You could be liable, so be careful what you post on social media.
By Giselle Girones, JBA Young Lawyers Section Board of Governors
With the ease in which information can become viral via Twitter and other social media platforms these days, it is important to understand when one could be held liable for reposting allegedly defamatory content.
The answer to that question is the often dreaded “it depends.”
Jurisdiction matters with respect to teasing out the answer to this question. Another important consideration is whether you added commentary or edited the original content when publishing it.
For the purposes of this article, I will focus on Florida law.
Generally speaking, you can be held liable for republishing allegedly defamatory content, even if that content is attributed to the original publisher. It follows that the odds of facing liability increase if you provide your own commentary when reposting or retweeting content. However, there are exceptions to this general principle, especially if you are considered a media defendant.
Some of the defenses often relied upon include the wire service defense and the fair reporting privilege, which immunize media defendants when the content reported on is obtained from another. The publisher can escape liability unless he or she knew the statement was false or had reputable news sources or government documents such as arrest reports, court records and the like.
Defenses which attack the required state of mind of the publisher also are useful in these situations. For example, if the content concerns a public figure, the plaintiff is required to prove actual malice in publishing the allegedly defamatory content.
If the plaintiff is considered a private figure, the plaintiff is required to prove the publisher acted negligently when publishing the content. In this case, the publisher would generally be immune from liability if he or she reasonably believed the allegations when published. That’s a tougher standard to meet.
While these defenses apply to online, spoken and printed content, there is one wrinkle to consider with respect to content that has been published online only. With the focus on Twitter, specifically retweets, a publisher may be protected under Section 230 of the Communications Decency Act of 1996.
The Act states that “no 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.”
The section was enacted in response to the concern that online service providers would censor user comments due to fear of liability.
There are three elements to be met for protection under the Act: Be considered a provider or user of an interactive computer service (here, Twitter); the affected party considers you the publisher or speaker of the allegedly defamatory statement; and someone else provided the information.
Courts have applied these elements broadly to include an online publisher’s deliberate decision to republish material. For example, the Middle District of Florida found the Act immunized a publisher who tweeted content provided by third-party users on its website. See Roca Labs Inc. v. Consumer Op. Corp., 140 F. Supp. 3d 1311 (M.D. Fla. 2015).
There, the publisher edited the content’s length to fit within the Twitter character limit and tweeted a “teaser” or preview of the post. The publisher also added Twitter handles, bolded a word and added links to the respective posts. The court found these actions did not preclude immunity because they did not substantively alter the content of the original posts.
Not only are these nuances important to understand for personal liability, but it is of particular importance to businesses who grant control of their social media accounts to employees and outside parties that may tweet or retweet offensive content.
When it comes down to it, you may be immune if you retweet allegedly defamatory content so long as the content was created by a third party and you had no actual knowledge of the false statements and/or reasonably believed them to be true.
However, if you have some control over the original tweet or add to or substantively edit the original content to include defamatory content, you could be held responsible for all of the content, or at a minimum the added content you provided.
Giselle Girones is an associate with Shullman, focusing on media law and intellectual property law.