Defamatory Tweeting

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...

Comments

[Pageturners]

Unlike a coffee house conversation, Twitter comments remain available online. They are 'published', and by way of retweets, they can be republished to wider and wider audiences. So they have a real capacity to harm someone's reputation.

[Michael Risch]

"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."

I think it's a cost issue - assuming distributor liability, if we required twitter to investigate every claimed defamatory tweet, we likely wouldn't have twitter. I know the same notice system works (sort of) for copyright, but there at least you can verify a registration and easily discern whether there might be infringement. Even then, copyright DMCA notices are overused.

[Brian Leiter]

Michael is probably right about the effect on Twitter of imposing distributor liability, but wouldn't that be a good thing?

[Jacqueline Lipton]

Brian, I was not sure if you meant that it would be a good thing to impose distributor liability on Twitter or if you agreed with Michael that distributor liability would be an overly costly proposition for Twitter in the defamation context. I think I probably agree with Michael, but could be convinced otherwise.

Interestingly, I'd bet that the DMCA's ISP safe harbor wouldn't in practice come up very often in the Twitter context because it wouldn't be often that a max. 140 character Tweet could be sufficiently substantial copying to amount to copyright infringement.

[Brian Leiter]

I was agreeing with Michael about the effect of imposing such liability on Twitter--i.e., it would go out of business--and suggesting that counted in favor of imposing such liability!

[Jacqueline Lipton]

Well, you definitely got me there. I don't know that I'd mourn the death of Twitter personally, but I do know plenty of Twilight fans out there who would be most upset if they couldn't find out what the cast was up to every minute of every day of the year ...

[R]

"(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"."
The major difference between online forums and conventional publications is that of jurisdiction. Personally, I don't believe it is fair to sue someone outside of their jurisdiction - why should, say, someone in Australia be subject to US law?

If Twitter had liability for all content conveyed through it, the same liability would apply to any content or service provider, both offline and online. In other words, common carriers (telecoms, post office, public transport, etc.) would lose their protections. ISPs should be officially given common carrier status, and content providers should not be liable provided that they accept and obey takedown notices.

As for the suggestion that the DMCA would not affect Twitter, I refer you to the AACS key, which is 32 characters long (in hex) and is considered illegal under the DMCA as it is used to circumvent DRM. The issue is broader than just Twitter though - all social networks should/would be equally affected under the same law.

[Jacqui Lipton]

"As for the suggestion that the DMCA would not affect Twitter, I refer you to the AACS key, which is 32 characters long (in hex) and is considered illegal under the DMCA as it is used to circumvent DRM. The issue is broader than just Twitter though - all social networks should/would be equally affected under the same law." But a DMCA anti-circumvention infringement is different to a copyright infringement. I was only speaking of traditional secondary liability for copyright infringement, not anti-circumvention infringement liability.

[John Nelson]

People in Australia cannot be reliably sued in the United States under current U.S. law. Australians posting on the web may offend U.S. libel law but they will lack the sufficient minimum contacts to be haled into court. (Unless, perhaps, they come and visit the U.S., but even that's uncertain.)

Of course, the Aussie/U.S. example is weak. U.S. libel laws are such that if one offends the U.S. law, they also offend the Australian law. I'd be more worried about Australia, or England (which is a worse problem, see Libel Tourism) trying to impose its libel laws (and lack of Free Speech protections) on U.S. tweeters.

[Marc J. Randazza]

I don't think you're right about (a). Well, if you're just giving the opinion that you think it is fair, then you can't be "wrong." But, in my practice experience, I've found courts to be generally receptive to motions to dismiss for lack of personal jurisdiction in internet defamation cases. I'd be pleased to share materials on that, if you shoot me an email.