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Should the Law Treat Defamatory Tweets the Same Way It Treats Printed Defamation?

Courtney Love’s Costly Tweets

by JULIE HILDEN

Defamation law was built for an era when newspapers reigned supreme.  Indeed, its seminal case, decided by the U.S. Supreme Court in 1964, is New York Times Co. v. Sullivan.  But now, that very same body of law is being applied to various new media, and to some free speech advocates, the results don’t seem either fair, or First-Amendment-friendly.

In this column, I’ll comment on what I believe is the very poor fit between traditional defamation law and Twitter.

Courtney Love’s Costly Tweets

In a prior column, I discussed a December 2009 suit against Kim Kardashian that was based on her negative tweet regarding a popular diet plan.  Kardashian seems to have learned from the incident, as there has been no repeat of it.  In contrast, however, musician Courtney Love has twice learned the hard way that defamation law fully applies to Twitter.

The Hollywood Reporter has covered Love’s cases in some detail—in this article, and this one.  Interested readers may want to consult the two articles for more information on the suits against Love.  For purposes of this column, however, I’ll just give the basic facts:

In March 2009, Love tweeted a number of insulting remarks about fashion designer Dawn Simorangkir to Love’s roughly 40,000 followers.  In her tweets, Love alleged that Simorangkir was a drug-pushing prostitute with a history of assault and battery who lost custody of her child, exploited Love’s fame, and stole from Love, even despite Love’s claiming to have given her over $40,000.

The case was eventually settled, with Simonrangkir receiving $430,000.

But now, Love is the defendant in a second, separate defamation case, filed this May, which also involves Twitter.  This time, Love tweeted about an attorney—who was identified by name in the tweet—whose firm had rejected Love as a client. Love claimed in her tweet that this attorney had been “bought off.”

These statements would all, I believe, have been found by a court to be defamatory, had they appeared in a newspaper.  But they didn’t appear in a newspaper; they appeared on the far more casual, shoot-from-the-hip medium of Twitter.  In light of that fact, one might ask, should the statements still count as defamatory?

To answer that question, I think it’s very helpful to compare and contrast Twitter with the medium that the Supreme Court surely had in mind when it crafted constitutional defamation law: the newspaper.

One Reason Twitter Is Importantly Different From a Newspaper:  Countable, Easily Identifiable Readers Who Can Easily Be Contacted

Libel—also known as written defamation—is defined as the publication of a false statement of fact, of and concerning the plaintiff, tending to harm the plaintiff’s reputation, made with the requisite state of mind.

Moreover, if the libel plaintiff is a public figure, the state of mind that he or she must also prove is called “actual malice,” defined as knowing falsity or reckless disregard as to falsity.

Opinion cannot be the basis of a libel suit; only fact can.  In particular, if an opinion is based on facts that are true and fully disclosed, it cannot be sued upon.

Unless a statute is passed to the contrary or courts rule otherwise, these definitions will continue to be just as applicable to Twitter as they are to the traditional print media.  Yet there are dramatic differences between Twitter and the print media, from a defamation law perspective, as I will explain.

First, everyone can see how many followers a Twitter user has—which makes things easy for potential plaintiffs, who can see whether a given Twitter user had enough followers to make a lawsuit financially worthwhile—and, relatedly, how much reputational damage actually was done.  The greater the number of followers, the greater the damage.  (Retweets may boost the number of Twitter users who saw a given tweet, but Twitter’s scrolling feed may, conversely, mean that the number representing those followers who actually read the tweet must be adjusted downward.)

Moreover, both plaintiffs and defendants can try to contact followers one by one, via Twitter, to see if they really believed what a given tweet said—because unless a tweet is believed, it cannot cause damage, and without damage, there is no real basis for a suit.

Second, the ability to reach followers directly on Twitter, and to make sure that one has reached them all, allows retractions to be very effective.

In the libel context, under certain states’ statutes, plaintiffs must demand a retraction, or forfeit part of the damages they otherwise would have received.  Also, if a defendant does choose to issue a retraction, the defendant then has a good argument that the date of the issuance of the retraction was also the end date with respect to any claims of continuing damages.

In contrast to Twitter, with its countable followers, newspapers and magazines do not always make their subscription numbers public (and may use various methods to estimate newsstand sales).

And, unlike with Twitter, if a newspaper does print a retraction, it is very unlikely that everyone who read the initial defamatory article will also happen to read the retraction—meaning that a newspaper should not be able to cut off damages neatly and completely, on the day the retraction runs, in the way a Twitter user could.

