Sued for a Retweet: Being Snarky Might be Libelous

Illegal tweets

By Kerry Gorgone, {grow} Contributing Columnist

Can an innocent re-tweet get you into legal trouble? Absolutely, as thousands of Twitter users recently discovered.

Defamation laws in the U.K. are stricter than in the United States (although reform is currently underway) and Lord Alistair McAlpine intends to wield those laws against 10,000+ people who spread a false BBC story alleging that an unidentified Tory was a child molester.  Twitter users quickly began speculating that McAlpine was the subject of the piece, and he’s begun threatening those who shared the story with a libel lawsuit.

One click to retweet the story could cost a defendant tens of thousands of dollars, depending on the size of his or her audience. Apparently, counsel for McAlpine is using a tiered system, requiring small settlements and apologies from Twitter users with small follower bases, but increasing the demand from those with large followings.

How did this happen? It’s not as though those Twitter users who re-shared the story wrote it.

Twitter and defamation

Defamation works this way: you publish statements that tend to damage someone else’s reputation. “Publish” might mean you write and post the story, but it could also mean that you repeat it. Gossiping at the bar would be slander (spoken defamation). Retweeting could constitute written defamation, or libel.

In the United States, it’s less likely that Twitter users would be found liable for sharing the story at issue here, because public figures (like Lord McAlpine, a politician) have a higher burden of proof in defamation cases under U.S. law.

Specifically, a public figure seeking to recover damages for defamation must prove “actual malice,” meaning that the defendant knew the story was untrue, or published it “in reckless disregard” as to whether it was true. In other words, you had reason to think it wasn’t true, but published it anyway.

Most people under this standard could be off the hook in the McAlpine scenario, as a reputable news source like the BBC would seem to be trustworthy, e.g. they would not be sharing the story “in reckless disregard” as to its truth, because they would likely assume it had been vetted by the major media company before publishing.

Will the law chill free speech?

In the case of private citizens, recovery for defamation becomes easier, although bringing suit opens a proverbial can of worms: the plaintiff would subject himself to discovery (the process where the defense can search for evidence to prove the truth of the allegedly defamatory statements). Anyone would balk at the level of exposure inherent in the litigation process.

In the U.K., however, the burden is on the defendant (the retweeter) to prove the truth of the statement. This is costly, not to mention a virtual impossibility in most cases, as retweeters generally have no actual relationship with the subject of their statements.

Libel lawsuits both abroad and in the U.S. have chilled online speech among those who’d prefer to avoid court costs (everyone!).

Here’s a tip to provide an ounce of prevention: Type “allegedly” in front of the potentially defamatory statement. It takes two seconds, and it could spare you legal headaches, not to mention save you thousands of dollars. Allegedly.

kerry gorgoneKerry O’Shea Gorgone, JD/MBA, teaches New Media Marketing in the Internet Marketing Master of Science Program at Full Sail University in Winter Park Florida. Follow her on Twitter: @KerryGorgone

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  • Urban75’s Idiot’s guide to libel, cited, isn’t quite correct. The chilling effects of defamation in English (specifically English – the law in Scotland and Northern Ireland is different) Law are real, but it is a complicated subject.

    David Allen Green (a real, live lawyer) writes frequently on libel and its potential reform and other civil liberties subjects. For anyone interested in the subject I’d recommend following his columns and tweets, eg:
    http://www.newstatesman.com/blogs/david-allen-green/2011/11/libel-law-reform-case

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  • Gina Welker

    Fascinating. Thanks for the great article, Kerry!

  • Thanks! Glad you found it helpful.

  • Thanks for the link! I’ll check him out.

  • This isn’t really germane, but the little bird in the jail cell graphic is really cute.

  • Great piece. However – under UK law at least – the idea that adding ‘allegedly’ will protect you is a myth. You’re still repeating the story and you’re still liable.

  • Martin Bigovic

    It’s all very well talking about tweeting getting you into legal trouble and making it out that it is all down to the inadequacies of libel law. That is only half of it. The other part of this is being threatened with defamation by someone (as in the above story) who at best has a very weak case. Those who pay up without seeking proper advice might feel rather silly if any cases are ever tested.

    The above article in my opinion does not reflect the realities of this situation or the majority of others. Most defendants win their cases nowadays. Incidentally, I’m not too sure that putting the word ‘allegedly’ in front of a comment would make much difference. Defamation is all about context and not so much on dictionary meanings of individual words and other technicalities.

