TWIBEL: WHO GOT IT RIGHT? THE U.S. OR INDONESIA?

By Dana Halber

Courtney Love, the grunge rock queen, spent eight days in court at the end of last month standing trial for “Twibel,” the commonplace term for “Twitter libel.” Twibel is the act of defaming another individual through a 140-character Twitter “tweet.”  Love’s former attorney, Rhonda J. Holmes, sued Love for the publication of a reputation damaging Tweet, which implied that Holmes had been “bought off” as the reason for Holmes no longer acting as Love’s attorney.[1]  Love argued that the mass dissemination of the tweet was inadvertent, as she only intended to send it two people, and once she realized it had been published to her 220,000 plus Twitter followers, she deleted the tweet.[2]  Even more legally significant, Love claimed she believed the statement to be true at the time she sent the tweet, demonstrating that Love lacked the “knowingly false or doubting the truth” of the statement requisite to find her guilty of libel.[3]  Ultimately, Love prevailed when the jury determined that she was not liable for defamation.

 

However, did the jury reach the right verdict?  Although the Los Angeles Superior Court Judge made a precedential decision in holding 140-character or less tweets in California to the same standard as an article written for the Los Angeles Times, the jury clearly was not as strict.  Their leniency can be especially dangerous in establishing precedent in this particular case as Love is a repeat tweet offender.

Venting her frustrations over social media seems to be Love’s pattern of behavior, and the reason she is involved in another pending defamation lawsuit brought by fashion designer Dawn Simorangkir for damaging comments Love made about her on Pinterest and the Howard Stern radio show.[4]  How will Love learn to temper her tweets if she’s only sharing her “opinion”, however damaging it may be, and escaping liability? And, furthermore, what message does the result of Love’s twibel trial send to the American public?  Perhaps it’s time to reevaluate our defamation law in conjunction with social media…

 

Meanwhile, at roughly the same time Love stood trial, on the other side of the world, Benny Handoko, an Indonesian Twitter user was found guilty of defamation for libelous comments made about an Indonesian politician via Twitter.[5]  Handoko became popular on Twitter after publishing statements in which he referred to former Prosperous Justice Party member Mukhamad Misbakhun as a crook who played a vital role in Indonesia’s Central Bank bailout scandal in 2008.[6]  Handoko was sentenced to one year probation for online defamation in violation of articles 27 and 45 of the Electronic Information and Transaction (ITE) Law, which provides that “anyone found guilty of using electronic media, including social networks, to intimidate or defame others could be liable to six years in prison and a fine” that can amount up to approximately $105,000 U.S.D.[7]  Handoko, refused to apologize for his statements, believing them to be true, as he based them on media reports.[8]  Accessable.

 



[1] Eriq Gardner, Courtney Love Wins Twitter Defamation Trial, The Hollywood Reporter (Jan, 24, 2014, 5:03 PM), http://www.hollywoodreporter.com/thr-esq/courtney-love-wins-twitter-defamation-673972.

[2] Id.

[3] Id.

[4] Id.

[5] Mong Palatino, How One Twitter Defamation Case Casts a Shadow on Media in Indonesia, Mediashift (Feb. 11, 2014), http://www.pbs.org/mediashift/2014/02/indonesia-twitter-defamation-case-casts-shadow-on-media-landscape/.

[6] Id.

[7] TechLoy Reporter, Indonesian reporter convicted of libel of Twitter, protest surges over draconian internet law, TechLoy (Feb. 4, 2014), http://techloy.com/2014/02/05/indonesian-man-convicted-libel-twitter-protest-surges-draconian-internet-law/.

[8] Palatino, id.

Yelp! at Your Own Risk

What is Yelp?

Yelp, Inc. is an American company that operates an “online urban guide” and business review site. The company’s website began as an email service for exchanging local business recommendations and later introduced social networking features, discounts, and mobile applications.[i] The company’s website contains a discussion forum and other social networking features. It requires reviewers to register and encourages them to create a user profile. It offers “praise and attention” to user reviewers plus special status and social events for its most popular, prolific and “elite” members.[ii]

Simple enough, right? So what’s all the fuss about?

It has become increasingly apparent that writing Yelp reviews may land you in some hot water, which begs the question “Why would writing a negative review get me sued?” The site asks for users to write honest, first-hand accounts of what their experience was like. Yet, when that honest review turns out to be negative/critical, some business owners may not take it so lightly. In the last week or so there have been at least two lawsuits dealing with Yelp reviews, which actually bookend the spectrum of potential outcomes arising from disgruntled reviews. On one end of the spectrum is a review that stated a contractor damaged and stole the reviewer’s property.[iii] The jury came back with a guilty verdict for defamation.[iv] On the other end of the spectrum was a review of a local dentist, who attempted to sue for defamation, but his claim was dismissed referencing California’s Anti-SLAPP Law.[v]

Ok, so the Anti-SLAPP Laws will protect me then?

