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John B.
Farmer

 

Lawrence E. Laubscher, Jr.

 

Ian D. Titley

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Avoid Committing Twibel When Tweeting and Retweeting

Monday, February 16th, 2015

When you tweet, do you commit twibel?

And if you retweet someone else’s twibel, are you on the hook too?

“Twibel” is Internet slang for committing libel on Twitter ˗ writing something factually false about some other person or organization that damages that person’s or organization’s reputation.

Engaging in twibel can be costly. Singer and actress Courtney Love, lead singer of the rock group Hole and widow of rocker Kurt Cobain, has experienced that lesson twice.

She once tweeted that a fashion designer with whom she had worked, and who tried to collect money purported owed to her by Love, was a “nasty lying hosebag thief,” in addition to other provocative tweets by Love about her target. Love reportedly later paid $430,000 to settle the libel claim filed by the fashion designer.

Later, Love had a falling out with an attorney who she had utilized in a lawsuit. Love tweeted that the attorney had been “bought off” by someone else. The attorney sued Love for libel. While Love won the jury trial, she spent a lot of money defending herself.

Some claim Twitter should be a place where libel law does not apply. They argue no one takes tweets seriously or relies on their accuracy, so you can tweet whatever you want.

That argument doesn’t fly. Twitter is just a medium. If you make a false statement of fact or even imply a false fact, and if your statement is damaging to the target, you can be held liable for libel. There is no Twitter exception.

Indeed, just last year, a Virginia federal trial court judge upheld the legal sufficiency of a lawsuit alleging libel by Twitter in a business dispute.

Of course, for some tweeters, Twitter is open-mike night where everyone tries to be king of the zinger and slick with snark. To nail someone for libel, a plaintiff would have to show that the offending tweet would be received by the average person as a factual statement.

But what about retweets ˗ where you just pass along to your Twitter followers what someone else tweeted? If the original tweet was libel, can you be held liable for retweeting it?

We don’t know. To my knowledge, no such libel case has made it to resolution. In fact, I don’t know of such a case being filed.

Some legal commentators argue that the Communications Decency Act (“CDA”) shields retweeters from liability.

The CDA usually shields Internet-based companies from liability for libel by people using their systems, such as shielding an online newspaper from liability for what someone posts in the comments section, or shielding Facebook from liability for a post by a user.

Aside from the CDA, some commentators argue that retweeters should benefit from a legal doctrine that generally protects news wire services from liability for republishing libelous stories originated by other media outlets.

I doubt those defenses would protect a retweeter. Retweeting (unless it happens automatically) is a purposeful decision to pass along a specific tweet because you want to draw attention to it. That doesn’t fit the mission of the CDA, which is to protect from liability those who provide a forum on the Internet or the infrastructure of the Internet.

Also, unless the retweeter is a news organization that retweets pretty much anything, it’s hard to see the protection for wire services coming into play. If you, Joe Citizen, retweet a message that someone is an embezzler, I would not expect a court to look at you as acting as a news bureau.

And even if might win a libel lawsuit filed against you for retweeting libel, you still probably would spend many thousands of dollars to defend the suit.

So what should you do about tweeting?

Some things are common sense. Don’t tweet under the influence. If in doubt, hold that tweet for further deliberation. If you don’t have something nice to tweet, consider remaining silent.

If you are retweeting, try to work in a disclaimer of personal knowledge as to whether a negative tweet is true. Perhaps precede retweet with “d/n know if true.”

You also could put a disclaimer in your Twitter bio that retweets do not mean you endorse the factual accuracy of what you are retweeting.

Heck, you could say in your Twitter bio that your tweets are just humor and never should be taken as fact, if that’s how you tweet. But almost no one looks up someone’s Twitter bio, so don’t rely on that to protect you.

Of course, for many, the fun of Twitter is cleverness and snarky humor. So, at the least, when saying anything negative, stick to obvious humor and mere opinions that don’t imply underlying bad facts.

Written on February 16, 2015
by John B. Farmer

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