We live in an age where it’s very easy to blurt out whatever comes to mind and reach a worldwide audience.
But as Voltaire — and Spider-Man’s Uncle Ben — noted, “With great power comes great responsibility.” Thus, in an age where anyone can be an instant publisher, there are also some old school laws that apply governing libel, slander, and defamation.
Former 90s rock singer Courtney Love is about to learn about that. January 16th marked the start of a trial in Los Angeles, that will determine whether a Love Twitter “tweet” may be defamatory. The ruling will apply only to a small section of California, but may have precedent implications for Internet discourse that go far beyond that. (Update: the trial is over, and Love won. — Editor)
This week’s trial issues date back to 2010, when Love accused San Diego attorney Rhonda Holmes of accepting a bribe.
"I'm not sure anyone can take a tweet limited to 140 characters seriously enough to consider it defamatory…"
Holmes declined to assist Love in bringing a fraud case against managers for her late husband Kurt Cobain’s estate. After being turned down, Love tweeted, “I was f--- devestated [sic] when Rhonda J. Holmes esq. of san diego was bought off @FairNewsSpears perhaps you can get a quote.”
The tweet was later deleted, and Love claimed it was intended to be sent to two reporters. But a Los Angeles Superior Court judge rejected the argument that the tweet was an opinion (and therefore protected from defamation accusations), and set it for trial. A jury will determine the rest, and a new defamation standard may be set for Twitter.
TWEETING: NONSENSE OR ACTIONABLE?
Red Tea News turned to Los Angeles entertainment industry attorney Pamela Koslyn for a few questions on the thin line between comments and legal trouble.
RED TEA NEWS: How far can an opinion stretch? Does “I think you engage in criminal activity” fall under opinion? We’re trying to get a sense of where the line is.
KOSLYN: I don't think there's any line for a real opinion. The line becomes relevant when it starts to sound not like an “opinion” and more like a “fact.” Only "provably false" facts can be defamatory.
And then, from the speaker's/writer's point of view, how credible are they? Did they mean the statement as a joke? This is why comedians never get sued for defamation, because no reasonable listener/reader could think they're serious. Did they exaggerate and use hyperbole so a listener/reader would understand them to be venting, and not making a statement of fact? Is the speaker/writer a known nutcase with a history of crazy statements, so nothing they say/write can reasonably be taken seriously? Does the speaker/writer have any credentials that make what they think about what constitutes criminal activity credible?
When it comes to defamation, like all evidence of all statements used legally, it's always been true that the credibility of the source matters a great deal. That's how a court determines its admissibility. Then the trier of fact, a judge or jury, weighs that evidence. But a judge won't even let that evidence in if it's not credible and reliable.
An analysis would also need to include the context of how and where the statement appeared. If it's a blog or a tweet, those are more casual than a more professional medium like a book or a scholarly journal, that's been edited and vetted and generated with care. So a listener/reader would interpret it through a different lens. I'm not sure anyone can take a tweet limited to 140 characters seriously enough to consider it defamatory, and I don't think a court has done so yet. I think that's because it's obvious that a tweet's an inherently spontaneous and informal way to communicate. It's not well designed to impart the kind of information that can defame someone or something. An email blast, on the other hand, allows the time and space to elaborate, and emails can and often are serious in tone and content.
RED TEA NEWS: Has libel/slander/defamation become too easy in the Internet age?
KOSLYN: Is it easier to communicate than it used to be? Definitely. There are more media than there used to be, and they have more reach. Are speakers/writers less accountable? I don't think so. The expansion of media means a greater reach to a communication, and therefore more damages if the communication is truly actionable — so the risks for careless or intentionally malicious speakers/writers are higher too.
RED TEA NEWS: What do you think of Yelp and other opinion-makers? Do they perform a service, or are they holding pens for the disgruntled?
KOSLYN: I've read psychology studies from credible sources which I consider reliable that people should rely on recommendations from others as the best indicator of how likely they are to like something or not like something. That's why social media relies on personal recommendations from people we know, because we're very influenced by that information. . Yelp's not as transparent as they could be, because they ostensibly rely on a secret algorithym that filters out fake reviews, but I think that's inherently hard to trust.
RED TEA NEWS: Since traffic = revenue on the Net, does it make sense for one business to libel another, knowing that they will get a response and increase their traffic? Sure, they run the risk of a suit, but given the constraints (distance, money, etc) is it a reasonable risk/reward situation?
KOSLYN: I'd never advise any client to include trade libeling their competitors in their business model. Picking the wrong target just once can be a business-ending decision, since defamation and unfair competition carry the risks of punitive, as well as compensatory damages.