Live(tweet) Through This - Fordham Intellectual Property, Media & Entertainment Law Journal
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Live(tweet) Through This

Live(tweet) Through This

On Friday, January 24, a Los Angeles, California jury cleared Courtney Love of libel charges brought by her former attorney, Rhonda Holmes, Esq., for a statement Love made on Twitter. This case is not the first brought over defamation allegations for conduct on the online social networking and microblogging service — three years ago Love herself paid $430,000 in a settlement over a series of insulting tweets — but it is the first to have gone to trial in the United States. Referred to across media outlets as the “Twibel” trial (a portmanteau of “Twitter” and “libel”), this case offered the first reaction of a jury to Twitter defamation and, potentially, the first assessment of damages for reputational harm on the popular social network.

Love, a rock star, “sometimesactress, and Twitter “verified,” retained Holmes’ services in December of 2008 to represent her in a fraud litigation over the management of the estate of her late husband, Nirvana frontman Kurt Cobain. Around the same time, Love hired another attorney, David Fink, to also handle the Cobain estate. Holmes claimed Love fired her in May of 2009, dissatisfied with her work, though Love contends the termination never took place. Holmes stated in her complaint that Fink fell out of favor with Love and the singer reached out to Holmes for representation again in the fall of 2009. Holmes refused, citing scheduling conflicts and “lack of any indication Love would honor the condition to refrain from substance abuse.” In June 2010, Love, still under the impression Holmes represented her, took to Twitter. Love tweeted, in part, “I was fucking devestated [sic] when Rhonda J. Holmes esq. of san diego was bought off.” Holmes sued Love in Los Angeles Superior Court, alleging libel.

In Love’s direct examination, the singer’s attorney, John Lawrence, asked what she was trying to convey when she wrote the tweet in question. Love responded, “I wanted to find out if Rhonda had vanished, so that’s why I gave her name specifically.” Love claimed she aimed to write to a third party who may have known Holmes, but also confessed to being “sort of a computer retard” and that she “didn’t know how to DM [direct message] perfectly” to make it “a private thing.” Love’s efforts “to convey that [she] thought [Holmes had] been bought off” potentially reached all of the singer’s followers, though Love promptly deleted the tweet. When Lawrence asked Love what she meant by “bought off,” the singer answered, “[i]t isn’t like someone comes up to you with a suitcase. It could be power; it could be this very case.”

California Civil Code §45 defines libel as “a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” California case law includes “almost any language which on its face has the natural tendency to injure one’s reputation, either generally or with respect to his or her occupation” as potentially libelous. On cross-examination, Love acknowledged the harm her tweet could cause to Holmes’s reputation as an attorney, stating “it’s not good.”

The falsity of Love’s tweet presented an important question for the jury. During direct examination, Love offered a rather abstract definition of “bought off,” one less contingent on evidence of monetary bribes and more connected with powerful and unnamed corrupting influences. On cross-examination, Love stated she did not think Holmes took a bribe, but that she believed Holmes had been figuratively bought off at the time she tweeted, positing her words as opinion, rather than fact of questionable veracity.

Holmes needed to prove by clear and convincing evidence not only that Love knowingly made a false statement that caused harm to the attorney’s reputation, but also that the singer did so with malice.  Prior to 1964, a defendant’s actions could constitute libel if she included in a writing a statement of and concerning the plaintiff that is defamatory in nature and that the defendant publishes, i.e. communicates to a third party. The 1964 Supreme Court decision New York Times Co. v. Sullivan established the higher standard that statements must be made with “actual malice” to constitute libel of and concerning public officials. In 1967, Curtis Publishing Company v. Butts extended the higher standard to “public figures.” A public figure is either a household name (“general purpose public figure”) or an individual defamed in connection with her involvement in a matter of public concern (“limited purpose public figure”). In representing Love, Holmes made herself a limited purpose public figure. Therefore, Holmes needed to prove the actual malice of Love’s statements to prevail.

The types of parties in defamation suits in the digital age differ from those in past cases. Section 230 of the Communications Decency Act of 1996 states: “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This provision holds the user responsible content she creates. This law complicates libel claims, as plaintiffs find themselves suing individuals, instead of traditional publishers. (Holmes sued Love, not Twitter; L.B. Sullivan sued The New York Times, not the civil rights advocacy group whose advertisement in the newspaper addressing the use of excessive police force in Southern states allegedly harmed the reputation of the Montgomery, Alabama City Commissioner).  Establishment media employs fact-checking and editorial review. Digital platforms allow anyone with Internet access to make any statement about another party and introduce that statement to a worldwide audience instantly. This freedom expands potential libel claims exponentially.

Love’s trial drew particular attention in the press, as it would have served as test case for calculating damages for social media harms. The legal world may have to wait until Love’s next defamation trial, a suit brought by fashion designer Dawn Simorangkir for Love’s comments on Pinterest, for that opportunity.

Daniel Sheerin

Daniel Sheerin, a second year student at Fordham Law, is a staff member of the Intellectual Property, Media & Entertainment Law Journal. After graduating Tufts University, he moved to New York City to play drums, which he can still do, if called upon.