The Oscar Pistorius case has clearly illustrated just how important Twitter has become to us as an information service and as a form of expression for individuals. It exists both in the real world and in a sort of altered reality for many of its users. The result is that people often find themselves tweeting things they wouldn’t say in person and may of those things can be defamatory and actionable in our law. An important question is what you, as a Twitter user (or as a person using most publish social services, generally) can say (and, by implication, what you shouldn’t)?
What Does Twitter Permit?
Twitter’s Terms of Service
Twitter’s Terms of Service are the contract between you and Twitter. This is how Twitter introduces this contract:
These Terms of Service (“Terms”) govern your access to and use of the services, including our various websites, SMS, APIs, email notifications, applications, buttons, and widgets, (the “Services” or “Twitter”), and any information, text, graphics, photos or other materials uploaded, downloaded or appearing on the Services (collectively referred to as “Content”). Your access to and use of the Services are conditioned on your acceptance of and compliance with these Terms. By accessing or using the Services you agree to be bound by these Terms.
This means that the Terms of Service are the primary legal framework as far as you and Twitter are concerned. When you violate the Terms of Service you may not be breaking the law but you are breaking your contract with Twitter and can lose your profile and further access to the service. As the saying goes, “easy come, easy go” and Twitter can terminate your access to the service if you violate the Terms of Service. The section titled “Ending These Terms” includes the following:
The Terms will continue to apply until terminated by either you or Twitter as follows.
You may end your legal agreement with Twitter at any time for any reason by deactivating your accounts and discontinuing your use of the Services. You do not need to specifically inform Twitter when you stop using the Services. If you stop using the Services without deactivating your accounts, your accounts may be deactivated due to prolonged inactivity under our Inactive Account Policy.
We may suspend or terminate your accounts or cease providing you with all or part of the Services at any time for any reason, including, but not limited to, if we reasonably believe: (i) you have violated these Terms or the Twitter Rules, (ii) you create risk or possible legal exposure for us; or (iii) our provision of the Services to you is no longer commercially viable. We will make reasonable efforts to notify you by the email address associated with your account or the next time you attempt to access your account.
Twitter is also the gatekeeper when it comes to your Twitter use and can decide how and when you may use the service and in what manner:
Please review the Twitter Rules (which are part of these Terms) to better understand what is prohibited on the Service. We reserve the right at all times (but will not have an obligation) to remove or refuse to distribute any Content on the Services, to suspend or terminate users, and to reclaim usernames without liability to you. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce the Terms, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of Twitter, its users and the public.
So you can be sued for defamation of character for things said on Twitter. That’s assuming the person you defame has any character.
— Jonathan Witt (@Jonathan_Witt) February 23, 2013
The Terms of Service specify technical restrictions for how you may make use of the service but the Twitter Rules specifically address your conduct on Twitter and what is permissible. Interestingly, Twitter doesn’t address defamation directly in the Twitter Rules. Instead, it prohibits the following broad categories of activities on Twitter:
- Impersonation: You may not impersonate others through the Twitter service in a manner that does or is intended to mislead, confuse, or deceive others
- Trademark: We reserve the right to reclaim user names on behalf of businesses or individuals that hold legal claim or trademark on those user names. Accounts using business names and/or logos to mislead others will be permanently suspended.
- Privacy: You may not publish or post other people’s private and confidential information, such as credit card numbers, street address or Social Security/National Identity numbers, without their express authorization and permission.
- Violence and Threats: You may not publish or post direct, specific threats of violence against others.
- Copyright: We will respond to clear and complete notices of alleged copyright infringement. Our copyright procedures are set forth in the Terms of Service.
- Unlawful Use: You may not use our service for any unlawful purposes or in furtherance of illegal activities. International users agree to comply with all local laws regarding online conduct and acceptable content.
- Misuse of Twitter Badges: You may not use a Verified Account badge or Promoted Products badge unless it is provided by Twitter. Accounts using these badges as part of profile photos, header photos, background images, or in a way that falsely implies affiliation with Twitter will be suspended.
