Liability for defamatory statements in Twitter hashtag feeds

Brett Debritz asks an interesting question:

what if somebody were to tweet an extremely defamatory or racially offensive remark using the Nova-nominated hashtag and it ended up on the company’s website for a sustained period of time? What if somebody sued? Who would be responsible: the author (if they could be identified) or the publisher?

Different jurisdictions will answer this question differently.  In England (and probably Australia), the question is likely to turn on two factors: (1) whether the website operator is regarded as the “publisher” of the relevant statement; and (2) whether the operator had actual knowledge of the statement.  By analogy with Bunt v Tilley and DesignTechnica v Metropolitan Schools & Google, there is a strong argument that the “publisher” is the person who authored the defamatory statement and caused it to be posted to Twitter.

Although Byrne v Deane suggests that someone who controls a facility (in that case, a bulletin board in a club house) to which defamatory material has been posted can be liable for its dissemination, there is little that a website operator can do to control the flow of comments in a Twitter hashtag feed: short of removing the feed widget entirely, tweets cannot be deleted and what shows up there is entirely within the purview of tweet authors and Twitter.  Whether Twitter faces liability is a more complicated question, and is likely to start implicating questions of safe-harbours under the E-Commerce Directive.

As to the second question, it is plausible that once the website operator has been notified they may become liable as a joint tortfeasor (or publisher) if they fail to remove the defamatory material within a reasonable period.  To the extent that the website is treated as a publisher of the material, actual or constructive notice would also preclude reliance on an innocent dissemination defence.  Upon receiving notice, the website operator would probably be required to remove or block access to the entire Twitter widget.  While this may seem disproportionate, there doesn’t appear to be any way to prevent the display of individual tweets - unless of course Twitter removes them directly.  The level of notice required, and the period of permissible delay, remain unclear, but existing case law (at least in England) suggest that some leniency is likely to be offered — particularly where the website operator acts with reasonable diligence and propriety.