Social media is important to publishers; now more than ever. We all know that. Something else we all know, is that an understanding of Twitter, tweets, and re-tweets these days is as important to news reporting as the more traditional news mediums.
Something that is not so clear, though, is the legal position surrounding a re-tweet. In particular, it’s not apparent whether a re-tweet is considered a “fresh publication” for the purposes of defamation, or not.
The position seems to be that in the UK an individual who re-tweets a tweet is not immune from legal action simply because the poster is not the original author or publisher of the defamatory statement. If the “re-tweeter” has a significant number of followers of their own, the republication of the statement can cause a significant amount of additional serious reputational harm to the subject, and therefore can be sufficient to give rise to a new claim in libel.
But because the matter has not yet been tested in the courts, there can be no certainty that this is actually the law. And as ever, each case will depend on its own circumstances.
On the other side of the Atlantic, a very interesting decision has emerged from the 8th Circuit Court of Appeals, a federal court that has jurisdiction over several central states.
Many of you will already know that there are noticeable differences in the way that defamation is approached in the UK as opposed to how they view things across the pond. The right to freedom of expression that is enshrined in the US constitution allows a lot more room for manoeuvre in terms of what can be said without fear of legal ramifications. Yet, in this instance, we are looking at a potential similarity that could aid UK publishers in clarifying whether a re-tweet is indeed a re-publication and therefore, actionable in its own right.
The case in question concerns Representative Devin Nunes who brought a claim for defamation against journalist Ryan Lizza and publisher Hearst Magazine Media Inc. in relation to an article that Lizza had written for Esquire magazine concerning allegations of undocumented workers on the Nunes’ family dairy farm. The case was originally dismissed by the district court and made its way to the 8th circuit for reconsideration.
The court held that Rep. Nunes had failed to prove the elements of a US defamation claim (a story for another day…) based on the initial publication of the article in 2018. However, and this is where it gets interesting, it added that the threshold had been crossed when, after the claim had been filed, Lizza re-tweeted the original article.
The Judge defined a re-tweet as a “separate aggregate publication on a different occasion” and pointed out that such postings are inevitably going to reach a new group of readers. It was also highlighted that in the act of re-tweeting, there is of course an inherent intention to widen the spread of the post.
On this analysis, the re-tweet was clearly capable of forming the basis of a separate cause of action. It was held that Mr. Lizza had “consciously presented the material to a new audience” and therefore that the decision to dismiss the case should be, in part, reversed and permitted to continue in the district court
Whilst this judgment has no practical effect on UK law, or how re-tweets are viewed in the context of the publication of defamatory statements, it may be an indication of how the UK judiciary may consider the issue if, or perhaps when, it arises in the UK courts.
The decision in Nunes v Lizza has been heavily criticised by academics and free speech activists, and it may be that this judgment will be overturned on appeal. But if it is upheld, it will be interesting to see if this noteworthy aspect of publishing law makes its way across the Atlantic.
But for the time being, UK journalists can continue to tweet without having to worry about events in the US Federal Courts system. But it’s an interesting conundrum, nonetheless!