Rumors that CNN had suspended Piers Morgan due to the News of the World phone hacking scandal spread on Twitter earlier this month, sparking an important discussion about whether journalists need to verify information before tweeting.
It turns out they can be.
“Statements on Twitter can form the basis of a defamation lawsuit just as much as any form of publication,” explained David Ardia, an assistant professor of law at the University of North Carolina. “It’s just sometimes with new technology, it takes a little longer for people to start to take what they read seriously enough — and more importantly for lawyers — to pay enough attention to start to bring lawsuits based on it.”
There are a lot of misconceptions about whether tweets are libelous. It’s easy to think, for instance, that Twitter is ephemeral and that libel laws wouldn’t apply. This is similar to what happened when blogs first came out, Ardia said. Many bloggers, he explained, thought they could post whatever they wanted without any legal ramifications. (We now know that’s far from true.)
There aren’t many “twibel cases” as they’re sometimes called, but Ardia said he expects more to arise as the number of Twitter users increases. Perhaps the most notable case involves Courtney Love, who was sued for tweeting defamatory remarks about a fashion designer.
Ardia and other lawyers I spoke with for this story knew of only one Twitter libel case involving a media company. Earlier this year, NBA referee Bill Spooner sued the AP after sportswriter Jon Krawczynski tweeted that Spooner was calling fouls to compensate for bad calls. Spooner, who considered the tweet defamatory, asked the court for more than $75,000 in damages and requested a court order to delete the tweet. AP Spokesman Paul Colford said only, the “case is in litigation.”
Ardia said as far as he can tell, none of the cases involving libelous tweets have gone to trial. That’s not surprising, as most libel cases get dismissed and those that don’t are typically settled.
“They’re notoriously difficult to win,” said Ardia, who co-founded the Citizen Media Law Project. “Some juries grant a lot of money as a result of reputational harm, but it’s hard for a defendant to handicap what their likely damages are. That uncertainty pushes defendants to settle.”
So how can news organizations guard against libelous tweets? It’s important, Ardia said, for staffers to have a basic understanding of the legal implications of tweeting.
Under section 230 of the Communications Decency Act, news organizations are protected from defamation liability for content that’s created by a third party. The law protects YouTube from libel lawsuits, and it protects bloggers and news organizations from defamatory comments that users may post. The law also protects retweets. So if a journalist or news organization were to retweet a defamatory statement, they would not be held accountable. If, however, they added a defamatory remark as part of the retweet, they could be.
Generally speaking, Ardia said, a news organization would only be responsible for an employee’s defamatory tweets if the employee’s use of Twitter was part of their job or otherwise related to their line of work. If the defamatory tweet wasn’t work-related, the employee would be the only one responsible for it.
Having social media guidelines that lay out the legal pitfalls can help. A few months after the AP was sued, the organization updated its social media guidelines. (When asked whether the lawsuit Spooner filed prompted the AP to update its social media guidelines, AP Deputy Managing Editor for Standards and Production Tom Kent said, “Not that I recall.”)
The new guidelines, which were issued a week after the AP warned staffers about expressing opinions, didn’t specifically mention the legal implications of tweeting.
Some organizations, such as ASNE, have been criticized for creating “strict” social media guidelines that limit journalists’ ability to develop their voice and skills on social networking sites. I tend to favor guidelines that encourage experimentation rather than those that limit it. But given that tweets can be libelous, I can see the value in setting stricter parameters.
When updating its guidelines recently, the BBC instituted a rule saying “two pairs of eyes” need to look over news updates for Twitter and Facebook. The extra set of eyes could prevent the BBC from tweeting something potentially defamatory, but that’s not why the BBC made the update. Kevin Marsh, a longtime BBC editor who played an advisory role in creating the guidelines, explained that the update is an extension of the more general rules and practices that the BBC follows.
“Recorded content has to go through a lengthy and comprehensive process of compliance,” said Marsh, who recently left the BBC after working there for 33 years. “Live content [anything published on social networks] has to go through a different process, for obvious reasons, with the warranty from the editor in charge of the output that there are at least ‘two pairs of eyes or ears’ across the content, one more senior to the other, able to take action — apology, taking down, correction — if necessary.”
At The Guardian, journalists who identify themselves as Guardian employees in their Twitter bios are advised to include a disclaimer such as, “These are my personal views and not those of my employer.”
This can be helpful, Ardia said, but it’s not a complete shield to liability.
The Guardian’s guidelines mention the legal implications of tweeting information from their personal accounts. “Reputation damage to the Guardian brand would be our main concern,” Gillian Phillips, director of editorial legal services, said by email. “If someone tweeted in a way that linked too closely to the Guardian, we might be at risk of being sued.”
Reuters’ Handbook for Journalists, which includes its social media guidelines, says that libel issues pertain to wire stories and “almost all methods of communication, including email, Internet, chatrooms, broadcasts and radio casts.”
“We encourage our journalists to use social media aggressively in listening mode — to find sources, ferret out angles, get to know the experts on their beats, etc. — but to be as careful in transmission mode as they would be if they were publishing on a newspaper’s front page,” said Jim Gaines, editor of ethics, standards and innovation. “Given all the guidance we provide, not only in the Code [of Conduct] and Handbook but also in our aggressive continuous-training programs, I’d be quite surprised if a legitimate defamation charge came up.”
That said, he acknowledged that missteps are always possible.
To avoid missteps, NPR is updating its code of ethics, which will be replaced by a set of ethics guidelines and a handbook. The guidelines and handbook won’t specifically address libelous tweets, but they’ll offer ethical guidance that staffers can apply to all publishing platforms.
“We very intentionally framed our guidance to our staff in an encouraging way,” said Mark Stencel, NPR’s managing editor for digital news. “I think it’s really easy to stand up and say, ‘Here are all the dont’s of social media that will discourage people from doing all the do’s.”
NPR has several staffers who are active on Twitter, including David Folkenflik and Andy Carvin. Earlier this year, Folkenflik was one of many journalists who incorrectly tweeted that Gabrielle Giffords had died, citing NPR’s report. Ashley Messenger, NPR’s associate general counsel, said that while the tweet was false, it couldn’t be deemed libelous.
“Saying Giffords was killed isn’t defamatory, so it doesn’t create a libel problem,” Messenger said by phone. “It’s an accuracy and ethics problem, and obviously it was a very serious mistake that we regret deeply.”
It’s not enough to have social media guidelines and ethics codes. Newsroom leaders need to have regular discussions about them to keep them top of mind.
“How are you managing the legal risks beyond the policies?” Ardia said. “Policies only go so far when a reporter is actually sitting down at their computer about to tweet. What resources do they have? Where can they go for help? What sort of training do they have?”
To avoid libelous tweets, news organizations need to have regular conversations about ethics and a basic understanding of how they want to use Twitter. Do they want to tweet information and confirm it after the fact, or do they want to wait and verify all information before tweeting it? Individual journalists may answer this question differently from their news organizations, and the answer may change as journalists find new ways of using Twitter.
“How different news organizations approach that question is going to have an impact on the way the public — those of us who rely on Twitter as a source of information — come to assess their credibility and reliability,” Ardia said.
While ethics and law are two different things, they often overlap, and one informs the other.
“Adhering to good ethical principles substantially minimizes the risk of any legal issues,” Messenger said. She noted that journalists have to think about all mediums of communication from the same standpoint.
“The fact that it’s a tweet doesn’t make a difference,” Messenger said. “You always have to take into consideration what you’re saying, what you know, what you don’t know, and be thoughtful about not making libelous comments whatever the medium.”