The above statement could well serve as the basis for a defamation claim brought by O. J. Simpson against @OJmurderer. In defense of such a suit, @OJmurderer would undoubtedly avail himself of several alternative, and well-known, defenses. One defense would be that the statement is reasonably understood as conveying an expression of opinion based upon fully “disclosed” facts—facts well known to anyone who was alive in 1995 and 1996 when the “Dream Team” defended Simpson before Judge Lance Ito and a jury from which it obtained an acquittal. Subsequently, as is also well known, the families of Nicole Brown Simpson and Ronald Goldman obtained a civil jury verdict finding Simpson liable for their wrongful deaths. And, of course, Simpson is presently serving time in state prison in Nevada for kidnapping and robbery in Las Vegas. The writer of the above statements could also assert the defense of substantial truth, based upon the undisputed historical facts (the jury verdict of wrongful death) set forth above. Because Simpson is unquestionably a public figure, he could not recover for defamation against the writer without showing clear and convincing evidence of actual malice.
But what happens if some of the above facts are changed? What if the subject of the above comment is not O. J. Simpson but a member of a local book club, and the statement accuses him of soliciting prostitutes? What if it were, as depicted above, a tweet in a Twitter feed shared by members of the local book club?
As communications are increasingly conducted via platforms like Twitter, Instagram, Tumblr, and the like, judges are confronting the question of how to apply the law of defamation to social media. Of course, this is not the first time that courts and practitioners have applied existing doctrines of libel jurisprudence to new communications media. From the telegraph1 and the motion picture2 to the Internet3 and interactive video games,4 courts have grappled with how to fit emerging technological and social changes into the appropriate legal framework. The Supreme Court, though, has observed that “whatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary when a new and different medium for communication appears.”5 Thus, the fact that Twitter, Tumblr, Instagram, and other yet-to-be-developed communications platforms are operated online and are subject to various technological constraints and format conventions does not alter the fundamental principles of the First Amendment or its restraints on the tort law of defamation.
The question, then, is, “How does the nature of social media affect that application of that law to allegedly libelous speech conveyed through those platforms?”
This article examines how “Twibel”—claims of libel based on speech communicated over Twitter (and other social media networking platforms)—have been addressed by the courts, and it explores how additional issues in the law of defamation that have not yet been addressed by the courts are likely to be determined in the future.
At the outset, we acknowledge that this is a preliminary assessment of an emerging area of law. Although social media sites are entering their adolescence, the jurisprudence of defamation claims arising in social media is quite clearly still in its infancy. Thus, we are forced to examine only a handful of published decisions from trial and intermediate appellate courts, some in closely analogous contexts such as consumer review and rating websites, from which we must necessarily extrapolate to chart an emerging pattern—much like astronomers label a handful of stars a constellation and analyze past planetary movements to predict their future trajectories. Second, we, like the courts, must necessarily look to analogous areas of law that pre-date the Internet as guidance to predict how the existing body of defamation law will be applied to new and yet-to-be-created modes of digital communication.