Sunday, May 3, 2009

Can you really libel someone in 140 characters or less? Tweeter!

Tweet this: You're being sued

Garry Marr, Financial Post Published: Friday, May 01, 2009

Can you really libel someone in 140 characters or less?

The short answer, you could quickly tweet, is yes. The first libel suit against a Twitter user was launched in March, in the United States. It joins a growing class of suits against bloggers, message-board posters and social network users.

The message is, there is nowhere to hide if you've posted something that is defamatory or has infringed on somebody's copyright. Worse, you could end up personally liable for millions of dollars - a trend that may force consumers to think about buying liability insurance to protect them from their online words.

"I think many people are unaware of the risks they are taking," says Amy Denise, editor of "It's just so easy to get angry and lose control of what you say on the Internet."

In the case of the first lawsuit, notorious rocker Courtney Love is being sued by designer Dawn Simorangkir, also known as Boudoir Queen, who alleges Ms. Love made defamatory comments about her in a tweet.

While Twitter is new ground, lawsuits related to blogs are on the rise. The New York-based Media Law Resource Center says it is tracking 258 Web-related U.S. lawsuits, a sharp increase from 110 a year ago. Some of the lawsuits involve defamation, others deal with copyright infringement or fake profiles on social network sites such as MySpace and Facebook. The majority of Internet-­related lawsuits are connected to blog postings, says Eric Robinson, a staff lawyer with the Media Law group.

A year ago, blog lawsuits were a novelty, but they have been growing quickly. And so have the resulting awards - one as high as US$12.5-million. "The Internet was the Wild West, but now the sheriffs are coming in," Mr. Robinson says.

Part of the problem with the Internet is you have a lot of amateur gunslingers firing away at targets and they have no idea they could be liable for the damage they inflict, says Robert Cox, president of the New Rochelle, N.Y.-based Media Bloggers Association, which has about 2,000 members.

His group has helped establish an insurance plan for bloggers who might not be covered under their existing personal liability polices. Many bloggers who thought they had coverage soon discover that because their blog has revenue it is considered a commercial product and therefore is not covered by their personal liability insurance.

Another problem, Mr. Cox says, is that the insurance industry is realizing it has not built in proper risk models to account for the exposure to major lawsuits.

His group worked with a company called Media Professional Insurance on the blog plan. The company typically deals with larger entities such as newspapers, but was able to graft a policy for bloggers in September, 2008. The base rate is US$540, with coverage of US$100,000 per incident, or a US$2,500 deductible for US$300,000 coverage per year.

In Canada, insurance companies are still covering bloggers for their actions on the Internet, although the coverage sometimes means the insured need to have additional "umbrella" policies that cover their actions beyond the traditional liability policies they might have on their homes.

"If you have insurance, there is a good chance you are covered," says Henry Blumenthal, vice-resident and chief underwriter with TD Insurance. But he adds the umbrella policy is coverage that his company tacks on to the basic liability.

The umbrella coverage was not designed specifically for the Internet age, but to give people extra liability above and beyond the

$1-million in insurance they might have on their home or car.

While TD Insurance has not faced any libel claims, over the years it has defended clients who have faced slander charges. "It's extra peace of mind," he says, adding in the Internet age the policy will likely increase in popularity.

Perhaps even scarier for Canadian bloggers is that the courts have suggested the damages for Internet libel might even be higher than they are for traditional media. One reason for that is because Internet defamation can be seen as having a greater potential for damage because it is more pervasive than traditional media

"The potential [for higher damage awards] is out there for a number of reasons," says Doug Richardson, a media lawyer at Toronto-based O'Donnell, Robertson & Sanfilippo.

In 2004, Barrick Gold Corp. successfully sued a message-board poster for defamation. The precedent-setting decision by the Court of Appeal for Ontario should make some Internet users think twice about what they write. While an initial judgment granted Barrick $15,000 in damages, the Court of Appeal upped it to $125,000.

"Communications via the Internet is instantaneous, seamless, interactive, blunt, borderless and far-reaching. It is also impersonal and the anonymous nature of such communication may itself create a greater risk than the defamatory remarks are believed," the court said in its Barrick ruling.

"If you're on Twitter, or any of those things, you are responsible for what you say," says Mr. Richardson, adding that as your tweet circles the world, the damage only increases.

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