When We Treat Twitter Like a Public Forum, Can Private Lawsuits Still Regulate Libel?

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Lord McAlpine might sue 9,000 tweeters who commented on a botched BBC Newsnight report on child abuse

Due to a reporting error earlier this month, the BBC — a world-renowned news service — got caught in a frenzy with thousands of twitter followers. On November 2nd, reporters on BBC’s Newsnight falsely accused a prominent Tory conservative politician, Lord Alistair McAlpine of child abuse. The report didn’t actually name McAlpine, but thousands of tweets following the program pointed the finger at Lord McAlpine. The BBC has now apologized for its erroneous report and paid £185,000 ($294,000) in damages. However, all those who tweeted, or even retweeted, about Lord McAlpine, may not be off the hook quite yet.

According to the Independent, over 9,000 people could be sued in this mess — making it the largest number of defendants in a case in all of British legal history. These defendants would include everyone from everyday tweeters, like you and me, to celebrities with thousands of followers like Sally Bercow (wife of Commons Speaker Bercow) and British actor and comedian Alan Davies.

From a subpoena for an Occupy protester’s tweets to the infamous Guy Adams NBC Olympics saga, numerous lawsuits have made it clear that “Twitter is fair game as a public forum in the eyes of lawyers and judges…as Twitter becomes more widely used, not just by ordinary people but also by media organizations”, as Mashable explains.

Twitter, despite being treated as a public forum, is actually a private company that is beginning to play a deeply significant role in arbitrating our constitutional rights.

In this case, it’s the Twitter users who are responsible for the defamation, not necessarily BBC. As libel lawyer Rhory Robertson explains “had no one tweeted, the BBC would have had an argument that Lord McAlpine was not identified, and thus his claim in libel against them would fail.” Under the UK’s libel law, even a simple retweet could be actionable, whether or not the user thought it was false. This is where there is a distinction between the UK and the United States — In America, although you could be sued for tweeting a libelous statement, you are unlikely to be sued for damages for retweeting a defamatory statement made by someone else, thanks to the Communications Decency Act.

Fortunately, Lord McAlpine is offering a way out, at least for low-profile Twitter users. He announced on the BBC’s World at One radio program that those who tweeted defamatory remarks about him will be sued only if they do not apologize. Further, Lord McAlpine’s lawyers are asking the implicated Tweeters to make a small donation to charity and to remove all offending posts on Twitter.

A simple apology might be all it takes to end this mess involving Twitter, the defamed Lord and the BBC, but this incident sheds light on the larger problem of policing who says what on the Internet. Can individuals really be expected only to tweet and share information that they know to be 100% true? Harvard Law Professor Jonathan Zittrain puts it best:

The problem is that what appears to be a trivial, momentary action — retweeting something of interest — can now create or magnify a falsehood as powerfully as if it had aired on national television…Television stations can and should have fact checking and legal departments as part of the cost of responsible business. Individuals cannot be held to a similar practice, and a series of uneven threats that stills the speech of only the most lawyer-sensitive will unduly undermine the huge value of a service such as Twitter.

In cases like this one, resorting to legal action threatens the Internet as a open space for sharing opinions and sets up the expectation that Twitter should have a mechanism for correcting misinformation tweeted by its users. Can these problems of policing and regulating social media be resolved through the technology itself? The company has already developed a new system for dealing with copyright infringements, differentiating itself from other websites by being transparent regarding what it removed and why. As the mechanisms of micro-blogging continue to evolve, “services like Twitter can, and will, hone ways for people not only to retract what they have said, but to relay a follow-up message through all those who repeated it,” argues Zittrain.

On the other hand, Twitter’s legal team has repeatedly said that fighting for free speech in court is more than a good idea, and is in fact a competitive advantage for the company.  “We value the reputation we have for defending and respecting the user’s voice,” says Alexander Macgillivray, Twitter’s chief legal counsel. Defending its users doesn’t always work out though considering the fact that Twitter is straddling the line between a platform of public opinion and a profitable business. Is the conflict between the two, the equivalent of a modern day church-state divide, as Macgillivray asserts? Surely, this is one of the biggest issues this generation faces, and much like the church-state debate, we must find the delicate balance.

About Sona Makker

Sona is a first-year law student studying technology law at Santa Clara University. She’s an advocate for online privacy, digital rights, and public access to the public domain. If she’s not arguing with her siblings over whether This American Life is better than Radiolab, you’ll probably find her whipping up vegetarian dishes, or attempting to do a headstand in yoga class.
Posted in: Constitutional, Law, Social Media, Society
  • MGarvey

    Can somebody clarify if Twitter and Facebook are private or public entities?
    If you have to join these sites to view and write Tweets then surely they are private, not public and therefore cannot be sued as they are not publishing comments or possible libelous comments. Tweets are for private members only, aren’t they?

    • Eva Arevuo

      Thanks for your question. I can confirm that Twitter and Facebook are private companies and are therefore not subject to Constitutional constraints (e.g. Twitter can delete tweets and block users as they see fit).
      When it comes to libel, twitter’s users (the speakers) and not twitter itself (the platform) are held liable if found guilty in the jurisdiction within which the speech occurred.
      This is a good short article on the subject: http://www.economist.com/news/britain/21567093-when-everyone-publisher-everyone-can-be-sued-little-bird-told-me