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Saturday, February 05, 2011

A Libel Proof Defendant? Courtney Love's Twitter Defamation

The Twitter defamation suit against celebrity Courtney Love , ostensibly the first of its kind, is set for trial next Wednesday (February 9, 2011) in California.  The suit arose after Love got into a tangle with the Boudoir Queen, a fashion designer also known as  Dawn Simorangkir.  Simorangkir accepted some of Love's clothing to "transform" into designer dresses, but Love was unsatisfied with the end product and refused to pay. To add insult to injury, Love posted allegedly defamatory statements about the Boudoir Queen on Twitter, MySpace, and Etsy.com.

Love tweeted, inartfully, that “ police are morethan ecstatic to pick [Simorangkir] up she has a history of dealing cocaine, lost all custody of her child, assault and burglary.” [The errors are Love's.] (Complaint ¶ 24(b)). Love also wrote, “so goodbye asswipe nasty lying hosebag thief,” as well as “… my clothes my WARDROBE! oi vey don’t fuck with my wradrobe or you willend up in a circle of sorched earth hunted til your dead.” Love made similar statements on feedback forums on MySpace and Etsy.com. At the time Love's tweet went online, she had an estimated 40,000 Twitter followers.

In response to Love’s “feedback,” the Boudoir Queen sued for libel. Love’s attorneys responded to the complaint by claiming that Love was merely warning others about “Simorangkir’s pattern of criminal and bad faith conduct” (Defendant Love's Special Motion to Strike). Love’s attorneys argued that Love acted in the “public interest” by using social media to warn others of her experiences. The California court, however, denied Love's motion to strike and found that the dispute involved not an issue of public interest but rather “a discrete private dispute between Love and Simorangkir.” The court also rejected the argument that the defamatory statements concerned matters of public interest simply because Love is a celebrity, since “under that theory, no celebrity could ever be found liable for defamation."

Besides being the first Twitter-based defamation suit to reach trial, Love’s suit poses some intriguing legal issues. As a result of our society’s commitment to free speech, a speaker cannot be held liable for expressing her opinion. Opinion, however, is a legal term of art, and refers to statements that are unverifiable or cannot be interpreted as stating actual facts about the plaintiff. Hyperbole, for example, is not actionable as defamation. In a 140-character tweet, however, the speaker has little chance to clarify her meaning and provide relevant context that might establish her tweet as hyperbole.  In Love’s case, she is well known for her “over the top” behavior in general, perhaps indicating her followers on Twitter might expect the kind of hyperbole that is clearly present in her tweets. Of course there is no such thing legally as a libel-proof defendant (nor should there be), but this case does make one question whether any reasonable person could possibly give credence to anything she said, factual sounding or not.  Love provided a series of tweets that may have alerted some audience members to the context of her dispute with the Boudoir Queen, but it is an open question whether the tweets should be read together to establish the “context” supporting her statement that the Boudoir Queen was a “lying hosebag thief.” Certainly Love’s accusations of criminality seem to indicate that she has undisclosed (and potentially false) factual information, which certainly makes it harder (or likely impossible) for her to shield her statements under the mantle of opinion. Moreover, there is an argument that a defamatory statement in a single tweet (not the issue here, admittedly) should be treated like defamation in a headline that is refuted by an accompanying article not likely to be seen by most reasonable readers of the headline.  Regardless of what happens if the Love case actually goes to trial on Wednesday, the saga is instructive about the perils of assuming that one can vent one’s frustrations about another in social media without legal repercussions.

Posted by Lyrissa Lidsky on February 5, 2011 at 06:27 PM in First Amendment, Lyrissa Lidsky, Torts, Web/Tech | Permalink

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Thanks for calling attention to this case. But I confess some puzzlement on the facts as you present them. Unless what Love said is true, it's obviously defamatory, indeed, isn't it per se libel? What am I missing? Why is this a 'hard' case (assuming the statements aren't true)?

Posted by: Brian | Feb 5, 2011 8:54:06 PM

I don't think it is a particularly hard case: accusations of crime are the prototypical examples of defamatory statements, though even a seeming accusation of crime may be hyperbole in the right context. For example, the statement "Dr. X is a murderer" would not be defamatory in the context of a pro-life speaker criticizing Dr. X for performing legal abortions. I think the case is intriguing because it invites contemplation of larger issues surrounding twitter defamation, such as how to interpret a single defamatory tweet. What is the relevant context? I think it also invites contemplation of the "reasonable reader" of the tweet and how much weight to give the conventions of discourse that the speaker typically uses to communicate with his/her "followers." I was trying to use the case as a jumping off point for thinking about these other issues.

Posted by: Lyrissa | Feb 5, 2011 9:50:38 PM

Non-twitterer here. Do you have to be a follower of a feed to read a tweet? Or is it publicly accessible? I've read people's tweets before even though I'm not a follower of anyone. If that's the case here, then there could be readers of these messages who don't really know much about Courtney Love.

Posted by: Bruce Boyden | Feb 6, 2011 12:10:28 AM

@Bruce: depends on whether your Twitter account is locked. Twitter accounts are presumptively public, so that your tweets are as available as any website; but you can choose to make the account private so that only people who ask and you allow see your tweets. Courtney Love's Twitter account has been shut down, so it's not possible to tell whether she was public or private, but my suspicion was that it was the former. But with 40k followers, her tweets were clearly published, regardless.

Posted by: Dave | Feb 6, 2011 1:13:34 AM

Lyrissa, thanks for the clarification.

Posted by: Brian | Feb 6, 2011 3:10:51 PM

Status conference in early March. Looks as if this case is settling. See my blog's history of the case.

http://theunrulyoflaw.blogspot.com/search?q=courtney+love

Posted by: sheldon toplitt, esq. | Feb 8, 2011 11:57:14 AM

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