BOB GARFIELD: Almost before they’re issued notebooks, reporters are tutored in the basics of libel, specifically how to ensure that any accusations or characterizations you publish are not defamatory and actionable. But now that everyone can publish, we’re wondering does the libel standard for a 1,000-word article also apply to a one- sentence Tweet? In other words, if you say something defamatory on Twitter, can you be held accountable for Twibel?
The first Twitter libel case in the United States went on trial this week, the defendant, actress and recording artist Courtney Love, who’d already settled a Twibel case in 2011. Ellyn Angelotti is a lawyer and a member of the Poynter Institute’s faculty. She says that the decision in this case could become the social media equivalent of the New York Times versus Sullivan, the landmark 1964 case that was the first to consider the constitutional implications of defamation. As for Courtney Love's current woes, they began with a tweet.
ELLYN ANGELOTTI: Courtney Love said in a tweet, “I was f—— devastated [sic] when Rhonda J. Holmes, Esq. of San Diego was bought off @FairNewsSpears. Perhaps you can get a quote.” So she was angry that her attorney would not represent her in a fraud case she wanted to bring against the people who were managing the estate of her late husband, Kurt Cobain, the front man from Nirvana.
BOB GARFIELD: Libel law does consider context. What is Courtney Love's claim about the context of Twitter that would protect her here?
ELLYN ANGELOTTI: What Courtney was saying was given the hyperbole and exaggeration associated with the Internet, that her tweets should be considered in the context of the opinion. She used examples from anonymous celebrity blogger sites.
BOB GARFIELD: And sometimes a judge will dismiss a libel complaint summarily, on exactly those grounds. But this made its way to court.
ELLYN ANGELOTTI: Yes. Los Angeles Superior Court Judge Michael Johnson said, we don't necessarily see the context of Twitter being the same as those of online message boards. And because there is this ambiguity, he gave it a chance to go to jury trial and let a jury and the judge decide what exactly the context of twitter is in the context of defamation.
BOB GARFIELD: How do you even define what constitutes context in the twittersphere?
ELLYN ANGELOTTI: That’s a big challenge for a couple of different reasons. First of all, when information is published on a newspaper or a radio broadcast, it goes through an editorial process. And the assumption in the past has been it is part of the public interest or it is a public controversy. On Twitter, because anyone’s a publisher, that issue of is this a public concern or a public controversy is more difficult to apply. Also, you do have more clear-cut sections of a newspaper. When you see an article is in the Opinion section, you assume that this is going to be an opinion piece, rather than if you see an article in the News section. On Twitter, you don't have that.
BOB GARFIELD: Now, we’ve often talked about the self-correcting aspect of the Internet. We have a mistake in a blog post, someone can point it out, you can fix it. I guess Courtney Love could that Twitter offers fair hearing to anybody, no matter what you say about her.
ELLYN ANGELOTTI: This does speak to possibly why we haven't seen litigation in Twibel before. Is litigation really gonna be the best remedy, if somebody says something about you on Twitter that is false and harms your reputation? Are we going to adapt the law to give leeway to Twitter users, or are we going to apply traditional defamation law to the context of Twitter?
BOB GARFIELD: This is the first Twibel case to go to trial in the United States, but not around the world. There have been decisions in Australia and England. Considering the different bodies of libel law in those countries, do those decisions offer any precedent?
ELLYN ANGELOTTI: The first British Twibel case to go to trial was back in 2009, and it involved a British mayor. His rival took to Twitter and started saying what the British High Court found to be defamatory content. So, in that case, the person whose reputation had been damaged, they were able to be compensated for that harm to their reputation.
BOB GARFIELD: One of the legacies of the New York Times versus Sullivan was that it set a pretty high bar for finding of libel, especially when public figures are concerned. A lower bar applies to other kinds of defamation. I'm wondering whether this lawyer might have had a better case to sue for pure defamation or even slander, although Courtney Love's words were not actually spoken aloud?
ELLYN ANGELOTTI: The law around defamation is very ambiguous in the context of social media. We’re seeing all of these people say horrible things about one another online, treating Twitter like the Wild Wild West because the courts don't understand the technology well enough to regulate it. And, they also don't necessarily want to chill speech because of the First Amendment.
Is it gonna be an opportunity to apply traditional defamation law to the context of Twitter, or is this going to be a case that re-establishes that balance of First Amendment rights and protection of the reputation?
What we’re investigating here is the reason I went to school. Over Christmas break, I was sitting with my family were investigating here is the reason I went to law school over Christmas break I was sitting with my family and I hear that Courtney Love's case is going to trial. And that was the best Christmas present I could have asked for. [LAUGHS]
BOB GARFIELD: [LAUGHS] Let me see if I’ve got this right, Ellyn. A California lawyer has been accused of bribery,
Courtney Love could be sued into oblivion, and you’re goin’, whoo-hoo!
ELLYN ANGELOTTI: [LAUGHS] My family was looking at me like, wow. [LAUGHS]
You need to get a life.
BOB GARFIELD: Ellen, thank you so much.
ELLYN ANGELOTTI: No problem.
BOB GARFIELD: Ellyn Angelotti is a lawyer and a member of the faculty of the Poynter Institute.