Twibel retweeted: Twitter libel and the single publication rule.

Author:Allen, Adeline A.
 
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Table of Contents I. Defamation Law and the Single Publication Rule A. General Defamation Law B. The Single Publication Rule II. Twitter and Twibel A. Twitter, Tweeting, and Retweeting B. Twibel III. Conflicting Defamation Laws as Likely Applied to Twibel Retweets A. No Continuous Republication for Defamatory Content Remaining on a Website B. Dissemination by a Third Party Is Not Republication, Unless Reasonably Foreseeable C. Providing Hyperlinks to a Publication Is Not Republication D. Reaching a New Audience Is Republication IV. How Courts Will Probably Rule: The Single Publication Rule Will Probably Be Applied in the Case of Actively Solicited Retweets V. How Courts Should Rule: The Single Publication Rule Should Not Be Applied in the Case of Actively Solicited Retweets A. Retweeting Is Precisely Designed To Reach a New Audience B. Retweeting Is Different from Hyperlinking C. Actively Soliciting Retweets Is More than Passive Ob servance of Dissemination by a Third Party--It Is the "Reasonably Foreseeable " Republication D. Protection from All Other Defamation Laws Will Still Be in Place E. Internet Defamation Already Enjoys More Protection than Defamation in Traditional Media VI. Conclusion Introduction

Darcy, a dog owner, takes her beloved dog daily to Pawdorable, a popular dog day care in town. Darcy chooses Pawdorable because it advertises that it feeds only organic food to the dogs in their care. Darcy thinks her dog is sensitive to non-organic food as it would throw up if fed with non-organic food, so it is important to her that her dog be fed only organic food, even at day care. One day, after picking up her dog from the day care, the dog throws up. Irritated, Darcy goes on Twitter to express her frustration, albeit to only a handful of people who follow her there: "Dog owners, please retweet: Pawdorable feeds your dog non-organic food! So much for their ad saying only organic food is served." (4)

Pawdorable loses a customer, one of Darcy's followers on Twitter, as a result of Darcy's tweet. The loss is a minor one to Pawdorable, and as such, it goes unnoticed. Meanwhile, nobody actually takes up Darcy's solicitation to retweet her tweet for over a year--until Darcy gains a new follower on Twitter, Tom, a fellow dog owner who meets Darcy at a local dog park. Tom finds the old tweet on Darcy's Twitter profile timeline thirteen months after she tweeted it, then proceeds to retweet it to his followers, all 208 of them--almost all of whom, in turn, do not follow Darcy on Twitter and have not seen Darcy's original tweet. Thirteen months after Darcy's original tweet, as a result of Tom's retweet, word spreads around town that Pawdorable is a fraud because it feeds their dogs in daycare with nonorganic food. Pawdorable loses quite a few customers as a result, enough for Pawdorable to notice this time and to investigate. Pawdorable sues Darcy for defamation. (5)

Would Pawdorable's claim be barred by the statute of limitations? (6) The state's statute of limitations for defamation is one year, which is not unusual. (7) If Tom's retweet of Darcy's tweet does not count as a republication of her original tweet more than a year previously, Pawdorable's defamation claim would be time-barred, and it would be without recourse. (8)

While courts are likely to apply the single publication rule to the broadcast of an actively solicited retweet such as the one in the above hypothetical, which would disallow for the restarting of the clock on the statute of limitations for a libel claim, this Article argues that the single publication rule should not be applied given the publisher's role in actively soliciting for the retweet, the nature and purpose of the retweet in reaching a new group, and the defamatory content presented in the retweet itself. (9) Instead, the actively solicited retweet should be considered a republication of the defamatory original tweet, restarting the clock on the statute of limitations for the defamation action against the publisher. (10)

Part I of this Article will present general defamation law and the single publication rule, from its inception to its relatively recent foray into the Internet. (11) Part II will discuss Twitter, the practice of retweeting, and libel on Twitter ("Twibel"). (12) Part III will explore the conflicting nature of defamation law as likely applied to Twibel retweets. (13) Part IV will predict how courts will rule should a libel case involving an actively solicited retweet arise. (14) Part V will explore reasons for courts not to apply the single publication rule in the case of an actively solicited retweet. (15)

