Defamatory Tweeting

Cross posted from The Faculty Lounge.

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…

One thought on “Defamatory Tweeting

  1. I would argue that Twitter is no different than coffee houses and, therefore, should be treated no differently.

    The disconnect in many people’s minds is the difference between libel and slander. Coffee house conversation falls under slander. The posting of bills, ads, and ‘witticisms’ on coffee house walls falls under libel.

    Twitter is not slander. It cannot be slander. It is a recorded publication, not an instantaneous one. Twitter, and other online, written communication falls under libel.

    It is interesting that you bring up virtual worlds. Virtual worlds are moving towards real-time voice communication. Already, most serious gaming groups set up their own Team Speak or Ventrilo servers for spoken communication.

    Whereas the typed, written communications of real-time chat are memorialized in logs both on servers and user’s computers, these real-time communications are not typically ‘logged.’ Therefore, they would fall under slander rather than libel.

    I’ll leave it for another discussion as to what value exists from separating defamation into the classic libel and slander categories — and as to whether these categories really exist under current law except on the whims of court.

    My own personal opinion, though, is that the speed at which someone is capable of defaming another should not play a part in determining whether defamation happens. Rather, if we are going to protect the nebulous idea of ‘reputation,’ the effect of that defamation on the other’s reputation should be key. Whether it took an instant to ‘tweet’ or longer to print and distribute matters not.

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