False Tweets: Free Speech Or Criminal Act?

False tweets can be against the law in several ways. Twitter defamation, for example, occurs when a tweet contains a false statement, is communicated to a third party, made with negligence, and damages the plaintiff's reputation. In the UK, a series of tweets that cause psychological damage can also be considered a criminal offence. Tweets that infringe copyright law, threaten harm, or promote violence, harassment, or abuse can also be used as evidence in court. Additionally, under UK law, two or more tweets that cause alarm or distress may amount to harassment, while tweets that damage another's business through false statements can offend the law against malicious falsehood. In the United States, retweets that spread false information can also be considered libelous, even if the user is unaware of the statement's falsity.

Defamation and libel

False tweets can be against the law under certain circumstances. Defamation is a legal term that covers both slander and libel, and most defamation on Twitter is considered libel. Libel is a creature of common law, and in its early stages, the common law imposed a fault standard (i.e., malice) on libel claims to control the flood of defamation lawsuits.

For a tweet to be considered defamatory, it must include the following four elements:

• A false statement made about the plaintiff or victim of defamation
• The statement was communicated to at least one other third party
• The person making the statement was at least negligent when considering if the statement was actually true
• The false statement damaged the plaintiff's reputation

The normal laws of libel apply to Twitter publications, including the ability of the defendant to raise various defences, such as the defence of truth or honest opinion (sections 2 and 3 of the Defamation Act 2013). The remedies for libel and slander are the same, and can include removal, an apology or clarification (e.g., pinned to the defendant's Twitter feed for 14 or 28 days), damages or compensation, and an undertaking not to repeat.

In the United States, public figures must prove that a defamer acted with actual malice when publishing a false statement. Public figures and officials have a higher burden of proof to meet in defamation cases as they are considered to have "positioned themselves at the forefront of society" for open debate, criticism, and commentary. For example, in a case involving Courtney Love and her former attorney, Rhonda Holmes, a jury agreed that Love's tweet was false and could have injured Holmes' professional reputation. However, the case was decided in Love's favour because Holmes could not prove that Love was aware the statement was false or that she acted with malice.

In another case, a federal appellate court revived a lawsuit involving U.S. Rep. Devin Nunes and a tweet published containing an allegedly defamatory Esquire Magazine article about his family's dairy farm. The case was initially dismissed in 2020 on the grounds that the article was not defamatory, but the U.S. Court of Appeals for the Eighth Circuit remanded the case over secondary claims that the author, Ryan Lizza, committed defamation by tweeting out the article link in 2019.

In the UK, the Protection from Harassment Act 1997 provides that "if a reasonable person in possession of the same information would think the course of conduct amounted to or involved harassment", it is considered harassment. Two or more tweets would be necessary for a claim of harassment to be made, as it involves a 'course of conduct'. Harassing tweets could result in a claim for damages for anxiety or financial loss, fines, or imprisonment for up to six months. Additionally, tweets that cause psychological damage to another person may also offend UK criminal law, and criminal sanctions would apply in these cases.

Harassment

False tweets can be considered harassment under UK law, specifically the Protection from Harassment Act 1997. This legislation states that if a "reasonable person in possession of the same information would think the course of conduct amounted to or involved harassment", then it is classified as harassment. This means that if a series of tweets causes psychological damage to another person, it may be considered a criminal offence.

For a tweet to be considered harassment, it must be part of a “course of conduct”, which means that a single tweet is not enough to constitute harassment. However, two or more tweets can be considered a course of conduct and thus may result in a claim for damages, fines, or imprisonment of up to six months.

Harassing tweets can also result in a claim for damages or criminal charges if they infringe on copyright law, for example, by reproducing someone else's work without consent. Additionally, combining a hashtag with someone else's trademark can result in trademark infringement.

If you are being harassed on Twitter, it is important to report it to the police, especially if you feel threatened or fearful. In some cases, the police have been able to approach the Twitter user and serve them with a formal harassment notice. It is also advisable to seek legal advice from a lawyer specialising in social media law, who can help you understand your legal options and protect your reputation.

It is worth noting that Twitter itself does not typically intervene in disputes between users, except in cases of targeted abuse or harassment that may violate Twitter's rules. Therefore, it is often necessary to take legal action to have defamatory or harassing content removed from the platform.

