I was asked for comment today about defamation and Twitter and, in particular, whether the laws of defamation should apply differently in this new medium. Over the last year or so, there have been a number of cases involving defamation via Twitter, including a high profile situation involving Courtney Love earlier this year.
Despite thinking much about online defamation for my cyberlaw classes, my focus is usually on jurisdictional concerns and ISP liability. The questions that have come up time and time again are issues like:
(a) Is it fair for a plaintiff to sue a defendant in defamation at the place where information was downloaded which may be in a completely different jurisdiction to where the defendant uploaded it? Generally, the answer to this one has been "yes".
(b) To what extent should Internet middlemen (like ISPs and bulletin board operators) be liable for defamatory comments posted by their customers and members? Section 230 of the CDA generally immunizes them, subject to a few exceptions - see, for example, the Roommates.com case.
But I've not really (or at least recently) heard the argument that Internet forums are so different from traditional publication venues that they should be generally exempted from defamation law. Is there a viable argument that Twitter is more like a coffee house conversation than an online publication? If so, should this matter for a defamation analysis? And, if it does, where does one draw the line between Twitter, blogs, online social networks like Facebook and MySpace, and any other online forums (eg massive multi player online games)? Just food for thought as I prepare my notes for next semester's exciting instalment of cyberlaw classes...