YOUNG LAWYERS
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Flipping the switch: How to navigate the transition from young lawyer to TikTok star ALEXANDRA DOUVARTZIDIS, SOLICITOR, AND CAITLIN SURMAN, ASSOCIATE, HWL EBSWORTH
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f you were born after 1985 and haven’t been living under a rock, you’ve probably heard of “TikTok”. If, prior to reading this article, you hadn’t heard of TikTok, we’d hazard a guess that by the time you read the last line you’ll wish that you never let your curiosity get the better of you. Unfortunately, “TikTok” is not a reference to the tasty Arnott’s creations that occasionally found their way into the biscuit tins of firms and government departments alike before COVID-19 made communal snacks a health hazard. Rather, “TikTok”, for the purpose of this article, is the latest social media app to take the world by storm. Developed by Bytedance Ltd, it was the most downloaded nongame app worldwide for March, 2020 with more than 115.2 million installs.1 Prior to the COVID-19 epidemic, the majority of TikTok users were children and teens. However, in these difficult times of socialdistancing and self-isolation, anecdotal evidence suggests that young lawyers have also jumped on the TikTok bandwagon. Following in-depth research and analysis, we formed the opinion that TikTok is best described as a “massive waste of time”. However, others describe it as a platform on which users can create and upload short dance, lip-sync and comedy videos set to an audio track. Like most lawyers, we are completely supportive of learned friends (particularly Patrick Kerin) who have a desire to post embarrassing videos of themselves on the internet for our collective entertainment.2 So, in light of all of that, what does a young, risk-averse lawyer need to be mindful of before you reach for your phone on a lonely Saturday night, download the TikTok app, and waste hours trying to “flip the switch”?
DEFAMATION We assume that you have better things to do than use TikTok to defame another person, but you’ve probably finished streaming “Tiger King”, and 2020 has proven that anything is possible. As a starting point, it’s important to remember that it’s not the words actually spoken that form the basis for a cause of action in defamation, but the meaning conveyed by those words (as pleaded by the Plaintiff). It’s relatively easy to determine if a statement is objectively defamatory it’s generally when the meaning conveyed tends to damage a person’s reputation, or would lead to their exclusion by society. For example, stating words to the effect that Carole Baskin is “not an experienced tiger handler” won’t necessarily be defamatory, but stating words to the effect that “she fed her husband to a tiger” can give rise to the imputation that she’s a murderer - which is far more likely to see Carole shunned from society.
Another important element in establishing a cause of action in defamation is the “publication” of the defamatory material. Under existing laws, “internet publication” will be taken to have occurred whenever a third party actually downloads3 the offending content. This is called the “multiple publication rule”, the effect of which is that if you post a video to TikTok that is potentially defamatory, you are under a perpetual threat of being sued because the limitation period within which a Plaintiff must commence a defamation action (being one year from the date of “publication”) effectively resets each time a new download occurs. However, the new Model Defamation Amendment Provisions announced in late 2019 will give TikTok users some relief by introducing a new “single publication” rule, which means that the one year limitation period will begin to run when the matter is first posted or uploaded.4 June 2020 THE BULLETIN
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