A British politician is seeking damages from high-profile Twitter users who repeated or retweeted a false report linking him to child sex abuse. The former Conservative Party official, Alistair McAlpine, is also asking lower-profile Twitter users who libeled him to apologize and make a donation to charity. The United Kingdom is notorious for its plaintiff-friendly defamation laws—but what about in the United States? Could an American be sued for libel based on tweets, too?
Yes. Medium of communication is irrelevant in American defamation laws; even an email sent to a single person can be libelous. To be libelous (in the United States), a statement must be false and damaging to an individual or corporation, and the person who made that statement must have been at fault (i.e., known that the statement was false, acted recklessly with regard to the facts, or otherwise been irresponsible). Whether a person makes a defamatory statement on a blog, in a newspaper, or on Twitter or Facebook, he or she can be held legally liable for it.
In the United States, however, if you retweet a libelous statement, you are unlikely to be sued for damages. That’s because of Section 230 of the Communications Decency Act, which states that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” with regard to defamation and invasion-of-privacy cases. A simple retweet or Facebook “like” is likely to be protected under Section 230—but a modified tweet or Facebook comment could constitute libel.
Immunity for publishers isn’t the only thing that distinguishes American defamation law from British defamation law. In the United Kingdom, the burden of proof is on the defendant to prove that his or her statement about the plaintiff was true, whereas in the United States, the burden of proof is on the plaintiff to prove that the defendant’s statement was false, damaging, and negligent or reckless. Does this mean a Brit like Lord McAlpine could successfully sue an American for libel damages for statements made on Twitter? No—the SPEECH Act of 2010 makes foreign libel judgment unenforceable in the United States unless those judgments also comply with American regulations of protected speech.
What if you tweet something defamatory and then quickly delete it and follow it up with a correction? In most states, withdrawing your tweet won’t affect the viability of a libel claim against you, but it might affect the amount of damages that can be sought from you. (Some states have retraction laws that limit liability when a plaintiff retracts a libelous statement; in general, states have their own defamation statutes, but the structures of state law are strongly limited by the First Amendment.) Similarly, if you have only a few Twitter followers or Facebook friends, or if your Twitter account is protected, you can still be sued for libel—but the plaintiff might be awarded only nominal damages since the impact of your defamatory statement would be minimal.
Although the definition of libel doesn’t change when defamatory statements are made on Twitter rather than in newspapers and magazines, one aspect of libel law remains uncertain with regard to social media. Defamation law makes a distinction between statements made about a public figure and statements made about a private figure. In order to be liable for libel against a public figure, a person must have acted with “actual malice,” which is defined as either knowing that the statement in question was false or acting with reckless disregard for the truth or falsity of the statement. In order to be liable for libel against a private figure, a person must have simply been negligent, which means not acting with a reasonable level of care in making the statement in question. With the advent of Twitter celebrities and people with thousands of Facebook friends, the line between public and private figures—and therefore whether “actual malice” or negligence applies to a case—becomes increasingly blurry.
There have already been a few Twitter libel suits in the United States, although none has gone to trial. Courtney Love agreed to pay $430,000 to fashion designer Dawn Simorangkir in 2011 after tweeting several defamatory statements about Simorangkir. That same year, a referee for the NBA sued the Associated Press after one of its reporters tweeted that the referee had made a bad call to make up for a prior bad call; the referee agreed to drop the suit, the reporter deleted the tweet, and the AP paid the referee $20,000 for his legal costs.
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