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

AuthorAngelotti, Ellyn M.
PositionIV. Defamation and Twitter through VI. Conclusion, p. 465-507
  1. DEFAMATION AND TWITTER

    Traditional defamation law and First Amendment standards have been largely designed to deal with the traditional news cycle and media in its traditional form. (195) Public figures that were most likely to be discussed in traditional media publications brought a majority of the claims against large media defendants. (196) These public figures often had ample funds to pursue lengthy litigation that could last for years. (197) Furthermore, large media defendants, who often had deep pockets, could provide plaintiffs a viable remedy by paying monetary judgments. (198) With the broader body of publishers on Twitter come increased responsibilities: legal, in addition to ethical. (199) Now, "the law of defamation, which used to be of interest only to newspapers, book publishers, and broadcasters, [is] a topic of interest for everyone." (200) Publishers and courts need to examine how to adapt defamation remedies to contemporary realities. (201)

    Despite the changes in the news cycle, traditional methods for resolving defamation disputes may be adequate when the defendant is a mainstream media organization with a skilled legal staff and deeper pockets that will provide the proper remedy for a defamed plaintiff. (202) The existing legal framework appears ill-suited for this new class of private publishers. (203) Twitter users often lack knowledge of the law and are likely unaware of the ramifications they could face for publishing defamatory content. (204) In comparison to the traditional editorial processes of mainstream media, Twitter users are able to publish in a vacuum with no one responsible or assigned to correcting or fact-checking their posts. (205) As a result, they put themselves at more risk than traditional publishers that have fact-checking and editing systems in place. (206)

    While the fundamental foundation of Twitter is fast, free communication, the traditional remedies for defamatory publications remain slow and costly. (207) In an environment defined by its lightning-fast nature of publication, an equally speedy and efficient method of dispute resolution should be created. (208) Financial liability is also a concern because the majority of Twitter users do not have the deep pockets that many plaintiffs seek in traditional defamation suits, and as a result existing traditional remedies are often inadequate. (209)

    Additionally, Twitter-created conventions are foreign to the courts' lexicon. (210) How the courts should apply traditional defamation standards to Twitter, if at all, is a question the courts have not yet answered. (211) For example, the courts have not determined what the threshold is for the number of Twitter followers needed for a Twitter user to be considered a public figure. (212) Does merely having a Twitter account make all users some sort of public figure? (213) If Twitter users are considered limited-purpose public figures, how does that permeate into the real world? (214) Is the courtroom the most appropriate venue for resolving these issues? (215)

    In applying defamation standards to Twitter, it is likely that the courts would consider Twitter users to be limited-purpose public figures especially those with large numbers of followers. (216) The courts have not ruled specifically on what makes someone a public figure on Twitter. (217) Previous to Twitter, in a slander case where the head coach of the University of the District of Columbia's women's basketball team sued the university and its athletic director, the court held that she was not a limited-purpose public figure because although she had prominence "within women's basketball circle" this did not qualify for a "broader public figure status." (218) Would someone who had prominence within the Twitter community qualify for a similar status? (219) On the other hand, in dealing with blogs, courts have observed that, "blogs ... can become the modern equivalent of political pamphleteering." (220) A Twitter user, simply by the act of tweeting publicly, seeks both influence and attention through its distribution mechanism. (221) Twitter users do have the option to restrict their tweets to only those they approve, creating a "private dissemination" rather than public publication, but most choose to keep their communications public. (222)

    As will be discussed in a later section, this public and consistent access to the media and a broad audience can also provide self-help opportunities to correct one's reputation unlike in the past. (223) Because public users explicitly choose to have a voice on Twitter and can potentially shape the debate on issues via their tweets, they would likely be considered some form of public figure and therefore need to prove the high standard of actual malice in a defamation claim. (224)

    1. CURRENT TWIBEL CASES

      Using Twitter makes posting potentially defamatory content much easier because of the lowered barrier to entry for publication. (225) Therefore, it was only a matter of time before Twitter users would begin bringing defamation claims. (226)

