What would you change about your Facebook™, Twitter™, Instagram™ or other social media sites if you knew you could be sued for using them? A case that could forever change the way we think about social media is currently before the Los Angeles Superior Court. It all started with the following tweet by Courtney Love. @CourtneyLoveUK: “@noozjunkie I was fucking devastated when Rhonda J Holmes Esq of san diego was bought off @fairnewsspears perhaps you can get a quote.”
Love’s former attorney, Rhonda J. Holmes, Esq. is suing for defamation based upon that tweet because it stated that Holmes was “bought off.” This referred to the way Holmes’ handled her retention to pursue a fraud case against the executors of Love’s late husband, Kurt Cobain’s, estate. Love has raised the defense that she thought the tweet was only being sent to two people. She also has taken the position that it was not defamatory because it was an expression of opinion, not fact.
Generally, defamation has four key elements:
- a false statement concerning another person or entity;
- publication or communication of that statement to a third person;
- malice (intent or reckless disregard) concerning the fact that the statement was untrue if it was about a public figure, or
- negligence by the party making the statement concerning the fact that the statement was untrue if it was about a non-public figure; and
- harm caused to the person or entity who is the subject of the statement (unless a limited exception applies in which harm is presumed).
Defamation is a civil wrong that can manifest itself in the form of libel or slander. Libel is the written form and slander is the verbal form.
Judge Michael Johnson ruled against Love and has sent the case to trial. If the jury finds Love guilty of defamation, it would be precedent-setting. The very nature of using Twitter is that the posts are abbreviated and immediate. Nevertheless, based upon this ruling the common law of defamation applies in those situations, as well as the more considered verbal or written statement. The take away is that people using social media should keep in mind that a tweet could result in a lawsuit.
Clearly, the law is adapting to the new challenges of social media.