- [Host] Thanks to Indochino
for keeping Legal Eagle in the air
and helping me look fly.
Hey Legal Eagles
it's time to think like a lawyer.
And I'm incredibly excited
to have the famous hbomberguy with us today.
Why don't we talk a little bit
about your channel itself. - Okay.
- [Host] You have just exploded in popularity
as being some of the best social commentary on YouTube
and one of the best Donkey Kong players--
- (laughs)
- [Host] I suppose is out there.
- Well technically I'm one of the worst
I just eventually managed to do it.
- Well depends on what the ultimate goal is.
- [Harry] (laughs) - Is it to beat the game
or is it to do it in a very very difficult way
in the most amusing way possible.
- I guess it's that yeah.
- Well one thing I think was amazing
is I guess AOC commented
on your live stream right? - Yeah yeah.
People were joking about getting her on
and I thought ah that's quite fun.
But then an account that was AOC
joined the call and it was actually her voice
and I lost my mind.
- [Alexandra] Hello?
- [Harry] Hi.
It's fantastic to meet you.
Would you like to introduce yourself
in case some people don't know who you are?
- [Alexandra] Oh my name is Alexandria Ocasio Cortez.
I am the congresswoman
for New York's 14th congressional district.
And now like Bernie Sanders is doing streaming.
So I feel like people are following suit.
I started a trend
in left wing American politics by accident
while trying to make fun
of a former comedian in Britain.
But these things happen.
- And how much did you raise for charity?
- About $330,000. - [Host] That's incredible.
So what kind of legal questions
can I help answer for you.
- Well I was wondering on behalf
of semi-political YouTubers
how can one broach
important and contentious topics
with people who might sometimes be litigious
without putting themselves at legal risk.
- I can't imagine that you ever run
into these kind of issues on YouTube.
- This is purely hypothetical.
- Absolutely understandable.
None of us have ever run into these kind of issues.
Well it's interesting from my perspective
is that the US and the UK
have very different defamation laws
when it comes to talking about individuals
and corporations and where the line is
in terms of what is commentary
and what crosses the line
into a defamatory statement. - [Harry] Hmm.
- And traditionally there's been a difference
between libel which is written
and slander which is spoken.
And these days that distinction
doesn't really matter anymore.
As an American lawyer
I'm not an expert in the UK
but what I can tell you is that
in the US at least
when you are talking
about these kind of commentary issues
where you run into defamation.
The key is that
defamation only applies
to a provable statement of fact
that is false.
So most people know that
at least in the US
and this is not true in all countries
that truth is a defense to defamation.
But the underlying statement itself
has to be a provable statement of fact.
So it can't be an opinion,
it can't be hyperbole,
it can't be ridiculousness and parody.
There's a famous case in the US
where the pornographic magazine Penthouse
owned by Larry Flint
did a spread about Jerry Falwell
losing his virginity
and all the ridiculous hijinks that ensued.
And he sued for defamatory purposes.
- [Harry] Mmm-hmm. - [Host] And the court held
basically as a matter of law
that it was so ridiculous
that no one would've believed
that A, Jerry Falwell
gave this interview to Penthouse
and B, that he actually did these things
in the course of losing his virginity.
- Hmm. - [Host] So really
the more ridiculous something is
that almost becomes more of a defense.
Even when you start edging into the realm
of things that are factual in nature.
At least on YouTube
the kind of commentary that you see most often
is things that are people's opinion.
You might call someone a jerk or much worse
but it's really when you get
into these discrete pieces of factual information
that are factually wrong
that you have an issue.
And I don't know if you're familiar
with the extra standard of celebrity.
But in the US
if you are someone of notoriety
and a certain amount of celebrity
you actually have to show
that the person
when they made the false statement of fact
that they knew it was false
and they said it
with what's called malicious intent.
So that becomes even more difficult
when you're talking about
say politicians, or famous billionaires.
- I can see now why certain politicians
will cover themselves by saying
"Well to the best of my knowledge"
so they're not obviously lying.
Or they'll only provide facts
that support their beliefs.
Just those facts.
And they're not lying
they're just only showing
very careful versions of the truth.
- Right exactly.
And you know, even in the context of politicians,
we've seen several defamation lawsuits
against President Trump at the moment.
He is currently in a lawsuit
with a woman named Summer Zervos
who has said that the president defamed her
by saying that he did not engage
in certain sexual activities with her
and called her a liar.
That's going to be somewhat
of a groundbreaking lawsuit
because it's gonna be a question
of whether she's a private person
or someone of note.
Whether the president is a private person or not.
I mean usually they are not considered private.
They have that amount of celebrity.
- Yeah yeah.
- [Host] And whether his statement
of saying that she was a liar
is something that is a provable statement of fact
or whether it's hyperbole and an opinion.
- I remember a suit where
do you know Jim Sterling?
- I do yes.
- [Harry] He was sued for $15 million
or something by someone
on the account of libel slander
various stuff like that.
It was an equivalent sort of suit
and one of the things they listed
as one of the grievances
was at some point he said
"There's not enough popcorn in the world
to sort of laugh at this person
for how dumb they're being".
And this was put in the suit
as a quote as one of the grievances.
- Yeah.
- So and one of the things they considered doing
is challenging to prove
that there wasn't enough popcorn in the world.
- I'm guessing that Jim Sterling
probably won that lawsuit.
- It got dropped with prejudice
I believe in the end.
- [Host] Okay yeah.
If it was dismissed by the court
on the substance of the issue
then likely they can't bring it up again.
- Oh good that's good to hear.
Sometimes I make factual statements
and then because we're not perfect
you discover later
that some of the facts you mentioned
are themselves selective
or mistakes or wrong.
In which case I have
in a sense told a lie.
Is there a legal precedent
for someone saying a falsehood
and getting in trouble
for saying it
even if they believed it at the time?
- Well that's a great question
and partially hinges on the nature
of the person that is spoken about.
There's no cause of action
for just saying a falsehood in public.
Defamation applies to when you are
directing a false statement of fact
towards an individual person
that harms their reputation.
So an innocent mistake
of merely saying something that was incorrect
but you thought it to be true.
If you're talking about someone
that is a celebrity or of note
likely that is not grounds for defamation
because you have to meet that extra hurdle
to get into the actual malice standard
when you're talking about a celebrity.
- I see that's great.
One more question. - [Host] Please.
- I have a question about the definition
if there's a proper legal definition
of the concept of being libel-proof.
In the sort of anime voice acting scene
there's currently a spurious lawsuit
by a certain voice actor
against the company
for supposed libel.
And the counterargument the company's making
is that this person is effectively impossible
to do libel towards
because they have done so many other things
that at this point
it's barely making anything up
to assert certain things.
- Yes so that it a potential defense.
The court can find
what would normally be a defamatory statement
is not defamatory in this context
because the reputation is so bad--
- Hmm.
- [Host] It can't get any worse.
- (laughs)
- Harry, thank you so much
for joining this episode
of the yet to be named
Legal Eagle interview show.
- Thank you for having me.
- [Host] And if you could
pass the information along to AOC
and we'll get her on the hot seat
for the next one.
- That would be really great to hear
but I think the owners of this house
are coming back.
So we should probably get out of here.
- All right let's get out of here then.
- (laughs)
- [Host] Harry thanks for doing the interview
and thanks for dressing up for the occasion.
No no look I love the robe over the pajamas look
but you know
maybe for next time
you'd like something a little bit nicer
like a I dunno
a custom made suit?
- [Man] Indochino.
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