Someone famous — so famous that I’ve forgotten who it is — once observed that the world is riven into two diametrically opposing factions, those who love and idealize Twitter and those who think it is the dumbest thing since the unlamented pet rock of the 1970s.
Personally, I enjoy Twitter (can’t deny it, since you’ll see my tweets all over www.baerbizlaw.com!). I understand its value as a promotional tool for entrepreneurs, and, as a technology and social media lawyer, I relish the legal mind-benders it raises. Still, I can’t say that millions of tweets like “Lying on the couch!” or “I’m sipping a capuccino!” make me shiver with voyeuristic delight or enrich the world.
Speaking of legal mind-benders, consider Horizon Group Management v. Bonnen, a Cook County, Illinois circuit court case in which a property management company brought a defamation suit against a former tenant who tweeted, “Who said sleeping in a moldy apartment was bad for you? Horizon realty thinks it’s okay.” The case is interesting because it involves not only the content of Ms. Bonnen’s tweet (defamation and libel require factual content, specifically the publication of a false statement of fact; pure opinions are not defamatory), but also how it should be interpreted in the Twitter context.
Ms. Bonnen was represented by attorneys at The John Marshall Law School Center for Information Technology and Privacy Law. In their motion to dismiss, counsel for the defense cited a 2009 study in which more than 40 percent of tweets were deemed “pointless babble.” (ONLY 40 percent?) “When one considers Ms. Bonnen’s allegedly defamatory tweet in the social context and setting in which the statement was published,” they argued, “its nature as rhetorical hyperbole is readily apparent.” Or, to put the argument more bluntly, given the widely acknowledged stupidity of Twitter and the verbal diarrhea of many of its adherents, no one should reasonably have read a factual dimension into Ms. Bonnen’s moldy tweet.
Circuit Judge Diane Larsen granted Ms. Bonnen’s motion to dismiss without issuing a written opinion, although she did note in court that the complaint was too vague. The result, therefore, turned on the judge’s view that the complaint was not well constructed enough to satisfy the Illinois defamation standard.
Although I admit I was not in the courtroom, I find the outcome a bit surprising because the tweet does seem to state, or at least clearly imply, that Ms. Bonnen was or is a tenant in an apartment managed by Horizon and that she experienced mold in that apartment. The “social context” of the tweet may be a legitimate focus of inquiry at trial, but essentially holding tweets to be opinion, i.e., not “serious”, at the motion to dismiss stage is a bit hasty.
More broadly, I disagree with the notion that tweets are qualitatively different from other communications from a legal standpoint. You can communicate facts and harm reputations in a 140-character microblog post, just as you can through more traditional media. The medium shouldn’t matter. In its response to the motion to dismiss, the property management company pointed out that, indeed, many tweets are serious — for example, the U.S. Centers for Disease Control and Prevention use Twitter to publish information.
At a national intellectual property law seminar I attended last year, a roomful of IP lawyers representing big law firms, media companies and, of course, Baer Business Law largely agreed that tweets could even be copyrightable, if they contain a “modicum of creativity,” the copyright protection standard stated by the Supreme Court in the Feist case (which held that alphabetical telephone listings are not copyrightable). Twitter may very well be novel, if not epochal, as a unifier of the human family. Having said that, treat with extreme skepticism any claim that tweets are legally different from anything else you write.