January 14, 2014

How does defamation law apply in the context of Twitter?

We may find out very soon thanks to Courtney Love, who is the first person to defend an allegedly defamatory tweet in a U.S. courtroom when the Gordon & Holmes v. Love trial began yesterday.

A handful of Twitter libel, or Twibel, cases have been filed in the past (see below), but none have actually gone to trial in the U.S. yet.

The tweet

In 2010, Courtney Love accused her former attorney Rhonda Holmes of bribery, tweeting, “I was f—— devestated [sic] when Rhonda J. Holmes esq. of san diego was bought off @FairNewsSpears perhaps you can get a quote.” Love posted the tweet after Holmes, her attorney at the time, declined to help Love bring a fraud case against those managing the estate of Love’s late husband, Nirvana front man Kurt Cobain.

The tweet has since been deleted, but the case lives on — and so do the potential legal implications for publishers. 

Last month, Love argued that her tweet was not defamatory because it should be considered an opinion — given the hyperbole and exaggeration associated with the Internet. Los Angeles Superior Court Judge Michael Johnson rejected Love’s argument and set the case for trial. Now a jury will determine how defamation should be applied in the context of the casual online communications found on Twitter.

Other issues this jury will likely grapple with, and that Holmes will need to prove, include whether her published statement is true, whether she intended to publish the tweet publicly, whether her followers knew that the tweet was about Holmes, and what damages Holmes should be awarded based on the reach of Love’s tweet.

While the court’s decision will only impact a specific jurisdiction, this decision could be influential in future Twibel cases — which is why publishers should keep an eye on both the decision and the court’s analysis of defamation in the context of libel. In addition to applying traditional defamation standard to Twitter, the Love decision may illuminate new legal considerations for publishers given the changing publishing context.

What is Twibel?

Simply put, Twitter plus libel equals Twibel. Libel is the written form of defamation, where a false published statement harms the reputation of another. You can get a more in-depth primer on defamation in the News University course, Online Media Law: The Basics for Bloggers and Publishers.

What to watch for

Publishers should keep a close eye on how this court applies traditional defamation to Twitter in a few key areas.

  • Public vs. Private figures: How will the courts determine status (who is a public figure) in the context of Twitter? What role does the number of followers play in determining this?
  • How will this status affect when a plaintiff must establish that the publisher acted with actual malice?
  • What is “a matter of public concern” in the context of Twitter?
  • Will the context of a tweet meet the threshold for a defamation claim?
  • What do the remedies for defamation look like in the age of Twitter? How can we best encourage free speech while deterring defamatory speech on Twitter?
  • If a goal of defamation is to strike a balance between freedom of expression and preserve the reputation of people, especially in the social media space, is lengthy (and usually expensive) litigation the most effective path to achieve this result? If a tweet is considered to be defamatory, how are damages assessed?

Twitter has made posting potentially defamatory content much easier. Coupled with the continued increase in Twitter use, it was only a matter of time before Twibel libel would enter the courtroom for legal interpretation.

Love’s case potentially could become the social media generation’s New York Times vs. Sullivan and set a precedent for future Twitter cases.

The Supreme Court’s landmark case New York Times vs. Sullivan was the first case to consider the First Amendment implications of defamation. At the crux of this, is how defamation standards balance the First Amendment’s promise of free speech and the public’s interest in protecting a person’s reputation.

Much has changed in both technology and defamation law in the more than 40 years that have passed since Sullivan. And very soon we may have a landmark case in the area of Twibel.

Twitter’s role in Twibel

In this case, the Twitter user and not the social media site is liable for the defamation. As a third-party publisher, social media sites like Twitter are protected by Section 230 of the Communication Decency Act and not liable for defamatory content that people post using its site.

Twibel history in the U.S.

This isn’t the first time Love has been the party in a Twibel lawsuit. Back in 2009, Love was the first defendant to be sued for tweeting nasty things about her fashion designer after a business dispute for $4,000 went awry. A week before trial, Love settled the claim for $430,000.

In July 2009, Horizon realty sued Amanda Bonnen for defamation claiming $50,000 in damages for tweeting, “Who said sleeping in a moldy apartment was bad for you? Horizon realty thinks its okay.” In 2013, an Illinois court dismissed the case between two private figures, a renter and her landlord, because the “tweet was too vague to meet the legal standard for libel.”

In 2011, Dr. Jerry Darm sued blogger Tiffany Craig in Oregon for $1 million for a tweet that said, “[A] little bit of research into @drdarm revealed a pretty nasty compaint filed against him for attempting to trade treatment for sex in 2001.” The parties settled before trial.

Ellyn Angelotti is an attorney and teaches on the Poynter faculty in the area of social media and digital trends. She recently published Twibel Law: What defamation and its remedies look like in the age of Twitter in Suffolk University’s Journal of High Technology Law.

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Since joining The Poynter Institute in 2007, Ellyn Angelotti has helped Poynter explore the journalistic values and the legal challenges related to new technologies, especially…
Ellyn Angelotti

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