  • I love that he has a cot! 🙂

  • Hi Kerry, thanks for calling this out. Free Speach and Legislation will always be at odds. I’m somewhat surprised that your post has not generated more discussion! It’s a hugely important topic and one of those things that frightens many (for good reason). I don’t believe there is a “Right or Wrong” answer here because this is an extremely complex situation. But is clearly calls out two major issues in Social Media.

    1. Has it become (especially the likes of Twitter an other mass broadcast services) a huge, unauthenticated rumor mill? ReTweeting with out even paying attention to the detail. This is a classic case where the BBC did not do anything legally wrong but those who jumped to false conclusions and then broadcast these to impact someone’s reputation most certainly did. How many trending topics are just replication of questionable comments, even to the point that many don’t even read the article they are RT’ng. And, when there is no authentication to validate the user, how relevant are they, really? Think about the securities market that is now trying to use Twitter to predict market fluctuations. Imagine how this kind of thing could be impacted by rumor mongering and potentially false postings do create certain impressions?

    2. What is the legal liability of a Tweet (or any public post for that matter)? Consider the reluctance of corporations to allow public postings of this sort for fear of litigation against insider trading, release of trade secrets and many other forms of potential corporate problems. If there is a primary reason for corporations reluctance to participate in Social Media, I beleive this is it.
    So, does this need to get into the courts? I think so. Just to really address some of these issues so people realize the impact of what they do online.

  • I made that up myself. I’m glad somebody noticed. Viva Le Clip Art.

  • Quite interesting.

  • Thanks, Steve, for raising some really important points! It’s certainly true, as with most legal topics, that this isn’t susceptible of a simple answer, but those who retweet without even reading the article they link to are certainly taking on some substantial risk. The differences in U.K. and U.S. law notwithstanding, it makes sense to exercise good judgment when sharing via Twitter or any other social network.

    All things considered, however, I think it would unduly suppress speech if we punish those who share a link to a news story from a respected organization like the BBC. As I mention above, it’s not as though those people are rumor mongering: they’re sharing news and information, which is what the Internet is designed for. Thanks again for your comments! I think there will be some interesting developments in this area, sooner rather than later!

  • Ridiculous! If you Tweet, or re-Tweet something from a published source, it’s out of your (the common user) hands! Just as actual website owners have successfully limited (legally!) their liability to posts in a public forum (One person can NOT watch EVERY post/message!), users “en-mass” can not be held accountable for liable! The originating AUTHOR should be held accountable, that’s it! To put something in text, onto the Internet is akin to making 1bil copies a second on a copier! There has to be some common sense, even in court!

  • Cute!

  • Nothing protects you completely (except not sharing), but “allegedly” or similar language at least clarifies that you don’t have personal knowledge of the story’s truth.

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  • Martin Bigovic

    In my opinion, readers should read this. At least as far as the McAlpine cases go and pursuing multiple defendants, this is certainly most relevant. It supports the point I tried to make before. Please read it because it is very important and is really the nearest decent summing up I have read. This will also apply to future actions involving multiple defendants.

    http://hat4uk.wordpress.com/2012/12/18/mcalpine-libel-demands-legal-watchdog-rules-show-peer-and-lawyer-on-dodgy-ground/

    I repeat, with all respect to the article above (all articles say much the same) the realities are very different than being presented and people will see this once (and if) the Sally Bercow goes before a judge. In particular read up on over – compensation and abuse of process. A judge cannot ignore these issues which were dealt with in the case mentioned in the link.

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  • Sha’arei Zohar Da’as

    Methink I doth retweet too much

  • Terri

    I am having an issue with my husband’s ex having made atleast 70 false statements in regards to myself and my husband on twitter. I have blocked her, but this has not stopped her, and have a restraining order, still hasn’t stopped her. Is there anything further I can do about this, does the LIBEL law stand true here. Her page is public, the kids can even see it.

  • Hi Terri,
    You’ll want to consult an attorney in your area, as the criminal laws are different in every state. I will say that in terms of defamation, lawsuits nearly always turn ugly. Because truth is a defense, defendants are allowed discovery that feels invasive to the plaintiffs, sometimes worse than having the statements out there in the first place. It is possible her statements violate the terms of use for the specific social networks she’s using, so file a complaint there, as well. Hope that’s helpful! Good luck.

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