Legal Insights

Think before you tweet

By: March 1, 2016

Be careful what you tweet. With the growth of social media outlets come more opportunities not only to express oneself but also to defame others. Let’s face it, Twitter has made posting potentially defamatory comments so very easy. The universe of potential publishers on Twitter is virtually everyone. The spreading of defamatory content can be instantaneous.

“Twibel” is a libelous tweet, and making this social media blunder can have serious legal consequences.

A California appeals court recently upheld a jury‘s verdict determining that Courtney Love Cobain did not defame her former attorney in a tweet. The case was filed by an attorney who formerly represented Love. The case is remarkable because it appears to be the first of its kind—involving “Twibel”- to actually go to trial. After the death of Love’s husband, Kurt Cobain, she hired an attorney, Rhonda Holmes, to investigate and file a lawsuit involving fraud in connection with Cobain’s estate. Love and Holmes had serious disagreements regarding the handling of the case. In fact, they even disagreed about whether the attorney eventually quit or was told by one of Love’s representatives to discontinue the representation. In the context of this strained relationship, Love sent a tweet to two individuals, which she deleted less than 10 minutes later. It suggested that Holmes had been “bought off.” Specifically, the tweet stated: “@noozjunkie I was … devastated when Rhonda J Holmes Esq of San Diego was bought off @fairnewsspears perhaps you can get a quote.”

According to the appellate court, Love testified at trial that she never meant to suggest that Holmes had actually taken a payment in the nature of a bribe, but believed at the time, based on the attorney’s explanation of the delay in filing suit, that Holmes, “had been ‘gotten to’ or ‘compromised’ in some manner.” Considering the evidence in the light most favorable to Love, the appellate court said the jury could well have found that Holmes failed to prove by clear and convincing evidence that Love knew her tweet contained false information or had serious doubts about its truth.

Under traditional common law notions of defamation, a plaintiff need only prove a statement was a 1) defamatory statement, 2) made about another person by someone who had the intent to publish without any applicable privilege, or at least was negligent in publishing, and 3) this statement resulted in damages and/or harm to the subject’s reputation. After the 1964 Supreme Court case of New York Times v. Sullivan, defamatory statements about those classified as public figures must meet an actual malice standard requiring clear and convincing evidence for liability to attach. This higher standard for celebrity Courtney Love undoubtedly contributed to her victory.

Social media is now considered a legitimate form of publishing. Libel law only requires that a statement was published to a third party, and whether it was seen by one person or many does not matter. Additionally, a tweet is not protected by the fact that it only existed for a few minutes and can be removed, like the one in Love’s case.

The Twitter user, not the social media site, is liable for any defamatory statements made. Social media sites like Twitter are protected by Section 230 of the Communication Decency Act and are not liable for defamatory content that people post using its site. The bottom line is that the user is responsible for his tweets and is not immune to liability simply because he is not a professional journalist. Courts appear willing to apply traditional defamation principles to potentially libelous tweets from all social media users. Private individuals publishing content in non-traditional forums, such as on Twitter, should not expect to be treated differently from traditional publishers simply because the use of social media is thought of as fun and informal communication. While courts do consider the context of a tweet and surrounding circumstances, a court’s interpretation of a tweet may not coincide with the intention of the person who tweeted in a spontaneous moment. Although recent decisions suggest that tweets typically contain protected opinions rather than actionable statements of fact, as more courts are asked to consider claims arising from statements made through social media, it is possible that any initial bias in favor of the casual Twitter user may change. So, think before you tweet.