It seems axiomatic that social media users can be held accountable for making false, misleading, defamatory, or libelous statements in a Facebook post or Twitter “tweet.”
This fact is well-illustrated by a number of high-profile lawsuits (none of which have yet gone to trial) brought by individuals against Twitter users, including the recent lawsuits threatened by Lord Alistair McAlpine for tweets that falsely alleged he had engaged in child abuse.
What is less obvious is the possibility that “retweeting”—the act of forwarding or passing on an original message by another Twitter user—may subject a Twitter user to liability.
Lord McAlpine’s lawyers, for example, have targeted not only the 1,000 “original” tweets that connected him to the child abuse allegations, but also the 9,000 retweets that followed.
What’s more, in some foreign countries a simple retweet has led to much more serious consequences, including imprisonment.
In the United States, though, “retweeters” of potentially libelous statements may have some breathing room.
Firstly, the SPEECH Act of 2010, 28 U.S.C. §§ 4101-4105, makes foreign libel judgments unenforceable in U.S. Courts, unless those judgments comply with the First Amendment. Secondly, Section 230 of the Communications Decency Act, 47 U.S.C. § 230, states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
The exact scope of protection afforded by § 230, however, is unclear and there have not been any cases directly addressing whether unmodified retweets or simple “likes” on Facebook would be actionable under U.S. law.
Despite these domestic protections, the lack of clarity in this area nonetheless makes liability for arguably libelous or otherwise objectionable “retweets” a possibility. Individuals tweeting on a corporation’s behalf thus may consider taking the same precautions in their “retweets” and other social media re-publications that they would take if they were making the statements themselves.
The Citizen Media Law Project provides a list of practical tips to help avoid liability with regard to online content.
Likewise, companies concerned with their business reputation on social media sites like Twitter might contemplate keeping a close eye on “retweets” of targeted statements made on other accounts.
Companies may also consider periodically reviewing the “Trends” display on their Twitter account(s) for offensive and/or potentially actionable tweets and retweets.
Justin Haddock (jhaddock@fulbright.com, +1 512 536 3024) is an associate in Fulbright’s IP practice group.
