Is Twitter a publisher and distributor of information like a newspaper, or is it just a dumb pipe like a telephone network? Lawyers in Australia seem to believe that a case could be made that Twitter is a publisher, like a newspaper, and therefore it can be sued for defamation as a result of a single tweet. That may be a stretch — especially in the United States, which has legislation that protects online commentary from such lawsuits — but it highlights the difficulties that Twitter could have as it tries to expand around the globe and into different legal environments.
As reported by the Sydney Morning Herald, a tweet by writer and TV personality Marieke Hardy — in which she falsely accused a man of setting up a blog to attack her — led to a lawsuit by the aggrieved party for defamation, and Hardy wound up having to pay a settlement said to be in the $15,000 range. But the victim apparently wasn’t satisfied with this judgment, and is now suing Twitter because the offending message was retweeted by her followers, and also appeared on the Twitter home page.
Does Twitter edit content? That could be important
This might seem absurd at first. After all, isn’t Twitter just a network like the telephone system, which relays messages sent by users? Perhaps. But the real-time information network is unlike the phone system in many other ways, some of which could be very relevant to such a case. For example, the phone company doesn’t normally listen to conversations and delete or block the ones that it doesn’t like — but Twitter has explained that it routinely blocks users and also deletes tweets for all sorts of reasons, including illegal behavior of various kinds.
Doing this, some lawyers argue, makes the company a lot more like a newspaper publisher than a phone network or dumb pipe. According to media lawyer David Poulton:
There’s not a lot of difference conceptually between Twitter or other internet publishing and an airmail copy of a newspaper; it’s just quicker.
This argument is based on the idea that a publisher who makes choices about what to publish and what not to publish needs to be held to a higher standard of legal behavior than one who just transmits messages without editing them — that’s why phone companies don’t get sued when someone says something defamatory on the phone. But Twitter exerts much more control over its network and the content that flows over it, which is why the British government tried to make the case that it was to some extent liable for some of the violence during the London riots and argued that it should be blocked.
Providers in the U.S. are partially protected from such lawsuits
Such a case isn’t as likely to fly in the United States because of Section 230 of the Communications Decency Act (also called the “Good Samaritan” provision), which — as my paidContent colleague Jeff Roberts has explained — states that a provider of “interactive computer services” is not liable for the content transmitted over that service. This is what protects bloggers and websites from defamation cases in the U.S., and also protects ISPs (to some extent) from having to monitor everything that happens on their networks, something SOPA threatened to change.
That said, however, someone could argue that Twitter isn’t just an electronic information service, but is much closer to being a publisher — in part because it is the only one who controls the data and content that appear on the service, rather than being part of a larger, open web ecosystem with many players.
In countries like Australia and Canada, meanwhile, there is very little U.S.-style protection for any website or service that hosts defamatory content, which leaves Twitter open to actions like the one that was recently filed in Sydney. And other nations have even more rigid and draconian laws around defamation and other crimes related to publishing — including Britain, where the courts routinely use “super-injunctions” not only to block newspapers and even social media from reporting on specific legal cases, but from reporting that any such case even exists.
The Australian case may be settled quickly and/or easily, but what about the next one? The reality is that most of the laws that are currently being enforced weren’t designed to deal with entities that are part publisher and part pipe — with content that is partway between text and speech. Welcome to the challenges of being global, Twitter.