Are You Liable for Tweeting and/or Retweeting an Offensive Tweet?

Editor’s Note: I feel extremely lucky to be providing you with this invaluable article by Judith Delaney of TurnsonPoint Consulting. Judith is an attorney who specializes in social media and online privacy issues around the world, and within this article she elaborates on the legal proceedings that can potentially follow offensive material and communications that get posted to the Internet. Whether you’re reading this as an individual or on behalf of company or organization, the information provided within this post is invaluable and highly important.

Remember the KitchenAid Tweet of October 3, 2012 during the presidential debate? You know, the one where one of their employees sent a tasteless (and some would say disparaging and grossly offensive) tweet regarding the President’s grandmother using KitchenAid’s corporate Twitter account? Yes, you’re probably saying to yourself, “I remember and I also remember reading blogs and articles stating that KitchenAid did their best to handle the fallout by quickly apologizing to the President and his family, explaining what happened, and was praised for their quick response”. In other words, they followed the “rules” of reactive reputation management.

So why am I resurrecting the incident again?

Because no matter how well KitchenAid reacted to the offensive rogue tweet, nothing can replace the fact  that even though the tweet, and the retweets by thousands in the United States and Internationally, only existed for a short period of time, the statement was made, outrage was overwhelmingly expressed and the fallout question remains:

When a post that clearly and grossly offends or falsifies the reputation of another person (or company) is immortalized in cyberspace, who is more likely to be faced with the responsibility of defending the possible legal liability fallout – the person and/or the company who posted the potentially libelous statement only, or does the responsibility extend to those around the world who retweeted the tweet?

In other words, had the Presidential family wanted to press charges, would the charges have been against KitchenAid and/or the individual responsible for the rogue tweet only, or could they also have pressed charges against every single individual who retweeted the offensive tweet?

Before exploring a possible answer to this question, I’d like you to read and keep in mind the following two definitions:

Libel (written) {and Slander (spoken)} collectively known as “Defamation” which is the general term used internationally, are civil (and in some countries criminal penalties for defamation) wrongs that harm a reputation, decrease respect regard or confidence; or induce disparaging, hostile, or disagreeable opinions or feelings against an individual or entity.   

“Opinion” is a defense recognized in nearly every jurisdiction. The position being that if the allegedly defamatory assertion is an expression of opinion rather than a statement of fact, defamation claims usually cannot be brought because opinions are inherently not falsifiable. However, some jurisdictions decline to recognize any legal distinction between fact and opinion.

Ok, now let’s tackle the question!

Under social media law, who could have been prosecuted for the KitchenAid rogue tweet?

Contrary to a general belief that tweets insulting someone or an entity (or insults through Facebook, online message boards, etc.) are exempt from libel laws because they are fleeting and not “permanent”,

The fact is:
Libel laws apply to the Internet the same way they do to newspapers, magazines, books, films, and other similar publications.

The same technology that gives you the power to share your opinion with thousands of people, including when posted and shared on social media, also qualifies you to be a defendant in a lawsuit.

Therefore:
Statements on Twitter can form the basis of a defamation lawsuit just as much as any other form of publication. 

That said, the next step in answering the question above, is to look at what your legal exposure could be in the country you live in, if you initially made a statement on Twitter or other Internet communication sites that could form the basis of a defamation lawsuit.

What legal exposure can you face for an offensive tweet, no matter where you are in the world?

United States:

In the United States, the form of the medium for communication is irrelevant in defamation laws; even an email sent to a single person can be libelous in determining the fault of the person who made the statement (knowingly posted a statement that was false, acted recklessly with regard to the facts or otherwise been irresponsible). The elements of a statement to be libelous in the United States are:  A false or malicious statement knowingly posted; communication communicated by the statement has to be false and cause some damage to the individual or corporation, such as financial, physical or reputational, lowering him or her in the estimation of the community or deterring third persons from associating with or dealing with him or her. (Ladd v. Uecker, et, al., 2010 WI App 28 ¶) .

United Kingdom:

The basis of British libel law is not substantially different from the basis of United States libel law, which is to protect the reputation of an individual from unjustified or false attack. In British law, a person is defamed if statements in a publication, which includes the posting of statements through the Internet, expose a person to hatred or ridicule, cause a person to be shunned, lower a person in the estimation in the minds of “right-thinking” members of society or disparage a person in his work. In the United States the burden of proof is with the plaintiff, while in the UK the burden of proof is with the defendant, as the defendant has to prove that the statement made is true. There is also no provision for public figures such as in the United States, meaning that a public figure in the UK does not have to prove malice, whereas in the United States the public figure as the plaintiff would have to prove malice.

Almost all of the Rest of the World:

The Director of Public Prosecutions (DPP) is the title for the office or official mainly in jurisdictions that are, or have been, members of the Commonwealth of Nations and is charged with the prosecution of criminal offences, inclusive of those committed with the use of the Internet, around the world. Other nations who have a DPP are: Australia and the nine territories of Australia; Belize; Canada (called the Crown Attorney); Hong Kong; Ireland/Northern Ireland; Norway; South Africa; UK –England and Wales; Scotland; British Overseas Territories; and the newest member as part of its 2011 Constitution, the Calico Islands.

Why do you need to know or have access to all of this information?

The importance of this information to you, the reader, is the ever expanding concern, by almost all nations, on the use of social media, and specifically the use of Twitter for posting harassing, offensive and false statements that are defaming or invade another’s privacy. Indeed, the general premise of all DPP’s as they consider prosecution might be reflected through the statement the  judge in the Chambers case tried in the UK, and I quote:

“Twitter as we all know is widely used by individuals and organizations to disseminate and receive information.  It is inconceivable that grossly offensive, indecent, obscene or menacing messages sent in this way would not be potentially unlawful.” ([2012] EWHC 2157 (Admin) at {23}.

