Twibel: the intersection of Twitter and libel.

• Author: Placid, Raymond

Twitter is a social networking service that enables users to send and receive messages called "tweets." (1) Tweets can be sent from a computer or mobile devices, such as smart phones, and are by default visible to all those who are following the tweeter. (2) Twitter has become an influential tool for broadcasting and communication, and people utilize Twitter to report news, discuss global affairs, and express personal opinions on everything from investments and cars to politicians and private individuals. In some cases, the opinions are tantamount to libel and can reach millions of people within seconds. (3)

This article addresses some of the basic constitutional implications of a libelous statement that is published on Twitter, commonly referred to as "twibel." (4) Although the law is still evolving in this area, the nature of the medium (e.g., Twitter versus a newspaper) is generally less important than the nature of the communication in determining whether the publication is subject to protection under the U.S. Constitution.

Twitter

Twitter was created in 2006, and its growth has been exponential. Twitter grew from 5,000 tweets per day in 2007 to 500 million tweets per day in 2013. (5) Currently, there are an average of about 6,000 tweets per second, which is over 350,000 tweets sent per minute, 500 million tweets per day, and around 200 billion tweets per year. (6)

Twitter has become more than a social network. On a daily basis, newsworthy information streams across Twitter. For example, Twitter was used as a tool to disseminate real time information about the Egyptian Revolution in 2011, (7) and it has played an active role in the dissemination of information concerning the current presidential debates. (8) Twitter has been "embraced by journalists, governments, and businesses as a crucial source of real-time information on everything from natural disasters to celebrity gossip, and from debates over sexual violence to Vatican politics." (9)

Twitter is also being used to express personal opinions about public figures and private individuals, and in some cases, these opinions are equivalent to twibel. Twibel is a relatively new phenomenon for the legal system, and the legal principles are evolving. A brief discussion of the evolution of libel in the United States provides a foundation for analyzing the legal implications of twibel.

Evolution of Libel Law

Libel is a tort. (10) The term tort is derived from the Latin term "tortus," which means twisted, (11) and this is perhaps an appropriate foundation for a twibel claim because the truth has been twisted.

Libel is a creature of common law, (12) and in its early stages of development, the common law imposed a fault standard (i.e., malice) on libel claims in order to control the floodgate of defamation lawsuits. Over time, the fault standard has become a fiction with the development of defamation per se principles. (13) For example, in 1933, the Florida Supreme Court noted in Layne v. Tribune Co., 108 Fla. 177, 181 (1933), that "the publication of a libel per se is such that, in the eyes of the law, its publication per se necessarily imports injury, and thereby obviates the necessity of either pleading or proving damage or malice in fact, since both of these elements are presumed as a matter of law in such cases." In many jurisdictions, libel evolved into

In the landmark case, New York Times, Co. v. Sullivan, 376 U.S. 254 (1964), the U.S. Supreme Court indicated that state defamation laws, including libel, are limited by the principles espoused in the First Amendment of the U.S. Constitution where the speech involves matters of public concern. a strict liability cause of action, which meant that liability could be imposed on a defendant without fault when the statement was neither true nor privileged. (14)

In 1964, the U.S. Supreme Court attempted to balance the state's interest in protecting the reputation of its citizens and society's interest in preserving free speech under the U.S. Constitution. In the landmark case, New York Times, Co. v. Sullivan, 376 U.S. 254 (1964), the U.S. Supreme Court indicated that state defamation laws, including libel, are limited by the principles espoused in the First Amendment of the U.S. Constitution where the speech involves matters of public concern.

The New York Times decision changed libel law in the United States. In the aftermath of New York Times, if a libelous statement involves a matter of public concern, then the plaintiff must prove that the defendant acted with some degree of fault (i.e., malicious, reckless, or negligent) before liability can be assessed for libel. The public or private status of a plaintiff impacts the degree of fault that must be proven. (15)

In Florida, the libel law today is somewhat consistent with the decision in New York Times. For example, the Florida Supreme Court's Standard Jury Instructions Notes on Use provide that when the plaintiff is a public official or a public figure, he or she must prove the defendant made a false defamatory statement with "actual malice." (16) The jury instructions also provide that if the plaintiff is not a public person, and the defendant is a member of the press or broadcast media publishing on a matter of public concern, then the defendant cannot be held liable for a false publication without proof of fault. (17)

Twibel--Libel in a Twitter Environment

Given Twitter's brief history, there are very few cases that analyze the legal consequences of a twibelous act. Less than 10 twibel lawsuits were reported from 2006 to 2013, and none went to trial. In 2009, a tenant used Twitter to post derogatory comments about the condition of his apartment. The landlord sued the tenant for defamation claiming $50,000 in damages; however, the court dismissed the case on the grounds that the "tweet was too vague to meet the legal standard for libel" under the state law. (18) In 2011, an individual tweeted that a doctor was allegedly having intimate physical contact with patients. (19) The doctor sued the individual for twibel, and the case was confidentially settled before the trial. Although these cases do not offer guidance as to whether a twibelous activity garners protection under the U.S. Constitution, the cases do demonstrate that the legal profession is beginning to seek redress for such activities.

One twibel case to go to trial was the matter of Holmes, et al. v. Love, No. B256367 (CA2, Div. 4, Feb. 1, 20 1 6). (20) Courtney Love hired an attorney to pursue a claim against the estate of her late husband, Kurt Cobain. (21) Apparently, the relationship between...