Much has been said and written about the disarming casualness with which people converse over the Internet, sometimes oblivious to the breadth of their audience. Jobs have been lost as malcontent employees vent their boredom in the Facebook status bar, and we’re now confronting the first generation of libel-by-tweet.
When Amanda Bonnen posted a comment to her Twitter feed referring to mold she alleged was in her Chicago apartment, she used just 86 of her allotted 140 characters. Yet her posting – and the lawsuit from her property-management company that followed – speaks volumes about the state of defamation law and its intersection with online speech.
Online commentators have been climbing their cubicles over the July 27 complaint filed by Horizon Group Management LLC in Cook County, Ill., Circuit Court, that accuses Bonnen of defaming the company by tweeting: “Who said sleeping in a moldy apartment was bad for you? Horizon realty thinks it’s okay.” Horizon may well lose the case – see below for why – but the dispute can be a jumping-off point for some valuable lessons about Defamation 101.
Lesson One: Yes, it’s possible to libel someone on Twitter. Sites like Twitter do foster an informality that may be a factor in how a judge would perceive a statement through the eyes of a reasonable reader – an off-the-cuff observation may be inherently less damaging than one purporting to be based on inside knowledge. But the basic elements of libel – a false statement of fact that causes reputational harm to an identifiable target – do not change with the mode of transmittal.
Lesson Two: If you’re really in a hurry to get sued for libel and you don’t have a lot of time to waste, libel a business – especially a retail business. Yes, individuals can also be defensive – often very defensive – about their reputations. But most individuals don’t keep lawyers on standby, and most have a difficult time establishing a direct link between a hurtful statement and a financial loss; it’s much easier for a retail establishment that tracks its customer statistics and revenues daily. That doesn’t mean don’t write hard-hitting journalism about businesses. It just means, be prepared to get hit back equally hard if you’re loose with the facts.
Lesson Three: Yes, statements purporting to be “opinion” can still be defamatory. “In my opinion, no one should eat at Dinah’s because of the rodent infestation,” can be libelous if Dinah’s is verifiably vermin-free. If you bury an assertion of fact inside of a commentary – in this case, Horizon’s lawyers will claim, the existence of mold in their apartments – the “opinion” label provides no blanket immunity.
In the Bonnen case, it’s quite possible that a judge (or a jury, should it go that far) will conclude that the dripping sarcasm of the writer’s post – especially in the venue of Twitter, which people don’t generally consult expecting to read thoroughly researched consumer reviews – makes it evident that the post was hyperbole. (For instance, in one recent case, a federal district court decided that catty remarks about a former TV newscaster posted on a website’s “Watercooler” gossip section was non-libelous opinion, because a reader visiting such a site would expect to find “non-serious banter.”) An over-the-top attempt at humor, even one that carries a sting, is not libelous if that’s the way a reasonable reader would understand it. It might also turn out Bonnen’s claim is provably accurate. Truth remains an absolute defense to a libel claim. Still, before making a wisecrack about an identifiable business that implies a specific shortcoming in the vendor’s product, be sure to think before you tweet.