Legally speaking, think before you tweet

David Ardia on how libel laws apply to Twitter and new media.

The relationship between libel laws and new media has moved into the legal spotlight with a settlement in the Courtney Love Twitter defamation case and a suit against blogger John Hoff.

These examples, and others, put a new focus on libel. Many people are already familiar with libel cases against magazines and newspapers, but what about content published on Twitter or Facebook, or on personal blogs? And since so many of us are publishers now — whether we define ourselves that way or not — what do individuals need to know about libel?

David Ardia, fellow at the Berkman Center and the director of the Citizen Media Law Project, recently walked me through a couple of examples of how libel laws are slowly adapting to new media platforms. He also offered some common sense best practices for avoiding libel litigation.

Our interview follows.

How has libel law been affected by social networking platforms?

Ardia_Small.jpgDavid Ardia: Libel law, which has been judge-made law for a very long time, has a history of slowly adapting to technological change. I would be reluctant to say that these new social communication technologies have radically changed the law, because they haven’t. But I do think we’re going to begin to see their influence play out over time.

One thing that has been very significant is that the means of publishing information, and the ability to reach many people, is now held by millions. As a result, there are many more instances of speech that could support a lawsuit — or threats of lawsuits — happening today than we have seen in the past.

There’s somewhat of a disconnect in what people think they are doing when they update their status or send a tweet with what is actually happening. There’s a feeling that we’re not speaking to the world, we’re only speaking to our friends. Our speech spreads out to the world very quickly, even when we use social networking platforms where we’re intending to speak to a small number of very close friends and acquaintances.

In light of Courtney Love’s recent settlement, what are some guidelines people should keep in mind while tweeting or posting on blogs and other social platforms?

David Ardia: The first thing to realize is that you’re not in a personal conversation. Online, people bring sets of conversational norms that you might apply when you’re sitting across the table from someone and drinking a beer with them. The Courtney Love Twitter lawsuit gave us a window into that thinking.

This speech is not ephemeral, it’s not constrained — it reaches to all corners of the world, and it is for the most part permanent. So, you should think before you speak. Ask yourself, “if I say what I intend to say, would that bother me if someone were to say that about me?” If the answer to that is “yes,” it doesn’t mean you don’t say it. It means you have to make sure that what you’re writing or saying is what you mean to say, and that you have support for what you’re saying if it relates to factual information. Those kinds of simple questions often can reveal problems before they occur.

Do libel laws for bloggers and tweeters differ from those that apply to professional journalists?

David Ardia: The answer is “yes and no.” The same laws apply, but it’s how they are applied that can vary. Context really does matter in a defamation lawsuit.

One of the pre-Internet aspects of how context matters in a defamation suit is that news organizations were typically given more leeway on the editorial page than they were on the news page. On the editorial page, there was the expectation that readers understood what they were reading was opinion — it was not meant to be imparting factual information. The opposite assumption carried over to the news page.

So, when courts have looked at some of the cases — on blogs, for example — they’ve noted that the blogging platform is often used for opinion-style writing, so they give the author the benefit of the doubt in concluding that what they’re saying are statements of opinion versus statements of fact.

One of the more interesting cases related to this issue is the “Skanks in NYC” case. A site featured some pictures of a fashion model in New York and called her a “skank” and other offensive terms. The court in that case talked about how many of these terms don’t have a clearly defined meaning, but that in the context of this blog, the use of those terms in combination with other reporting on the blog made some of the statements seem like statements of fact. The court refused to dismiss the case outright on that basis. So, context really matters. In that sense, we do see the libel laws being adapted to the unique context for bloggers and tweeters.

There’s also the question of applying these guidelines to professional journalists, because obviously journalists use blogs and Twitter as well. So, one aspect of the question is platform dependent — that’s the context question. The other question is what is expected of someone prior to publication with regard to verification and accuracy? In that area, we have a lot less guidance from the courts in the context of new media. Typically, in a libel case, the courts look at what a reasonable journalist would do.

In a public figure or public official case, the plaintiff has to prove actual malice. That is a very high standard for them to overcome — it basically means the publisher has to have known that what they were publishing was false, or they had serious doubts as to what they were publishing, but they went ahead and did it anyway. Actual malice will apply in public figure cases whether the defendant is a professional journalist or not.

For private figures, the standard is negligence — or what a reasonable person would do in that context. We don’t know how the negligence standard would apply in the context of a non-professional blogger or tweeter — would there be a lower standard? I imagine a reasonable journalist would do more, in terms of fact checking and vetting, than a reasonable person who is just blogging or posting. That’s an area where the law has yet to give us clear answers.

Do you think we’ll get to a point where “Internet celebrity” (i.e. you’ve got 1 million Twitter followers) could serve as a threshold for actual malice?

David Ardia: Yes — that goes to the public figure test. Public figures are people who voluntarily enter the public eye. Courts really look at whether a plaintiff has voluntarily entered the public eye and how widespread interest is in them. Those folks are expected to show actual malice in order to succeed in a libel case. We have some guidance from the Supreme Court on this, but how that plays out on the Internet we don’t know yet.

One of the reasons why a celebrity or a public figure has to prove actual malice is because they have access to the means of counter-speech that a private figure doesn’t. Someone who has a million-plus Twitter followers can correct the record themselves. There’s also an expectation when you’re voluntarily in the public eye that you take on the risk that people are going to say bad things about you. Courts have basically said that’s part of the price you pay for the benefits that come from that kind of position.

It’s a good question whether this maps precisely to the online environment, where you can develop a sort of celebrity that can be a million-miles wide and only a half-inch deep, or a million-miles deep and only a half-inch wide. In those situations, should an individual have to prove actual malice in all instances? We don’t really know.

This interview was edited and condensed.


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