With 140 characters at a time, Twitter is presenting new challenges to journalists

Experts point out same legal and ethical rules apply to new reporting tool
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Ron Sylvester, who witnessed his newsroom’s switch from typewriters to computers, likes to tell the story of when he realized that everything in journalism had really changed.

In 2008, The Wichita Eagle reporter was covering the murder trial of a young girl when he encountered her grieving mother in the courthouse elevator. The veteran reporter nodded his head in acknowledgement, and kept his mouth shut — giving the family privacy, he calls it.

The woman looked at the reporter and asked him a simple question.

“How’s your knee?,” she asked Sylvester, who recently posted on his Twitter that he was having knee problems and would soon undergo surgery.

“At that moment, I felt like I was more than the reporter who was covering how her daughter died this horrible death,” he said. “I wasn’t just a byline. I was a real person.”

Sylvester had entered the world of Twitter — where journalists are considered people, too. Reporters are now easily accessible, full of random observations in courtrooms, posting family pictures on weekends and ready to engage with readers criticizing their stories. And if you want to know their favorite lunch place when they’re covering the school board, a reporter has likely tweeted that, too.

But some reporters also are entering a world where, despite years of carefully avoiding libel and defamation suits, they are now dancing perilously close to the edge and just one press of a button away from publishing to readers without even a cursory read from an editor.

With Twitter, “you don’t have to go through an editor, and people don’t realize that what you say has ramifications,” said Bradley Shear, a Washington, D.C.-based lawyer who specializes in social media law and also runs the blog shearsocialmedia.com.

“What people don’t realize is that everything you do and say online is always going to be there,” he said. “Once you put something online, it’s almost impossible to ever delete it.”

Here’s an easy way to truly understand the gravity of a Twitter lawsuit: when asked why you can’t just delete a tweet if someone is threatening to sue, Shear said that it can be seen as “destruction of evidence.”

While Twitter lawsuits in the media world aren’t necessarily experiencing a meteoric rise, there have been a number of cases this year alone that continue to remind journalists and bloggers that their public stream of consciousness is subject to legal standards.

Earlier this spring, a veteran NBA referee sued the Associated Press and one of its sports writers for $75,000 in damages and a court order to remove a tweet that suggested the referee intentionally made a bad call.

A few months later, a Portland blogger was sued by a medical spa doctor for defamation. The $1 million lawsuit, which was dismissed in October, was believed to be Oregon’s first Twitter libel suit and could have been the nation’s first to go to trial, according to The Oregonian.

And then there’s rocker Courtney Love’s back-to-back Twitter defamation suits this year alone, which shows that false, public name-calling on the Internet can get really expensive.

But beyond a list of cases, and in the age of Brangelina and TomKat, nothing says more that you’ve arrived than the crowning of a nickname —- meet Twibel.

Defamation and libel

Can you defame or libel someone in 140 characters or less? It took about $430,000, but surely Love would say yes.

In 2009, the singer and actress unleashed a torrent of insulting tweets about a fashion designer who said that Love owed her money for some clothes. Love’s roughly 40,000 followers read how Dawn Simorangkir allegedly stole from the singer, lost custody of her child, had a criminal past and was a drug-pushing prostitute.

Simorangkir sued Love for defamation and said the tweets damaged her reputation and destroyed her career. Love settled with the designer and paid her $430,000. Had it gone to trial as it was scheduled earlier this year, it would have been the first to test if social media platforms, such as Facebook and Twitter, can be held to the same libel standards as traditional news media.

In May, Love was sued again for defamation when she tweeted that a San Diego attorney who represented her in a lawsuit involving the estate of her late husband, Kurt Cobain, was “bought off.” In September, California Superior Court Judge Ramona See limited the defamation suit against Love, but allowed the main claim— that attorney Rhonda Holmes may have been libeled and that a tweet can be a statement of fact, and not just an opinion — to move forward.

Shear said that it’s easy enough to understand how to avoid libel and defamation on Twitter. “You take the law as is, and you apply it to new mediums,” he said.

A quick lesson in libel and defamation: libel occurs when a false and defamatory statement about an identifiable person is published to a third party, causing injury to the subject’s reputation. Each state creates its own body of libel law, although the First Amendment requires plaintiffs or prosecutors to prove fault before a news organization can be held liable for defamatory communications.

In general, the courts consider six different legal elements in libel cases: the defamatory nature of the communication, how it was published, the truth or falsity of the claims, whether it is “of and concerning an individual,” reputational harm caused and the degree of fault.

In Twitter, the same rules apply, Shear said.

But what’s interesting about Twitter is that while a newspaper might not be able to give exact numbers as to how many people read an alleged libelous statement, Twitter lists the number of followers on someone’s page.

Love, who has since taken down her Twitter account, reportedly had 40,000 followers — meaning at least that many people would receive the tweets in question, although it’s not possible to know how many actually read them. When assessing potential damages to someone’s reputation, lawyers can also look at the number of times a particular statement is “retweeted” — similar to forwarding an email.

Julie Hilden, an attorney who writes about First Amendment law on Justia.com, wrote an article about Twitter and the law. According to Hilden, another thing to watch out for on Twitter is the prevalent use of slang, which can be easily misinterpreted. The limit of 140 characters on tweets and the casual nature of the medium itself makes slang more commonplace in Twitter, she said.

Hilden gave an example in her legal analysis that a tweet can call a particular person “a ho.” But does it mean the particular person it’s written about is actually a prostitute, which if it’s false is “very, very defamatory?” she asks.

“Or, does it mean that she’s promiscuous . . . or, might it simply mean that the person is making an inside joke based on, say, a too-revealing outfit, but a joke that some followers might mistake as being true statement or fact?” Hilden writes. “The ambiguity on Twitter is constant — and also, from a libel law perspective, dangerous.”

