Tortious Tweets: A Practical Guide to Applying Traditional Defamation Law to Twibel Claims

• Author: Patrick H. Hunt
• Pages: 559-600

Tortious Tweets: A Practical Guide to Applying

Traditional Defamation Law to Twibel1 Claims

“A reputation once broken may possibly be repaired, but the

world will always keep their eyes on the spot where the crack

was.”2

INTRODUCTION

On March 17, 2009, Courtney Love expressed her outrage with

the “Boudoir Queen,” Dawn Simorangkir, on Twitter3 during a

business dispute over $4,000.4 Simorangkir filed a defamation

action in the Superior Court of Los Angeles County, claiming

Love’s tweets5 injured her reputation and negatively affected her

clothing business.6 A week before trial, Love settled the claim for

$430,000.7 Following the settlement, Simorangkir’s attorney

Copyright 2013, by PATRICK H. HUNT.

1. The term twibel is used to describe libelous statements posted on

Twitter. See “Don’t Twibel on Me”: Tweets as Libel Lawsuits, JUSTICIA.COM

(Apr. 1, 2011), http://onward.justia.com/2011/04/01/dont-twibel-on-me-tweets-

as-libel-lawsuits/.

2. Mary Eule, Your Reputation—Take It Seriously, EZINEARTICLES (Oct. 17,

2005), http://ezinearticles.com/?Your-Reputation---Take-It-Seriously &id=83895

(quoting Joseph Hall); @AndyBeal, TWITTER (Feb. 15, 2010), https://twitter

.com/#!/andybeal/status/9169919667 (quoting Joseph Hall).

3. Twitter is a “real-time information network” used to share the latest

information about what users find interesting. See About, TWITTER,

http://twitter.com/about (last visited Nov. 8, 2011). See also discussion infra

Part II.

4. Matthew Belloni, Courtney Love to Pay $430,000 in Twitter Case,

REUTERS, Mar. 3, 2011, available at http://www.reuters.com/article/2011

/03/04/us-courtneylove-idUSTRE7230F820110304.

5. The tweets in question included: “austin [sic] police are morethan [sic]

ecstatic to pick her up she has a history o f dealing cocaine , lost all custody of

her child, assault and burglary”; “stay away well well away, and etsy cant [sic]

wait tos e [sic] the backof [sic] her, so goodbye asswipe nasty lying hosebag

[sic] thief, now for pleasant things”; “scorched earth ignore and blacklist, few

people ever deserve our total ignoring butthis [sic] thief and burglar does, austin

[sic] police loathher!orange [sic];” “as one of her many bullied victims smashes

her face soon as shes an assault addict herself ( theres [sic] apprently [sic]

prostitution in her record too”; and “little bassists. goodbye ‘boudoir queen’ to

be replacedby [sic] 100s of great indie designers on etsy that are trained that do

know whattheyredoin [sic].” Complaint at 6–7, Simorangkir v. Love, No.

BG410593 (Cal. Sup. Ct. 2009), available at http://www.citmedialaw.org

/sites/citmedialaw.org/files/2009-03-26-Simorangkir%20Complaint_0.pdf.

6. Id.

7. Shea Bennett, The Price of Defame—Courtney Love’s Twitter Rant

Costs Her $430,000, MEDIABISTRO (Mar. 4, 2011, 11:34 AM), http://

www.mediabistro.com/alltwitter/courtney-love-defame-lawsuit_b6126.

560 LOUISIANA LAW REVIEW [Vol. 73

opined, “One would hope that, given this disaster, restraint of pen,

tongue, and tweet would guide Ms. Love’s future conduct.”8 It

didn’t.

While the Love v. Simorangkir litigation was pending, Love

approached Rhonda Holmes at the Gordon & Holmes Law Firm in

an effort to reenlist9 Holmes as her attorney in a property dispute

involving Love’s late husband, Kurt Cobain.10 Holmes informed

Love that Love’s substance abuse problem would preclude Holmes

from serving as her attorney.11 In response, Love tweeted, “I was f-

--ing devastated when Rhonda J Holmes Esq [sic] of San Diego

was bought off . . . .”12 Holmes and the law office filed a

defamation suit alleging that Love’s tweets caused “irreparable

damage to plaintiffs’ business, name[,] and reputation.”13 Love’s

motion to dismiss was denied, leaving open the possibility that a

jury will decide whether the tweet could be construed as stating

actual facts14 about Ms. Holmes.15

Defamation actions arising from statements posted to Twitter

are not limited to celebrities.16 In July 2009, the Horizon

8. Jason Beahm, Courtney Love Twitter Defamation Case Settled: Love

Pays $430,000, FINDLAW (Mar. 7, 2011, 5:48 AM) http://blogs. Findlaw

.com/celebrity_justice/2011/03/courtney-love-twitter-defamation-case-settled-

love-pays-430000.html.

