Can you be liable for libel based on what you tweet on Twitter? Ask Courtney Love.

UPDATE: On Friday, January 24, 2014, the jury came back with a verdict for Courtney Love, finding that she is not liable for her tweet about Attorney Rhonda Holmes.

Can you be liable for libel based on what you tweet on Twitter?

Well, why the heck not?

You may have read that Courtney Love, widow of Nirvana's Kurt Cobain, vocalist/guitarist/lyricist of Hole, and Mrs. Larry Flynt in The People vs. Larry Flynt (I just watched that again recently and have to admit she was pretty good), is in the news again for her allegedly libelous tweets.

In 2010, she became disenchanted with her attorney and tweeted that the attorney was "bought off."

Never mess with a lawyer. They know how to sue. And this particular attorney, Rhonda Holmes of Gordon & Holmes in San Diego, did and did.

Ms. Love tried to get the lawsuit dismissed, but in December, a Los Angeles County judge let the case go to trial, which started this week. It is reportedly the first-ever "twibel" suit to go to trial.

According to news reports, Ms. Love's defense seems to amount to the following: "HOW CAN YOU TAKE SERIOUSLY ANYTHING THAT SOMEBODY SAYS ON TWITTER????!!! IT'S NOT LIKE IT'S THE FREAKIN' O'REILLY FACTOR." And she is getting a lot of sympathy on -- you guessed it -- Twitter! Here's what they were saying about the lawsuit last night:

Oh, sure, there were a few people saying that the lawyer might have a case, but they appeared to be in the minority.

You can count me among them. The minority, that is. I think the judge was right to let the case go to trial, and I don't think "It was just Twitter" is a valid defense, or should be.

The closest I could get to a legal picture of the "Twitter" bird. Use your imagination.

A statement is libelous if it is written* and if it is presented as a statement of objective fact when it is known to be false. The level of malicious intent required depends on whether the victim is a "public figure." We probably don't need to get into that today, because it isn't very likely that Rhonda J. Holmes, Attorney at Law, San Diego, California, is a public figure. 

*If the statement is oral, then it is slander, not libel. Both slander and libel are types of defamation.

The statement also has to be "published," which legally means that it is communicated to one or more persons.

My guess is that Attorney Holmes's case will turn on whether a jury believes that Ms. Love's statement about her was presented as a statement of objective fact, as opposed to an expression of Ms. Love's personal opinion. Because if it's an opinion, then Courtney wins the lawsuit. Allow me to illustrate:

NOT DEFAMATORY: "Courtney Love is one of the most insufferable, obnoxious so-called celebrities it has ever been my displeasure to know, and I wouldn't pay five cents to see her in concert."

COMMENTARY: Even though the above comment is derogatory and very insulting to Ms. Love, it is obviously the opinion of the speaker and anyone reading it would know that.

DEFAMATORY: "Attorney Etaoin Shrdlu was convicted of bribing a judge in 2002."

COMMENTARY: The comment is presented as an objective statement of fact. Therefore, if the statement is false, it would be defamatory. If Attorney Etaoin Shrdlu actually existed, which for my sake, I hope he does not.

Of course, you may have correctly gathered from the above that the false statement also has to be bad. It has to hurt the subject's reputation in some way -- generally by saying or implying that he or she is dishonest, unchaste, engages in shady business practices, or has committed a crime. Here's an example:

NOT DEFAMATORY: "Courtney Love is a fine musician, and a sterling personal example to all, both far and near."

COMMENTARY: Even if this statement were false, it would not be defamatory because it would not harm Ms. Love's reputation.

Ms. Love's tweet is no longer copy-able, but according to one news source, here is the content of what she said in 2010, after Attorney Holmes declined to represent her in a fraud case against Cobain's estate:

@noozjunkie I was f***ing devastated when Rhonda J. Holmes Esq. of san diego was bought off @fairnewsspears perhaps you can get a quote 

Would it hurt the attorney's professional and personal reputation to be accused of taking bribes (being "bought off")? Of course it would. Does it read like a statement of opinion, or as a statement of fact? Ehh -- could go either way. I agree with the judge that it sounds "faux-factual" enough to go to a jury.

One other thing -- Ms. Love says that she thought she was sending this tweet to only two friends: presumably, "noozjunkie" and "fairnewsspears." In fact, she had sent it to everyone in the Twitterverse and beyond. Former New York Congressman Anthony Weiner made this mistake a couple of years ago, before he made his even-more-ill-fated transition to Facebook and the telephonic medium.

And this wasn't Ms. Love's first scrape with injudicious tweeting. Not long ago, she paid $430,000 to settle a "Twibel" case brought by a fashion designer after Ms. Love tweeted some unflattering things about a $4,000 bill.

A.K.A. "Courtney Love."

So, how can we learn from Courtney Love's mistakes?

1-You are not immune from defamation laws just because you communicated on the Internet.

2-If you have a strong opinion, then fine. But make sure it's clear to everyone that you are only expressing your personal opinion.

3-Do not repeat gossip on the Internet. Do not make "faux-factual" statements on the Internet. If you don't know for sure, don't say it. If you don't know for sure and you must say it, be sure to say it's "according to news reports," or that "unfounded rumor has it," or "I have no idea whether this is true, BUT," or something else that is sufficiently weaselly. (Even that may not be enough to protect you.)

And be careful, even if you think that what you're saying is true and factual. It could be that you had a bad source, or that you drew some factual inferences that turned out to be wrong. It never hurts to insert an "allegedly" or an "appears to" or the weasel-word examples given above.

4-Legally, it's much easier to pick on a public figure than a regular Joe or Jane, so keep that in mind. If the person is a public figure, you won't be liable unless you either knew you were lying, or had "reckless disregard" for the truth of what you said. (This is why public figures so rarely sue for defamation, even though they are bashed in the media constantly.)

5-Don't tweet when you're upset or emotional. You're much more likely to say something you'll regret when you're fragile.

6-Yes, we have freedom of speech in this country -- or should I say #freespeech? But the First Amendment protects you only from government action based on what you say (or are expected to say). There are all kinds of consequences to speech that have nothing to do with the government. Like this #Twibel lawsuit against Courtney Love.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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