Malicious falsehood

False tweets can indeed be against the law. Twitter defamation, or Twitter libel, is a growing problem as social media platforms become more popular. A tweet may be considered defamatory if it includes the following four elements:

• A false statement made about the plaintiff or victim of defamation
• The statement was communicated to at least one other third party
• The person making the statement was at least negligent in considering whether the statement was true
• The false statement damaged the plaintiff's reputation

However, the First Amendment protects the right of others to express themselves, even if you do not like what they have to say.

In addition to defamation, false tweets may also be considered malicious falsehood, slander of goods or title, or injurious falsehood. Malicious falsehood claims are sometimes made in tandem with, or as an alternative to, defamation claims. The main difference between the two is that a claimant in a malicious falsehood claim is not required to prove damage to their reputation. Malicious falsehood claims are more difficult to pursue than defamation claims, and damages tend to be lower. A typical situation in which a claim for malicious falsehood arises is where one competitor has made an untrue statement about another's goods or services, intending to cause the competitor financial loss.

Other legal risks of false tweets include copyright infringement, trademark infringement, assault, and intimidation.

Copyright infringement

False tweets can be against the law in certain circumstances. Defamation law, for instance, requires a false statement to be made about the plaintiff or victim, communicated to a third party, with at least some negligence, and damaging the plaintiff's reputation. Twitter defamation can wreak havoc on one's personal and professional reputation. In one case, celebrity Courtney Love was sued for defaming her former attorney, Rhonda Holmes, on Twitter.

Now, turning to your specific question about copyright infringement, it is indeed possible for false tweets to violate copyright law. Tweets are generally considered copyrightable material and can be protected by copyright law. Twitter's Terms of Service state that users retain the rights to any content they post or display, but they also grant Twitter a license to use and distribute that content to the rest of the world. This means that while you own the copyright to your tweets, you also give Twitter and other users the right to copy and redistribute your posts through retweets.

However, the copyright protection of tweets has certain limitations and nuances. For a tweet to be protected by copyright, it must meet specific criteria. The content must be original to its author and possess at least a minimal amount of creativity. Simply listing facts or a single word or short phrase is typically not enough for copyright protection. Additionally, the copyright owner must be identifiable, which can be challenging when dealing with embedded tweets or images within tweets.

It is important to note that Twitter does not modify copyright law and cannot create a property right that does not already exist. The copyright of a tweet is determined by the laws of the country, such as the United States Copyright Act, and the interpretation of those laws by the courts. Therefore, understanding whether a tweet infringes on someone's copyright can be complex and may require legal expertise.

Intimidation

False tweets can be against the law under certain circumstances. Defamation law, for instance, requires the presence of four elements: a false statement about the plaintiff or victim, communication to a third party, negligence in considering the statement's truth, and damage to the plaintiff's reputation. Twitter defamation cases have been brought against celebrities like Courtney Love, who was sued by her former attorney, Rhonda Holmes, for a defamatory tweet that allegedly harmed Holmes' professional reputation.

In addition to defamation, false tweets can also lead to claims of harassment, malicious falsehood, copyright infringement, trademark infringement, and fraud. For instance, the UK's Protection from Harassment Act 1997 considers the publication of words that cause alarm or distress as harassment, and two or more harassing tweets can result in claims for damages, fines, or imprisonment. Similarly, tweets that cause psychological damage or amount to intimidation by coercing someone into doing something for which they suffer loss or damage can also be unlawful under UK criminal law.

While the First Amendment protects freedom of speech, it is important to note that there is a distinction between protected speech and "true threats." The Supreme Court, in the case of Elonis v. United States (2014), reviewed the conviction of an individual who made threatening posts online and considered whether the defendant's awareness of the threatening nature of their communication was necessary for a conviction. The Court's decision provides guidance on distinguishing between protected speech and unlawful intimidation.

In summary, false tweets can be against the law in several ways, including defamation, harassment, intimidation, and fraud. The legal consequences can vary from civil claims for damages to criminal charges, fines, or imprisonment. It is important for Twitter users to be mindful of the potential legal implications of their tweets and to ensure that their speech does not cause harm or violate the rights of others.

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