New “Twibel” Defamation Opinion Suggests Online Speech May Be Special After All

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition
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TwibelMany lawyers smirked and scoffed a few months ago when the popular press began touting the Courtney LoveTwibel” trial as a “landmark” case that would set a “major precedent.” In fact, as discussed further elsewhere, it was nothing of the kind. In case you don’t already know, “Twibel” is just a silly concatenation of “Twitter” and “libel,” coined by the media to overhype a case which, apart from the involvement of a celebrity, was just a run-of-the-mill defamation claim that happened to involve Twitter. The excessive attention paid to the matter was premised on the notion that Twitter speech is somehow legally different than other speech, and the consensus among most attorneys was that this notion was nonsense.

However, an opinion issued on April 14, 2014 by Judge Dennis Saylor of the District of Massachusetts may cause some to rethink — not whether the Courtney Love trial was important (it wasn’t) — but whether defamation claims based on internet speech may be treated a little bit differently than claims based on traditional speech.

The Case of the Missing Horse

The facts alleged in Feld v. Conway are sparse. In November 2010, Mara Feld sent her retired racehorse away to become a companion horse. For reasons unknown, the horse disappeared en route and likely was slaughtered. The fate of the horse became the subject of online discussion.  In the context of that discussion, Christine Conway posted the following Tweet: “Mara Feld . . . you are fucking crazy!”

In 2013, Feld filed a complaint against Conway alleging that the Tweet was defamatory. Conway brought a motion to dismiss, arguing that the Tweet was protected opinion as a matter of law, and thus could not be the subject of a defamation claim.

Opinion and Context In Defamation Cases

Accusations of mental instability are often the basis for defamation claims, but many of them end up getting dismissed. This is because, in most cases, a court determines as a matter of law that the statement is not an assertion of fact, but rather a pure opinion protected by the First Amendment. Making this critical fact/opinion distinction requires that the court examine the statement in its totality and in the context in which it was published. For example, in Greenbelt Cooperative Publishing v. Bresler, the Supreme Court held that a newspaper had published protected opinion when it described a real estate developer’s negotiating position at a public meeting as “blackmail.”  When placed in context, which included the entire article and the newspaper’s multi-article coverage of the public meeting, it was clear “even [to] the most careless reader” that the use of the term was rhetorical hyperbole (i.e., opinion) and not the accusation of an actual crime (i.e., an assertion fact).

What is the Proper Context for Internet Speech?

Here, Feld argued that the proper context for analyzing the “fucking crazy” statement was the Tweet alone. Indeed, if you type Feld’s name into a search engine, the Tweet will come up by itself without any context. In other words, according to Feld, it’s as if the newspaper defendant in Greenbelt had simply printed “[Plaintiff] committed blackmail” by itself with no further explanation.

However, Judge Saylor disagreed, and held that the proper context was the entire “heated internet debate.”  In that context, Judge Saylor wrote, it was obvious that the Tweet was an opinion, and therefore the case should be dismissed.

Fair enough, but exactly how did the Court defined the scope of this “heated internet debate”? Neither the allegations nor the parties’ briefs provide any information about where on the internet this debate was taking place, or how and by whom it was being read.  Was it all on Twitter, or did it take place in part on other social media or in some obscure equine discussion forum? In describing the appropriate context in this case, the Court referred vaguely and without citation to a “great debate on Internet sites,” while citing only the single Tweet at issue and one article in the Worcester Telegram.

So what is the proper context when determining whether internet speech is an assertion of fact or an opinion? In Greenbelt, the Supreme Court assumed for purposes of its legal analysis that the readers of the term “blackmail” had also read the rest of the newspaper, so the proper context included multiple explanatory articles on the same topic. Here, Judge Saylor appears to assume that anyone who saw this single Tweet would also somehow know about the rest of the debate, wherever online it was occurring. In other words, the proper context for determining whether an online statement is protected opinion could be as wide as the entire internet, or at least anywhere on the internet where the same topic is being discussed.

Seems pretty broad. Perhaps “Twibel” is special after all.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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