Is fast-moving untrammeled-Twitter, like traditional news media - but with the attendant liabilities? ClickZ looks into the new 'Twibel' phenomenon.
Courtney Love is being sued by her former attorney for libel based on a statement she made on Twitter. Who's next?
While it's unlikely that brands or their agencies will be talking smack via their Twitter feeds, should they worry about getting sued for something that's misconstrued -- or for what their followers or fans say?
Ellyn Angelotti, an attorney focused social media trends and the law, coined the term "Twibel." She says that Love's is the first Twibel case to ever come to trial, and that defamation laws haven't kept pace with social media.
Angelotti points out that libel law evolved to settle disputes between individuals who had little access to media and large media companies, like newspapers, that could distribute their negative comments to large audiences.
"There used to be publishers and audiences; there was a passive user involvement process. Now, information is interactive: Everybody is a publisher and has an opportunity to speak. That has empowered people to say what they want and respond how they want," Angelotti says. She gives some background on Twibel in an article on Poynter.org; she's a Poynter faculty member.
In this case, Love's Twitter handle, @Courtney, has about 253,000 followers, hardly the reach of a major publication. But as a celebrity, Love's tweets and other public statements get amplified by the press, as well as the Twitterverse.
Jonathan Ezor, law professor and director of the Center for Innovation in Business, Law and Technology at Touro Law Center, says, "The difference between a celebrity allegedly libeling someone via Twitter and a non-celebrity doing the same is the potential for sheer numbers of followers seeing the libelous tweet, which can substantially increase the damages sought and won by the victim. At the same time, though, just because there was a small initial audience for a tweet doesn't mean it will stay small - tweets, like other internet content, can go viral and be spread much more widely after the fact, even if the original message gets deleted."
Ezor notes that libel law is pretty much the same for Twitter as for other media and that Twitter itself is immune under U.S. law, like other online service providers, from liability for what its users say.
Ironically, Love is being sued by an attorney. Angelotti thinks this battle would have been better fought on Twitter, or else left to fade away.
"Ideally, there could be some sort of remedy that could deter perpetuating the allegedly defamatory tweet, or at the very least alert others that someone is challenging the tweet’s content," she says. For example, third-party developers could use Twitter's APIs to create some sort of reputation-based ranking tool that would highlight tweets that add more value to public discourse, or from users who tend to have something worthwhile to say.
Another solution, she says, might be a button or tool to flag potentially libelous tweets, similar to the "flag this post" link on Craigslist. Or, the defamed could use a hair of the dog that bit them. "One of the easiest things would be if a person was able to build up a Twitter marketing campaign to fight the bad speech with more speech," she adds.
Libel, or Twibel aside, brands have loosened up quite a bit since the early days of corporate blogging, according to Peter Friedman, chief executive of LiveWorld, a company that manages social media for Fortune 500 companies including Pfizer, Dove, and Toyota.
"You have to give your customers a human experience; people want to talk to people," Friedman says. "Most of the anxiety about social media has been overcome or is being lived with because you have to be there."
LiveWorld offers brands social media moderation, using a combination of technology and human review, and Friedman says that using an agency, vendor, or technology that can track and archive social content, allows brands to show they're responsible.
In Love's case, she said in court that she thought the allegedly libelous statement about her former attorney had been intended as a direct message in response to a question, but she was unable to prove that. A brand in the same pickle that used technology to archive its Twitter accounts could easily pull up substantiation in a few minutes, according to Friedman.
He says, "It's accepted in the culture that things happen, and people aren't as nutty about it." But a brand's being able to show it's on top of things can go a long way toward short-circuiting blame -- let alone lawsuits.
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Susan Kuchinskas has covered interactive advertising since its invention. The former staff writer for Adweek, Business 2.0, and M-Business covers technology, business and culture from Berkeley, CA.
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