A Twitter Exception for Defamation?

[Post by Venkat Balasubramani]

William Charron pubished a short piece for the Berkeley Journal of Entertainment and Sports Law that caught my eye (“Twitter: A “Caveat Emptor” Exception to Libel Law” [pdf]). His central point:

Twitter’s characteristics and limitations should negate any expectation of a “reasonable reader” that Twitter is a repository or stand-alone facts and unassailable “truth.” To the contrary, Twitter is a free-for-all marketplace for stream-of-consciousness thoughts and exclamations, and for unguarded and unedited personal observations, discussion, and entertainment.

Charron highlights the difference between fact and opinion in defamation law generally, and notes that courts have historically looked to context in determining whether something is reasonably understood to be “figurative” or “hyperbolic.” According to Charron, courts have taken this approach when reviewing defamation claims based on statements in chat rooms, message boards, and blogs. As one example, Charron cites to Sandals Resorts International Ltd. v. Google, where the court noted that:

Readers give less credence to allegedly defamatory remarks published on the Internet than to similar remarks made to other similar [and in particular to] posted remarks on message boards in chat rooms [and] blogs.

Charron does account for the possibility that a Twitterer “could find a way in 140 characters . . . to libel someone,” and in these circumstances a “there should be no “automatic immunity from a claim of libel.”

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It’s a short piece that raises interesting issues.

My read of the situation is that it’s too early to tell whether courts are more apt to view statements online (and on Twitter) as more likely to be opinion than fact. Courtney Love’s lawyers telegraphed that they would rely on a defense along these lines, but the case never went to trial so a court hasn’t squarely addressed the question and addressed some of the surrounding issues. (As reported by Eriq Gardner, the court tentatively dismissed Love’s defense: “Judge Rejects Courtney Love’s Defamation Theories in Twitter Lawsuit.”) For other cases relying on this theory in the context of online posts, in addition to Sandals Resorts, see DiMeo v. Max and Finkel v. Dauber.

One question this raises, is: what perspective does the court use when it evaluates context and makes the determination of whether something is hyperbole or would reasonably be viewed as a statement of fact? A reasonable person who is familiar with and who uses Twitter, or someone who is not familiar with the nuances of Twitter, its shorthand, and culture? I would guess the latter, given that tweets are often publicly disseminated and reported on outside the ecosystem, but if it’s the former, litigants may have their work cut out form them in educating judges on the nuances of Twitter.

A big contingent of Twitter uses it to banter and snark, but at the same time, it’s become a go-to source of factual information. While context is undoubtedly important, a tweet should have the capacity to defame in the same way that an email, Facebook post, or an off-hand comment does. I’m not saying that Charron is arguing for the adoption of a default rule of immunity based on opinion, but I can’t see courts going this route anyway. It would be an unwarranted case of “Twitter exceptionalism” to adopt this rule for Twitter but not for other online communications generally.

A few related points.

Defamation by Tweet raises the question of whether linking to something that is defamatory is itself defamation. I’m not aware of a definitive answer to this question, although in the pre-Twitter context, republication of a defamatory statement without sufficient qualification can be defamatory. How about defamation by Retweet? (You know there’s a reason why everyone has that “RTs don’t = endorsements” in their bio!) This is probably getting too far in the weeds, but should it matter whether someone uses the old or the new style Retweet? (It’s worth noting that there’s a likely Section 230 defense here.)

It’s also worth looking at the online threat cases to see whether courts have treated online threats different from off-line threats. I’ve blogged about a slew of cases involving convictions for online threats, and courts in those cases don’t seem very willing to look at the context of an alleged threat and conclude that a reasonable person familiar with the context would not have viewed the statements as threats. (See, e.g., US v. Jeffries (currently on appeal)); US v. Stock (craigslist threats) and Holcomb v. Virginia; but see US v. Cassidy (“indictment for Twitter harassment is unconstitutional“)).

Finally, there’s the issue of damages. Jeffrey Hermes has a great post at Citizen Media asking how we “should measure damages for defamation over social media.” Pointing to the recent $13.78 million jury verdict based on “an extended campaign of [online] defamation,” Jeff notes that the verdict in that case does not allow us to measure what portion was tied to reputational injury and what portion was intended to redress emotional damages. Turning to the reputational injury, he asks some interesting questions about how to evaluate damages when the defendant makes repeated defamatory statements (e.g., is there some loss of credibility to the poster who makes 100 negative posts, as opposed to 10?).

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