paul Kular
So, that's a great question.
Amy Lindsey
You're not an average Joe, by the way.
Michael Gossie
I'm an average Michael.
Amy Lindsey
You're an average Michael.
Paul Kular
So, that's a great question in terms of how the claim would be handled against a private figure versus a public figure like Michael Irvin, it will be handled the same. In terms of how it's handled. If the private figure or... The difference between whether a private figure or public figure is bringing the claim. That's when it becomes different. So, a public figure is held to a different, higher standard. You know, if they're going to claim that they've been defamed and that's because we expect public figures to have thicker skin. I mean they have more access to the public, right? They can hop on any media outlet or hop on their Twitter page with however hundreds of thousands of followers they have and defend themselves, whereas a private figure doesn't have that opportunity. So, the difference in the claims in terms of the burden of proof, the public figure has to show that the statement that was made against them was false. That's one way it's different. A private figure doesn't have to prove that. It's assumed that the statement that was made against them was false, and then the defendant in a private figure case can assert truth as complete defense. So again, getting back to the public figure and the burden of proof. They have to prove falsity and they also have to prove actual malice, which typically a private figure does not have to do and the next question may be what the heck is actual malice?
Amy Lindsey
Yeah. Let’s start with that one, right.
Paul Kular
Right. So, actual malice is where a defendant or an individual who made the statement knew that the statement that they made was false or had a reckless disregard for the truth or falsity of the statement and the question becomes, well, what's reckless disregard? So, reckless disregard is having serious doubt about whether the statement you've made was true or false, or having a conscious disregard for whether truth, whether the statement you made was true or false, and conscious disregard. Look at it this way, that... You know you made the statement. You didn't care if it was true or false, you just made it and you didn't do any reasonable investigation to vet out whether the statement was true or false.
Amy Lindsey
Makes sense.
Michael Gossie
You know, one thing that we've heard a lot about recently and we're actually writing about this in the next issue of Arizona Business magazine is “de-influencing” and it's where companies hire social media influencers to go to their competitors, say a competitive... a competitor who's another restaurant and make negative comments about them. What kind of legal liability do they have like, say, they don't even go to the restaurant? They say, hey, the food their stinks. Is there, is there a legal liability there?
Paul Kular
That's such a great question. So, I mean that gets back to opinion. Right.
Michael Gossie
Right.
Paul Kular
Is that.. is it a fact that their food stinks? That's pretty subjective. You know, you might like the food there, right? I might not like the food there, but you your scenario was interesting in the sense that they never went to the restaurant. Right. So, I mean, if you never go to the restaurant, but you have an opinion that the food stinks. Is that an opinion that could be subject to a defamation claim? I think it might.
Michael Gossie
So, if you're a business and you're a victim of this de-influencing, do you have a case?
Paul Kular
I think you potentially do. I mean, especially if the individual who's making the alleged defamatory statements against you never went to your business to really have a claim or a basis to say that, you know, for example, the restaurant that your food, you know is no good or it stinks or whatever the case may be. But if they went there and they just didn't like the food and they say it stinks. I mean, that's their subjective opinion. But again, getting back to the situation where they never went there and they making those statements. I think there is a potential there that that opinion was not... didn't have any basis whatsoever and there it may be subject to a defamation action, yeah.
Michael Gossie
Do we see more and more of this? Do you see more and more cases popping up in the future because of social media in terms of defamation and malice cases? Do you see an increase coming because of this?
Paul Kular
I mean I just... I do and I again, I just see it more in in the spotlight, you know, in the cases that we see. It just seems like it's more and more on the news and the more of these social media sites that pop out, pop up, I think there's more opportunity for people to say the wrong thing. Like, imagine I think we're all guilty of this. You know, we go online and you might say something that not necessarily regret, but maybe didn't fully think through because again, we think we have carte blanche when we go on the Internet and we can say whatever we want. That's just simply, not... that's simply not the case.
Amy Lindsey
Right. Well, I grew up in the generation. I didn't have to worry about somebody having a cell phone when I was talking. Now days people have... Trust me, I there's many years of my life I would not like relived out on social media.
Michael Gossie
And I know, I know family law is not your specialty, but how about how about social media posts that come into play between like a feuding ex-spouse is, is that another growing problem?
Paul Kular
That's such a great. Again, I keep saying great question, but these really are great questions. So, there's a case actually about that. It was a, and there may be more cases about that particular issue, but I do recall a case about a couple that was either fully divorced or going through divorce, but in that case, one of the former couple members made statements about the individual that were criminal in nature, that he had committed some criminal acts, and in that case, the court said you can't do that. I mean, so it was a post that was put online and it got a lot of exposure and that's what publication is when we're getting back to you know the statute of limitation begins at the time of publication. It's when you put it out there and it's open to a third party. So, once you put something out there and it's not just to the person that you've allegedly defamed, but it's to like an audience, then, that would be publication but yeah, absolutely you can have defamation claims against partners or former partner, sure.
Amy Lindsey
So, Paul, can you tell us how can people protect themselves?
Paul Kular
Just delete all your social media accounts. No, but in yeah, I mean, in, in all seriousness, I think it's great, safe social media is great. It gives us an opportunity to share our views on things, but I think we just have to remember. That what we say have consequences and we, you know, we have to be careful what we say. Think through what we have to say and don't react spontaneously to things. Really think things through before you put something online because it could have, you know, consequences and repercussions that you don't necessarily want to deal with. You might end up, you know, seeing yourself in court and that's not where you want to be.
Michael Gossie
Paul, if people have more questions about this topic, how can they get in touch with you?
Paul Kular
Yeah, sure. So, as you said with Burch & Cracchiolo, I can be reached on our website, has all my contact information on there. So yeah, just, you know, give me a call and be happy to help and frankly it's not that you can come to me and I can you know if necessary solve all your problems but I can certainly just give you an idea if you might be dealing with a situation where you have a valid claim.
Michael Gossie
Well, great!
Paul Kular
And just, I'm sorry to interrupt, but just to be clear, I mean whether it's on the plaintiff or defense side, you know, if someone's claiming that you defame them, could take a look at that too and see if they if you know you might be in a pickle.
Amy Lindsey
Okay, fantastic.
Michael Gossie
Well great, thank you so much for listening to the AZ Big Podcast with Michael and Amy. Thank you again to Paul Kular from Burch and Cracchiolo. Great, great, great topic. For the latest and greatest business, real estate and lifestyle news, check out the all new azbigmedia.com and thank you once again to our sponsors, Burch and Cracchiolo, and that's bcattorneys.com.