      A handful of Twibel cases have been filed, but none have actually gone to trial. (227) In 2009 and again in 2012, Courtney Love brought Twibel to the forefront. (228) After a business dispute, musician Courtney Love published comments on Twitter, MySpace and the online-shopping site etsy.com about Austin-based fashion designer Dawn Sigmorangkir. (229) Sigmorangkir requested that Love remove the published statements and "publicly acknowledge that her statements were false." (230) Love ignored these requests, so Sigmorangkir sued Love for both compensatory and punitive damages to compensate for "irreparable damage to her name and reputation" as a result of the "sheer animosity" Love directed at Sigmorangkir. (231)

      Love moved to strike asserting that Sigmorangkir's claim impermissibly targeted her free speech activity protected by California's Anti-SLAPP law, which protects "any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest." (232) "In 1992, California enacted this anti-SLAPP provision in "direct response to the 'disturbing increase' in meritless lawsuits meant to 'chill the valid exercise of the constitutional rights of freedom of speech." (233) Since then the California courts have encouraged the courts to "broadly construe" (234) the statute and "whenever possible ... interpret the First Amendment and section 425.16 in a manner 'favorable to the exercise of freedom of speech, not to its curtailment.'" (235)

      The court denied Love's motion to strike because it was a "discrete private dispute" (236) between Love and Simorangkir and not in the public interest protected by anti-SLAPP laws stating that Simorangkir "had shone[sic] a probability of proving her defamation case." (237) Love and Simorangkir settled in court almost two years later for $430,000 plus interest. (238) It is important to note that the court concluded that Love's tweets were a private dispute despite being published publically on Twitter, with the entire Twitter community able to follow along. (239) An important take-away from this case that could be a factor in the future of Twibel is that just because a tweet is in the public "twittersphere" does not necessarily mean it is automatically in the public inter est. (240)

      Because of the informal nature of Twitter, reasonable readers of most Twitter feeds "do not understand 'tweets' to be conveying factual information." (241) In evaluating whether Love's comments were factual (and therefore likely libelous), or opinion (which is more protected and less likely libelous), the California Courts examined the "context, including the nature of the platform." (242) Thus, because opinion-based speech receives much greater First Amendment protection than fact-based speech, this will be a crucial point of analysis in determining whether tweets are defamatory. (243)

      However, as the California court indicated in denying Love's motion to strike, this does not necessarily protect Twitter users in publishing fact-based defamatory tweets. (244) While many of Love's tweets, posted in a span of 21 minutes, (245) could clearly be construed as opinion (246), or were hyperbole, and not reasonably meant to have been taken seriously, (247) some of the tweets could be considered factual in nature. (248) For example, Love tweeted "the felonious Dawn/Bourdoir Queen witnessed stealing two massive army bags out of the chat at 4am" and that Simorangkir had "a history of dealing cocaine," "lost all custody of her child," and was guilty of "assault and burglary." (249)

      In 2011, Love, again was a defendant in a Twibel suit. (250) A California superior court dismissed some of the claims in another defamation suit that Love's former lawyers brought against her for things she said about them on Twitter. (251) However, the court ruled the post "may be reasonably interpreted by the average reader as a statement of fact, and the statement expressly identified 'Rhonda J. Holmes' and referred to Gordon & Holmes 'by clear implication.'" (252) The case is still pending, and Courtney Love could be the first defendant in an American Twibel trial. (253) While Love is the first known Twibel suit, other Twitter users have brought suit for allegedly defamatory content. (254) Public figures and celebrities like Love may have more notoriety on Twitter, however private individuals make up for the majority of the 140 million users. (255) It is these private individuals, like those in the above hypothetical, who would be most impacted by future Twibel cases rather than traditional media defendants. (256)

      For example, in 2009 the Illinois court dismissed a Twibel case between a renter and her landlord, two private figures. (257) Amanda Bonnen tweeted to her 20 followers (at the time), "[w]ho said sleeping in a moldy apartment was bad for you? Horizon realty thinks it's okay."...

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