The Twitter world was abuzz about a week ago about a landlord, Horizon Group Management LLC, which sued a tenant, Amanda Bonnen (her Twitter account doesn't seem to exist anymore), over a retweet, alleging defamation (you can read the complaint here).

At first this case seem like yet another frivolous lawsuit but when I started thinking about it and how powerful Twitter is as a dissemination medium I remember what I wrote a while back about the Courtney Love defamation case (also defamation using Twitter). In this case Bonnen retweeted an offensive tweet (a Twitter message for anyone not familiar with Twitter) about the condition of properties the Horizon Group leased:

There is no doubt that a tweet can be defamatory. You can quite easily cause harm to a reputation in 140 characters. What is a little scary is that retweeting a defamatory tweet could also be defamatory. There is no "retweet immunity" that I'm aware of. When you retweet something you are also publishing that defamatory message to your network of followers. Things brings me to the challenge with something like Twitter (or any networked social service, for that matter):

Leaving aside the brevity of the typical Twitter post it is important to consider a Twitter user's potential reach. Many of the applications which interface with Twitter allow users to republish, or "retweet", Twitter posts to their users. It isn't difficult to imagine the effect of a defamatory tweet published and republished to thousands, tens of thousands or even hundreds of thousands of users on Twitter alone. A number of Twitter users republish their tweets on other social networking platforms automatically. These platforms include Facebook, FriendFeed and their personal blogs and static websites.

If you take into account the users or visitors who frequent those sites and who may pass those tweets along to their followers and contacts there is the potential for a single 140 character tweet to reach a substantial number of people and do irreparable harm to the person defamed.

Anyone who uses Twitter has probably had a tweet retweeted and can appreciate the dissemination potential on Twitter alone. When you add the ability to republish a single tweet on multiple services using 3rd party services like Posterous, Ping.fm and Hellotxt, the a defamatory tweet's reach could grow exponentially. The effect of that could either exacerbate the harm or have little further effect at all. One of the elements of a defamation claim, at least in South Africa, is that the people receiving the defamatory comment will associate it with the plaintiff. This means the plaintiff must be known to those people. Retweeting a tweet to a million followers who have never heard of the plaintiff may have little effect on the harm the plaintiff suffers. On the other hand retweeting to a large group of people who are familiar with the plaintiff could have a significant effect on the plaintiff's potential harm.

(Image credit: T.O.A by ^riza^ published under a Creative Commons Attribution 2.0 license)

This sort of case challenges one of the most common uses of social media, namely as s souped up word of mouth tool. Social media users actively use services like Twitter, Facebook and FriendFeed to talk openly about brands, people and services. I am one of those people. There are times when these discussions are tremendously rewarding and those brands, people and services engage with their customers or critics. Cases like this one raise a question about the desirability of this practice although the ship may have sailed on that one. People have always talked amongst themselves and I doubt very much we will see a contraction of the social Web because of the threat of a lawsuit.

Perhaps what we may see is a change in attitude towards defamation, both because of the potential backlash on the social Web where a company takes action against a user and because it is often better to engage with a critic than sue them. Taking action against a person who tweeted something critical frequently shines a spotlight on that tweet and the thing the user complained about, only exacerbating the effect of the tweet. I've seen many instances of where a company engaged with its critics and defused a potentially explosive situation.

Of course where companies insist on taking action against users the usual defamation defences are available to them. Plaintiffs do still need to prove that a comment was defamatory before a defendant would need to consider the appropriate defence. Then there is the right to freedom of expression which must also be factored into the equation. Combine this with social media and you have a pretty complicated convergence of factors and considerations and a fascinating one at that.

One thing I am sure about is that we are going to see more and more of these sorts of cases popping up going forward. Facebook posts are one of the things I am asked about the most in radio interviews and by clients and as South African Internet users use Twitter more and more, I expect questions about defamatory tweets as well.

What does all of this mean for Twitter users? Well, for one thing, don't publish (or republish) anything you would not be willing to say to a person's face or you are prepared to defend if you are challenged about it.

I've been contacted by a number of people who have been defamed on Facebook and in many cases the person who has been defamed is not a Facebook user and only became aware of the defamatory content through a friend or associate who is a Facebook user. This is a good reason to sign up with Facebook and maintain a presence on the service.

You need not create a comprehensive profile if you prefer not to but it is worthwhile being able to log-in to the service so you can more readily discover what may be published about you. The reason why you need to be able to login to Facebook is that much of Facebook's content and services are only available to logged in users.

Remember to set your privacy settings to suit your privacy/publicity preferences if you do decide to create a profile on Facebook. Facebook provides fairly granular privacy controls to enable its users to determine how much information is disclosed to whom, if any.

Monitoring mentions of you on Facebook is part of what could be a broader reputation management process which you may want to engage in if you are concerned about what people may be saying about you on the Web. There are well integrated and professional reputation management tools like BrandsEye which are becoming increasingly popular. At the same time there are a number of options available to individuals who don't need or want the more expensive products. These options include services like Google Alerts which enable you to set up email or feed alerts based on keywords and phrases.

The reason why this is important is that early warnings about defamatory content published online can assist you in mitigating the effects of that defamatory content and afford you an opportunity to cut it short sooner rather than later. The obvious benefit is potentially reduced harm to your reputation and your business.