9. Gordon & Holmes previously represented Love in the Cobain property

dispute on the condition that Love refrain from drug use during the attorney–

client relationship. Id. Love fired the firm and retained another attorney. Robert

Kahn, Lawyers Claim Courtney Love Defamed Them, COURTHOUSE NEWS

SERV. (May 27, 2011), http://www.courthousenews.com/2011/05/27/36895

.htm. Later that year, Love became dissatisfied with her attorney and solicited

the assistance of Gordon & Holmes again. Id.

10. Id.

11. Eriq Gardner, Courtney Love Twitter Defamation Case Moves Forward,

THE HOLLYWOOD REP., Sept. 23, 2011, http://www.hollywoodreporter .com/thr-

esq/courtney-love-twitter-defamation-case-239702.

12. Id.

13. Complaint at 4, Gordon & Holmes v. Love, No. BC-462438, 2011 WL

2062323 (Cal. Super. Ct. May 26, 2011).

14. The First Amendment protects speech that cannot “reasonably [be]

interpreted as stating actual facts about” an individual. Milkovich v. Lorain

Journal Co., 497 U.S. 1, 17 (1990) (quoting Hustler Magazine, Inc. v. Falwell,

485 U.S. 46, 50 (1988)). Accordingly, Holmes will only recover if a reasonable

reader would infer that Love’s tweet conveys “actual facts” about her.

15. Gardner, supra note 11.

16. In another defamation suit, singer Johnny Gill was sued by Ira DeWitt

for tweeting that she hired another vocalist to finish his song and leaked an

unofficial version. Lauren Dugan, Twitter Defama tion Cases Are Heating Up,

MEDIABISTRO (Aug. 17, 2011, 3:15 PM), http://www.mediabistro.com/alltwitter

/twitter-defamation-cases-are-heating-up_b12799. See also Julie Hilden, Libel

by Twitter? The Suit Against Kim Karda shian over the “Cookie Diet”,

FINDLAW (Jan. 4, 2010), http://writ.news.findlaw.com/hilden/20100104.html

2013] COMMENT 561

Management Group filed a libel action against Amanda Bonnen

for tweeting, “Who said sleeping in a moldy apartment was bad for

you? Horizon realty thinks it’s okay.”17 Fortunately for Bonnen,

who could not afford defense counsel, several attorneys took the

case pro bono and successfully moved for dismissal on the grounds

that “the tweet was not defamatory as a matter of law because the

tweet was indefinite, contained no verifiable facts, was not

sufficiently connected to Horizon and when considered in the

context of Bonnen’s other tweets, should be subject to innocent

construction.”18

More recently, Dr. Jerry Darm sued blogger Tiffany Craig in

Oregon for $1,000,000 claiming that she damaged his reputation by

tweeting about prior disciplinary action taken against the

physician.19 After viewing one of Dr. Darm’s television

commercials, Craig performed a Google search for his name.20 She

then revealed her findings on Twitter, stating: “[A] little bit of

research into @drdarm revealed a pretty nasty complaint filed

against him for attempting to trade treatment for sex in 2001.”21

Darm and Craig reached a settlement agreement on October 7,

(discussing a twibel suit against Kim Kardashian for tweets refuting a third

party’s claim that Kardashian was on a doctor’s “cookie diet”).

17. See Verified Complaint at 2, Horizon Group Manage ment, LLC v.

Bonnen, No. 2009-L-008675, 2009 WL 2231162 (Ill. Cir. Ct. July 20, 2009).

18. Twitter Defamation Case Dismissed, LESLIEREIS.COM (Jan. 23, 2010),

http://www.lesliereis.com/pb/wpb375b750/wp_b375b750.html. Bonnen’s attorney

argued that the tweets, when considered together, coul d not be interpreted as stating

actual facts about Horizon. 2-615 Motion to Dismiss, Horizon Grp. Mgmt., LLC v.

Bonnen, No. 2009-L-008675 (Ill. Cir. Ct. Nov. 10, 2009), available at http://

www.citmedialaw.org/sites/citmedialaw.org/files/2009-11-10-Bonnen%20Motion

%20to%20Dismiss.pdf. However, the court’s dismissal order did not give reasons

for the dismissal. See Order, Horizon Grp. Mgmt., LLC v. Bonnen, No. 2009-L-

008675 (Ill. Cir. Ct. Jan. 20, 2010), available at http://www.citmedialaw.

org/sites/citmedialaw.org/files/2010-01-20-Horizon%20v.%20Bonnen%20Dismis

sal%20Order.pdf.

19. Complaint, Darm v. Craig, No. 110708823, 2011 WL 2947342 (Or. Cir.

July 11, 2011). See also Kara H. Murphey, Defamation in 140 Characters or

Less, PORTLAND TRIB., Sept. 7, 2011, http://portlandtribune.com/component

/content/article?id=11881.

20. Murphey, supra note 19.

21. Id.