Academic journal article The Journal of High Technology Law

Twibel Law: What Defamation and Its Remedies Look like in the Age of Twitter

Academic journal article The Journal of High Technology Law

Twibel Law: What Defamation and Its Remedies Look like in the Age of Twitter

Article excerpt


Traditional defamation law and First Amendment standards have been largely designed to deal with the traditional news cycle and media in its traditional form. (195) Public figures that were most likely to be discussed in traditional media publications brought a majority of the claims against large media defendants. (196) These public figures often had ample funds to pursue lengthy litigation that could last for years. (197) Furthermore, large media defendants, who often had deep pockets, could provide plaintiffs a viable remedy by paying monetary judgments. (198) With the broader body of publishers on Twitter come increased responsibilities: legal, in addition to ethical. (199) Now, "the law of defamation, which used to be of interest only to newspapers, book publishers, and broadcasters, [is] a topic of interest for everyone." (200) Publishers and courts need to examine how to adapt defamation remedies to contemporary realities. (201)

Despite the changes in the news cycle, traditional methods for resolving defamation disputes may be adequate when the defendant is a mainstream media organization with a skilled legal staff and deeper pockets that will provide the proper remedy for a defamed plaintiff. (202) The existing legal framework appears ill-suited for this new class of private publishers. (203) Twitter users often lack knowledge of the law and are likely unaware of the ramifications they could face for publishing defamatory content. (204) In comparison to the traditional editorial processes of mainstream media, Twitter users are able to publish in a vacuum with no one responsible or assigned to correcting or fact-checking their posts. (205) As a result, they put themselves at more risk than traditional publishers that have fact-checking and editing systems in place. (206)

While the fundamental foundation of Twitter is fast, free communication, the traditional remedies for defamatory publications remain slow and costly. (207) In an environment defined by its lightning-fast nature of publication, an equally speedy and efficient method of dispute resolution should be created. (208) Financial liability is also a concern because the majority of Twitter users do not have the deep pockets that many plaintiffs seek in traditional defamation suits, and as a result existing traditional remedies are often inadequate. (209)

Additionally, Twitter-created conventions are foreign to the courts' lexicon. (210) How the courts should apply traditional defamation standards to Twitter, if at all, is a question the courts have not yet answered. (211) For example, the courts have not determined what the threshold is for the number of Twitter followers needed for a Twitter user to be considered a public figure. (212) Does merely having a Twitter account make all users some sort of public figure? (213) If Twitter users are considered limited-purpose public figures, how does that permeate into the real world? (214) Is the courtroom the most appropriate venue for resolving these issues? (215)

In applying defamation standards to Twitter, it is likely that the courts would consider Twitter users to be limited-purpose public figures especially those with large numbers of followers. (216) The courts have not ruled specifically on what makes someone a public figure on Twitter. (217) Previous to Twitter, in a slander case where the head coach of the University of the District of Columbia's women's basketball team sued the university and its athletic director, the court held that she was not a limited-purpose public figure because although she had prominence "within women's basketball circle" this did not qualify for a "broader public figure status." (218) Would someone who had prominence within the Twitter community qualify for a similar status? (219) On the other hand, in dealing with blogs, courts have observed that, "blogs ... can become the modern equivalent of political pamphleteering. …

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