Editor’s Note: Poynter will be at South by Southwest, the annual music, movie and interactive festival, March 7-16, in Austin, Texas. Look for our Poynter faculty members, Roy Peter Clark, Ellyn Angelotti and Kelly McBride, and digital media reporter Sam Kirkland. Here is the second in a series of posts on what we’ll be doing at SXSW.
Tweets can form the basis of a defamation lawsuit the same as if they were published in another form. However, though Twitter has been around since March 2006, the first defamation trial involving the service wasn’t decided until earlier this year — almost eight years after Twitter’s debut.
Does that mean the Twittersphere has been immune from libelous content? Unfortunately, no.
The informal nature of social-media conversations makes Twitter a ripe environment for spreading potential falsehoods, resulting in plenty of opportunities for defamation claims.
Defamation is divided into libel (print) and slander (non-fixed medium), but both have essentially the same elements:
1. The statement is published.
2. The statement is false.
3. A reasonable person would have known it was false.
4. The statement caused harm (depending on the jurisdiction, harm may be presumed).
Because a proper defamation claim must involve a false statement, truth is always a defense against any defamation action.
It’s true that many defamation claims have resulted in lawsuits and been settled out of court, a path familiar to traditional defamation law. But when everyone is a publisher, is litigation still the best remedy?
In a core conversation at SXSW, “Twibel: Fight Bad Speech with More Speech,” I’ll join Stetson University law professor Catherine Cameron to discuss the basics of defamation law and the issues with applying defamation law to Twitter. Then we’ll collaborate with the group to develop prospective (non-legal based) remedies that might achieve the same goals that defamation law has sought to balance: encouraging free speech while helping protect the reputations of others.
We will explain some of the exceptions to defamation, including hyperbole, parody and opinion — and discuss how the norms of Twitter might be relevant to these exceptions. For example, when a false statement is made as part of an obvious parody or joke, no reasonable observer would consider it to be a factual statement, and so the publisher wouldn’t be liable. Given the informal nature of Twitter, would most tweets fall under these exceptions?
Another legal distinction exists for public figures, who generally need to prove a publisher acted with actual malice — meaning that the author knew the statement was false (or should have known) but published it anyway. Celebrities and public officials are clearly public figures. Others involved in high-profile crimes could be considered involuntary public figures, and those who create a public controversy could be considered limited public figures. Would an otherwise private person who has a following of 100,000 Twitter followers be considered a public figure?
We now need to consider classifying online users and their speech in new ways that have yet to be clarified.
Twibel needs an adaptable remedy that encourages civil discourse among users and deters defamatory speech on Twitter. Given the complexities of the changing media landscape, are there existing remedies that are more in line with the values of the social-media environment by being fast, flexible and free?
And what better place than SXSW Interactive to dream up potential remedies to Twibel, taking advantage of the most-creative minds in technology?
We’ll bring the law; you bring some ideas!
Please join us on Monday, March 10, at 4:30 pm ET (3:30 pm CT), at SXSW in Austin, Texas, or by following the hashtag #twibel on Twitter, of course.
