Can you be sued for defamation for a retweet?

The Twitter world was abuzz about a week ago about a landlord, Horizon Group Management LLC, which sued a tenant, Amanda Bonnen (her Twitter account doesn’t seem to exist anymore), over a retweet, alleging defamation (you can read the complaint here).

At first this case seem like yet another frivolous lawsuit but when I started thinking about it and how powerful Twitter is as a dissemination medium I remember what I wrote a while back about the Courtney Love defamation case (also defamation using Twitter). In this case Bonnen retweeted an offensive tweet (a Twitter message for anyone not familiar with Twitter) about the condition of properties the Horizon Group leased:

There is no doubt that a tweet can be defamatory. You can quite easily cause harm to a reputation in 140 characters. What is a little scary is that retweeting a defamatory tweet could also be defamatory. There is no “retweet immunity” that I’m aware of. When you retweet something you are also publishing that defamatory message to your network of followers. Things brings me to the challenge with something like Twitter (or any networked social service, for that matter):

Leaving aside the brevity of the typical Twitter post it is important to consider a Twitter user’s potential reach. Many of the applications which interface with Twitter allow users to republish, or “retweet”, Twitter posts to their users. It isn’t difficult to imagine the effect of a defamatory tweet published and republished to thousands, tens of thousands or even hundreds of thousands of users on Twitter alone. A number of Twitter users republish their tweets on other social networking platforms automatically. These platforms include Facebook, FriendFeed and their personal blogs and static websites.

If you take into account the users or visitors who frequent those sites and who may pass those tweets along to their followers and contacts there is the potential for a single 140 character tweet to reach a substantial number of people and do irreparable harm to the person defamed.

Anyone who uses Twitter has probably had a tweet retweeted and can appreciate the dissemination potential on Twitter alone. When you add the ability to republish a single tweet on multiple services using 3rd party services like Posterous, Ping.fm and Hellotxt, the a defamatory tweet’s reach could grow exponentially. The effect of that could either exacerbate the harm or have little further effect at all. One of the elements of a defamation claim, at least in South Africa, is that the people receiving the defamatory comment will associate it with the plaintiff. This means the plaintiff must be known to those people. Retweeting a tweet to a million followers who have never heard of the plaintiff may have little effect on the harm the plaintiff suffers. On the other hand retweeting to a large group of people who are familiar with the plaintiff could have a significant effect on the plaintiff’s potential harm.

(Image credit: T.O.A by ^riza^ published under a Creative Commons Attribution 2.0 license)

This sort of case challenges one of the most common uses of social media, namely as s souped up word of mouth tool. Social media users actively use services like Twitter, Facebook and FriendFeed to talk openly about brands, people and services. I am one of those people. There are times when these discussions are tremendously rewarding and those brands, people and services engage with their customers or critics. Cases like this one raise a question about the desirability of this practice although the ship may have sailed on that one. People have always talked amongst themselves and I doubt very much we will see a contraction of the social Web because of the threat of a lawsuit.

Perhaps what we may see is a change in attitude towards defamation, both because of the potential backlash on the social Web where a company takes action against a user and because it is often better to engage with a critic than sue them. Taking action against a person who tweeted something critical frequently shines a spotlight on that tweet and the thing the user complained about, only exacerbating the effect of the tweet. I’ve seen many instances of where a company engaged with its critics and defused a potentially explosive situation.

Of course where companies insist on taking action against users the usual defamation defences are available to them. Plaintiffs do still need to prove that a comment was defamatory before a defendant would need to consider the appropriate defence. Then there is the right to freedom of expression which must also be factored into the equation. Combine this with social media and you have a pretty complicated convergence of factors and considerations and a fascinating one at that.

One thing I am sure about is that we are going to see more and more of these sorts of cases popping up going forward. Facebook posts are one of the things I am asked about the most in radio interviews and by clients and as South African Internet users use Twitter more and more, I expect questions about defamatory tweets as well.

What does all of this mean for Twitter users? Well, for one thing, don’t publish (or republish) anything you would not be willing to say to a person’s face or you are prepared to defend if you are challenged about it.

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