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Twibel: Defamation in the Social Media Age

August 20, 2019

“Twibel,” which combines “Twitter” and “libel,” is a relatively new concept that has entrepreneurs on high alert for online comments that could negatively impact their business. Twibel encompasses damaging statements that are published on social media sites, blogs, Google Reviews, or any other online platform, and treats them as defamatory. Business owners are filing defamation suits based on the negative impact these statements have on their businesses.

 

However, those who wish to pursue claims based on a bad Yelp! review or negative tweets have an uphill battle. Since most of these comments, tweets, and reviews are done anonymously, it can be difficult to file a suit against the individual. Courts are also reluctant to grant subpoenas requesting the identification of the publisher. Consequently, the only party left to sue is the Internet Service Provider (ISP) or the third-party publishing site, e.g. Twitter, Google, Foursquare. The Communications Decency Act[1] was passed by Congress in 1996 and Section 230 is a direct response to the growth of these kinds of suits in order to shield ISPs from liability for something they didn’t write.[2] In most cases, the ISP will only be liable if they materially contributed to the publication of the defamatory statement.[3] Without this contribution, it’s unlikely that the ISP will be liable for injury sustained as a result of a one-star review.

 

Even if you are a business owner and able to identify the individual publisher of the defamatory statement, the Twibel case still isn’t a home run. The biggest challenge is that most of these posts are opinions rather than false statements of fact. Because opinions aren’t held out to be true, they cannot satisfy the requirement of a false statement of fact needed for a defamation claim.[4] Thus for example, if you’re going to sue Karen because she posted to all of her Facebook friends that your restaurant is terrible and serves garbage, you better make sure she’s trying to pass that off as the truth rather than an exaggerated opinion.

 

Additionally, it can be difficult to recover monetary damages against an individual who has relatively shallow pockets. Even if you can convince a judge that you or your business has been defamed and a judgment is entered against the author, it is unlikely you will actually receive that monetary award. The best option may be to ask for injunctive relief and ask the court to order that the post be taken down.

 

Traditional defamation law is still a remedy for those that have been libeled or defamed on the internet, so don’t let the medium through which you’ve been defamed stop you from bringing a claim. With most of us Googling a restaurant before we go there for the first time, negative reviews can significantly impact our decision of where to eat. If a review or post is damaging your business because it’s being held out as the truth, or people could reasonably believe it’s the truth, you could have a strong Twibel claim.

 

 

 

 

[1] 47 U.S.C.§ 230

 

[2] ADVEBUS § 6.61 Defamation and the Internet, Advising e Business. Nov. 2018

 

[3] Jones v. Dirty World Entertainment Recordings LLC, 755 F.3d 398, 413-14 (6th Cir.2014)

 

[4] Twibel Hits the Courts: Defamation and the Internet, https://ccbjournal.com/articles/twibel-hits-courts-defamation-and-internet (November 19, 2014). Contributions by Hajir Ardebili

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