How can you make the most of social tools without running afoul of the law? At the recent South by Southwest Interactive Festival panel “Can You Tweet That? Social Media and the Law,” Dara Quackenbush of Texas State University gave attendees a crash course on fundamental social media legal issues. Quackenbush focused on defamation, hate-speech law and the First Amendment — and the way those legal principles were applied to social media in two recent cases.

Case Study 1: Horizon Group v. Bonnen: Libel and defamation laws apply to tweets … but not this time.

Amanda Bonnen was a former tenant of Horizon Realty who was sued after she tweeted to friends, “You should just come anyway. Who said sleeping in a moldy apartment was bad for you? Horizon realty thinks it’s ok.” Quackenbush listed five tests for determining whether a tweet, a Facebook posting or other social media message is libelous.

  1. Defamation: Would an “ordinary person” think the tweet or posting damaged someone’s reputation?
  2. Publication: Was the posting seen or heard by others?
  3. Identification: Was the plaintiff or victim singled out and readily identifiable?
  4. Negligence or intent: Was the defendant’s action intentional or merely negligent? In the case of a “public figure” — a celebrity, politician, professional athlete or similar person, or any corporation — the plaintiff must prove actual intent to do harm; for a private person, simple negligence, or disregard for another’s rights.
  5. Damage: Did the posting cause actual damage, whether monetary or emotional, to the victim?

While the case ultimately was dismissed, Quackenbush said it illustrates challenges that social media professionals face with libel law. If you are doing your job right, any posting you make will satisfy the publication and identification requirements, as your goals are to correctly identify the subject of your tweets and get the word out to as many people as possible. The damage factor is not too difficult to satisfy, because it is a rare person who can’t claim that a statement that allegedly ridiculed him or her also caused emotional distress.

In this case, the defendant specifically named Horizon, and because she had several Twitter followers, the publication standard was met. The plaintiff failed here because the defendant merely suggested that Horizon thought it was “ok” for her to sleep in a moldy apartment. The judge ruled that the tweet was too vague to satisfy the strict test for defamation.

Courtney Love wasn’t as lucky when she tweeted a rant about her fashion designer. Love paid more than $400,000 to settle that lawsuit. Given the litigious nature of our society, even a successful defense such as Amanda Bonnen’s would cost your company a lot of money, so carefully consider whether an edgy tweet or post crosses the libel line before it’s too late.

Case Study 2: Casey Anthony/”Tot Mom”: The First Amendment protects speech — but terms of service can still block it.

Quackenbush explored the issue of free speech in social media by looking at the Casey Anthony/“Tot Mom” murder case. Within hours of Anthony’s acquittal, dozens of Facebook pages, thousands of tweets and other postings appeared expressing many people’s violent outrage and suggesting that Anthony should be tortured, raped or killed. Some people suggested that the First Amendment protected a person’s right to say whatever he or she wanted about Anthony, but a social media professional needs to make a more thorough analysis.

The First Amendment states that “Congress shall make no law … abridging the freedom of speech.” While that protects most forms of expression, the law has never protected speech that is lewd, obscene, profane, libelous or “fighting words.” Much of what was written about Anthony might have fallen into the profane or obscene category, but most of the violent rhetoric failed to satisfy the court’s rigorous requirement that incitement to violence must pose an “immediate danger” of harm. Discussion of the cost of hiring a Mexican hit man does not clear the immediate-danger hurdle.

While the First Amendment might have protected Anthony’s critics from government prosecution, Facebook and other social media companies did have tools to handle the harshest detractors if they wanted: terms of service. Facebook’s terms provide that users “will not bully, intimidate or harass … or use … hateful, threatening or profane” speech. Most social media terms of service contain, or should contain, similar provisions. When a network thinks user action warrants intervention, terms of service can get around the First Amendment and offer protection from the worst rhetoric surrounding a controversy.

This post is by Stephen J. Easley, vice president for government affairs and general counsel of Heartland Networks, a wireless-infrastructure company, and an entertainment attorney representing clients such as the estate of Buddy Holly on intellectual property issues. He is attending his 26th SXSW conference.

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3 responses to “From #SXSW: How libel law and free-speech requirements affect social media”

  1. chriscarsonmtk says:

    Great post. I wonder how the libel aspect might play out globally. Are plaintiffs going to start venue-shopping?

  2. Mike Mintz says:

    Great post Stephen. You hit it on the head when you said that even mounting a successful defense to a libel suit will cost a ton of money so social media professionals should be careful about what they tweet. I think a guiding principle when tweeting something critical of an individual is whether what you say can and will cause actual harm. In Love's case, she has the audience and reach to really destroy the reputation of anyone she hires (although she may lack credibility!). For social media professionals, you are representing your company when you tweet on their behalf so being clear on the social media policy and guidelines as well as the company's persona is key.

    Another issue that has come up recently is whether tweets can violate copyrights. Last year I wrote a piece about take down notices being sent directly to Twitter claiming that tweets were in violation of their rights. This opens a whole can of worms for limiting free expression through litigious means as well. Here's the link to that article if you want to check it out:

    Thanks for the post.

  3. all the big SM sites censor stuff sad really.