Twitter training

Jack Barry, the assistant managing editor for interactive media at the Chicago Sun-Times, said the newspaper understands full well the benefits — and dangers — raised by Twitter. But when the newspaper realized that Twitter could enhance a reporter’s ability to transmit news immediately — and directly — to thousands of readers, “we encouraged our reporters and columnists to use Twitter,” Barry said.

The newspaper started a social media training program and is now in the process of rehashing its social media policy — not just for reporters, but for all newspaper employees including marketing and circulation, he said. There’s also a lot of informal training such as one-on-one discussions between editors and reporters about their Twitter accounts as well, he added.

“It’s just as easy to libel someone on Twitter as it would be on print,” Barry said. “Any of us in the media needs to be conscious of the fact that anything you do online — Twitter, Facebook, your personal blog — will reflect back on you, your personal brand and your news organization.”

Kelly McBride, senior faculty for ethics at the Poynter Institute, said Twitter is such a significant addition to journalism that Twitter training (ideally, never to be called Twaining) is offered in almost every seminar the school teaches under the headline “digital skills.” Training sessions include a how-to, proper attribution, Twitter etiquette and legal issues. The Poynter Institute, a training center for journalists in St. Petersburg, Fla., also receives requests from news organizations to train employees on Twitter, she said.

Twitter “requires a new sets of skills,” said McBride. “For example, the ability to self-edit. It’s obviously not the same level of quality control that newspapers put into the printed product.”

McBride said she also believes that not every reporter or editor in the newsroom necessarily needs to be tweeting.

“In some newspapers, there are reporters who are not allowed to blog or tweet and usually those people are identified as those who shoot off their mouths and those who cannot save themselves from themselves,” McBride said. “I encourage newsroom managers to think who these people are who they know will get in trouble, and offer them the training that they need to go through the critical thinking process required before posting.”

But when reporters get in trouble, McBride said, it’s not always a Twitter-thing. Sometimes it’s a journalism-thing, as in the case of the NBA referee suing The Associated Press and sports writer Jon Krawczynski for defamation.

According to court documents filed by William Spooner’s attorney, the plaintiff was refereeing a game on Jan. 24 between the Minnesota Timberwolves and the Houston Rockets when the sports writer defamed him in a tweet.

Spooner had called a foul against a Timberwolves player and Coach Kurt Rambis contested the call. According to the court documents, Spooner told the Timberwolves’ coach that he would review it at halftime and the coach said that was fine, but asked how he was supposed to get the points back.

Spooner did not reply, according to the filing. Krawczynski sent out this tweet:

“Ref Bill Spooner told Rambis he’d ‘get it back’ after a bad call. Then he made an even worse call on Rockets. That’s NBA officiating folks.”

In court documents, Spooner’s attorney noted that the tweet came in the aftermath of the Tim Donaghy affair, a former NBA referee who was convicted in August 2007 for betting on games he officiated and making calls affecting the point spread in those games. According to the filing, Spooner believed that Krawczynski’s tweet “stated and implied that Plaintiff was then engaged in fixing the game.”

The Associated Press has stood by the tweet. “We believe all the facts we reported in our coverage of that game, in all media, were accurate,” Associated Press attorney Dave Tomlin told ESPN.com.

In this situation, McBride, who also serves as an ombudsman to ESPN as part of the Poynter Review Project, said it’s “not a Twitter problem.”

Krawczynski “could have easily reported that on the wire and he was there,” McBride said. “He said he heard it. The ref is saying, ‘no, I never heard it.’ That’s really a who-got-it-wrong kind of thing — which has nothing to do with Twitter.”

And the round of experts, in general, say that there is seldom a media law problem that is unique to Twitter.

“You need to keep in mind the same sort of ethical and legal requirements that you would if you were going to write a story for the newspaper,” said Barry, the assistant managing editor at the Chicago Sun-Times. “This is a different medium. But it doesn’t mean you stop being a journalist because of it.”

Paul Jones, a journalism professor specializing in social media at the University of North Carolina at Chapel Hill, said reporters who are trained well should have skills that will keep them out of trouble in the Twitter world.

“I think if you train journalists on how to deal with breaking news, then they are probably good on any kind of media,” said Jones, who always prefers to tweet people instead of emailing them. “At any point you can be pulled in front of a camera or you can be on air during a ballgame — same thing on Twitter.”

At Chapel Hill, journalism students are taught about defamation in general, which they are expected to apply in whatever reporting tool they use, Jones said.

Jones and Shear, the social media attorney, both said the libel and defamation laws for print and broadcast are the same for social media.

“The same rules that apply in traditional media also apply in social media journalism,” Shear said. “Unfortunately, some people seem to think the online world has different legal rules than the real world. In my experience, it appears that since people can tweet or post online from the comfort of their own home, they don’t always take the same precautions that they may do so if they are tweeting in a professional setting.”

Ron Sylvester, the Wichita Eagle reporter, has earned a reputation as one of the first reporters to use Twitter well. Other newsrooms have hired him for training sessions on Twitter, and he is nearly a regular at the Society of Professional Journalists’ annual convention giving training talks on social media.

Sylvester admits that while the rules are the same, Twitter is still a different beast.

“It’s difficult,” said Sylvester who has over 2,700 followers. “It’s difficult to do and do well. But what I’m doing on Twitter is very similar to any other story I would write. I don’t tweet everything and I use a reporter’s eye and give people the info they need.”

“You won’t see me go OMG or WTF when covering a trial,” he said, laughing. “I don’t interject editorial comment. I use Twitter to distribute news, but I still try to maintain journalistic integrity in my reporting.”