The first libel lawsuit over a Twitter post to go to trial, which began this week in Los Angeles, could determine how defamation is treated on social media.
A few "twibel" lawsuits, as they are being called, have been filed before, but all those were settled before going to a jury.
The latest case involves singer Courtney Love and her former attorney, San Diego litigator Rhonda Holmes.
Holmes, co-founder of the law firm Gordon & Holmes, was representing Love in the rocker's fight against the estate managers of her late husband, Nirvana frontman Kurt Cobain. Holmes, however, removed herself as counsel when she felt Love became too difficult to work with.
Love responded by sending a tweet accusing Holmes of bribery. “I was f—— devestated [sic] when Rhonda J. Holmes esq. of san diego was bought off @FairNewsSpears perhaps you can get a quote.”
Holmes sued Love for libel. Love's attorneys argued that postings on the Internet are filled with rumor and exaggeration, and that Love's post should be viewed in that context, but a Los Angeles judge rejected that reasoning, allowing the case to proceed to trial.
Shaun Martin, a professor at the University of San Diego School of Law, said when the jury looks at the case, they should apply the same standard of defamation to a tweet as they would to something printed in the newspaper.
"You can libel someone on Twitter, you can libel someone on the Web, you can libel someone in print," Martin said. "The only slight difference is that because Twitter's messages are so short, and because they're fired off very quickly, it may be more likely a jury finds them to be hyperbole — and you can't sue over hyperbole."
The shortness of a tweet also makes it different from a magazine article or even a story posted on a website. There's little room for context, sometimes making it difficult to prove exactly what the writer meant.
"You only have 140 characters, so you have a very short window with those statements, but it's enough of a window that you could make a defamatory statement," said Art Neill, executive director of New Media Rights and an adjunct professor at California Western School of Law. "It's just a short statement. Is it just too vague to be actionable?"
Defamation can be difficult to prove, whether the accusations involve statements in a traditional publication or on social media websites, the local professors said.
Among other things, the plaintiff has to prove that a reasonable person would interpret what was written to be a statement of fact, as opposed to an opinion, joke or deliberate exaggeration — which are typical defenses in a libel case. These same defenses still apply to something posted on Twitter.
San Diego attorney Renee Galente said the fact Twitter posts can get passed along via retweets to thousands, if not millions, of followers very quickly can be helpful to the plaintiff in a libel case.
"The fact the post was made on Twitter doesn't really change anything," Galente wrote in an email. "But for a plaintiff's lawyer it helps with the burden of proof in showing that the information was published and republished over and over."
The ease with which information can spread on the Internet can harm a person's reputation very fast, but it also works the other way, Neill said.
"It's easy to share and spread false information quickly (on the Internet)," he said. "On the other hand, it's much easier to correct those false statements quickly."
The Love case could shed light on how much a jury is ready to award someone libeled over social media.
"Damages are always hard in libel cases," USD's Martin said, "because it's hard to show how much money or business you actually lost from someone calling you bad things. The power of Twitter is that you can get your message out to a lot of people — and that's great in a lot of contexts, except if you're being sued."
The case is another reminder for people to think before they tweet.
"I think if (Love's) found liable, people will be more careful when they use Twitter, and they should be," Martin said. "There's this view that places like Twitter are a free-for-all, and they're absolutely not. They are subject to the same liability rules as pretty much everything else.
"People should be more careful on Twitter, even if Courtney Love wins."