Another Reason Twitter Is Importantly Different From a Newspaper:  The Effect of Its 140-Character Limit

In addition, Twitter’s 140-character limit for tweets may have several possible effects on defamation cases.

For one thing, the 140-character limit makes it hard to fit enough material into a tweet to gain the protection of the special defamation law privilege for opinion based on disclosed fact.  Just describing both the opinion and the underlying facts may exceed Twitter’s character limit.

To try to get the protection of the privilege for opinion based on disclosed fact, however, defendants may ask courts to view certain sets of tweets—those that appeared closely enough to each other in time to make it likely that they were read together by followers—as, in effect, one statement.  In my view, that seems like a reasonable thing for a court to do.  (Here, too, empirical evidence could be gathered, by contacting followers—or a sample of them—to see if they did, indeed, read every one of a series of related tweets, or if they just read the lone tweet that the plaintiff has now put at issue.)

In addition, even putting the special privilege for opinion based on disclosed fact aside, the simple opinion/fact distinction may itself be hard to make on Twitter—and recall that defamation requires a false statement of fact; opinion doesn’t qualify, so this distinction is key.

Why does Twitter tend to blur the opinion/fact distinction?  To begin, the character limit means that each tweet provides far less context than, say, a newspaper article would, to aid readers in differentiating opinion from fact. (Sarcasm may not come through as well, either.)

Moreover, tweets often—and partly because of the character limit, I think—use slang in a way that newspapers never do.  And slang can be ambiguous.

So, for example, suppose a tweet calls a particular person “a ho.” Does that mean that she actually is a prostitute—which is a matter of fact, and if false, very, very defamatory?  Or, does it mean that she’s promiscuous, a contention that is still deemed defamatory, even in this day and age of the hook-up culture?  Or, might it simply mean that the person is making an inside joke based on, say, a too-revealing outfit, but a joke that some followers might mistake as being a true statement of fact?  The ambiguity on Twitter is constant—and also, from a libel law perspective, dangerous.

The possibilities for Twitter misunderstandings are endless, but the nice thing about Twitter is that, at least for friends whose followers greatly overlap, misunderstandings can be quickly cleared up—whereas spoken gossip may prove more intractable and long-lingering.

A Possible Comparison Between Defamatory Tweets and Slander

The kinds of problems that may plague cases based on tweets, also plague cases that are based on slander—that is, spoken defamation.  And that potentially makes tweets more akin to slander than to libel.

Like slander, a tweet is easily repeated to a new person (gossip does the work, for slander; on Twitter, it’s retweeting).  Also like slander, a tweet is (at least partially) evanescent:  Just as slanderous words disappear into the air, and a new topic of conversation arises, so too are tweets replaced in the Twitter feed by newer comments.

And finally, just as Twitter users may be more careless about their tweets than they would be if the context were more formal, speakers—especially in a casual setting, among friends—may be encouraged by the context to be careless too.

A Possible Comparison Between Defamatory Tweets and Printed Opinion

Finally, there’s another idea about how to deal with Twitter defamation that is worth thing very seriously about:  Defamation defense attorney Alonzo Wickers recently commented as follows, to The Hollywood Reporter: “The way Twitter is evolving, it seems to be more of a means to express opinion. I would hope courts give tweets the same latitude as they do an op-ed piece or a letter to the editor.”

Here, Wickers is insightfully citing two print formats that tend to mix, and sometimes elide, fact and opinion—as tweets very often do.  He’s also noting that, in practice, judges are likely to be loath to allow defamation suits to be based on Op Eds.  After all, the “Op” in Op Ed is a pretty strong disclaimer.  I agree with his call:  Judges aren’t apt to welcome Op Ed-based libel claims.

Still, I think judges may dislike giving tweets the kind of complete pass that an Op Ed might enjoy.  Instead, judges may hope that some high-profile verdicts against Twitter users will mean that they start fitting in—and even devising abbreviations to represent—the fact that they are offering an opinion, not stating a fact.

Of course, In My Humble Opinion (IMHO) is already a familiar abbreviation.  But it costs characters, and characters are precious on Twitter.  Perhaps a more creative solution is in order—like users’ devising a character that essentially means IMHO, or Twitter’s offering a way to turn a message a certain color—say, red—to indicate that what is being said is humor, a rant, a joke or, really, anything but fact.

Unless there are some do-it-yourself solutions like these—which basically would put tweets in air quotes—I fear that we’ll continue to see more lawsuits like these.

JULIE HILDEN practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. She is the author of a memoir, The Bad Daughter and a novel Three. She can be reached through her website.

This column originally appeared in Verdict’s Justia.