November 27, 2012

Expect to be Sued for Damaging Retweets: Maybe it's time for Internet Insurance


Here is the issue: In England, there are apparently aggressive rules against libel. The BBC released a false story about a politician abusing children. This story was tweeted and then massively retweeted, clearly doing damage to that politician, who will likely be remembered falsely for these acts, and given the memory of the Internet, have a hard time cleaning up his reputation.  

This politician has apparently collected settlements from the BBC and other broadcasters who repeated the story and is not going after the thousands of Twitter users who retweeted the false news. With folks with less than 500 followers, they’re asking for a donation to charity. For those over 500 followers they want more. 

Jonathan Zittrain argues in the Financial Times that going after Twitter users for retweeting something they believe to be true shouldn’t be allowed, because individuals don’t and aren’t expected to check facts as are news organizations. And going after Twitter doesn’t make sense because it would cost Twitter too much and the result would likely be disconnecting Twitter from the U.K.  

Now I agree with the Twitter part, because that would result in sharp censorship and become a problem. But I wonder about the Twitter users. Much like you can be held liable for a panic for falsely screaming “fire!” in a crowded room, I think it likely that you might be held liable, and maybe should, for spreading a rumor electronically that was false. Let me explain.

Internet Insurance

We are moving to a time when we may need Internet Insurance. You see intent really only plays to punitive damages when you’re sued for doing damage to someone’s person or their property. If you intentionally run someone down with your car, you’ll pay the medical fees, punitive damages, and likely spend a good chunk of your life in jail, but if your car accidentally rolls down the hill and kills someone you’ll still be liable for the injuries they sustained, and you might even get hit with penalties for negligence even though you never intended to hurt them. 

This goes to the core of the legal system in place in most western countries and particularly the U.S., where if damage is caused by you, something you own, or someone you are responsible for, you are responsible financially for making it right.

Doing it accidentally only lowers the extra penalties; it doesn’t remove the burden.  

Now we typically have insurance that covers this. Homeowner or auto insurance has provisions to cover our mistakes and accidents. The only real out is if it is an act of nature, say a hurricane picks up your car and deposits it on someone else’s house, generally you aren’t responsible, but arguing Twitter or Facebook are acts of nature would be foolish.  

Now in the case of the BBC problem, you could argue that the BBC did intentional damage and should be fully liable for the result, and this would be the case had we been in the old days where folks only got TV, Radio and Newspapers. But individuals aren’t printers; they can think and they did think before retweeting. So if you wanted to keep damage like this from occurring, the only ways would be to either force Twitter, through liability, to police all the Tweets, or to hold users accountable.  

Therefore, assuming the courts eventually agree (clearly in the U.K. the courts support this, you’d need Internet Insurance to protect you should a retweet land you in trouble – and maybe that’s a good thing.  

You May Be Liable 

Now if people were held accountable, they would likely avoid repeating bad information, even if true, about individuals or companies. If you can’t trust an agency like the BBC, there is likely no agency you can trust. Now you could certainly tweet about things that you personally observed, but clearly the person or agency could take you to court if they were damaged and you’d have to defend your comments, this isn’t new, it’s the way liable works.  

Now in the U.S., we have the aspect of intent to do harm, which typically protects the individual who blindly repeats something they heard. But in politics or even in personal life, what if the politician is from the other party or the person we defamed was accidentally someone we didn’t like? Put a different way, if you got a damaging tweet from someone you liked, would you retweet it? I don’t think I would and if you’re like me this implies intent. 

In fact that protection, called absence of malice, may be far harder to use if your Twitter history is brought in as evidence.   

Wrapping Up: The Web Shouldn’t Be Your Enemy

Until you are on the wrong side of one of these events, you have no idea how damaging they can be. A while back I spoke with a reputation protection firm and the cost in time and money to fix your reputation when an event like this happens can easily range in the triple digits and still be inadequate.   Politicians are on the short list of people who are most likely to be damaged and politicians can create laws so I would anticipate a future where you may be successfully sued for something you either originated or repeated.   

The end result could be your own reputation could be better protected as a result. In the end, this move in the U.K. is likely the canary in a coal mine with regard to activity like this. Attorneys see this kind of a trend as a revenue opportunity, and if it is successful in the U.K., or maybe even if it isn’t, I expect it will move to other countries shortly. You may want to think of this when you renew your insurance and the next time you blindly retweet.   




Edited by Braden Becker



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