Is there a viable argument that Twitter is more like a coffee house conversation than an online publication?

Jacqui Lipton posted a cross-post at the Madisonian and The Faculty Lounge about Twitter and defamation.

The following questions were posed:

Is there a viable argument that Twitter is more like a coffee house conversation than an online publication?  If so, should this matter for a defamation analysis?  And, if it does, where does one draw the line between Twitter, blogs, online social networks like Facebook and MySpace, and any other online forums (eg massive multi player online games)?1

(1)  Is there a viable argument that Twitter is more like a coffee house conversation than an online publication?

Yes and no.  This depends on how you view the importance of defamation.  I will begin with no, because it is the current state of the law.

Defamation laws are intended to protect reputation.  They are divided into two categories: Slander and Libel.  Libel deals with defamatory statements2 that are memorialized in some way;3 whereas Slander deals with defamatory statements that are not memorialized (not recorded). 4

Twitter ‘tweets’ fall under libel because they are recorded, or memorialized, in an electronic form.  These are not ephemeral defamatory statements because they have a higher level of permanence than a verbal statement or gesture.

The difference between libel and slander comes down to whether the defamation was memorialized.  It does not rest on the quickness in which the defamatory statement might be made.  One reason for this is that a libel persists beyond the initial defamation and might last in perpetuity, able to continue harming reputation each time it is seen (or heard).  A slander, on the other hand, is a one-shot deal5  and does not have the lasting power of a libel.

This leads to yes, there may be a viable argument.  This comes from two directions.  First, old libel and slander cases differentiate from each other based upon the instantaneous nature of the defamation as much as its permanence/impermanence.  In fact, the instantaneous nature of slander led to its greater presumptions in favor of the Plaintiff.

Further, an economics of law argument in favor of treating web services such as Twitter, message boards, and online games as ‘coffee houses’ and their defamations as ‘slander’ is that these communications are transient in nature, similar to speech, and therefore are difficult to manage, control, prevent, or prosecute.  In short, the economics of patrolling these sites and ensuring defamation does not occur is unduly burdensome on these service providers.

United States law provides a safe harbor for sites in the Communications Decency Act and undercuts the economics of law view.  This safe harbor does not necessarily exist in other counties.  (Britain is a prime example, as it is the birthplace of common law defamation and also possesses the most plaintiff-friendly, speech-unfriendly defamation laws.)

(2) If so, should this matter for a defamation analysis?

The argument that Twitter ‘tweets’ should be treated as slander should matter if you accept that these communications are transient.  This argument should fail, however, for ‘tweets’ and other online communications are recordable, searchable, and reproduceable in ways that make them capable of being non-transient, permanently memorialized.  Twitter ‘tweets’ should be viewed as libelous, not slanderous, unless we change how we currently delineate between libel and slander.

(3)  And, if it does, where does one draw the line between Twitter, blogs, online social networks like Facebook and MySpace, and any other online forums (eg massive multi player online games)?

This question highlights the difficulty in drawing a line based on the ‘instantaneous-ness’ of the defamatory statement.  Technology changes how quickly we can publish a defamatory statement.  It also changes how broadly it may be published.  (Which raises jurisdiction issues, on which Jacqui Lipton’s original posts discuss briefly.)

What does not change is when a statement is published in a transitory form (speech, gesture) or a memorialized form (recorded on paper, film, or audio).  This ‘fixation’ line6 is the closest to a bright-line rule defamation law can create.

(4)  Online games, Skype, and other ways online slander might occur.

One final note should be made of the ways in which slander might occur online as opposed to libel.

Online games are a perfect example.  Many online gaming ‘guilds,’ ‘clans,’ or ‘groups’ communicate during gaming sessions using voice communication.  This is done either through in-game voice chat7 or by renting TeamSpeak or Ventrilo servers.  Skype and other Voice Over IP services8 also provide methods of communicating by voice in online settings.

These services are capable of recording their communications, but this rarely occurs.  (For gaming purposes, recording voice chats is processor and storage space intensive, both of which may be at a premium for gamers.)

Therefore, while most forms of communication over the internet will result in libel, such as Twitter tweets and blog posts, there are some forms of communication that may still result in claims of slander rather than libel.

  1. Jacqui Lipton, Defamatory Tweeting, http://www.thefacultylounge.org/2009/11/defamatory-tweeting.html and http://madisonian.net/2009/11/30/defamatory-tweeting/. []
  2. In the classic British test, statements capable of lowering the victim in the minds of right-thinking individuals, generally. []
  3. Memorialized works almost as a synonym for recorded, which means on paper in writing, on screen in an electronic document, on film, or in an audio recording. []
  4. In practice, this means those statements made verbally.  It should be noted that gestures have also been considered defamatory in the past, however. []
  5. Unless it is repeated, although this is a separate slander with a separate defendant. []
  6. To borrow from copyright law. []
  7. Aces High II has this feature.  World of Warcraft also has this feature, but it is not widely used. []
  8. Such as AIM, GoogleTalk, and other instant message services with voice chat features. []

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