This post was originally published on BizCommunity here. This is a slightly different version and is also published under a Creative Commons license (like all my articles on this site - for more information scroll down to the this site's footer) which means you can quote from it and share it as long as you comply with the terms of the license.

It is tempting to think that using Facebook will land you in prison, especially with all the media attention on the Duane Brady case in the Kliptown Magistrates Court. The simple truth is that sticking to a few simple rules should help you avoid that unpleasant experience of receiving a strongly worded letter from an attorney or, worse, an unwelcome visit from an unsympathetic police officer keen on dragging you off to a holding cell for the weekend.

Defamation is more common in our general experience and in our conversations about the risks of expression online. Some people refer to this phenomenon as libel or even slander but the correct term in South African law is defamation. For the most part defamation occurs when someone publishes (this isn't just a printed publication but really means saying something in some medium or another to two or more people) something that tends to demean another person in the estimation of her peers. We may differ as to how we define it but we know it when we experience it. Proceedings to remedy defamation are conducted in our civil courts.

The Brady case, on the other hand, is a criminal case in which he has been charged with crimen injuria. This is related to but different to defamation (other jurisdictions may refer to this as libel). Crimen injuria includes some of the elements we see in defamation as well as privacy concerns. One explanation of crimen injuria is that it is the unlawful and intention impairment of another person's dignity and privacy.

Both offences share common threads which are important to bear in mind when plotting a course through this legal landscape. Generally speaking you are heading for trouble if you publish or otherwise speak about another person in such a way that your expression offends, demeans and generally undermines that person's dignity. Now, not every form of expression which achieves this is actionable defamation or crimen injuria but it is a helpful starting point. Another thing that is important to note is that even if a statement or publication is defamatory, there are a number of justifications available for defamation (although not so much in the case of crimen injuria). These justifications include the fact that the publication was true and in the public benefit; made in jest or sudden anger or fair comment.

There is a sense that because the Brady case concerns Facebook that this is a completely new set of circumstances and requires new law to address it. The social Web has brought with it a sense that the Internet is a lawless free-for-all where anyone can do anything with impunity. Unfortunately (or fortunately, depending on your perspective), this is not the case at all and, as I pointed out in my article on the topic on my firm's website, the usual rules apply to these changing circumstances (although I do expect to see the law develop to more fully cover these new media).

So what can you do to avoid being locked up or being sued for everything? To begin with, don't click "publish" if you have just unloaded all your frustration and anger in the heat of the moment. Sleep on it, tone down the language and try stick to verifiable facts. If you are going to express your opinion (and a lot of what you see online these days is opinion), make sure people understand it is your opinion and keep it balanced and fair. Just because you can destroy someone's reputation, doesn't mean you can or should.

Remember that this doesn't just apply to Facebook Wall posts and blog posts, it also applies to comments you may leave on a website or messages you may post on services like Twitter or send by email. Although not a material factor, the size of the potential audience is also relevant because it magnifies the likely harm. It may seem gratifying to tell all 600 of your Twitter friends what a reprobate your former best friend is but the reality of a summons or a pair of handcuffs tends to put that moment of inspiration into perspective.

To quote some movie character: "Be cool"!

Given the more stringent test the press must pass when faced with a defamation claim, bloggers should be cautious before claiming the controversial title "citizen journalists".

The tremendous increase in the number of blogs in recent years has, to a degree, given rise to a call for bloggers to be recognised as an extension of or part of the press. After all, so one argument goes, bloggers report on events, express opinions on those events and otherwise conduct themselves as pseudo-journalists. Therefore they should be granted the same recognition and access as the press. To a degree this argument has merit and there are a number of bloggers who function as journalists, often despite not being formally trained as such. Bloggers often specialise in specific areas of interest and may be in a better position to report on relevant issues. We have even seen tremendously popular and effective group blogs emerge on the Web which arguably produce more relevant and engaging news than traditional media. These sites include The Huffington Post and Om Malik's network of blogs. Sites like these present high quality content and are frequently not bound by the production schedules that hamper traditional media production so they are more nimble and report on current events faster than their traditional counterparts.

The one challenge facing these sites is that their bloggers may be unfamiliar with the norms and rules that govern and guide journalists. These norms and rules deal with fact checking, multiple sources and so on. These norms and rules serve a valuable purpose and, theoretically, help keep stories objective and accurate. The press is position to exercise a fair degree of influence on the public in general and this position of influence was one of the factors guiding the courts' approach to the press' liability for such things as defamation. As blogs become more prominent and influential themselves (in many respects blogs are more influential than the traditional press), the same considerations would surely apply to bloggers. Bloggers could be found liable for defamation where they are negligent in their reporting and this means that bloggers should take the same (if not more) care as their traditional journalist counterparts in researching, writing and publishing their stories.

Newspapers who have bloggers posting to their websites are already blurring the lines between bloggers as amateur writers and professional or quasi-professional journalists. In these case there is likely to be little doubt that these bloggers will be held to the same test as the journalists they share the spotlight with. On the other extreme will be those bloggers who post purely for personal reasons and express personal opinions. Hopefully we will see a test emerge from our courts to cater for the range of influence bloggers exert and the tests they should meet when determining liability.

One thing to bear in mind is that the law of defamation is probably well developed enough to address this issue and what we need is a more creative application of the law to the new circumstances bloggers present.