February 25 2010
Due to the growing use of social networking website Twitter, on which users (or 'tweeters') post messages (or 'tweets'), the courts are increasingly being asked to rule on issues raised by the site.
One recent case involved the freedom of the press. In high-profile or emotionally charged cases judges may use their power to control proceedings by restricting the use of certain communications equipment and mechanisms from within the courtroom (eg, mobile phones, video recording equipment). However, a judge in Dauphin County, Pennsylvania recently refused to bar reporters from sending tweets during a public and high-profile trial. In response to a motion by the defendants' counsel, Judge Lewis noted that "to impose the proposed restriction would be premature and that the restriction itself is overly broad".(1)
In the case at hand the defendants were concerned that reporters using Twitter inside the courtroom would broadcast witness testimony, which could then be read or seen by other witnesses who were yet to testify. While refusing to ban reporters from using Twitter, the judge did order the witnesses to avoid reading or listening to reports concerning the trial.
Twitter was also the subject of some controversy in Pittsburgh during the G20 summit in 2009. Police in Pittsburgh arrested a man who was using Twitter to send messages about the movements of police officers as protests were unfolding. Although the police sought to charge the man with aiding an illegal protest, he was only broadcasting what was easily visible in plain sight.(2)
Both these examples involve fundamental constitutional rights and the law will need to move quickly into the digital and social media age in order to keep up. However, there have also been more commercial cases involving Twitter. On January 20 2010 a court in Cook County, Illinois dismissed a suit brought by Horizon Group Management against tenant Amanda Bonnen, who posted the following tweet: "Who said sleeping in a moldy apartment was bad for you? Horizon realty thinks it's OK."
Horizon had sued for libel, alleging that Bonnen had posted a "malicious and defamatory" tweet about the state of her apartment. Following the dismissal, Bonnen's counsel stated that the judge had described the posting as too vague to constitute libel under the legal tests applicable to such a claim.
To support a claim of libel, Horizon would have had to show that:
The fact that the statement was made on Twitter, and consequently was widely available across the Internet, did not change the standard required to be met to prove libel.
This is not the only case involving defamation in the context of social media. For example, action is ongoing against rock star Courtney Love after a fashion designer claimed that Love had tweeted that the designer was a drug addict and a prostitute and called her a "lying hosebag thief". Cases of defamation become even more complex when the identity of the actual tweeter is hidden behind a pseudonym.
These cases all hinge on the friction created by social interaction. Defamation is not a new concept and, whether broadcast on the radio or propagated across the Internet, it is no surprise that such interaction can give rise to legal actions. The laws applicable to publicity, privacy, libel, deceptive advertising, unfair competition and intellectual property may need to be applied or viewed differently, but they do not disappear simply because the content is digital.
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Joseph I Rosenbaum