Can a Tweet defame? And other sticky legal questions about Twitter

25 Nov Can a Tweet defame? And other sticky legal questions about Twitter

BlogsThe recent lighting up of the blogosphere over the suit filed by Horizon Group Management against former tenant Amanda Bonnen for an allegedly defamatory tweet she posted on Twitter caused me to pause for a moment and think through the potential legal issues that may result from this suit.
Clearly, Horizon found a quick way to make a “mountain of out a mole hill” by converting what was a brief, casual tweet by Ms. Bonnen to her 20 followers into a global media frenzy (including articles across the pond on the BBC). And clearly, they’ve jumped themselves into a PR disaster.
But the interesting point that I think may get lost in the he-said she-said of a typical defamation case, is the question of whether or not you can defame with a tweet. I think the answer to that is yes, you can.
To defame someone, you need to (a) publish to a third party (b) a false statement of fact (c) that is understood to concern the plaintiff and (d) tends to harm the plaintiff’s reputation. If the plaintiff is a public figure, that public figure must prove you committed this act with “actual malice.”
If you walk through the elements, perhaps the most interesting one related to Twitter is the “publish to a third party” element. It’s well-settled law that blogs and web pages are considered “publications.”  As a microblog service, I think it could be easily argued that a tweet is a publication. And Twitter is really only Twitter if you have followers. If you have followers, you have published to a “third party.”
There is no requirement that a defamatory statement be of a certain length. You could certainly defame someone in 140 characters. “Attorney John Smith is a crook” is 30 characters, leaving 110 more characters for further mischief. If that statement is false, it would meet the second element of a defamation claim. Finally, if you mention the plaintiff by name in the statement and the statement could be taken to harm the plaintiff’s reputation, then you have completed all the elements of defamation.
Confining yourself to statements of fact and personal observation are two ways to avoid statements being considered defamatory. Saying, “I was unhappy with how Attorney John Smith handled my case” is better than stating he’s a crook. Note, however, that it is sometimes not enough just to add “In my opinion,” or other qualifying language, to what may otherwise be considered a defamatory statement. Courts have found that saying, “In my opinion, Attorney John Smith is a crook” can be just as defamatory as it is without the qualifier. What the courts do consider is the view of the statement in the broader context of the environment in which it was said or written, the person who was allegedly defamed (whether they are a private individual, public figure or company), and perhaps most importantly, whether or not the statement is true. In fact, truth is the ultimate and best defense against defamation.
What does all this mean for Twitter? Nothing really, because Twitter is likely protected under Section 230 of the Communications Decency Act and would not be liable for the defamatory comments of its users. But for the users? Well, this case just goes to show that you CAN get sued for libel for a tweet. Whether Horizon will win or not is a different story, but rest assured, it will not be inexpensive for either side in this case.
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