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Back Story: Mind Your Posts and Tweets

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During law school my evidence professor, who was also a practicing criminal defense attorney, once quipped that he advised all of his clients to “be careful what you say on the telephone.” No doubt that advice would now include texting, blogging and using other forms of social media. With the advent of social networking sites such as Twitter, Facebook and Myspace and review sites such as Yelp, more than ever, clients have the ability to increase their risk of being sued or to decrease their chances of success in pending lawsuits. The following are a few of the more notable cases of people, mainly celebrities, who should have minded their Ps and Ts. In 2009 rocker Courtney Love reportedly lashed out at her fashion designer on Twitter and used every bit of the site’s 140 character limit to deride the designer. Not surprisingly, the designer took issue with the tweets and sued Love for defamation. Love has reportedly settled the case for $430,000 (which amounts to slightly more than $3,000 per character) so we will never know what the eventual outcome of the case would have been. An interesting issue in Love’s case, and similar highprofile cases, is that the tweets, repugnant as they may have been, actually attracted attention to the designer. Therefore, the question arises, is it true that any publicity is good publicity and would Love be entitled to a set-off for any benefit her actions caused to the designer? Another case involves a tweet by a sports reporter that described an on-thecourt dispute between Minnesota Timberwolves Coach Kurt Rambis and a referee regarding a foul called on a Timberwolves player. According to the reporter, the referee agreed that he made a bad call during a game and told Rambis that he would “get the points back.” According to the reporter’s tweets, the referee quickly made a bad call on one of the opposing team’s players. Celebrities are not alone when it comes to social media defamation cases. Other cases include that of the apartment tenant who tweeted that her apartment owner thought it was acceptable to allow its tenants to live in moldy apartments or that of the pizza restaurant that tweeted that its marketing firm’s representatives were “crooks” and should not be used. And the U.S. is not alone in social media defamation cases. In New Zealand, a cricket player is suing a person who, in a tweet, allegedly accused
the player of match fixing. The New Zealand court recently denied a motion to dismiss in that case and allowed it to proceed. Tweeting is not the only social media activity that can get one into trouble. In Michigan, a tow truck company is suing a college student for defamation because the student created a Facebook page dedicated to comments about the company’s allegedly poor service. Getting sued is not the only repercussion of an ill-advised tweet or post. Earlier this year, Aflac fired comedian Gilbert Gottfried, the voice of the infamous Aflac duck, after he posted several jokes on Twitter about the tsunami in Japan. These and numerous other cases abound and experts predict that there will be an explosion of defamation cases centering around Twitter and other social media websites. It is still uncertain whether the plaintiffs in these cases will be successful or not and what precedents may be set, however, their notoriety has not gone unnoticed by the U.S. Congress. In 2010, two U.S. Congressmen sponsored H.R. 4364, the “Citizen Participation Act,” which would have created a federal anti-SLAPP (Strategic Lawsuits Against Public Participation) law. SLAPPs are lawsuits filed against a person because he or she has spoken out on public issues and typically involve claims of defamation, malicious prosecution and abuse of process. Although H.R. 4364 failed to pass, it highlights the concern surrounding the legal risks of using social media and other web sites to vent complaints or comments about other people or companies. And with the exponential rise in the use of social media,1 there will likely be no shortage of cases in this area in the next few years. As for Courtney Love, her lawyer reportedly said that she probably wouldn’t be using Twitter for a while.
1 For an interesting presentation on the statistics of social media usage, just search “Social Media Revolution 2.”
JoHn r. ZiMMerMan is a natural resources lawyer with Parsons Behle & Latimer where he practices primarily water and mining law.
Nevada Lawyer June 2011
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