Not necessarily. California provides a special motion to strike strategic lawsuits against public participation (SLAPPs), which is intended to put a quick end to nonmeritorious lawsuits designed to suppress speech on a matter of public concern.[vi] Public reviews of businesses, health care, restaurants and any other type of service provider, have been around since the first customer was served. Services like Yelp have made the dissemination of these reviews readily available to anyone willing to read them. One would think that every state would have an Anti-SLAPP statute protecting the public, but that is not the case, as 21 states have not enacted an Anti-SLAPP law.[vii] One of those states, Virginia, was home to the first review I mentioned where the defendant was found guilty of defamation after being sued by her contractor. Would an Anti-SLAPP statute have helped her? Should every state have a statute similar to California? It’s tough to say, but one could easily make the argument that Anti-SLAPP laws unnecessarily expand our First Amendment Rights.


[i] Yelp, Inc., wikipedia.org, http://en.wikipedia.org/wiki/Yelp,_Inc (last visited February 8, 2014).

[ii] Id.

[iii] Perez v. Dietz Development LLC, Va. Cir. Ct., CL 2012-16249, jury verdict 1/31/14.

[iv] Id.

[v] Rahbar v. Batoon, Cal. Ct. App., No. A136463, unpublished 1/31/14.

[vi] 23 HLR 221 (Issue No. 6, 02/06/14).

[vii] Public Participation Project, Anti-Slapp.org, http://www.anti-slapp.org/your-states-free-speech-protection/ (last visited February 8, 2014).

Twible Goes to Trial!

Libel cases brought against defendants for twitter comments never go to trial… until now.  A a case brought by San Diego Lawyer Rhonda Holmes against Courtney Love for tweets against Holmes claiming Holmes had been “bought off,” is underway in Los Angeles Superior Court.  Three years ago, Love settled a libel suit brought by fashion designer Dawn Simorangkir for tweets about the designer’s parenting and business practices.  That case, like every other defamation by twitter case, was settled prior to trial.

Defamation occurs when one knowingly makes false statements that harms another’s reputation.  Written defamation is libel. In my article, Death of Slander, I argue that although tweets are drafted carelessly and not with the reflection and intention of traditional journalism – the subject of all previous libel cases-tweets are none-the-less libel.  The courts agree on this point, treating tweets as libel, rather than slander, which is spoken defamation.

What is unclear, however, is whether brief tweets are capable of defamatory comment.  One issue is the relevance of innuendo in discerning the meaning of a particular tweet.  Another is the common understanding that the twitterverse is used for brief rants and emotional outbursts, consequently a particular tweets veracity is viewed with skepticism. Whether a tweet is capable of defamation has long been the speculation of scholars.  Now a jury will have the chance to decide whether defamation can occur in 140 characters or less.

Are Bloggers Really the Same as Traditional Journalists?

The Ninth Circuit extended to bloggers the First Amendment freedoms enjoyed by traditional journalists.  In Obsidian Finance Group v. Cox, the Ninth Circuit ruled that New York Times v. Sullivan and Gertz v. Robert Welch, Inc, when read together hold that journalists are protected by the First Amendment and therefore plaintiff’s must be able to show that journalists acted with a minimum of negligent intent, if not higher, in order to sustain a libel claim. Although one of first impression for the Ninth Circuit, the issue of whether the negligent standard applies to bloggers has been percolating among the circuits for some time.  Are bloggers journalists for purposes of the Sullivan/Gertz standard?

The 9th circuit noted that the case which “involves the intersection between Sullivan and Gertz, [is] an area not yet fully explored by this circuit in the context of the Internet.   Both parties argued that Gertz only applies to institutional press.  But the court disagreed.  Writing for the Court, Judge Hurwitz opined,  “as the Supreme Court has accurately warned, a First Amendment distinction between institutional press and other speaker is unworkable.’

According to the circuit court, “the protections of the First Amendment do not turn on whether the defendant was a trained journalist …or went beyond just assembling others writings.”   Therefore, bloggers for defamation purposes, should be subject to the same standards as traditional journalists in cases concerning defamatory statements.

 Obsidian Finance Group is just another example of how 15 minutes of Internet fame can elevate an ordinary citizen to higher status for purposes of defamation law.  Arguably, the “star” of a home video gone viral achieves public figure status for purposes of defamation law, so too, it seems, does the casual blogger.

Maybe this defamation case will go to trial?

Those who watch “defamation by twitter” cases know that very few go to trial and to date none have made it to the level of appellate review.  A new case, however, has court watchers hoping for some decision, and ultimately guidance on whether defamation via social media requires legal treatment of a nature different than the garden-variety brick and mortar type of tort.  The case, Soul Circus v. People for the Ethical Treatment of Animals (PETA) (filed N.D. Georgia March 6, 2013) concerns a tweet by PETA claiming that “SCI [Soul Circus] does not care about the treatment, health, or wellbeing of its animals.”  The tweet, and a similar posting on the PETA Facebook site, was accompanied by an elephant, purportedly the Elephant Nosey, who appears in Soul Circus, chained to a fenced in area.   The posts received over 100,000 comments.  The same claim originally appeared on the PETA website.

