In January, a jury ruled in favor of Courtney Love in a libel case concerning a tweet, brought by Love’s former attorney. This was believed to be the first U.S. trial concerning potential defamation on Twitter.
While the plaintiff in the so-called “Twibel” case did not collect damages, and we have yet to see how a U.S. jury might handle that situation, the door is open for more of these types of cases.
Twitter defamation trials have taken place outside the United States recently, including in March when an Australian teacher was awarded $105,000 (in Australian dollars) in a case brought against a former student.
The Twitter Basics
Since the first tweet was sent out in March 2006, it took more than 20 months to reach one billion tweets worldwide. Now, based on information provided by Twitter, it takes about two days for a billion tweets to be published.
All of this is to say is that Twitter – with its 255 million monthly active users – is huge, and a forum for many people to say just about anything.
With the way Twitter is structured, tweets can spread quickly through retweets. They can also be linked to on Twitter or posted somewhere else online – even after the tweet has been deleted and/or privacy settings are used – through the use of a screenshot.
People who have private accounts or delete questionable tweets should not assume potentially defamatory posts will not be seen and that they are immune from any consequences of false and disparaging tweets.
Pursuing a Defamation Claim
While Twitter does not specifically address defamatory tweets in “The Twitter Rules,” it does prohibit the use of the microblogging website for “unlawful purposes or in furtherance of illegal activities.”
When a person or company believes it has been defamed by a tweet, the party may be able to identify the person behind a particular Twitter handle (@username). Other times, when the potential attacker cannot be instantly identified (which is very likely for a person or company with a large following on Twitter), it may be necessary to issue a subpoena to Twitter for personally identifying information.
Under its “Guidelines for Law Enforcement,” Twitter acknowledges that it collects and retains certain information, but for varying time periods. Thus, IP logs, for instance, may not be stored for long. Further, Twitter acknowledges that it is not able to retain information long after an account has been deactivated, and deleted tweets are not stored either.
The good news about deleted tweets is that, unless they managed to go viral pre-deletion, they will not continue to spread or cause harm like, say, a permanent defamatory post on Ripoff Report.
The Subpoena Process
This process of identifying an anonymous Twitter user via a subpoena is similar to those discussed in other posts. Unlike some websites, Twitter has several offices and, therefore, registered agents in multiple states that can receive issued subpoenas.
The first step is to file a lawsuit where the plaintiff is located. Second, you must issue a subpoena to Twitter – whether in California (where it is headquartered) or in one of the other states where it has an agent – requesting account information to identify the author of the tweet.
Twitter requires that requests include the Twitter handle and URL of the Twitter account in question; details about the specific account holder’s information being requested and the relationship to the investigation; and a valid email address so Twitter can get in touch with you.
Twitter will then notify its user of the request for their account information and provide them with a copy of the request. If the user does not object to the request, Twitter will produce the account information.
The website does not verify the names or email addresses of its registrants, so a subpoena may not produce a helpful name or email address. The most valuable piece of information Twitter can provide in response to a subpoena is an internet protocol (“IP”) address. The IP address can lead you to where the person posted the content from — hopefully their residence. Once an IP address is secured and the internet service provider (“ISP”) is determined, you can subpoena the ISP that assigned the IP address in order to reveal the customer’s identity.
If a picture is worth a thousand words, it will be interesting to see – probably in the near future – how much a defamatory tweet of 140 characters or less could cost someone in damages.