In addition, anyone who uses Twitter for the following purposes will be subject to “permanent suspension”:
- Serial Accounts
- Username Squatting (also known as Brandsquatting)
- Invitation spam
- Selling user names
Twitter protects users’ rights to freedom of expression, for the most part, although these protections are limited in some instances and have become somewhat eroded through steps taken to censor Twitter users, sometimes controversially. When it comes to freedom of expression, Twitter protects aspects of this freedom such as parody, commentary and fan accounts but has little tolerance for, and has developed specific policies catering for, misuses that include impersonations falling outside the scope of parody, commentary and fan accounts and abusive behaviour (which is not very clearly defined).
What Does the Law Permit?
— Sipho Hlongwane (@comradesipho) February 24, 2013
Defamation in South Africa has developed quite a bit in the last decade or so. That’s not to say that it has changed radically but how it is applied has. For one thing, the Bill of Right’s introduction (first in the interim Constitution in 1994 and, later, in the final Constitution in 1996) led judges to base their decisions on an analysis of the relative weight of various rights which usually include the right to dignity and the right to freedom of expression.
I referenced current judicial authorities on defamation which Judge Willis discussed in his recent judgment about a case involving defamation on Facebook in my article about that case and this extract is worth repeating:
After exploring Twitter briefly, Judge Willis turned to established case law in South Africa including authority for the proposition Roos expressed that a privacy infringement can be justified in a similar way that defamation can be justified and a more recent Supreme Court of Appeal judgment in the 2004 Mthembi-Mahanyele v Mail & Guardian case which, according to Judge Willis –
affirmed the principle that the test for determining whether the words in respect of which there is a
complaint have a defamatory meaning is whether a reasonable person of ordinary intelligence might reasonably understand the words concerned to convey a meaning defamatory of the litigant concerned
The Court, in the Mthembi-Mahanyele case set out the test for defamation as follows (and cited a 1993 case in the then-Appellate Division of Argus Printing and Publishing Co Ltd v Esselen’s Estate) –
The test for determining whether words published are defamatory is to ask whether a ‘reasonable person of ordinary intelligence might reasonably understand the words . . . to convey a meaning defamatory of the plaintiff. . . . The test is an objective one. In the absence of an innuendo, the reasonable person of ordinary intelligence is taken to understand the words alleged to be defamatory in their natural and ordinary meaning. In determining this natural and ordinary meaning the Court must take account not only of what the words expressly say, but also of what they imply’
Referencing one of the justifications for (or defences to) defamation, namely that the defamatory material be true and to the public benefit or in the public interest, Judge Willis drew an important distinction that is worth bearing in mind –
A distinction must always be kept between what ‘is interesting to the public’ as opposed to ‘what it is in the public interest to make known’. The courts do not pander to prurience.
The Court moved on to explore another justification, fair comment. In order to qualify as “fair comment” –
the comment “must be based on facts expressly stated or clearly indicated and admitted or proved to be true”
The person relying on this justification must prove that the comment is, indeed, fair comment and “malice or improper motive” will defeat this justification or defence, regardless of its demonstrably factual nature. In this particular case, the Court found that W acted maliciously and she was unable to prevail with this defence.
When it comes to acceptable conduct on Twitter and, defamation in particular, our law will govern how South African Twitter users use Twitter and may well inform how Twitter responds to improper use of its service too. Although simply making defamatory statements is not immediately actionable, doing so unjustifiably likely is wrongful and can expose you to legal proceedings seeking to stop you, to remove your defamatory statements or even to claim financial compensation from you. That said, there would be a tension between Twitter’s approach to users’ freedom of expression and local judicial authorities’ approach which could be interesting but, on the whole, Twitter will likely respect local laws which are aligned, at least ostensibly, with its values.
The Other Considerations
Leaving aside the law and your contract with Twitter, online defamation is tricky. Your legal rights and rights under a provider’s terms of service may protect you in theory but the social Web has its own dynamics which operate, frequently regardless of what should happen. It is very easy to tweet something that you may feel strongly about in that moment (I have certainly done that) and it is worth bearing Judge Willis’ advice in mind for those times when your tweets perhaps go too far:
Those who make postings about others on the social media would be well advised to remove such postings immediately upon the request of an offended party. It will seldom be worth contesting one’s obligation to do so. After all, the social media is about building friendships around the world, rather than offending fellow human beings. Affirming bonds of affinity is what being ‘social’ is all about.