The controversy deepened on Tuesday in Paris, where Twitter told a judge that it needed the green light of an American court before it could disclose who was using hashtags like #unbonjuif (“a good Jew”) and #siJetaisNazi (“if I was a Nazi”).

The lawsuit came about as Jewish student groups asked a court to force Twitter to comply with the country’s laws against hate speech. The French government is not directly involved in the case, but a senior Minister told the newspaper Le Monde that Twitter “has every interest in adapting to the legal, philosophic and ethical culture of the countries where they want to do business.”

The situation places Twitter in a bind. On one hand, the country is obliged to comply with the laws of the countries in which it operates. But on the other hand, the French legal request goes against the First Amendment and the company’s commitment to stand up for its users’ voice.

The actual hashtag situation is unpleasant too. French tabloid L’express reports that last Sunday, the Nazi tag was “trending” on Twitter with more than 1,200 tweets — the same number as the number of tweets about actor and tax refugee Gerard Depardieu. Here is one violent example (many other Twitter users responded to these tweets by denouncing the hashtag):

#SiJetaisNazi j’lancerai la Nuke sur Israel

— Call me Pretty Boy. (@Z_ouu) January 5, 2013

The difference is that the U.S. has a legal culture where “the strongest weapon against hateful speech … is more speech” while European laws seek to use speech laws to curb racism. Unfortunately, as happened in my native Canada, hate speech laws can also become a way for groups to censor political views they don’t like.

Now the question is whether the French judge will buy Twitter’s claim that it needs permission from a U.S. court to identify the anti-Semites. According to a source familiar with the case, Twitter’s legal theory is based on the fact that the user profiles are on servers in America. But this is unlikely to work.

“The French courts have a reasonable basis for taking jurisdiction if the material is transmitted or received in France; I think that they are likely to take jurisdiction,” said Stephen Scott, a constitutional law expert at McGill University. He added that the French government’s attitude will be, “if you want to play on our rink, you play by our rules.”

Twitter could still hold out if it loses, of course. But Scott says this could lead French authorities to target Twitter’s assets and operations in Paris as a source of leverage. If Twitter simply decamped, the French would conceivably have to consider China-style restrictions on Twitter.

Twitter provided the following statement:

“Twitter does not moderate content. We adhere to the laws of the countries in which we operate and have clear rules and terms of service that govern user behavior on the platform. If we are alerted to content that may be in violation of our terms of service, we will investigate each report and respond according to the policies and procedures outlined in our support pages. You can find the Twitter Rules here: twitter.com/rules and additional support information here: support.twitter.com.”

(Image by  ollyy via Shutterstock)

Related research and analysis from GigaOM Pro:
Subscriber content. Sign up for a free trial.

• Survey: How apps can solve photo management
• Sector RoadMap: Social customer service in 2013
• Sector RoadMap: Content personalization in 2013

In case you missed it, the first incident involved a BBC television show that claimed an unnamed former UK politician abused boys. Soon after, people on Twitter used “jigsaw identification” to conclude that the person is question was Lord McAlpine, and some of their conclusions were retweeted 100,000 times. The BBC soon acknowledged the report was false and apologized to Lord McAlpine who said the public hatred he endured was “terrifying.”

Meanwhile, in New York, a man accused Sesame Street puppeteer Kevin Clash of carrying on an affair with him when he was a minor. Even though the allegation were unproved, Twitter immediately lit up with tasteless jokes linking to the Clash story like:

“Voice of Elmo accused of affair with minor nyp.st/TVGXVd” haha no elmo you’re not supposed to tickle me! elmo stop! ahhhh elmoooo!

— Ryan MacNamara (@massnamara) November 12, 2012

Several days later, the accuser recanted his story and said he was of age and that the affair was consensual. On Sunday, the story became more confused with reports of a payoff and a criminal history on the part of the accuser.

Trial by Twitter and libel law

The facts aren’t identical but both situations involve public figures subjected to “trial by Twitter” over terrible allegations. The legal fall-out, however, has been very different.

In Britain, Lord McAlpine has already obtained a libel settlement from the BBC for falsely suggested he was a paedophile on national TV. The legal action didn’t stop there, however. Lord McAlpine’s lawyers have also vowed they will go after “a very long list” of people who repeated the claims on Twitter.

Meanwhile, neither Clash nor Sesame Street have threatened to sue the media or anyone who shared the story on Twitter. This response reflects not only different facts but also very different libel laws in the US and Britain.

“[I]n America it’s hard for famous people (and especially government officials or former high government officials) to sue people for defamation.  The plaintiff has to prove that the defendant knew the allegation was false, or at least knew it was quite likely false,” explained Professor Eugene Volokh, a noted First Amendment scholar at UCLA, in an email. ” Moreover, if the defendant is just stating an opinion (“Based on what I read in this article, so-and-so must be guilty”), that too is constitutionally protected against a libel lawsuit.”

Volokh added the rules are different for non-public figures. In the UK, however, the overall libel law is much stricter and puts the burden of proof on the speaker to show a statement is true. This means the rich and powerful in Britain have long used libel law to intimidate or silence critics.

“The English law has been completely fixated on reputation and undervalued the public interest in free speech, and has been unwilling to protect the media against good-faith mistakes,” according to an email from Professor Stephen Scott, a constitutional law expert at McGill University. “This has not only been in the context of defamation, but in book/magazine, theatre and cinema/video censorship.”

Can you sue 100,000 Twitter users?

If Lord McAlpine’s lawyers follow up their threat, it will be interesting to see how far they get. Under UK law, they can go after not just people who tweeted conclusions about the BBC show but also everyone who retweeted those conclusions. In theory, half the country could be in court by the time this is done.

Those in America are safe from the Lord’s lawyers, however. That’s because Congress in 2010 unanimously passed a law called the SPEECH Act to put a stop to so-called libel tourism — where powerful people around the world would get a libel judgement in London and then show up in America to collect.

Unfortunately, the American shield is of little help to UK Twitter users. Those users not only face legal exposure over Lord McAlpine, but will have to decide whether to self-censor the next time the BBC reports news they can’t confirm. While false accusations about paedophilia are a terrible thing, such  legal campaigns that stymie free expression may prove an even greater evil.

As services like Twitter cause news to spread faster and more broadly than ever, courts in the UK and elsewhere will have to find new ways to balance reputations and free speech.

[Update: A reader objected to the original headline which said “BBC and Elmo sex scandals.” My intent was to provide context not sensationalism but I take the point and have updated:

Hey GigaOm, you think maybe we could NOT use the phrase “Elmo sex scandal” in headlines? gigaom.com/2012/11/18/twi…

— Jillian C. York (@jilliancyork) November 19, 2012

Related research and analysis from GigaOM Pro:
Subscriber content. Sign up for a free trial.

• Sector RoadMap: Social customer service in 2013
• Sector RoadMap: Content personalization in 2013
• Frenemy mine: The pros and cons of social partnerships for online media companies