Distinguishing Twitter postings from other forms of communication in online defamation cases

The New York Times published an interesting article today about the growing number of defamation actions involving messages posted on Twitter (see: article). The article noted that the special characteristics of Twitter postings may distinguish them from other forms of online posting when it comes to defamation actions:

[T]here are few prescribed social norms on Twitter like those in more closed communities like Facebook. The service has attained mass popularity without much time to develop an organic users’ culture. On top of that, with tweets limited to 140 characters, users come right to the point without context or nuance.

“It’s the same reason why schoolyard fights don’t start out with, ‘I have a real problem with the way you said something so let’s discuss it,’ ” said Josh Bernoff, a researcher and an author of “Groundswell: Winning in a World Transformed by Social Technologies.”

“You get right to the punch in the nose. Twitter doesn’t allow room for reflection. It gets people to the barest emotion.”

But the article proceeds to imply that the short and blunt nature of Twitter postings might make it easier for defendants to argue that Twitter postings aren’t taken seriously by readers and – therefore – aren’t harmful to a plaintiff’s reputation:

“The basic law [of defamation] will be the same, but I would think that a defendant might argue that the language used on Twitter is understood to not be taken as seriously as is the case in other forms of communication,” said Mr. [Floyd] Abrams, who has represented The New York Times. “We will have to wait and see how judges and juries figure out how to deal with this.”

American courts have already given some indication of how they might deal with such an argument. The decision of Justice Madden of the New York State Supreme Court in the infamous Cohen v. Google case (see: previous posting) is illustrative. In that case, the defendant blogger (the “Defendant”) argued that statements made on her blog were not perceived by readers as factual assertions because blogs had become forums for venting personal opinions:

The Blogger further argues that even if the words are capable of a defamatory meaning, “the context here negates any impression that a verifiable factual assertion was intended,” since blogs “have evolved as the modern day soapbox for one’s personal opinions,” by “providing an excessively popular medium not only for conveying ideas, but also for mere venting purposes, affording the less outspoken, a protected forum for voicing gripes, leveling invective, and ranting about anything at all.”

Although Justice Madden rejected this argument, her reasons did not directly address the issue of context:

The court also rejects the Anonymous Blogger’s argument that this court should find as a matter of law that Internet blogs serve as a modern day forum for conveying personal opinions, including invective and ranting, and that the statements in this action when considered in that context, cannot be reasonably understood as factual assertions. To the contrary, as one court in Virginia has articulated: “In that the Internet provides a virtually unlimited, inexpensive, and almost immediate means of communication with tens, if not hundreds, of millions of people, the dangers of its misuse cannot be ignored. The protection of the right to communicate anonymously must be balanced against the need to assure that those persons who choose to abuse the opportunities presented by this medium can be made to answer for such transgressions. Those who suffer damages as a result of tortious or other actionable communications on the Internet should be able to seek appropriate redress by preventing the wrongdoers from hiding behind an illusory shield of purported First Amendment rights.

Although more jurisprudence on the effect of context in cases involving Twitter and similar online services is almost certainly forthcoming, the judgment in Cohen v. Google indicates that courts may be reluctant to tolerate an increasingly outspoken and defamatory online culture at the expense of a plaintiff’s right to a good reputation.

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