Monday, January 12, 2015

Twibel: Online Communications Bring New Legal Challenges

Q:       How have social media and electronic communication brought about new legal challenges?
A:        Online communication has become a hotbed for litigation, in part because people believe they can hide their identities behind a computer or smartphone screen. Many users are discovering, however, that their online fouls can cross over the line into actionable, illegal conduct. Social media has become a primary communication tool in our culture, and has resulted in new types of lawsuits. For example, employees have been terminated from employment for communications or disclosures made via social media, and individuals have been sued for defamatory statements they have made via social media.

Q:       What kind of online statements can expose someone to liability?
A:        Social media is a fairly new communication tool, but the law regarding communication has not changed. The term Twibel, a combination of “Twitter” and “libel” has been adopted to describe this mix of social media communications and old law. Libel is defaming someone (publishing a false statement of fact that harms another’s reputation or business) through written or printed words, pictures, or any form other than the spoken word. Twibel is simply libel that is committed through a social media communication tool.
In one Twibel suit, a real estate company brought a $50,000 suit against a tenant for tweeting this: “Who said sleeping in a moldy apartment was bad for you? [The real estate company] thinks it’s okay.” The court dismissed the case, finding the tweet was “too vague to meet the legal standard for libel.” Others cases have been similarly unsuccessful.
Twibel cases are reviewed just like old-fashioned print defamation cases, and courts still want to see proof of damage to reputation. If the plaintiff (the person bringing suit) cannot prove that his or her reputation was damaged, then the court usually will dismiss the case, unless the defamatory statement is a per se statement. A per se statement is a communication that is very obviously damaging. For example, if someone wrote that the plaintiff has a sexually transmitted disease, the court might decide that damages are inferred even if not proven.
The outcome of a defamation case is also affected by whether or not the person claiming defamation is a public figure. Courts rarely decide that a public figure has been defamed because a public figure is considered a “fair target” for defamatory statements. To be awarded damages in a defamation case, a public figure must prove that a defamatory statement was not only damaging, but that it was made with malicious intent. This private vs. public distinction figured in the very first Twibel trial in 2014. The attorney for deceased musician Kurt Cobain’s estate brought a defamation suit against Courtney Love, Cobain’s spouse. In that case, the judge determined that Cobain’s estate attorney was a public figure. The judge’s determination meant that the attorney had to prove Love’s defamatory statement was made “with actual malice, meaning that she intentionally made a false statement, knowing it was false, or that she acted without regard to its truth or falsity. The jury determined that Love had not made the statement “with actual malice,” but if she had made the same statement about a private figure, the jury may well have decided against Love. 

Q:       Can I be held liable for statements I make on anonymous review sites like Yelp and Angie’s List?
A:        Yes. Online communication suits also concern online reviews attached to products and services reviewed on the Internet through sites like Yelp, Citisearch, and Angie’s List. However, you would have to make a false statement of fact, not opinion. Defamation lawsuits must be about false statements of fact. In one of the first cases of this type (Dietz v. Perez), a Virginia contractor filed a $750,000 defamation lawsuit against a blogger. Through Angie’s List, the blogger had not only accused the contractor of poor work, but also of trespassing and stealing. The blogger filed a countersuit, also alleging defamation. At trial, the jury decided that both sides had defamed each other, but neither was awarded damages. Eventually, the blogger took down the scathing review. In the court’s ruling, the judge wrote that it was not his job to rule on free speech, but that the blogger’s actions had endangered people’s ability to write freely in online reviews: “If you want to chill free speech, keep it up, because eventually one of these companies is going to win big…. That will chill free speech, when somebody is hit with a huge monetary verdict.”

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by attorney Sara H. Jodka of Porter, senior counsel with McDonald Hopkins LLC. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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