Published 4 December 2010
A friend of mine recently made a comment on Twitter about a wine company which got her into hot water. In fact, it was a retweet of somebody else’s comment. The original comment, made by someone she didn’t know, was a statement about a company. This company was unhappy about the comment. This company sent my friend an email stating that they “take all unfounded and defamatory allegations against [the company] extremely seriously” and wanted her name and address, and details of her solicitor in order to “investigate your evidence for your claim”. The tone was aggressive and left no uncertainty that the company was pissed off and was going to throw the book at her.
My friend was disturbed by this. She clarified that she wasn’t making the claim, deleted the retweet and openly apologised to the company. The company agreed that to be the end of the matter.
But, this got me thinking. What is the law about comments made on Twitter (and the internet at large)? I make hundreds of statements each week about a variety of matters. Does this mean that it’s just a waiting game until I get sued? Should I run all tweets through my lawyer before I send them? And what is the moral position about suing bloggers?
Firstly, I’d like to make it clear that I am not a lawyer. Law is a very complicated subject and my research has only been a cursory investigation (mostly via Wikipedia). Therefore, everything in this article is merely my interpretation of the situation or my opinion. It is not meant as fact or advice, nor should it be used as the basis for anyone else’s future broadcasts. If there are any experts who can enlighten me on further details, I’d love to hear from you.
Secondly, it is important to note that the laws vary by country. My research has focused mainly on the UK and US.
Thirdly, all references to characters appearing in this work are fictitious. Any resemblance to real persons, living or dead, is purely coincidental.
So, what’s it all about?
What we are talking about is ‘Defamation’ and, in particular, ‘Libel’. Libel relates to written, broadcast, or otherwise published words; ‘slander’ relates to transitory statements. This is probably the first point we need to remember: tweeting is publishing and isn’t a conversation in the pub (therefore, any defamation is libel, not slander).
For many countries, the basics of libel appear to be:
- the statement in question must be proven as false (the person making the statement does NOT have to prove their statement is true);
- it must be proven that the statement has caused harm (in the UK, this means some financial loss or loss of reputation);
- it must be proven that the author didn’t do “adequate research” into the truthfulness of the statement;
- there should be evidence that the statement was made with the intent to do harm;
- the statement should have been delivered as a ‘fact’; it’s rare that people are successfully sued over opinions.
In the US however, certain types of statements are treated as defamatory per se. This means that none of the above items matters: just that the statement was made. This includes accusing someone of a crime or serious sexual misconduct, and comments regarding a person’s ability to conduct their trade.
In my defence, your honour!
Worried? Terrified to tweet? Well, don’t remove yourself from all social media yet. Wikipedia gives us a few insights to possible defences:
- Statements made in a good faith, and believed to be true, are generally considered as if they were truths. However, courts may question whether sufficient research was done to justify the author’s belief. An ordinary person can be forgiven for relying on a single magazine or newspaper report (but a newspaper would be expected to carefully check multiple sources).
- Statements given as opinions, rather than facts, are difficult to claim against (because opinions are inherently not falsifiable). However, some jurisdictions don’t recognize any legal distinction between fact and opinion.
- If the comment is made about a matter of public interest, then statements made “with an honest belief in their soundness” cannot be raised as defamation.
- If there’s no damage, then there’s no cause for a claim. For example, if nobody is going to believe the statement, or they just don’t care.
So, it appears that your best chances of avoiding legal action come from:
- Not tweeting or blogging anything you know is untrue;
- Making sure you say that it’s only your opinion. Whether “IMHO” (In My Honest Opinion) is sufficient is yet to be tested in any court;
- Unless your source is a magazine or other established publication, doing some research into whether it’s true or not;
- If you’re retweeting, making it clear that you are just repeating someone else’s statement and that you are not making the claim yourself.
But, there’s also another issue here
That might be the legal take on the matter, but what actually alarmed me about my friend’s situation was the highly aggressive attitude that she experienced. To reach for a lawyer as a first response is heavy-handed. In my experience, excellent customer service is shown by dealing with criticisms and complaints both directly and openly. If a false statement is made through Twitter, why not deal with it through Twitter? Dealing with it by sending threatening emails is pretty cowardly and not in the spirit of social media.
In my community, a great example is set by Naked Wines: it has an excellent history for dealing with all unhappy customers through open acknowledgment of any issues – and their customer-base is stronger as a result. They actively scour social media groups, positively reinforcing the good comments, but also speak to people making negative ones. Unhappy with a bottle of wine? They’ll usually either refund the cost or send another bottle. Delivery hasn’t turned up? They’ll be speaking to their couriers. Wrong bottle in a case? They’ll be looking into it and sorting it out. Now that’s a use of social media that makes me happy (and encourages me to buy wine from them and recommend them to others).
So, before you get bogged down in the detail of your company’s social media strategy, let’s establish some very basic rules that some of you appear to have missed:
- Be prepared to hear both negative and positive comments.
- Be prepared to deal with negative statements online (not offline).
- Don’t be aggressive. Nobody likes to be tip-toeing through a minefield of libel suits. Threatening members of a community is not advisable (they’re called communities for a reason).
But that’s all just my opinion!