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Be Careful What You Tweet! Liability for Libel on Twitter

Can you be liable for libel based on what you tweet on Twitter? Ask actress-singer Courtney Love, the first person to defend an allegedly defamatory tweet in a U.S. courtroom in the trial of Gordon & Holmes v. Love.*

Not So Loved
In 2010, Love accused her attorney of taking a bribe, tweeting, “I was #$@!*&% devestated [sic] when Rhonda J. Holmes esq. of san diego was bought off.” Love posted the tweet after Holmes declined to help Love bring a fraud case against those managing her late husband Kurt Cobain’s estate.

Love sought dismissal of the case, arguing that her tweet was not defamatory because it should be considered opinion given the hyperbole and exaggeration associated with the Internet. The judge ruled this “No one takes Twitter seriously” defense invalid, and a jury will now determine how defamation should be applied in the context of such casual online communications.

Twitter + Libel = “Twibel”
Libel is the written form of defamation (slander is the spoken form) and arises when a false, published statement harms the reputation of another. It must be presented as a statement of objective fact, as opposed to an expression of personal opinion, and it must be “published,” which legally means that it is communicated to one or more persons. The level of malicious intent required depends on whether the victim is a public or private figure. Ultimately, the goal is to strike a balance between freedom of expression and protecting a person’s reputation.

As a general rule, the Twitter user, not the social media site, is liable for any defamation. As third-party publishers, social media sites like Twitter are protected by the Communication Decency Act and are not liable for defamatory content that people post using their sites.

Twibel History in the United States
Love’s case is not the first Twibel action in the United States. In fact, it’s not Love’s first Twibel action. In 2009, Love was sued for tweeting unflattering things about her fashion designer after a $4,000 business dispute. A week before trial, Love paid $430,000 to settle the case.

In Illinois, landlord Horizon Realty sued its tenant for tweeting, “Who said sleeping in a moldy apartment was bad for you? Horizon realty thinks its [sic] okay.” In 2013, a court dismissed the case, ruling that the tweet was too vague to meet the legal standard for libel.

In 2011, a physician sued a blogger in Oregon for $1 million over a tweet that read, “A little bit of research into @drdarm revealed a pretty nasty complaint filed against him for attempting to trade treatment for sex in 2001.” The parties settled before trial.

Love’s Labour’s Lost
Just as in a Shakespearean comedy, what can we learn from Love’s mistakes? Here are a few thoughts.
1. You are not immune from defamation laws just because you communicated on the Internet.
2. If you have a strong opinion, make sure it’s clear to everyone that you are only expressing your personal opinion.
3. Don’t repeat gossip on the Internet. If you are uncertain whether something’s true, don’t tweet that it is.
4. Legally, it’s much easier to target a public figure than a private one. Generally, if the person is a public figure, you won’t be liable unless you knew you were lying or demonstrated a “reckless disregard” for the truth of what you said. (This is one reason why public figures so rarely sue for defamation, even when consistently attacked in the media.)
5. Yes, we have freedom of speech in the United States, but the First Amendment protects you only from government action based on what you say. There are all kinds of consequences to speech that have nothing to do with the government. Ask Courtney Love.

* After this article was written, the jury returned a verdict in favor of Love, finding it had not been proven that Love knew the statement was false. #Vindication?