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Liability in the Age of Twitter

Many years ago now and thanks to the MP3 compression algorithm first widely used in the early 90s, it became feasible to share audio files (music) via the Internet. Overnight, it seems, file sharing sites were launched. Napster, one of the best known, started up in June of 1999, and by December of that year a lawsuit was filed against the company. In the end, examples were made of some persons who shared music files, claiming hundreds of thousands of dollars in damages – though the bigger fight was finally “lost” in the sense that it’s nearly impossible for the online sharing of music to be eliminated completely, and many bands chose to embrace the publicity and allow an “official” music video to be shared in the hopes of leading to direct download sales.

But it remains that what can be done on the Internet theoretically can be sued.

The issue of liability for what we “say” online was broached by a lawyer friend in the context of President Trump’s proclivity for taking to Twitter to bypass communication channels of yore and simply get what he has to say right out there himself. The lawyer was suggesting he could be held accountable in a legal sense for his Tweets.

We’ll deal with that more complex question in a moment, but this proposition raised another question for me: are we, just “broadcasters” of our opinions, not to mention “facts,” memes, theories, and just plain silliness, responsible legally for what we write, or simply pass along? (I’ve wondered for a long time if Sam Elliot cares how his face is used in memes, or if he’d like to get any compensation?)

I don’t suppose there’s any problem legally for us, as private citizens, if we help propagate misinformation (aka “Fake News). And, as I learned, opinions are privileged under the law. So, if I post a comment on Facebook or Yelp that the dressing rooms in a local store smell like rat poop, that’s just my opinion. However, if I make a public statement of fact on that same Yelp: “The dressing rooms at XYZ Store are filled with rat poop,” I might have a bigger problem, should XYZ Store a) care to bother suing, and b) be able to identify me. Let’s say that my statements actually led to XYZ being investigated for rat poop in the dressing rooms, and had to shut down for a day or two, and lost business – and it could all be traced somehow back to me. Theoretically, assuming my claim was false and the judge in the matter also felt my intent was to harm their business (so, for example, let’s also say I run a competitive business) and not just be making a snarky comment – possibly, a case could be made.

Part of the problem with much of the passing of misinformation, or Photoshopped images that are intended to mislead, is that tracing the image or statement back to its source is very difficult, time-consuming, and consequently expensive. Why bother?

That would all depend on what you’ve got to lose, I would imagine. In that case of a lie initiated by a competitor and deliberately spread with the intent to do harm —harm that eventually ensued— it certainly might be worth at least presenting “alternate facts,” if not making a big enough legal stink that the competitor looked worse than he intended to make you appear.

Of course, if someone spreads a nasty comment online that is true, there is no cause of action.

Modifications of images are likewise actionable if the modification is intended to cause harm, or does cause harm – and is not so obviously silly that it is beyond reasonable belief.

The issue of liability for what we “say” online was broached by a lawyer friend in the context of President Trump’s proclivity for taking to Twitter to bypass communication channels of yore and simply get what he has to say right out there himself.

One thing that’s important to know: ISPs and Websites are protected by the 1995 Communications Decency Act, so though they may have deep pockets, as long as the site or the ISP isn’t itself spreading harmful lies, there is no case to bring against them.

Now, a little on the more complicated question of whether a government official’s online statements, specifically on social media, can be cited as a matter of public policy. Needless to say, if said official has a personal account, and an official one (which transfers to a new office-holder when the office changes hands – i.e., it belongs to the office), an argument could be made that Tweets or Facebook posts that are made on a non-official account (“isn’t this view of the ocean beautiful?”) are less significant than those made on an official account.

Nevertheless, just recently, the 9th Circuit set a kind of precedent (and please keep in mind, I am not a lawyer, I don’t pretend to be one!) when it used President Trump’s tweets as demonstration that his “travel ban” was more than just a restriction of travel from certain foreign nations for a limited period of time but in fact a “Muslim travel ban,” because Trump’s tweets had referred to it that way (keep in mind, tweets are restricted to 140 characters, so what might have seemed like an economical way to say “travel from some predominantly Muslim nations” ended up as public policy). The issue was made more damning in that President Trump’s own communications team suggested that his tweets were, in fact, “official.”

Further: Trump has two Twitter accounts associated with him: @RealDonaldTrump and @POTUS. The POTUS one, of course, is the one that belongs to The President. Pundits acknowledge that the tweets from @POTUS are more restrained and also more likely the work of his communications team (at least in part) that are his tweets on @RealDonaldTrump.

And, muddying the waters still further, a bot dreamed up by “technologist, coder and activist Russel Neiss,” based upon a suggestion of Patrick Cunnane, aide former President Barack Obama, searches for Trump tweets every 15 minutes, and reposts them to the account @RealPressSecBot on official-looking White House letterhead.

So: long answer to a short question. As of right now, yes, whatever a government official (at least, the President) tweets can —and apparently will— be considered official statements of the office.

And what does this all mean to you, a social media user? In your capacity as a private citizen, it is still prudent to take a moment before hitting the “share” option on anything that appears sketchy that also is proximate to you and your community and friends. Just for the sake of clarity and honesty, if something “smells” funny to me, I check around a bit to see if it’s a hoax or false story. If so, I let the one who passed it to me know, and don’t go any further. If it’s a silly meme or joke, have at it – and add your appropriate emoticons.

However, all of us should be aware that in some form, we represent the companies we work for, the members of our families and other social organizations, and tirades online —even drunken or half naked photos, as we’ve seen— can have consequences.

Stop. Think. Then, if you must, Tweet.

Nancy Roberts
Writer, voice over artist, information achitect, very curious person.