Re-Tweet Legal: New Media Libel and the Law
Courtney Love and Mark Cuban gave Twitter an unwanted credibility boost last month. The ever problematic stars each found themselves on the wrong end of defamation claims and fines respectively, filed by angry Twitter users who believe they've been unfairly "tweet-ed" by Courtney and Mark.*
Twitter, once written off as idle chatter, is being taken more and more seriously as a source of repeatable quotes. The Wall Street Journal now publishes tweet-quotes in its dryly reported stories. And our own re-tweets are now being recognized as primary sources. Los Angeles Superior Court Judges may determine that Courtney (like Mark) indeed libeled, 140 characters at a time. That raises the question for any high-volume Twitter user: If you re-tweet an @courtneylover76 libelous statement, does that mean someone can sue you, too?
Rather than guess, rather than declare a new breed of "twournalism," we went straight to people who deal with libel cases, or worry about being on the wrong end of one, every day.
Erik Severson, an L.A. lawyer who specializes in Internet-related law, had this to say:
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"My sense under current law is that a re-tweet is much like a link. In other words, it is more passive conduct than active, editorial conduct and I would argue that the real wrongdoer is the original tweeter, not those who merely pick up on the original thought and pass it on to their friends and co-workers via Twitter re-tweets. Otherwise, we are going to a very scary Internet world where individuals are required to perform due diligence upon the truth of the matters asserted by their Twitter friends. U.S. law doesn't even require Web sites to perform such truth due diligence under section 230 of the Communications Decency Act. So, I can't envision a court that would require individual re-tweeters to do the same."
According to Section 230 of the Communications Decency Act of 1996, you the individual, not the Internet Service Provider (in this case Twitter) are responsible for your libelous i.e. malicious and untrue words (thanks TelCo lobbies!) The CDA established the legal code that separated new media from old media. For example, if someone sends a letter to the New York Times and they publish it in print, they're in trouble. But if that same person posts the same put-down as a comment on TechCrunch, which happens often, TechCrunch is excused from blame by law. Only the commenter can be sued for damages.
The Twitter terms of service agreement, which you've of course read from start to finish, has this to say:
1. We claim no intellectual property rights over the material you provide to the Twitter service. Your profile and materials uploaded remain yours. You can remove your profile at any time by deleting your account. This will also remove any text and images you have stored in the system.
Severson, who handles dozens of Internet libel cases each year that spring from posts on sites such as Facebook, Twitter, Yelp, CitySearch and Ripoffreport, added,
"The bottom line is the individual who originates the tweet is definitely subject to liability for libel. Twitter is completely off the hook for liability under section 230 unless they play an active editorial role in the tweet (see the roommates.com case). If your question seeks to determine whether or not linking to a tweet is considered libelous, I don't think so because that is passive conduct. If simple linking subjected individuals to liability for libel, no one would use the Internet because simply browsing or sending e-mails to your friends with links in it would subject you to civil lawsuits across the world. Re-publishing a libelous tweet is much more active conduct but I think context would be determinative of liability."
New York Times blogger Paul Boutin, better known for his personal-but-legal stabs at Silicon Valley players on the gossip site Valleywag, says his approach to Twitter goes like this: "I expect that putting RT in front of someone else's public statement on Twitter and tweeting it yourself will legally be deemed the same as quoting a newspaper article. Re-tweeting a direct message, though, is a lot like forwarding a private e-mail. But until there's a court case that decides a legal precedent, there's no way to predict how judges will treat tweets. For me, I just use my instinct: Am I tweeting something about someone that they might consider damaging? If it's already out there, I might repeat it. If not, I'll let someone else be the troublemaker."
Heidi Vaquerano, who specializes in music and media at LaPolt Law in West Hollywood, thinks users better be careful: "Twitter opens a Pandora's box [of legal issues] it's going to be a problem when people can attribute tweets you didn't even make [as in the case of Marc Cuban] - there's no real test case, it depends where it's brought up and California is more liberal - in which case the court would look at fair use and things like republishing, the court wouldn't see anything wrong as long as what you republished was properly attributed."
Guess we'll just have to wait for Courtney Love v.s. Twitter.
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