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May 9, 2012

No Libel in 140 Characters?

For a while now, I've been on the look-out for the first American defamation trial stemming from Twitter. And while some cases have been contenders, there hasn't been such a case that's gone to trial yet.

But now, an article in the new Berkeley Journal of Entertainment and Sports Law by attorney William L. Charron questions whether tweets can be the basis for a defamation claim at all.
[D]efamation claims wither in an atmosphere where readers and listeners generally understand they have accessed a free-for-all forum of ideas and are thus unlikely to believe they are receiving statements of “fact” as opposed to personal statements of opinion.

William L. Charron, Twitter: A “Caveat Emptor” Exception To Libel Law?, 1 Berkeley J. Ent. & Sports L. 57, 60 (2012).

Citing several cases in which courts have discounted defamation claims based on blogs, websites and other Internet postings on the rationale that the freewheeling nature of the Internet leads readers to discount the veracity of any statements made online, Charron argues that a similar position should be applied to Twitter.

“Twitter is a real-time information network,” which is intended to spark imagination and discourse through streams of messages. By definition, Twitter should involve and reflect “broader social contexts,” making most claims of libel improbable in the face of what a “reasonable reader” should expect Twitter’s “small bursts of information” to contain. As courts continue to examine libel law in the context of the Internet, Twitter may present a particular environment in which to more readily dismiss claims. Id. at 64 (citations omitted).

Charron concedes that "[i]t is possible, of course, that a Twitterer could find a way in 140 characters
(or through enhancement programs or attachments, or in an independent stream of Tweets) to libel someone in an isolated context, without inviting further discussion or investigation from others." Id. Thus he says that "... Twitter should not provide automatic immunity from a claim of libel." Id. But ordinarily, he says, courts should accept the hurly-burly of the service, and of the Internet and social media generally, and reject defamation claims from statements on these platforms.


I agree that the nature of Internet "discourse" should be a factor in determining whether a particular statement is defamatory, just as the context and tone of any other statement would be such a factor in making this determination. But I don't think the law should frown upon such claims, simply because of the medium in which the statement is made. 

To use a (perhaps tortured) analogy, just because there's lots of chaos in a riot does not mean that individual acts in the melee are not crimes.

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