For instance : In India amendments, and specifically Section 66A(a), have been made to the Information Technology Act, 2000 (IT ACT) to make it clear that any person who sends, by means of a computer resource or a communication device, any text, audio or video that is offensive or has a menacing character, or is false and has been transmitted for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, hatred or ill will, can be imprisoned for a term which may extend to three years, as well as a  fine.

Update Note:  The United Nations Commission on Human Rights ruled in 2012 that the criminalization of libel, violates Freedom of Expression and  is inconsistent with Article 19 of the International Covenant on Civil and Political Rights. The impact of this ruling, if any, is not part of the discussion in this article.

Now, let’s look at a possible answer to the second part of  the question:

Are you liable if you are the “Retweeter”

United States:

Liability for republication of a defamatory statement is the same as for original publication, provided the defendant had knowledge of the contents of the statement, as well as has editorial control over their communications. Therefore, if you retweet a libelous statement in the United States, you or the company you work for may be protected from defamation liability based on the wording in Section 230 of the Communications Decency Act, which states that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”. Simply put, this means you cannot be sued for something you retweet, even if the original tweet is libelous so long as the libelous content was created by a third party. However, if you did have control (it was KitchenAid’s own company Twitter account, for example), or you add something defamatory to the tweet before retweeting it, you could be held responsible for all of the content of the retweet, or at a minimum, the portion of the retweet that you added.

United Kingdom:

DPP Keir Starmer QC was addressing the London School of Economics on the issue of social media in 2012 when he responded to a question from an audience member who asked:

“Is it an offence to retweet something grossly offensive?”

To which the DPP replied:

“You retweet, you commit an offence under the Act.”

The “Act” he was referring to is the Communications Act and the Section applicable is Section 127, which outlaws sending a tweet that is “grossly offensive or of an indecent, obscene or menacing character”. According to the Act, a person can be prosecuted if he or she “causes any such message or matter to be so sent”.

For example:  In 2012 the British Broadcasting Corporation settled a libel suit for about $300,000 with a UK politician (they reported that he was involved in the child sex abuse scandal but based on the information they should have known the statement was false). But it does not stop there, as this UK politician then sought libel damages from at least 20 “high profile” tweeters who tweeted and retweeted the report on Twitter. Because of the ubiquity of Twitter this could be an issue for U.S. Twitter users as well as libel can apply whenever information is published.

India:

Because 66A of the IT Act does not use the word “knowingly” in the recital of 66A(a) “any information that is grossly offensive or has menacing character” it is the opinion of some legal scholars in India that if you even accidentaly retweet an offensive tweet, you can be held liable under Section 66A(a).

At this point you may be saying to yourself, why would you not have the protection of Freedom of Speech, particularly in the United States, which certainly could be the answer to the question of any liability for libel.  

For the purpose of this article, and because the 1^st amendment of the United States Constitution continues to garner substantial discussion and few deny its usefulness in determining interaction with foreign law, I am going to specifically address to what extent the 1^st amendment rights would protect one from being sued for libel in the United States. However, in almost every part of the world there is some form of freedom of speech right and there appears to be little disagreement among nations as to the value of such right but rather, how to balance those speech values with other competing social objectives such as communication worldwide over the Internet. (For an in depth look at comparative law on freedom of speech and how your own country may balance the concern, I would recommend you read “The First Amendment in Cross-Cultural Perspective, by Ronald J. Krotoszynski, Jr. (March 1, 2009 edition).

The United States and the Freedom of Speech

While freedom of speech in the United States is a constitutional right, everyone needs to recognize that the things one says can have consequences as there are legal exceptions that make that right a limited one. For Example: Speech that involves incitement, false statements of fact, obscenity, child pornography, threats, as well as speech owned by others, are all completely exempt from First Amendment protections; and the United States Supreme Court has ruled that the First Amendment does not require recognition of an opinion privilege (now you know why I wanted you to read the definition of “opinion”!). Therefore, the  position that the Internet is a bastion of free speech and nothing should stand in the way of unabashed free speech is like the ostrich with its head in the sand. Defamation and speech intended to inflict severe emotional distress is not First Amendment protected speech. States can and do regulate this type of speech.

The takeaway and most-likely answer to the original question

Once again, the question remains:

When a post that clearly and grossly offends or falsifies the reputation of another person (or company) is immortalized in cyberspace, who is more likely to be faced with the responsibility of defending the possible legal liability fallout – the person and/or the company who posted the potentially libelous statement only, or does the responsibility extend to those around the world who retweeted the tweet?

If you or an entity tweets or retweets  something defamatory, and even if you or an entity quickly deletes it and follows it up with a correction or an apology, no matter where you or that entity may be in most parts of the world, such actions most likely will not affect the potential viability of a libel claim against you and/or an entity whether as the “Tweeter” or the “Retweeter”.  

In other words: Continuing with the KitchenAid example, KitchenAid, the offending tweeter responsible for the rogue tweet AND every individual who retweeted the offending tweet, could have faced legal actions against them, had the Obama family decided to do so.

Lawsuits can be effective and devastating. So how does an individual and/or a company protect themselves or at a minimum, manage the risk from the consequences of “Digital Defamation”?  Stay tuned, as I will address this question as a follow up article to this discussion!

For another excellent post by Judith Delaney on “Global Online Privacy and Security Laws for Individuals and Companies” Click here.

Disclaimer:  The information contained in this article is provided only as general information and may or may not reflect the most current developments legal or otherwise pertaining to the subject matter hereof.  Accordingly, this information is not promised or guaranteed to be correct or complete, and is not intended to create, or constitute formation of an attorney-client relationship. The author expressly disclaims all liability in law or otherwise with respect to actions taken or not taken based on any or part of this article.