April 21, 2014

Twitter + Libel = “Twibel”

What is it about social media that makes grown men and women rant, gossip, and whine like little kids at a slumber party? Is it the anytime access, the desire to shock and awe, the ease of use, or our own narcissism taking control? My mom always told me, “If you don’t have anything nice to say don’t say anything at all.” I personally think this simple etiquette lesson has been lost forever on social media because we all think that every “nugget” that comes to our collective mind is gold that needs to be immediately posted in real-time for the world to read. On the other hand, social media technology has changed the world with its instant access and freedoms from governmental and military control. Some would argue that social media is the people’s media – unlike newspapers, radio and television which can be controlled or even turned off by authorities. The most recent civil uprisings in Tunisia, Egypt, and Libya earlier this year are examples of the power social media can wield. It can be argued that these uprisings, some of which removed totalitarian governments, were successful as a direct result of social media and its ability to give instant access to large groups needing to share dramatic pictures, shocking video and real-time news.

So as with any new form of communication, there are obvious positives and negatives to the social media revolution. The filtering and fact-checking mechanisms that exist in traditional media sources such as newspapers, radio, television, and magazine printing have necessarily evolved since the printing press was invented in 1440. Even though it seems like we can’t remember a time without them, mass distributed social media such as microblogs, Twitter, Facebook, and Linked In were invented roughly between 2004 (Facebook launch) and 2006 (Twitter launch) and have virtually no checks and balances in place to regulate the flow of information from them. How you feel about that may vary, but it’s clear that the power of this technology is immense – which is demonstrated by its tremendous growth and user base. In just seven years Facebook has grown to an estimated 750 million users worldwide and in just five years Twitter has grown to an estimated 175 million users worldwide. Anyone with a computer, PDA, iPhone, cellphone, or tablet device now has wireless, unfiltered, real-time access to those hundreds of millions of people.

We all know the quote, “With great power comes great responsibility,” and the power social media gives to a person or group can be enough to change lives, or even the course of history. Today any celebrity or public figure can launch or destroy a company, product, or individual with one tweet. A political blogger can start or ruin a politician’s career with a post. A whistle-blower can share the truth with the world in a Facebook status. Even with Twitter’s limitation of 140 characters per message a person can get into a lot of trouble fast. I think it’s safe to say the limited nature of the micro blog is not a factor in its ability to send a resounding message. Yet the flip side of this type of power is individual responsibility and if the responsibility that comes with power is not understood then bad things tend to happen.

A new concept recently introduced to fight people who abuse the power of Twitter in particular is called ‘twibel’ (‘twibel’ = Twitter+libel). Traditional libel is a form of defamation that occurs when 1) Words are written, broadcast, or otherwise published and 2) The communication or statement is seen by others and 3) The communication makes a claim, either expressed or implied as fact, which gives the readers a negative image of the defamed. Remember the defamed can be an individual, business, product, group, government, or even a nation. I am not aware of any celebrity/public figure twibel cases that have gone to verdict in the U.S. yet. However, twibel has been making the rounds in the media lately because of a $430,000 payout by music legend Courtney Love to Austin, Texas based fashion designer Dawn Simorangkir over tweets posted by Love. (Simorangkir v. Love)

The twibel claim in Simorangkir v. Love was the result of a four-day campaign of tweets to Love’s 40,000 followers (plus an unknown number of retweets), numerous MySpace posts, feedback posts on Simorangkir’s own Etsy.com page, and posts on various other social media sites about the designer. (The fuse that lit Love’s fire seemed to be the Simorangkir’s demand that Love actually pay her for work done). The tweets consisted of accusations that Simorangkir dealt drugs, engaged in prostitution, had a history of assault and battery, was an unfit parent who lost custody of her child, embezzled money, committed blackmail, was a racist and homophobe, had outstanding arrest warrants, was a danger to society, and that she was, well – something too nasty to print in a polite blog! All seem to have been entirely fabricated in light of the hefty payout.

The Love case may have been the very first celebrity-based twibel case to go to trial, but tweet lawsuits have been around for years. In 2009 a Chicago Realty firm sued a renter for libel after she tweeted to her friend (and, the company contended, to the public via her 20 followers) she should, “just come anyway. Who said sleeping in a moldy apartment was bad for you? Horizon Realty thinks it’s okay.” (Horizon Group Management v. Amanda Bonnen). The case was dismissed but the ideas that Tweets aren’t private and could be libelous grew from it. Twibel is also getting noticed in other areas of the world as shown by a case in Wales where the Cardiff High Court ordered a town councilor to pay $86,000 in compensation and costs to his opponent in a reelection campaign. It seems the councilor, on the day he was seeking reelection, wrote about the plaintiff, “It’s not in our nature to deride our opponents however Eddie Talbot had to be removed by the Police from a polling station.” Talbot, who lost the election by 160 votes, said the Tweet was untrue, defamatory and had left him open to public ridicule. And although the laws in Britain regarding public defamation are more stringent than those in the U.S., it’s not a far leap to see how something similar could occur here.

You may be wondering at this point, “what does this have to do with e-discovery?” The answer is pretty obvious, if not unique to e-discovery in particular; tweets are discoverable, electronic information that can be crucial evidence or even the crux of a legal argument, such as that for twibel. Users have to remember that their tweets don’t go up in a puff of smoke after they’re published and can haunt them later on as evidence. Of course any thing, document or testimony that is relevant to a case is ultimately discoverable – it’s just Twitter’s unique ability to give anyone an instant public platform that makes it a danger to those who aren’t informed. It can only be a matter of time before we see our first “twibel” claim go to court in the U.S. with all the attendant e-discovery issues electronic data brings with it.

Keith Schrodt

Keith Schrodt, J.D. is a Senior Legal Consultant with AccessData Group. As a senior member of AccessData’s Business Development Team, Keith is called upon to conduct seminars and customer presentations across North America to help teach legal professionals about AccessData’s award-winning suite of litigation support and eDiscovery solutions. Keith is also a featured guest lecturer for conferences, bar associations, law firms, corporations, special interest groups and other organizations in regards to electronic discovery and evidence best practices. Prior to joining AccessData through a strategic acquisition, Keith held a Senior Business Development position with CT Summation for more than 5 years. Prior to joining Summation, Keith held VP positions at two Investment Banking Firms where he specialized in M&A and Commercial Real Estate transactions for a multi-billion dollar portfolio. Before receiving his JD degree in 2004, Keith enjoyed 10 years of successful sales experience within the high technology sector with companies such as Nortel, Fujitsu, Alcatel and several private start-ups. During his tenure, Keith earned industry recognition for his outstanding sales performance with product sales totaling in the hundreds of millions. Keith, who is a certified Mediator in Texas, donates his time in business and family law matters. Keith received his B.S. in Business Administration from the University of Texas, and his J.D. from Texas Wesleyan University School of law.

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  1. [...] What is it about social media that makes grown men and women rant, gossip, and whine like little kids at a slumber party? Is it the anytime access, the desire to shock and awe, the ease of use, or our own narcissism taking control? My mom always… Read more [...]

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