I.Defamation Law and the Single Publication Rule

A.GeneralDefamation Law

Defamation is a dignitary tort with ancient roots, one that has to do with the injury to the plaintiff's good name, be it a person's name or a company's name. (16) It takes place when a defendant publishes to a third party a false statement referring to the plaintiff that besmirches the plaintiff's reputation. (17) The statement must be factually based, and not just be the defendant's opinion. (18)

Slander and libel make up the two types of defamation. (19) Slander refers to defamatory communication that is more transitory in nature, and is generally associated with defamation through oral communication. (20) Libel is reserved for the kind of defamatory communication with a more permanent nature, which is generally associated with written defamation. (21)

Slander, in turn, has a more stringent damage requirement than libel for the plaintiff to be able to win his case. (22) Thus in the case of slander, the plaintiff must show that his reputation is injured through proof of special damages, unless he can show that the slander in question fits into one of the four specific categories of slander per se. (23) Libel, however, taking into account the more permanent quality of the defamatory communication, relaxes the damage requirement for the plaintiff and simply assumes the plaintiff's damages. (24)

Furthermore, the status of the plaintiff matters in a defamation suit. (25) A higher constitutional standard is applied for public officials or public figures to prevail in their defamation suit. (26)

Having one's name defamed hurts because it hurts one's "honor, reputation, and self-esteem," (27) which are "the most personal interests recognized by a civilized society." (28) In fact, the wise understand that "[a] good name is to be more desired than great wealth." (29) A person's reputation rightly receives protection from defamation under the law. (30)

  1. The Single Publication Rule

    The single publication rule limits the number of suits that can be brought against a single defendant by treating a single defamatory communication, even when published to more than one person, as giving rise to only one cause of action. (31) The clock on the statute of limitations starts at the time of publication. (32) The rule is an American invention from the mid-twentieth century; (33) American case law departed from the English common law tradition on this issue. (34)

    Hence if the defendant publishes a million copies of a book containing defamatory content against the plaintiff, there is only a single publication, even if a million different people buy and read the book. (35) The clock on the statute of limitations would run from the day of the publication of the book, not from the day that each of the million copies of the book is bought by the different readers. (36)

    The rationale for the single publication rule is expressly stated in the Restatement Second of Torts: to "avoid multiplicity of actions and undue harassment of the defendant by repeated suits by new individuals, as well as excessive damages that might have been recovered in numerous separate suits." (37)

    An exception to the single publication rule would apply when the defendant makes a publication that is "intended to and does reach a new group." (38) When the same defamatory material is published first in a morning edition of a newspaper, for example, then in the evening edition of the same newspaper, a second publication is deemed to be borne with the evening edition of the paper. (39) Similarly, there is a new publication with a television or radio rebroadcast of the same program later on the same day, a new edition of a book (as opposed to new printings of the same edition), or the publication of a paperback of a previously hardback edition of a book. (40) In all these circumstances, because the second publication is aimed at a new audience, the new publication is a separate publication and gives rise to a new cause of action. (41) Additionally, there would be a republication when a third party publishes the statement, and this action is "reasonably foreseeable" by the original publisher. (42)

    With the advent of the Internet, courts were faced with the question of whether to apply the single publication rule to defamation that takes place on the Internet. (43) Some had argued they should; some had argued they should not. (44) In the seminal case of Firth v. State, New York was the first to answer the question in 2002, and it answered with a resounding yes. (45) The court ruled that a statement published on a website is not continually republished by virtue of its remaining on the website. (46) This approach has since been widely followed by other jurisdictions. (47)

    However, the exception to the single publication rule has been preserved as it is applied to the Internet. (48) So if a website containing the defamatory statement is modified such that the website is directed to a new audience or if the statement is substantively modified, then the statement is republished. (49)

    As to the statute of limitations for defamation, a statement is published when it is "first made available to the public," (50) and the clock on the statute of limitations begins to run from that moment. (51) Thus for a statement published online, the statement is considered published...

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