Twitter could be sued for its users’ unlawful tweets

 by Zack Whittaker | March 5, 2012 5:37am PST

Summary: If a Twitter user posts a defamatory tweet, they could get sued. But could Twitter itself be sued as a ’secondary publisher’ for simply being the platform to an ‘illegal’ tweet?   

Could Twitter to blame for its users tweets when they are deemed unlawful, either through defamation, libel, or breaking a court order?

The truth is, depending on where you are, it’s a “maybe”. The answer is that nobody really knows yet.

During the super-injunction breakout in the UK last year, the entire British population was barred from mentioning names pertaining to those who had taken out court ordered gagging requests — either on television, social media, or even in public.

Twitter said at the time it would notify users of any legal action wherever possible, but theywould “be on their own” in court.

But the social microblogging service may be in hot water of its own if a legal challenge is made in the UK.

Legal analysis site Out-Law published a very interesting, theoretical piece, which describes how Twitter could fall foul of the law — through no apparent fault of its own but by giving its users free reign over what they say.

It stems from a case in Australia, where Twitter itself is being sued by Melbourne resident Joshua Meggitt, after writer and television critic Marieke Hardy wrongly named in a tweet who she thought was behind a defamatory blog dedicated to her. She since issued an apology and reached an out-of-court legal settlement.

Those who retweeted are not being pursued, as reports the Sydney Morning Herald. However, as Twitter was the platform for the defamation, the microblogging site is being taken to court for its role as the “publisher” as it is claimed it gave the libellous blog post the greatest exposure.

Many think Twitter is immune from prosecution. But Meggitt’s lawyer cites a case where Dow Jones was sued in Australia under its own defamation law, rather than U.S. law. Also, because Meggitt never signed up to Twitter, he never agreed to the site’s terms and conditions, while Hardy and others did.

But in the UK, the defamation laws are less clear and open to interpretation. In this case, the law has “not yet been tested”. While Out-Law explains that it could go either way, Twitter faces a troublesome time should a case rule against its favour.

It explains that in Australia, Internet service providers (ISPs) and Internet content hosts (ICHs) are publishers, and can be sued in relation to content published by a third-party. As I understand it, ISPs can be sued under UK law in a similar way to have file-sharing sites blocked to their users. Twitter therefore could be held responsible for unlawful tweets published by a user.

It explains that Twitter is not a broadcaster, and is not protected by Australian broadcasting law, and therefore could not be considered as an ICH. Twitter in the U.S. cannot be sued because it is classed as an “interactive computer service”.

In the UK, however, where Twitter has a European base but remains officially headquartered in the United States, its definition is even less clear.

If Twitter users are considered publishers, and Twitter itself is therefore considered a secondary publisher, the microblogging service could be held liable for its users’ tweets.

But as the piece explains, this has yet to be tested in court.

Whatever Twitter says, however, will be overruled or validated by a court. If Twitter is a publisher of sorts, it faces extremely tough times ahead.

http://www.zdnet.com/blog/london/twitter-could-be-sued-for-its-users-unlawful-tweets/3293?tag=nl.e550