Soul Circus is suing PETA for defamation, tortious interference and false light.  The case seems fairly straight forward.  Assuming Soul Circus can prove damages and that PETA cannot use the defense of truth, the circus should succeed in its claim.

Arguably, it is hard to defame in 140 characters, although here the direct allegation of animal cruelty seems straight forward enough to prove the elements of defamation, without innuendo.  However, even so, it seems to me that the question of damages is a big issue.  The traditional rule where defamation is concerned is that a defendant only commits one count of libel regardless of the number of rebroadcasts of a particular defamatory statement.  Given the proliferation of social media, should the rule change and if so should a damage reward reflect that?

Should Blogs Enjoy the Same Defamation Immunity as Newspapers?

Blog posts are not entitled to the same immunity from libel as are newspapers or other periodicals… at least in Texas.  The issue was resolved in a district court case steming from posts made by a former patient of the University Behavioral Health of Denton (UBH), “a free standing psychiatric hospital specializing in mental health and chemical dependancy care.”    Brenda Wells, a former patient of the hospital, among other things maintained a blog on which she posted defamatory comments that accused hospital staff of unprofessional and even criminal conduct. Wells tried to defend the claim arguing, that not only were the blogs not defamatory, but  that her blogs were protected under a Texas Law, which prohibits libel claims against newspapers and periodicals.  Wells argued that her blogs, which were published, were akin to the type of media receiving defamation immunity and therefore should be protected under the law.  The U.S. Discrtice Court for the Eastern District of North Carolina disagreed, finding that because ” “[p]ostings on the blog are not published at regular intervals. They are not composed of articles, news items, or the like.”

The decision in the case, Ascend Health Corp. v. Wells (here), may make sense in this particular instances, but I can think of a lot of blogs that have the sophisticated and regular type of content of which many newspapers and periodicals boast.   What about blogs that are maintained by newspaper reporters?  Such blogs would not receive immunity under this case.  This is one decision that I think should be revisited.  Thoughts?

 

 

NY 2nd Dept. finds statute of limiations didn’t toll in suit against anonymous blogger

This case comes courtesy of some of the folks up in the Town of Wayawaynda in Upstate New York.   The controversy plays out like an oscar worthy movie.  Seems as if  someone beheaded a horse and then left the head in a Wayawanda Town Board member’s swimming pool.  The incident sparked accusatory anonymous blogs, posted in turn by  wayguy, johnny500 and wawayandafirst.  The posts occured on or about August 29, 2007 and  October 6, 2007 and accused plaintiff of pulling off the “Tom Hagan.” (although, like the plaintiff in this case, no one is sure that Don Corleone’s adopted son actually committed the heinous act).

Plaintiff filed suit on July 28, 2008 against Mike Hawkins, knowns as “wayguy” and two other bloggers, John Doe johnny500 (johnny500) and John Doe wawayandafirst (Wawayandafirst). Defendant Wayne Skinner was not identified by name in the original complaint, but on September 18, 2008, Plaintiff served Skinner  with copies of the original summons and complaint assuming Skinner was  John Doe johhny500 and wawayandafirst.   Three months later, on October 20, the complaint was amended, to include Wayne Skinner (and his wife.)

Skinner argued that the case should be dismissed since the statute of limitations ran prior to the October 20th filing. (the statute of limitations had not run out prior to July 28).   But, here is the twist, turns out that although skinner was not johnny500 he   was “wawayandfirst” and the court found that since  “the remaining John Doe named by the original complaint — “John Doe wawayandafirst’ (Wawayandafirst’)” — referred to Wayne Skinner, and since he was alleged in the complaint to be the individual responsible for issuing the Wawayandafirst blog posts. Under these circumstances, the original complaint was sufficient to have apprised Wayne Skinner that he was one of the intended defendants.”

I’m not sure whether the actual claim will stick, but I am certainly glad to see the court craft its opinion to hold an “originally anonymous” blogger responsible.

What does it take to make a blog review defamation?

Calling someone a “real tool” is not enough to defame a doctor’s reputation.  The Minnesota Supreme Court recently ruled in the case, McKee v. Laurion, that a web review, written by Dennis Laurion the son of a one of Dr. David McKee’s patients, which stated, among other things, “Dr MCKee is a real tool,” was an opinion rather than fact, and therefore not actionable.

Ironically, Dr. McKee, like so many  doctors, presumably brought the action to defend his reputation, which was originally tarnished by those reading, and believing, the website on which the rating appeared.  Ironically, because of the McKee’s suit, Laurion’s words have gone viral.  What a bummer for Dr. McKee, not only did he lose his suit, but he potentially lost a wider patient base too!