Thursday, July 30, 2009

Can Your Tweet Defame? The Law Behind Horizon and Bonnen

This blog post is provided by Deb Spanic, an Internet and intellectual property attorney with Whyte Hirschboeck Dudek S.C. I asked for her insights about the news regarding Amanda Bonnen, a woman who was sued for criticizing her former landlord, Horizon Group Management, in a tweet to her 20 followers. In Deb's opinion, Horizon's case is not without merit.

What does this mean to you and your tweets? Have you tweeted a concern or gripe that might leave you open to litigation? Deb shares her thoughts on the law of tweets...

The recent lighting up of the blogosphere over the suit filed by Horizon Group Management against former tenant Amanda Bonnen for an allegedly defamatory tweet she posted on Twitter caused me to pause for a moment and think through the potential legal issues that may result from this suit.

Clearly, Horizon found a quick way to make a "mountain of out a mole hill" by converting what was a brief, casual tweet by Ms. Bonnen to her 20 followers into a global media frenzy (including articles across the pond on the BBC). And clearly, they've jumped themselves into a PR disaster.

But the interesting point that I think may get lost in the he-said she-said of a typical defamation case is the question of whether or not you can defame with a tweet. I think the answer to that is yes, you can.

To defame someone, you need to (a) publish to a third party (b) a false statement of fact (c) that is understood to concern the plaintiff and (d) tends to harm the plaintiff's reputation. If the plaintiff is a public figure, that public figure must prove you committed this act with "actual malice."

If you walk through the elements, perhaps the most interesting one related to Twitter is the "publish to a third party" element. It's well-settled law that blogs and web pages are considered "publications." As a microblog service, I think it could be easily argued that a tweet is a publication. And Twitter is really only Twitter if you have followers. If you have followers, you have published to a "third party."

There is no requirement that a defamatory statement be of a certain length. You could certainly defame someone in 140 characters. "Attorney John Smith is a crook" is 30 characters, leaving 110 more characters for further mischief. If that statement is false, it would meet the second element of a defamation claim. Finally, if you mention the plaintiff by name in the statement and the statement could be taken to harm the plaintiff's reputation, then you have completed all the elements of defamation.

Confining yourself to statements of fact and personal observation are two ways to avoid statements being considered defamatory. Saying, "I was unhappy with how Attorney John Smith handled my case" is better than stating he's a crook. Note, however, that it is sometimes not enough just to add "In my opinion," or other qualifying language, to what may otherwise be considered a defamatory statement. Courts have found that saying, "In my opinion, Attorney John Smith is a crook" can be just as defamatory as it is without the qualifier. What the courts do consider is the view of the statement in the broader context of the environment in which it was said or written, the person who was allegedly defamed (whether they are a private individual, public figure or company), and perhaps most importantly, whether or not the statement is true. In fact, truth is the ultimate and best defense against defamation.

What does all this mean for Twitter? Nothing really, because Twitter is likely protected under Section 230 of the Communications Decency Act and would not liable for the defamatory comments of its users. But for the users? Well, this case just goes to show that you CAN get sued for libel for a tweet. Whether Horizon will win or not is a different story, but rest assured, it will not be inexpensive for either side in this case.

About the Author: Deborah Spanic is an Internet and intellectual property attorney, specializing in trademarks, copyright, domain name issues, e-commerce and e-business issues and social media law. Ms. Spanic is licensed to practice in the state of Wisconsin.

The content of this blog post is not legal advice. It only constitutes commentary on legal issues, and is for educational and informational purposes only. Reading this blog, replying to its posts, or any other interaction on this site does not create an attorney-client privilege between you and the author. As with any legal issue that may confront you in a particular situation, you should always consult a qualified attorney familiar with the laws in your state.


Mark said...

Pardon me while I go clean out some previous tweets......

Augie Ray said...

Mark, No kidding! I think I keep it pretty positive on Twitter, but I've tweeted a gripe or two.

Jeff Larche said...

Hmmm. I've often tweeted the acronym, "IMHO" (In My Humble Opinion). Perhaps I'll need to modify that to "IMVADO" - In My Vigorously Anti-Defamatory Opinion.

It couldn't hurt, IMVADO. ;-)

Augie Ray said...

IMVADO, Jeff Larche is brilliant. (I wasn't sure who I might be defaming, but now Deb has me nervous!)

Deborah Spanic said...

I'm still tweeting! I think we need to take the Horizon suit in its full context - Amanda Bonnen filed a class action suit against Horizon in June. My guess is that this is Horizon's way of getting some leverage in settlement negotiations. I wouldn't be surprised if this case got dropped before it even gets to summary judgment.

The reality of it is, most companies are not going to sue people for tweets complaining about their product or service. And as Augie points out in his post on this topic, there is a learning opportunity here for companies to better manage their brands and engage with their customers, rather than sue them.

And don't forget, if what you say is true (and can be proven to be true), it's the best defense against defamation.

Augie Ray said...

Deb, that was the most brilliant blog comment ever!

(What, you think I'm going to criticize and defame an attorney online? Are you crazy?!?)

Seriously, thanks for the great blog content!

Nicholas Crawford said...

It's sad that one would have to watch their comments geared towards friends so carefully, no matter how large the audience. People use hyperbole all the time, and why not in a tweet? It's true that the Horizon Realty case is a special case given the context, but it still makes me wonder about negative reviews on websites, etc. where the comments are admittedly excessively harsh but are harsh to prove a point or to discourage someone from a product or service. Even if you could prove that what you're saying is true, do you really want a court battle to prove your point?

Augie Ray said...

Thanks for the comment, Nicholas.

There is no doubt litigation will always be part of the landscape of Social Media, where people feel free to share their criticisms and are encouraged to rate brands and products.

That said, each time a lawsuit is filed againts a consumer, it demonstrates the risks to brands of managing their reputations via legal actions. The negative attention is harsh of this sort of action, and even though the wave of bad PR never kills brands, it does leave them on the defensive.

I think smart brands will make smart decisions--ignoring harsh critics, engaging displeased consumers, and being part of the Social Media landscape are MUCH better approaches than lawsuits!

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