How Corrections Would Help Avoid Twitter Libel Lawsuits

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Musician Courtney Love attends a screening of "Rush" hosted by Ferrari & The Cinema Society on Wednesday, Sept. 18, 2013 in New York.

Image: Andy Kropa/Invision/Associated Press

Drake Bennett for Businessweek 2014-01-17 04:49:34 UTC

Earlier this week, in Los Angeles Superior Court, the trial between Courtney Love and her former lawyer began. The lawyer, Rhonda Holmes, is suing Love for libel for a June 2010 tweet in which the volatile rocker accused Holmes of being "bought off" — Holmes had refused to help Love bring a fraud case in her battle over control of the estate of her late husband, Kurt Cobain.

Hundreds of millions of tweets are written every day, so it's inevitable that someone is going to feel defamed, and this is the not the first Twitter libel case. (Some definitions: defamation is knowingly making a false statement that harms someone's reputation. If it's spoken it's slander, if it's written it's libel.) Love in particular has shown a particular efficiency in using the 140-character medium to provoke legal action. Three years ago she paid $430,000 in a settlement with a fashion designer over a series of insulting tweets Love wrote following a dispute over a $4,000 clothing bill.

Love's current case, however, is the first Twitter libel litigation to go to trial in the U.S., and some legal experts suggest it bears watching. After all, most of the relevant legal opinions on libel date from a time when publishing meant printing or posting something in a newspaper or magazine — institutions that, in part because of the fear of lawsuits, make some effort to keep outright falsehoods out of their pages. Twitter, on the other hand, allows any user to publish whatever he can fit into 140 characters. And unlike newspapers, which can be sued even for things they publish in letters to the editor, Twitter cannot be held legally liable for what people tweet, thanks to a provision in a 1996 law called the Communications Decency Act specifying that providers of interactive internet services are not to be treated as publishers of user-created content.

Love's lawyers argue that the wild and woolly world of the internet has created a different set of norms around defamation. The digital world is rife with exaggeration, rumor and over-the-top invective, and users know that. Love's accusations, her lawyers argue, should be seen in that light.

In allowing the case to go to trial, the judge in the case soundly rejected that argument. Jonathan Zittrain, a Harvard professor of law and computer science, agrees with the judge that Twitter shouldn't reshape the way courts see defamation. The distinctions courts use to decide whether a statement is libelous — whether it's presented as fact (potentially libelous) or opinion (usually protected), whether the writer knew the statement to be false — don't disappear because the writing in question is a tweet rather than an essay.

Where Zittrain does think Twitter is different from the other media platforms people use to malign each other is that it has the potential to provide alternatives to litigation as a way of redressing reputational harms. One of the problems with Twitter, according to those whose reputations have been harmed there, is that retweeting allows falsehoods to get passed along and amplified. That means that even if the original tweet is taken down — as Love's offending tweet about her lawyer has been — the statement lives on. To address this, Zittrain has proposed that Twitter allow people not only to retract or correct a tweet, but to create a feature that relays that fix through all the people who retweeted it. "It seems to be an untaken opportunity to be able to spread correction or refinement so easily," he says.

Of course, the offending tweeter has to agree to correct what he wrote. And in the cases where he refuses, litigation might still be inevitable. But Zittrain holds out hope that by making it easier to twin a falsehood with its correction, Twitter libel litigation would be limited to the truly intractable disputes. "A court case is a very painful thing, it is a total nightmare, it goes on for months at a time," he says. "One could feel a little better about a case happening when someone has really defamed someone else and if there were a bunch of other paths to remedy that the defendant refused to take."