Twibel law: what defamation and its remedies look like in the age of Twitter.

AuthorAngelotti, Ellyn M.
PositionIntroduction through III. Defamation and the Traditional Media, p. 430-465

Table of Contents ABSTRACT I. INTRODUCTION A. Hypothetical: Best Burgers Ever and @SocialButterfly3 B. Overview of Twibel Challenges II. HISTORY OF DEFAMATION A. Common Law Defamation B. The First Amendment and Defamation: New York Times v. Sullivan and Actual Malice C. Public Figures, All-Purpose Public Figures and Limited-Purpose Public Figures III. DEFAMATION AND THE TRADITIONAL MEDIA A. Traditional Media and Its Editing Process B. How the Function of Twitter Has Changed the Speed of News C. The New News Cycle IV. DEFAMATION AND TWITTER A. Current Twibel Cases B. International Cases of Twibel V. REMEDIES IN THE AGE OF TWITTER A. Twitter 485 B. Online Dispute Resolution Forums B. Private Sector Online Reputation Management Tools C. Fight Bad Speech with More Speech D. The Open-Source Twitter Community VI. CONCLUSION Cite as 13 J. High Tech L. 430

  1. INTRODUCTION

    Since the micro-blogging site Twitter launched in 2006, it has changed the way we share information, reveal and define our communities and ourselves. Now, more than 200 million users (3) send "tweets," publicly broadcasted messages of 140-characters or fewer, to their followers. (4) Twitter has lowered the barrier of entry for publishers to include virtually everyone. (5) Anyone with access to a computer or cell phone can create a Twitter account for free. (6) Once they become Twitter users, people have access to a limitless mouthpiece and platform to share unfettered and unlimited free speech in short bursts. (7) The Twitter community has thrived on this quick, short and open exchange of information, creating a conversational and casual tenor for communication between all users--from celebrities to ordinary individuals. (8)

    Thus, Twitter has created a global audience of content creators who can publish information instantly bypassing traditional publishing practices, which often include involved process for vetting information. As a result, the creation and spreading of defamatory content to large audiences is more likely than in the past. The informal nature of conversation on Twitter tends to encourage people to talk more freely about others, including the spreading of rumors and potential falsehoods. Such informal chatter could have potentially serious consequences.

    1. HYPOTHETICAL: BEST BURGERS EVER AND @SOCIALBUTTERFLY3

      Let us explore a hypothetical, yet likely, situation that could happen between two Twitter users. A college student @SocialButterfly3 posts a tweet to her 58,000 followers, "OMG Gross. @BestBurgersEver serves rat meat in burgers! DON'T EAT THERE! http://t.co/ratpic http://www.donteatrats.com." She includes a link to a picture of rats in cages behind a building, as well as a link to a blog where she expands on how she saw Best Burgers Ever employees capture rats and take them inside to the kitchen. (9)

      Best Burgers Ever has been a local staple in the community for seventy-five years. The restaurant is known for being packed and having long waits for tables to the point that it commonly uses the tagline "being worth the wait," featuring positive customer testimonials, in its advertisements. The restaurant has garnered the attention of the national food community by earning awards for its quality of food. In fact, @SocialButterfly3 posted her tweet a week before a national cable network planned on recording an episode featuring Best Burgers Ever on a show that highlights popular locally-owned restaurants.

      When her friends ask her how she knows the employees took the rats into the kitchen to make the meat for the burgers, she replies via Twitter, "A friend of a friend who used to work there told me. He swore he'd never eat that rat meat again." She follows up the tweets with blog posts including recipes for rat burgers allegedly used by the restaurant, more pictures and "first-hand accounts" from former employees and disgruntled customers.

      Her 58,000 followers start a viral campaign against Best Burgers Ever. They create a hashtag (10), #bestburgersnever. The hashtag is an immediate Trending Topic (11) on Twitter. As a result, the national cable network cancels plans to record the show, and within three months, Best Burgers Ever is forced to shut its doors. The owners of Best Burgers Ever are devastated. They had invested their life's savings in the restaurant and the lost profits on top of a horrible job market leave the entire family bankrupt and unemployed. Plus, no other companies will hire anyone from the family because of the extensive damage done to their reputation. The owners decide to seek out the advice of the company's lawyers to explore any options that will allow them to somehow salvage any hope of a future. The owners offer up overwhelming evidence that the information @SocialButterfly3 tweeted was false-including monthly health department reports from the restaurant's entire history boasting the premium level of cleanliness and quality, the official recipe used to make burgers, and proof that the photos posted to Twitter were not, in fact, even taken behind their restaurant.

      This issue perplexes the lawyer. In traditional defamation cases, plaintiffs seek redress for damage to reputation from publications made by large media companies that have deep pockets to satisfy judgments. (12) In the past, public figure plaintiffs and large media defendants enjoyed more access to large audiences in comparison to the general public. (13) Because private plaintiffs did not have direct access to an audience to correct the published falsehood, a practical remedy did not exist to correct reputational damage. (14) Inequality of access to a public platform was a primary concern. (15) Defamation law was a tool to equalize this imbalance. (16) Therefore, when a person thought they had been defamed, a lengthy court case ensued and if found liable, the large media defendant paid the plaintiff a large sum of punitive damages. (17)

      The courts have never ruled on a case of defamation on Twitter, a community known for its brevity and informal nature. (18) Several novel questions are likely to be raised by a case of Twibel like the one described in the foregoing hypothetical including: Do cases of libel on Twitter have merit? (19) Who is responsible for the tweet? Only @SocialButterfly3? Or, would everyone who passed on her message via a retweet (20) be responsible? Where would the courts look to how Best Burgers Ever's reputation had been harmed? Since the defamation happened on Twitter would it be relevant to look only at the harm done to Best Burgers Ever in the

      Twitter community, or the damage done to its entire online reputation? Since the harm extended beyond the web, how will the courts distinguish the difference between Best Burgers Ever's reputation and resulting harm in the virtual world and the actual world? What standard would be necessary to use to prove fault? Would the owners be considered public figures and therefore have to prove actual malice? And who is considered a public figure on Twitter? Should non-media defendants, like those most likely to be involved in Twitter libel cases, be treated the same as media defendants have been in the past? (21)

      Does it even make sense for the owners of Best Burgers Ever to bring suit against @SocialButterfly3, a college student who frequently tweets about being "a broke college girl?" If money damages aren't an option, what other remedies exist that could put Best Burgers Ever back in its rightful position? What punishment would prevent @SocialButterfly3, or any Twitter user for that matter, from tweeting harmful content about others?

    2. OVERVIEW OF TWIBEL CHALLENGES

      Existing defamation doctrine appears cumbersome and ill-suited to keep up with the likely flood of disputes over allegedly defamatory speech on Twitter. (22) The inevitable tension exists between the inalienable rights to free speech provided by the First Amendment and the need to discourage speech that harms the reputations of others. (23) When it comes to social media, especially Twitter, encouraging unencumbered free speech is paramount to the nature of these communities where "freedom of expression is essential." (24) In order to provide a remedy that promotes rather than chills free speech, the law needs to evolve so it can best handle many of the challenges Twitter presents. (25)

      As highlighted earlier, one challenge facing the Twitter community related to defamation law is establishing a proper remedy for handling false, defamatory content on Twitter. (26) It's not practical for one Twitter user to endure a lengthy and likely expensive, lawsuit against another Twitter user who has defamed them even after severe damage has been done to the defamed's reputation. (27) Twitter itself provides all users the same opportunity to publish, and therefore offers an opportunity for self-correction. (28) However, an imbalance of influence and audience still exists between users with varying numbers...

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