What you can legally say on Twitter

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.

Nokia Lumia launch-72

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 and conditions comprise its Terms of Service and the Twitter Rules. Between them, these two frameworks establish a set of rules and guidelines for acceptable Twitter use[1].

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.

Twitter Rules

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
  • Malware/Phishing
  • Spam
  • Pornography

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?

@songezozibi#blacktwitter watched Carte Blanche and discovered that defamation laws cover social media. It’s hilarious.

— 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.

  1. Other services have similar frameworks (take a look at Facebook’s Statement of Rights and Responsibilities and Community Standards guidelines as well as WordPress’ Terms of Service for hosted service users)  ↩

The trouble with online defamation

I frequently receive calls or emails from people asking for help with online defamation, usually on Facebook. The people who contact me are often at their wits’ end and want to sue the people defaming them, thinking that will fix the problem. Unfortunately, that can often make it worse. The challenge with online defamation is that the usual legal approach can aggravate the harm being suffered and the better course of action doesn’t necessarily fix anything. Dealing with online defamation is often a matter of damage control and this is primarily due to the social Web’s nature.

Pro-abortusdemonstratie / Pro abortion demonstration

Social networks like Facebook, Twitter and Google+ empower their users to express themselves on a scale typically not seen before the Web became social. This has shifted power dynamics in profound ways. We recently saw how Facebook and Twitter played important roles in the Arab Spring in Egypt and other countries in the Middle East. It is important that the social Web remain as free and accessible as possible because a free social Web is a powerful tool for freedom generally. At the same time, the social Web, like most tools, has darker applications and defamation online is one of those applications.

Of course, that is an oversimplification. A form of expression can be defamatory and be justifiable and permissible if, on its face, it harms its target’s reputation and yet its publication serves a legitimate purpose. When people contact me about defamation online (the term they often use is “slander”), the published material is often not justifiable and is motivated by malice.

The typical legal response to this sort of defamatory material (or any defamatory material, for that matter) is to demand its removal and that the publisher take some form of remedial action to address the harm caused. The problem is that adopting this approach to defamatory statements or material published online can aggravate the situation far more than the person harmed could have anticipated.

Two case studies illustrate this phenomenon well. The first and older case study involves the performer, Barbara Streisand, and her efforts to stop photographs of her coastal home from being published after it was photographed during a coastal survey. Despite her most efforts, photographs of her house were published online, repeatedly. This case study gave the phenomenon its name: the Streisand Effect. A number of subsequent stories validated and reinforced the Streisand Effect including the 2007 Digg-AACS Encryption Key controversy and, more recently, the 2011 Ryan Giggs-UK “Superinjunction” controversy. Both of these more recent case studies illustrate the challenge of adopting a classic legal approach to a social Web problem. In the 2007 Digg controversy, Toshiba’s attorney at the time, Michael Avery, summed up this challenge as follows:

If you try to stick up for what you have a legal right to do, and you’re somewhat worse off because of it, that’s an interesting concept.

When it comes to defamation online, particularly on social networks like Facebook, defamatory statements’ harmful impact may only be exacerbated by adopting a traditional legal approach. This isn’t to say that the defamation isn’t unjustifiable, harmful and actionable but the very real possibility that addressing this misconduct like a conventional legal problem could drastically inflame the situation, and the resulting harm, is an important consideration when planning a response. What is required is a more flexible approach having regard to the specific dynamics involved as well as the platform used. There is no single approach which will be appropriate for all cases.

So what can be done? From an organizational perspective, implementing an Online Reputation Management solution may make a lot of sense. Companies may be defamed too and this defamation frequently results in reputational harm. Simply monitoring keywords and phrases is part of the process which should also include a more detailed strategic plan for dealing with negative and positive sentiment as well as legal input throughout the process to anticipate and cater for potential legal issue which may arise. From an individual perspective, responses may include reporting abuse with the platform’s proprietor; laying criminal charges; engaging directly; not taking any active steps for the time being and, when left with little choice, having an appropriately worded demand letter prepared and sent to the culprits.

There are other challenges facing online defamation cases which can be similarly difficult to overcome. One concern is that defamers may be publishing under a pseudonym and are effectively anonymous. This presents a fundamental difficulty because you can only really take action against a known party and if the culprit has used pseudonymous handles and names for his or her profiles, email addresses and other identifiers, suing will be a practical impossibility. Another, very real, concern is the cost of legal action relative to the harm suffered. In the case of individuals, litigation costs are frequently prohibitive; potential damages generally less than they may expect and costs recoveries are cold comfort after a protracted and expensive campaign. Costs are less of an issue for companies which tend to be more able to afford these costs but the challenge here is that taking action may lead to a disproportionate increase in the harm suffered making legal action more of a “principle” based decision which is rarely the ideal motivation for legal action.

A lawyer’s role in these sorts of case is less to rush in, guns blazing, and more to get a handle on the situation and help shape responses while anticipating the worst and preparing as much as is possible for a formal dispute. In between there is usually considerable scope for a multi-faceted approach to defamation and the resulting reputational harm where lawyers still play a role. They’re just not necessarily the cavalry anymore.