Love is a many splendored thing. All you need is love. The love you take is equal to the love you make. Unless you are suing rocker Courtney Love for defamation.
A lawsuit involving Courtney Love and designer Dawn Simorangkir had promised to be one of the first high-profile defamation cases based on social media posts. The case was filed when Love went on a Twitter tirade shortly after the designer demanded payment of thousands of dollars for designed clothing, telling her more than 40,000 followers that Simorangkir is a “drug-pushing prostitute” who was said to have had a “history of assault and battery who lost custody of her own child.” Simorangkir claimed in her lawsuit that Love’s Twitter statements destroyed her fashion career to the tune of millions of dollars.
From a social media standpoint, the case raised a very interesting question: Do words that may be defamatory in one context become less defamatory when uttered through a social networking site? Simorangkir’s attorney argued that defamatory words are defamatory words, regardless of the forum in which they are spoken. And, in fact, the argument would further be that social media provides an even greater audience to whom the allegedly defamatory statements have been published.
On the other hand, Love’s attorney argued essentially that statements posted on Twitter and other social media sites must be considered under a lesser standard, given that the average Twitter follower would understand that the context of a celebrity’s tweets tends to reflect mere jest and informal opinions, rather than intended facts about the subject.
Love’s argument seemingly has some appeal to it, as courts addressing traditional defamation claims (i.e., not involving social media) typically do look at the context in which the alleged defamatory statements are made. In other words, courts have looked at, among other things, whether the “broader social context and surrounding circumstances are such as to signal readers or listeners that what is being read or heard is likely to be opinion, not fact.” To the extent Love can prove that the “average” twitter follower, or the average social media user in general, views these types of Twitter posts as mere harmless musings, one may conclude that social media provides greater latitude than more common media publications for purposes of potential liability.
We might have to wait a little longer for an answer to this question. The Los Angeles trial was supposed to start on January 18, 2011, although both sides’ attorneys are in the process of negotiating a settlement. We will continue to monitor the developments in this case, and continue to ask: “Where’s the Love?”
Employer Take Away: What should you as an employer take away from this development? Your employees use social media constantly, often making statements to co-workers and even third-parties. Until the law is further developed in this area, it remains unsettled whether courts and juries will hold those making statements through social media to the same standards as those making alleged defamatory statements through more traditional means. As employers, you should continue to be sensitive to the potential uses, and abuses, of social media by employees. It bears repeating that you should create and maintain appropriate social media policies to reduce the likelihood of liability for the statements of your employees, and also train your employees on the appropriate use of social media.